The UNCITRAL Model Law after Twenty-Five Years: Global Perspectives on International Commercial Arbitration - Chapter 11 - Judicial Internationalism and the Interpretation of the Model Law: Reflections on Some Aspects of Article 2A
Frédéric Bachand is an Associate Professor of Law at McGill University, where he teaches in the areas of legal interpretation, extrajudicial dispute resolution, international investments, civil procedure, and civil evidence. His award-winning scholarship focuses on arbitration, with a particular emphasis on the role national courts play in the arbitral process. He holds doctorates from Université Panthéon-Assas (Paris I) and Université de Montréal, and a master’s degree from Cambridge. A member of the Quebec Bar since 1995, Professor Bachand acts as a consultant internationally in connection with numerous judicial proceedings relating to domestic and international arbitration. He has provided advice to many state entities, notably in China, Russia, Vietnam, Turkey, Haiti, Rwanda, Burkina Faso, the Central African Republic, Bangladesh, South Sudan, and Egypt, in relation to judicial training or law reform initiatives in the fields of international arbitration and private international law. Frédéric Bachand is one of three experts retained by the United Nations Commission on International Trade Law to contribute to its Digest of Case Law on the Model Law on International Commercial Arbitration. He is a National Correspondent for the CLOUT case reporting project.
How should judges interpret the Model Law? Somewhat surprisingly, this important question was not addressed in the original, 1985 version of the Model Law. The surprise stems from the fact that, by 1985, several transnational normative instruments—including some prepared by UNCITRAL itself-contained a provision drawing the interpreter’s attention to the importance of having regard, among other factors, to the instrument’s international origin and the need to promote uniformity in its application.1 The message underlying such provisions is clear. The normative instruments in which they are inserted do not merely seek to put in place a harmonized legislative framework; rather, they aim to establish a harmonized legal framework. Because identical legislative provisions can be applied differently depending on the interpretive approaches being deployed, and because interpretive approaches are by no means uniform across legal traditions and jurisdictions, it is essential to the achievement of the ultimate objective being pursued that the process of interpreting transnational normative instruments be—as much aspossible—subjected to uniform rules and that those rules require judges to engage in what has come to be known as judicial internationalism.2
PART V: HARMONIZED INTERPRETATION IN THEORY AND PRACTICE
Judicial Internationalism and the Interpretation of the Model Law: Reflections on Some Aspects of Article 2A