2015LEWISSDPhD.pdf (2.89 MB)
Testing the harmonisation and uniformity of the UNCITRAL model law on international commercial arbitration
thesis
posted on 2015-06-29, 14:43 authored by Stewart Dean LewisThe 1985 UNCITRAL Model Law attempts to introduce uniformity into the procedural
aspects of international commercial arbitration and has been adopted by 97
jurisdictions. This thesis tests the achievement of this objective in Australia, Hong Kong
and Singapore in respect of Article 34 (and its equivalent in the New York Convention
on the Recognition and Enforcement of Foreign Arbitral Awards) which empowers a
court to set aside an arbitral award. Uniformity in law is generally considered a matter
of function and degree, with absolute uniformity not being required for the achievement
of the appropriate degree of functional similarity. An internationalist approach to the
interpretation of the Model Law is expressed in Article 2A, which was introduced in
2006, although this was required from the outset.
The achievement of uniformity is tested by analysing how the legislators and courts
have implemented (textual uniformity) and applied (applied uniformity) the Model
Law. Significant textual dissimilarities are identified in how the three jurisdictions
adopt an internationalist approach and some potentially significant textual
dissimilarities in the adoption of Article 34/V. An analysis of over 300 cases shows, by
reference to internationalist norms (‘I-Norms’), that an internationalist approach has
been present throughout, but in particular in the last 10 years or so in Singapore and the
last 5 years in Australia. Applied uniformity is also tested by a method which identifies
principles of law which pursuant to the internationalist approach are able to be cited
cross border albeit not in a binding way (‘I-Ratios’ derived from International Ratio
Decidendi). This analysis demonstrates numerous citations of decisions from other
jurisdictions but few adoptions of their I-Ratios. The jurisdictions analysed are thus
shown to have achieved what can be considered to be a constantly developing degree of
textual and applied uniformity.
History
Supervisor(s)
Ahmed, Masood; du Bois, FrancoisDate of award
2015-06-05Author affiliation
School of LawAwarding institution
University of LeicesterQualification level
- Doctoral
Qualification name
- PhD