International Arbitration under the UNCITRAL Arbitration Rules: A Contractual Provision for Improvement
![handle is hein.journals/flr62 and id is 2237 raw text is: INTERNATIONAL ARBITRATION UNDER THE UNCITRAL
ARBITRATION RULES: A CONTRACTUAL
PROVISION FOR IMPROVEMENT
JOHN D. FRANCHINI
INTRODUCTION
The United Nations Commission on International Trade Law (UN-
CITRAL or Commission) developed the UNCITRAL Arbitration
Rules (Rules)' to arbitrate international trade disputes2 between coun-
tries with different legal, social, and economic systems.3 Currently,
many international privatization contracts provide that future disputes
will be resolved through binding arbitration under the Rules.4
The Iran-United States Claims Tribunal (Tribunal) has utilized the
Rules extensively.5 The Tribunal was created to arbitrate the almost four
thousand claims6 arising from the 1979 United States hostage crisis in
Iran.7 Despite the Tribunal's successful application of the Rules, the Tri-
bunal's experience has also highlighted the Rules' inherent weaknesses.8
These weaknesses, or ambiguities, are present in the articles of the Rules
discussing: representative capacity,9 the binding effect and content of
the statement of claim, '0 justifications for extending filing deadlines, the
appointment and challenge process of arbitrators,2 the scope of discov-
ery,13 the permissible uses of rebuttal and expert witnesses,4 and the ex-
1. See Stewart A. Baker & Mark D. Davis, Establishment of an Arbitral Tribunal
Under the UNCITRAL Rules. The Experience of the Iran-United States Claims Tribunal,
23 Int'l Law. 81, 81 n.1 (1989); Andrew G. Weiss, Note, The Status of the UNCITRAL
Model Law on International Commercial Arbitration Vis-a- Vis the ICC LCIA and UNCI-
TRAL Arbitration Rules: Conflict or Complement, 13 Syracuse J. Int'l L. & Com. 367,
371 (1986).
2. UNCITRAL, The United Nations Commission On International Trade Law at
28, U.N. Sales No. E.86.V.8 (1986) [hereinafter UNCITRAL Text].
3. See Weiss, supra note 1, at 371.
4. One example is a privatization contract for the sale of a Czech enterprise by the
Czech Republic (selling country) to a German Corporation (private foreign investor).
The contract provides for all disputes to be resolved through binding arbitration under
the Rules. See infra note 152.
5. See generally Charles N. Brower & Mark D. Davis, The Iran-United States
Claims Tribunal After Seven Years. A Retrospective View From the Inside, 43 Arb. J.,
Dec. 1988, at 16, 21 (describing the experience of the Tribunal in its first seven years).
6. See idL at 22; David P. Stewart, The Iran-United States Claims Tribunal: A Re-
view of Developments 1983-84, 16 Law & Pol'y Int'l Bus. 677, 683 (1984).
7. The majority of the claims were for breach of contract due to the hostile revolu-
tionary party expelling the American business people living in Iran. See id. at 19; infra
notes 57-64 and accompanying text.
8. See Baker & Davis, supra note 1, at 84.
9. See infra notes 79-84 and accompanying text.
10. See infra notes 85-96 and accompanying text.
11. See infra notes 97-105 and accompanying text.
12. See infra notes 106-26 and accompanying text.
13. See infra notes 127-30 and accompanying text.
14. See infra notes 131-36, 142-51 and accompanying text.
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International Arbitration under the UNCITRAL Arbitration Rules: A Contractual Provision for Improvement
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