COMMERCIAL ARBITRATION, LAW FACULTY, UCT

(SEPTEMBER-OCTOBER 2015)

ASSIGNMENT # 3 (UNCITRAL MODEL LAW)

MODIFIED FINAL VERSION (CLEAN)

Scenario 1

Facts:

You are a legal adviser to the Ministry of Trade (or equivalent government ministry) in your home country. The year is 1981, and UNCITRAL’s Working Group II on International Contract Practices convenes to determine its agenda for the coming sessions. Your government is currently a member of UNCITRAL Working Group II.

Certain members of the Working Group are concerned that the 1958 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“New York Convention”) is showing its age and should be amended or replaced. Other members of the Working Group disagree: they believe that adapting a successful treaty is a daunting notion, and that in any event there is a more fundamental need for harmonization in the practice of international arbitration, which should take the form of a Model Law.

Assignment:

On behalf of your government, write a letter to the UNCITRAL Secretariat in which you argue for either approach, or a combination of approaches. Your Ministry is particularly concerned about the lack of harmony in the approach of national court judges to the recognition and enforcement of arbitration agreements.
Note that for the purposes of Scenario 1 it is not necessary to refer to your own country’s actual arbitration legislation, either historic or current.

Scenario 2

Facts:

The year is now 2000 and the 1985 Model Law on International Commercial Arbitration (“Model Law”) has become a successful international instrument. UNCITRAL has, however, decided to update the text of the 1985 Model Law. Again, you represent your Ministry of Trade (or equivalent) at UNCITRAL Working Group II (now called Working Group II on Arbitration and Conciliation).
Assignment:
Write a short Addendum to your 1981 letter, again addressed to the UNCITRAL Secretariat on behalf of your government, in which you express your concern that the 1985 Model Law does not deal adequately with modern means of communication. Suggest (a) aspects of the 1985 Model Law that should be adapted to modern practice, and (b) ways in which the Model Law could be adapted.

Note that for the purposes of Scenario 2 it is not necessary to refer to your own country’s actual arbitration legislation, either historic or current.

UCT/Bosman/2015/modified final version page 1

Scenario 3

Facts:

The year is now 2015. Several years have passed since the United Nations General Assembly adopted the UNCITRAL Model Law as revised in 2006 and recommended its use to Member States. You have followed developments at UNCITRAL Working Group II and are concerned to ensure that your country has modern arbitration legislation.

Assignment:

Write a cover letter to the head of your country’s Ministry of Trade, enclosing your earlier letter of 1981, with its 2000 addendum, describing and evaluating the changes made to the Model Law in 2006 as they relate to the definition and form of the arbitration agreement.

Make a reasoned recommendation to your Ministry about whether your country should (a) adopt (or retain, as the case may be) the 1985 Model Law provisions on the definition and form of the arbitration agreement in its national arbitration legislation; (b) adopt the provisions as set out in the 2006 version of the Model Law; or (c) take a different approach.
(Having reference to your own country’s general contract laws, your advice should include a consideration of whether your national arbitration law should require an arbitration agreement to be made in writing, and if so, how that writing requirement might be satisfied.)

Note: For the purposes of Scenario 3, you should refer to your own country’s actual current arbitration legislation. If your own country has adopted the 2006 Model Law, however, you should assume that it has currently adopted the 1985 Model Law and is considering replacing it with the 2006 Model Law.

***

Suggested starting points for your research:

•    1958 New York Convention

•    UNCITRAL Model Law on International Commercial Arbitration (1985 and 2006 versions), as well as official UNCITRAL Commentaries by UNCITRAL Secretariat

•    UNCITRAL Working Group II on Arbitration and Conciliation 2000-present (http://www.uncitral.org/uncitral/en/commission/working_groups/2Arbitration.html)
•    UNCITRAL Working Group II on International Contract Practices 1981-2000 (http://www.uncitral.org/uncitral/en/commission/working_groups/2Contract_Practices.ht ml)

•    UNCITRAL Commission Session documents (http://www.uncitral.org/uncitral/en/commission/sessions.html)

Christian Education South Africa v Minister of Justice 2000 (4) SA 757 (CC), Prince v President of the Law Society of the Cape of Good Hope 2002 (2) SA 794 (CC) and MEC for Education, Kwazulu-Natal & others v Pillay 2008 (1) SA 474 (CC). For a discussion of these decisions and related matters, see: Paul Farlam ‘Freedom of religion, conscience, thought and belief’ in S Woolman, T Roux, J Klaaren, A Stein, M Chaskalson & M Bishop (eds) Constitutional Law of South Africa 2 ed (2003) (service 2) ch 41; Denise Meyerson ‘Religion and the South African Constitution’ in P Radan, D Meyerson & R Croucher (eds) Law and Religion (2005) ch 5; Patrick Lenta ‘Religious liberty and cultural accommodation’ (2005) 122 SALJ 3; Johan van der Vyver ‘The contours of religious liberty in South Africa’ (2007) 21 Emory International LR 77; Patrick Lenta ‘Muslim headscarves in schools and in the workplace’ (2007) 124 SALJ 296; Patrick Lenta ‘Cultural and religious accommodations to school uniform regulations’ (2008) 1 Constitutional Court Review 259; and Mark Kende Constitutional Rights in Two Worlds: South Africa and the United States (2009) ch 8
Supra note 1
Pillay’s case ibid para 101.