«ПЕРСПЕКТИВЫ РАЗВИТИЯ МЕЖДУНАРОДНОГО КОММЕРЧЕСКОГО
АРБИТРАЖА В УЗБЕКИСТАНЕ»
Сборник международной научно-практической конференции
10
Anselmo Reyes
Justice, Singapore International Commercial Court
https://doi.org/10.47689/978-9943-7818-6-3/iss1-pp10-12
UNIFORMITY AND DIVERSITY IN INTERNATIONAL COMMERCIAL
ARBITRATION LAW OF UZBEKISTAN
Fellow judges, Vice Rector, distinguished guests, ladies, and gentlemen. Let me
pick up a theme of capacity building that Christina introduced in her opening
remarks.
In developing countries, capacity-building among judges, lawyers,
policymakers, and other stakeholders will be an important means of maintaining
sustainable diversity in international commercial arbitration (ICA). In remarks
delivered at a Hong Kong University conference on arbitration reform in the Asia-
Pacific, which took place on 27 October 2015, Judge Renaud Sorieul, then
UNCITRAL Secretary, observed that the Model Law was not intended to set up
identical systems of ICA law globally. While the adoption of the Model Law can
ensure a degree of uniformity and harmonization among ICA regimes, there can
still be significant differences between one Model Law state and another.
It follows from this that to the question of whether diversity is possible or
sustainable in ICA, the answer must be “yes”. “Diversity” in the way that ICA is
regulated in different Model Law countries is certainly permissible. That is subject
only to any differences in the approach being “sustainable”. In other words, a
country’s ICA regime should not diverge so widely from the underlying principles of
the Model Law that the country cannot be characterized as a full-fledged or even
quasi-Model Law jurisdiction.
But there is more. Implicit in Judge Sorieul’s remark is the insight that
diversity is not merely something to be tolerated. Provided it is sustainable,
diversity is also something to be encouraged. It enables a jurisdiction (such as
Uzbekistan) to offer alternative approaches to ICA questions and thereby compete
with other jurisdictions, including well-established ICA jurisdictions, to become a
go-to seat for dispute resolution.
Unfortunately, the Model Law’s capacity for a diversity of approaches is often
overlooked in seminars or workshops to introduce ICA in countries that (like
Uzbekistan) have adopted, or in countries that are queueing up to adopt, the Model
Law for their ICA regimes. Stress is instead placed on uniformity or harmonization.
The potential for diversity is too frequently played down or even ignored. A reason
for this may be that there is a trade-off.
Highlighting the possibility of a diversity of approaches can lead to confusion
and obscure the message that there is a need for basic uniformity among Model Law
jurisdictions. Consultants and academics advising Model Law jurisdictions may thus
«ПЕРСПЕКТИВЫ РАЗВИТИЯ МЕЖДУНАРОДНОГО КОММЕРЧЕСКОГО
АРБИТРАЖА В УЗБЕКИСТАНЕ»
Сборник международной научно-практической конференции
11
feel that, in the first instance, when organizing capacity-building sessions for judges,
lawyers, and policymakers with little prior experience of ICA or the Model Law, it
would be better to focus on the need for uniformity. Sustainable diversity is
consequently relegated to a secondary consideration or frill, nice to have but not
strictly necessary, especially at the outset. It will therefore often happen that, in the
interests of efficiency and clarity, a diversity of approaches is left until later (if at
all), to a time when stakeholders have gained experience in dealing with ICA and
Model Law cases. I am not sure whether this is a wise course.
Many developing countries (like Uzbekistan) are currently reforming or
streamlining their ICA regimes in ambitious bids to attract greater foreign direct
investment (FDI) or market themselves as regional and quasi-regional dispute
resolution hubs or both. Achieving either goal will require that certain components
fall into place within a country:
(1)
The country will need to have acceded to the 1958 New York Convention.
(2)
The country will need to have revised its ICA legislation along the lines of
the Model Law.
(3)
The country should ideally have a national institution or international
center for the administration of arbitrations.
(4)
The country will need to ensure that it has judges who are knowledgeable
about ICA and able to handle efficiently applications made to the court in relation
to ICA matters.
(5)
The country should support a regular stream of activities (workshops,
seminars, conferences) to promote ICA among domestic and international
stakeholders (external and internal counsel, business community, and academics)
as a means of resolving disputes.
Of these elements, critical ones for ensuring the continuing development of ICA
in a jurisdiction are components (3), (4), and (5). Today’s conference on the
Prospects of the Development of International Commercial Arbitration in
Uzbekistan is an example of component (5). But, as a judge, I would like to say a
few words about component (4) and sustainable diversity.
There are essentially five functions in which a country’s judiciary will be called
on to support ICA. The five functions are:
(a)
the enforcement of arbitration agreements;
(b)
the review of arbitral tribunals’ rulings on their jurisdiction;
(c)
the granting of interim measures in support of ICAs;
(d)
the setting aside of arbitral awards;
(e)
the recognition and enforcement of arbitral awards.
Prior to the reform of the ICA regime in a country, it is unlikely that its courts
would have had extensive experience with ICA. If the country is to support ICA
and to project itself as being “arbitration-friendly” when its ICA legislation comes
into effect, judges will need to undergo intensive prior capacity-building in the five
functions. The problem is that there is a multitude of situations that can arise in a
«ПЕРСПЕКТИВЫ РАЗВИТИЯ МЕЖДУНАРОДНОГО КОММЕРЧЕСКОГО
АРБИТРАЖА В УЗБЕКИСТАНЕ»
Сборник международной научно-практической конференции
12
Model Law jurisdiction in connection with the five functions. The Model Law itself is
often sketchy and does not clearly spell out how such situations should be handled.
While judges in Model Law countries are to “have regard to” the decisions of other
jurisdictions where the Model Law is silent on a matter, they must still be
persuaded of the validity of reasoning underpinning such decisions. The application
of general principles underlying the Model Law therefore easily leads to conflicting
views as to the “right” approach on an ICA matter.
All this implies that judicial capacity-building should be directed, not just to
advocating a “harmonized” Model Law view on specific issues, but also to identifying
the different approaches that courts can take on paradigm issues and the
rationales, merits, and downsides of those approaches. In other words, judicial
capacity-building (respectfully suggest) needs to focus from the beginning on the
potential and prospect for sustainable diversity.
The upshot is that, while the contours of ICA in one Model Law state may
roughly be the same as those in any other, there is space for a diversity of options
on specific questions. It is those differences in approach that businesses will take
into account when deciding which state should be designated in their
international commercial contracts as the seat of any arbitrations that might arise.
I congratulate the University of World Economy and Diplomacy on organizing
today’s event to explore the different trajectories that international dispute
resolution can take in Uzbekistan. I thank the university for inviting me to make
a speech. I take the occasion to wish everyone success in mapping out Uzbekistan’s
prospects of becoming an international commercial, financial, and investment
dispute resolution hub.
