«ПЕРСПЕКТИВЫ РАЗВИТИЯ МЕЖДУНАРОДНОГО КОММЕРЧЕСКОГО
АРБИТРАЖА В УЗБЕКИСТАНЕ»
Сборник международной научно-практической конференции
13
Thomas Snider
Partner, Head of Arbitration, Al Tamimi & Company, Dubai
https://doi.org/10.47689/978-9943-7818-6-3/iss1-pp13-15
NEW INTERNATIONAL COMMERCIAL ARBITRATION LAW OF
UZBEKISTAN: A PRACTITIONER’S PERSPECTIVE
As an international arbitration practitioner, one of the initial inquiries we
make when discussing the choice of arbitration seat with clients is whether the
prospective jurisdiction has adopted the UNCITRAL Model Law. This question
holds significant importance. We are only about 45 minutes into this conference,
and we have heard extensive discussion of the Model Law already, and I think that
is for a good reason. The Model Law really does reflect the state of the art in
international arbitration practice as Christina Pak alluded to earlier. When a
country adopts a version of the UNCITRAL Model Law as its own national
arbitration law, it sends an immediate signal to investors and members of the
business community that the law is a good and reliable law, i.e., the type of law that
one needs to help to develop that jurisdiction as a strong seat of arbitration and
facilitate the attraction of foreign investment and trade. In the instance of
Uzbekistan, when practitioners in Uzbekistan and in the region and internationally
ask whether the country has an arbitration law based on the UNCITRAL Model Law,
of course, the answer to that question now is “yes”.
A country does not have to have an arbitration law based on UNCITRAL
Model Law in order to have a good arbitration law, and there are various examples
that one can point to across the world of jurisdictions that have a strong arbitration
law that is not necessarily based per se on the UNCITRAL Model Law itself.
However, the laws in those jurisdictions will reflect some of the same fundamental
principles that are reflected in the Model Law itself.
We could march through the ICA law in some detail and look at the various
provisions, but, as we have already alluded to, since it is in large measure based on
UNCITRAL Model Law, I am not going to spend the few precious minutes that I have
done that. Instead, I will focus on the few provisions that are add-ons to the UNCITRAL
Model Law that Uzbekistan has adopted. Christina Pak alluded to these provisions
earlier in her comments, and I think it is important to be aware of what those
provisions are and how the Uzbekistan ICA law builds on the UNCITRAL Model Law.
The first example of these add-on provisions that we see in the law is found
in Article 6 of the ICA law. This is an article that confirms that arbitrators, experts
appointed by the tribunal, arbitral institutions, and their employees have immunity
in relation to the activities conducted as a part of the arbitral process. This is an
important provision to ensure that tribunals and arbitral institutions can conduct
their activities without fear of ancillary actions or other legal actions being initiated
against them.
«ПЕРСПЕКТИВЫ РАЗВИТИЯ МЕЖДУНАРОДНОГО КОММЕРЧЕСКОГО
АРБИТРАЖА В УЗБЕКИСТАНЕ»
Сборник международной научно-практической конференции
14
The next add-on provision follows immediately thereafter in Article 7. This is
an interesting provision that, in my view, simply reaffirms what is already implicit
in the UNCITRAL Model Law. It reaffirms the principle that arbitral tribunals are
to be independent and self-sufficient in their activities and that any intervention in the
activity of arbitral tribunals is not permitted and could result in liability under the
law of Uzbekistan. I think to some degree Articles 6 and 7 work together to really
enforce these fundamental principles and to ensure that arbitral tribunals and
arbitral institutions are able to conduct the activities that have been tasked to
them free from any unwarranted intervention.
The next example of an add-on that we see in the Uzbekistan ICA Law is found
in Article 38 relating to the representation of parties in the arbitral proceedings.
Article 38 is a provision that we see examples of in the procedural rules of arbitral
institutions from time to time, and it merely confirms the principle that the parties
are free to use representatives to represent them in arbitral proceedings and it
confirms that these representatives can be from foreign institutions and can be
foreign nationals. The importance of this provision is that foreign investors and
foreign businesses that are involved in international arbitration in Uzbekistan are
expressly permitted to use their own lawyers not only from Uzbekistan but from
outside Uzbekistan as well.
The next example is found in Article 50, and I think this is a very interesting
example. It is another good example of the ICA law expressly reinforcing some
fundamental principles that are already implicit in the UNCITRAL Model Law. One
can say that these sorts of provisions are not necessary, but I think they are
important from an investor-confidence perspective as they are an extra step taken
to reinforce these fundamental principles. Article 50 is a standard provision that
many of us are familiar with from Article 34 of the UNCITRAL Model Law relating to
the set aside of awards and enumerating the very specific limited grounds on which
an arbitral award can be set aside. However, Article 50 goes one step further and
includes a sentence at the very end that, according to the English translation, says
that “in considering an application for setting aside an award the court is not
entitled to reconsider the award on the merits”. This is a fundamental principle of
international arbitration; broadly speaking, the only grounds for setting aside an
award are those limited grounds relating to procedure, jurisdiction, public policy,
and arbitrability found in Article 34 of the Model Law. Implicit in that is the
fundamental principle that courts cannot review the merits or substance of a
dispute. However, in order to develop investor confidence, Uzbekistan has
expressly stated that principle here.
The next add-on provision that we find in the ICA law is in Article 53, which
confirms that the arbitral proceedings and all documents prepared for and used
during those proceedings are confidential subject very narrow exemptions, e.g., if a
party has a duty under the law to disclose the information. I think this is another
example of an add-on where Uzbekistan is trying to bolster investor confidence by
sending the signal the arbitral proceedings will be confidential.
«ПЕРСПЕКТИВЫ РАЗВИТИЯ МЕЖДУНАРОДНОГО КОММЕРЧЕСКОГО
АРБИТРАЖА В УЗБЕКИСТАНЕ»
Сборник международной научно-практической конференции
15
The last add-on is in Article 54. Here again, I think this is another very interesting
and positive provision that has been added to the ICA law. I think of this provision
as a capacity-building provision. We have heard Justice Anselmo Reyes speak
about capacity building, and Christina and the other speakers have as well. This
provision says that the Ministry of Justice, the Chamber of Commerce and Industry,
and other interested organizations are to help provide an explanation to the public
of the essence and meaning of this law. I think this really is an important provision
that empowers not only government entities in the form of the Ministry of Justice
but the private sector as well to engage in discussion and help raise awareness of the
provisions and the impact of this law. Of course, this conference here today is a very
relevant and important example of how that is being done in practice. I think this
capacity-building component is fundamentally important as all stakeholders and all
users of international arbitration in Uzbekistan and beyond develop and increase
their awareness and understanding of the law and the principles reflected in the
law. I think it is important because, at the end of the day, an arbitration law is only
going to be as successful as the manner in which it is implemented and the manner
in which it is interpreted. The interpretation of the law, the implementation of the
law, and whether the narrow views of concepts such as public policy will be adopted
will ultimately help determine whether that law is successful. I think these capacity-
building events are very important in that regard.
With that, I will draw my comments to a close. It is a real honor and pleasure
to be able to take part in this event. I hope to see many of you in Tashkent again
soon and I thank the university, organizers, and participants for giving me the
opportunity to speak.
Thank you very much.
