United Nations: Resolutions of E.C.A.F.E. Conference on Commercial Arbitration

United Nations: Resolutions of E.C.A.F.E. Conference on Commercial ArbitrationSource: International Legal Materials, Vol. 5, No. 3 (MAY 1966), pp. 547-564Published by: American Society of International LawStable URL: http://www.jstor.org/stable/20690079 .

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RESOLUTIONS OF E.C.A.F.E. CONFERENCE ON COMMERCIAL ARBITRATION*

E/CN.lVTRADE/Lo92 Page 6

RESOLUTION ON ECAFE RULES OF INTERNATIONAL COMMERCIAL JmiTRATION

The Conference,

Having considered the views expressed by the Working Party of

Experts on Commercial Arbitration convened in 1962 and by the Preparatory

Committee for the Conference which met in 196^?

Believing that a set of ECAFE Rules of International Commercial

Arbitration would contribute significantly towards furthering the inter

national trade of the region and would, in particular, be of considerable

practical value to governments, persons and firms engaged in international

trade and related transactions

Considers that the ECAFE Centre for Commercial Arbitration

should prepare a set of ECAFE Rules of International Commercial Arbitration

on the basis of the recommendations contained in the annex to this resolution

2? Recommends that, prior to such preparation, the recommendations

contained in the annex be submitted to the Economic Commission for Asia and

the Far East as soon as practicable so as to ascertain the views of members

and associate members of the Commission and other interested governments;

5? Recommends that, after consideration of the recommendations

by the Commission, the Rules should be prepared in final form, taking full

account of the views expressed in the Commission;

4. Also recommehds that, after preparation in final form, the

ECAFE Rules should be disseminated widely throughout the region and, in

particular, brought to the attention of chambers of commerce, legal and

business associations, universities and other appropriate bodies and persons

concerned with international trade and economic development activities

related to international trade?

*[Reproduced from the Report of the Conference on Commercial Ar bitration of the U.N. Economic Commission for Asia and the Par East held at Bangkok, Thailand, January 24-February 2, 1966, United Nations Document E/CN.11/TRADE/L.92 (January 17, 1966) and Corr. 1

(January 19, 1966), pp. 6-23.]



548 E/CN,11/TRADE/Lc92 Page 7

Annex

RECOMMENDATIONS FOR THE PREPARATION OF THE ECAFE RULES FOR INTERNATIONAL COMMERCIAL ARBITRATION

I. GENERAL

II. APPOINTMENT OF ARBITRATORS

IIIo REMOVAL, DEATH OR INCAPACITY OF ARBITRATORS

IVo THE PLACE OF ARBITRATION

V. THE SPECIAL COMMITTEE OF ECAFE

VI. THE CONDUCT OF ARBITRAL PROCEEDINGS

VIIo THE AWARD

VIII? MISCELLANEOUS PROVISIONS

1. Settlement

2. Interpretation of the Award

3. Correction of the Award

k* Circumstances not otherwise provided for



E/CN*ll/TRADE/Lo92 Page 8

L GMAL

le The ECAFE Rules for International Commercial Arbitration should

deal with the arbitration of disputes arising from the international trade

of the ECAFE region? This would include arbitration of disputes arising out of contracts between residents of different countries within the region

and also between residents of different countries within and outside the

region? They would also apply, if the parties so desire, to disputes

arising from contracts between residents of different countries outside

the region in cases where the contract involved performance in the region

or where other factors were related to the regione The Rules would not

deal with the arbitration of domestic disputes

2. It should be indicated that disputes arising from international

trade would comprise disputes arising out of contracts concerning industrial,

financial, engineering services or related subjects involving residents of

different countries

3? The Rules should apply in cases where the parties have agreed that

disputes which have arisen or which may arise out of a contract made between

them shall be referred to arbitration under the Rules. The agreement of

the parties to resort to arbitration under the ECAFE Rules may be included

in the contract or, if not so includ , may be concluded separately by the

parties after the dispute has arisen,

k. The disputes referable to arbitration under the Rules may include

those to which a government or state training agency is a party.

5- The Rules should provide for the procedure of arbitration (as

indicated below) and should, insofar as possible, be self-executing.

6. The Rules should include provisions for determining the appointment of arbitrators and the place of arbitration in cases where the parties are

unable to reach agreement on these points*

7- The Centre should not itself hear and determine disputes.

/II APPOINTMENT OF



550 E/CN.ll/TRADE/L.92 Page 9

110 AProiNmENT OF ApimTORS

lo The Rules should provide that the parties may select an arbitral

institution to hear and determine their disputes, or if they so choose,

select a sole arbitrator or an arbitral tribunal?

2? The parties should be free to choose arbitrators of any nationality or any arbitral institution they wisho

3o The Rules should provide that, unless the parties have in their

original agreement or later by stipulation appointed their arbitrators) or appointing authority, the party who wishes to resort to arbitration

shall notify the other party to that effect and propose:

(a) the appointment of a sole arbitrator, or

(b) the appointment of three arbitrators, each party appointing an arbitrator and the two arbitrators thus appointed choosing

the presiding arbitrator, or

(c) the designation of a specific arbitral institution which would

apply the ECAFE Rules in the arbitration of the dispute, or

(d) the designation of a specific person or institution who would

appoint a sole arbitrator or a presiding arbitrator or such an

arbitral Institution?

*f. The Rules should provide that, for the appointment of arbitrators

or, alternatively* for the selection of an appointing authority to make the

necessary appointment, consideration may be given to the lists of arbitrators

and the lists of appointing authorities maintained by the ECAFE Centre.

5? If within a period to be specified in the Rules, a sole arbitrator

has not been appointed or an arbitral institution has not been designated

or, in the case of a three-man arbitration, either of the two arbitrators

to be appointed by the parties or the presiding arbitrator have not been

appointed, the matter should be referred to the Special Committee of the

ECAFE Centre which shall make the necessary appointment or designation*

Alternatively, the Special Committee may at its discretion select an

authority to make the necessary appointment or designation.

/III. REMOVAL



E/CN.11/TRADE/L.92 Page 10

551

III. RatOVAL, DEATH OR INCAPACITY OF THE ARBITRATOR

1. The Rules should contain provisions under which either party may

challenge an arbitrator where circumstances exist that cause justifiable

doubts as to this impartiality or independence. Such challenges jshall be

decided in the first instance by the arbitrator concernede

2o Should the challenge be rejected by the arbitrator an appeal may

be made to the ECAFE Centre which shall for this purpose utilize the

Special Committee referred to below to determine whether or not the

challenge is justified. The decision of the Centre will be final.

3. Where a chellenge is sustained a substitute shall be appointed by

the person or authority originally empowered to appoint the arbitrator.

*f. In the event of the death or incapacity of a sole arbitrator, a

presiding arbitrator or an arbitrator appointed by either party, a

substitute will be appointed in accordance with the procedure set out

above.

IV THE PLACE OF ARBITRATION

1. Where the parties have not agreed in their contract, or later by

a stipulation on the place of arbitration or where the arbitrators appointed

by the parties have not determined the place, the parties shall endeavour

to reach agreement as to the place of arbitration by taking into consideration

the following among other relevant factors:

(a) the convenience of the parties;

(b) the location of the goods and relevant documents;

(c) the availability of witnesses, surveys.and of pre-investigation reports;

(d) the recognition and enforcement of the arbitration agreements and the award; and

(e) the advantages, if any, of the arbitration being held in the country of the respondent.

/2. The Rules



552 E/CNo ll/TRADl/L. 92 Page 11

2. The Rules should further provide that, if the parties are Still

unable to agree on a place of arbitration or on any other procedure for

its determination they should have reoourse for the determination of a place

to the Special Committee established in accordance with Section V below.

In such case the Special Committee should, in making its determination

as to the place of arbitration, take into consideration the factors listed

above in paragraph 1.

V. jMB^^BCTAL COMMITTEE OF ECAFE

The Special Committee of ECAFE should be composed of seven persons

selected by the Executive Secretary of ECAFE from among all the representatives on the Commissiono The Committee will be constituted when required for each

case and the Executive Secretary will use his discretion in selecting its

members, taking into account all relevant factors in the particular case.

VIo THE CONDUCT OF ARBITRAL PROCEEDINGS

1. Both parties should be treated with absolute equality and have the

right to present their case.

2. All documents produced by one of the parties or any information

given by them should be passed on to all the arbitrators and the other party.

3? Arbitrators should be entitled to determine their own competence and jurisdictiono

*f. The respondent should be entitled to raise a counter-claim, where

this claim is based upon the same contract.

5. Proceedings will normally be conducted on the basis of documents

in view of the distances in the region. At the request of one of the parties,

or on their own initiative, arbitrators may order oral hearings.

6. Arbitrators should be entitled to order measures of conservation.

7o Arbitrators should be entitled to fees and to require a deposit

of an amount as security for their fees and expenses.

8. Parties should have the right to be represented at the hearing.

/VII. THE AWARD



E/CN.ll/TRADE/Lo92 Page 12

553

VII. !EfflB AWAED

1? A time-limit for the award should be provided for with the

possibility of extension.

2. Arbitrators should be able to give interim awards, provided the

time-limit for the final award is observed.

3? Arbitrators should decide by majority. The presiding arbitrator

may render the award alone where a majority cannot be obtained.

ko In case the parties have not decided which law is applicable,

then the arbitrators should be entitled to apply in accordance with the

rules of conflicts of law, the law applicable for the solution of the

dispute. The arbitrator should take account of the terms of the contract

and of trade usages.

5? Parties should, however, be able to give arbitrators the power to decide ex aequo et bono (amiables compositeurs).

6. Arbitrators should sign the award. In case of refusal, this should

be mentioned. Signature by the presiding arbitrator should suffice in case

of need. Parties should get authentic copies of the award from the

presiding or sole arbitrator.

7. Arbitrators should be empowered to determine the costs of arbitration.

These costs should be borne by the losing party unless reason for division

exists in the opinion of the arbitrators.

VIII o MISCE^JpDUS PROVISIONS

1. ^ttl^ment

In case the parties come to an agreement during the arbitration

proceeding, they should be able to ask the arbitrators to make an award based

on their agreement.

2. ^terpretation of the Award

It should be possible for the parties to request arbitrators, within

a limited time period after the rendering of the award, to give an authentic

interpretation of their award.

/3. Correction



554 E/CNoll/TRADE/Lo92 Page 13

3 Correction of the Award

Evident errors in the award should be corrected within a limited

time by the presiding arbitratoro

km Circumstances not otherwise provided for

In any circumstances not specifically provided for above, the

arbitrators will follow the procedure which is most in conformity with

the spirit of the above rules..

/RESOLUTION ON



555 E/CN#ll/Ti^D-;/L.92

RESOLUTION ON LISTS OF ARBITRATORS AND LISTS OF APPOINTING jAUTHORITIES "to be mW&l^^ ?RBiTiro??

Die Cpnference,

Iôjmzing that the international trade of the ECAFE region flows pri

marily between the developing countries within the region and the developed

countries outside the region and that* accordingly, the places of residence of

parties to contracts entered into in the course of the regionfs international

trade are generally situated at considerable distances apart,

Believ^g that the considerable distances that separate the places of

residence of parties to contracts together with the absence of adequate infor

mation as to persons in the region who might be appropriate and willing to serve

as arbitrators, and as to persons in the region who might be appropriate and

willing to act as appointing authorities, added in substantial measure to the

difficulties usually encountered by parties in the appointment of arbitrators,

^SH^^yPF^ "kkat the ECAFE Centre for Commercial Arbitration is in a

position to assist parties in the matter of appointment of arbitrators, and might

appropriately undertake specific steps in this connexion,

A

Lists of arbitrators to be maintained at the Centre

lo ^?OjMend_s that lists of qualified persons who would be willing to serve

as arbitrators, together with adequate information as to their qualifications

and experience, should be prepared and maintained at the Centre for consultation

by parties:

2. Considers that it is advisable to prepare separate lists of arbitrators

for each of the principal fields of the region's international trade;

3? Recc>n^n.ds that such lists of arbitrators be prepared, and thereafter

maintained, in close consultation with, and on the basis of nominations made by, the Governments of the region, the national correspondents of the Centre, and

other appropriate institutions and authorities;

Cojijijders that such lists should be reviewed periodically and revised

as required;

/B



556 fi/CNai/TR DE/L.92 laê 15

B

Lists of p^întixig authorities to be maintained at the Centre

la Be^jênds, also, that lists of institutions and persons who are competent

and would be willing to act as appointing authorites, together with adequate

information as to their experience and qualifications, be prepared and maintained

at the Centre for consultation by parties;

2? PH^jffiers that it is advisable to prepare separate lists of appointing

authorities for each of the principal fields of the region1s international trade;

3? êconmend? that such lists of appointing authorities be prepared and

thereafter maintained in close consultation with, and on the basis of nominations

made by, the Governments of the region, the national correspondents of the Centre,

and other appropriate institutions and authorities,*

Considers that such lists should be reviewed periodically and revised

as required.

C

Considers that the lists of arbitrators and appointing authorities should

be made available on request to interested parties*

RESOLUTION ON THE DEVELOPMENT OF EDUCATIONAL AND INFORMATIONAL METHODS

The Conference,

Notijig that one of the primary objectives of the ECAFE Centre for Com

mercial Arbitration is the promotion, throughout the region, of a greater

knowledge and use of commercial arbitration,

Noting that the various means of collecting and disseminating information

should be used with the assistance that is available from the Centre's national

correspondents,

/ôting the



E/CN011/TRaDE/L.92 P?se 16

557

Noting the steps already taken by the ECAEE Centre towards the imple

mentation of this, objective and, in particular, res puolxcation of a News

Bulletin on arbitration,

Bel^ving that priority should be given to certain aspects of such

activities* of the Centre,

lo Recommends that the Centre.; in co-operation **ith the Governments of

the region, the national correspondents of the Centre, and organizations and

institutions active in the field of commercial arbitration, gather the

necessary information in regard to the arbitration facilities available in

each of the countries of the region for the settlement of disputes arising

from international trade together with information as to legislation and

practice pertaining-to the arbitration of such disputes;

2* Recommends that the information so gathered be set out in the News

Bulletin of the Centre, with a view to disseminating It among the legal, business and other appropriate communities in the countries of the region;

3? Recop.ends that the news bulletin should be developed with a view to

its ultimately becoming the primary medium of communication on arbitration

in the region, and to this end should:

(a) be published on a regular basis with special emphasis being placed on current events in the field of couît^-c^l cAruiwation, both within and outside the region,

(b) devote special attention to the dissemination oi information on

pertinent .judicial decisionss studies and writings pertaining to international- commercial arbitration, including articles of a legal ana commercial interest,

(c) act as a medium through which pertinent information on current events and studies in the arbitration field is disseminated as widely as possible both within and outside the region;

/km Recommends



558 E/CN.n/TftADE/L.92 Page 17

*f. Recommends that the Centre take steps to publish, for the use of

commercial arbitrators and in tne administration of arbitration, information

of a practical nature in regard to the various steps and problems connected

with the administration of arbitration proceedings;

5* Recommends that the Centre, in co-operation with the Governments

of the region, the national correspondents of the Centre, and other appropriate

bodies, take steps to establish lists of speakers in each of the countries

of the region, who would be appropriate and available for the purpose of

addressing chambers of commerce, legal and business associations and other

appropriate groups on the advantages of resorting to arbitration in the

settlement of disputes arising from international trade and from economic

development activities related to international trade;

Recommends that the Centre, in co-operation with the Governments

of the region, its national correspondents and other appropriate bodies,

take the necessary steps for introducing commercial arbitration as a subject in the courses, seminars and symposia of universities and other institutions

in the field of law, business administration and international economic

relations;

? J$?3P?f*l?$. *he nati?nal correspondents of the Centre to give it every

possible assistance in its worko

RESOLUTION ON TECHNICAL ASSISTANCE FOR THE ECAFE CENTRE FOR COMMERCIAL ARBITRATION

The ECAFE Conference on Commercial Arbitration

ôj^?der3^g that the development of commercial arbitration facilities in countries of the ECAFE region is essential for building greater confidence

among the world's business community in trading with countries of the region and for promoting the international trade and economic development of the region,

Noting that the ECAFE Centre for Commercial Arbitration has been charged with the increased responsibility of implementing the Conferencefs recommenda

tions, which include the promotion of greater knowledge and wider use of com

mercial arbitration as a means of settling disputes in the foreign trade of

countries in the region,

/Expressing



E/CN.ll/TRADS/L.92 Paze 1?

559

^gre^ssiixg deep appreciation of the technical assistance so far provided

under the United Nations Technical Assistance Programme which has enabled

the ECAFE Centre for Commercial Arbitration to continue its work up to the

present time,

Noting with concern the limited resources at the disposal of the ECAFE

secretariat for carrying out the important work of the Centre for 1966 and

subsequent years,

^Rej^j^sts the ECAFE Executive Secretary to give high priority to this

project, to provide additional resources and to seek increased technical

assistance from appropriate agencies, so that the work of the Centre will be

accelerated.

RESOLUTION ON MODEL ARBITRATION CLAUSES

The Conference,

Recognizing that arbitration procedures and facilities available for

the settlement of disputes arising in the international trade of the region are not sufficiently well-known,

Noting that the principal reasons therefor are the absence of arbitration

facilities in some countries of the region and failure to include arbitration

clauses in international trade contracts,

Urges the Governments of countries in the region to take such steps

as may be necessary to ensure that relevant arbitration clauses are included

in as many international trade contracts as possible in their respective

countries;

Rôgfflends that the ECAFE Centre propagate and popularize for the

use of commercial transactions whichever of the following model arbitration

clauses are relevant, with such modifications as may be necessary:*

*[Corrected by United Nations Document E/CN.11/trADE/L.92 Corr. 1

(January 19, 1966) to read: "Recommends that the ECAFE Centre propagate and popula

rize the following model arbitration clauses for use in commercial transactions where relevant, with such modifi

cations as may be necessary:"]



560 S/CNfll/TR/xDE/L.95 Page 19

1, ECAFE Arbitration Clause

All disputes or differences whatsoever arising between the parties

out of or relating to the validity, constructions, meaning, operation or

effect of the contract, or the breach thereof which the parties have not

been able to settle amicably, shall be finally settled by arbitration in

accordance with the ECAFE Rules of International Commercial Arbitration

which the parties declare to be known to thenu

2. (Alternative NoÎI) All disputes or differences whatsoever arising between the parties out of or relating to the validity, construction,

meaning, operation or effect of the contract, or the breach thereof,

shall be settled by arbitration in accordance with the rules of the

Tribunal l!Xt!, and the contract shall be governed by the laws of

(name of the country).

3* (Alternative No?HI) (When it is intended to have arbitration by an arbi

trator/arbitrators to be appointed by the parties and not in accordance

with the rules of any arbitral tribunal, the following clause may be

adopted)s

"All disputes or differences whatsoever arising between the parties out

of or relating to the validity, construction, meaning, operation or

effect of the contract, or the breach thereof, shall be referred (i) to

a single arbitrator in case the parties agree upon one and, in the

absence of such agreement to be reached within ..?.?.?. d&ys from date

of the request of one party, the arbitrator to be appointed by .- a.*.*......... (name of appointing authority) or

(ii) to three arbitrators, one to be appointed by each party to the

difference, and the two, before taking upon themselves the burden of

reference, to appoint a presiding third arbitrator. If the two arbi

trators cannot agree on the appointment of the presiding third arbitrator,

the presiding third arbitrator, who shall be of a nationality other than that

of the parties, shall be appointed by o?.?.<> <> . . (name

of the appointing authority) or (iii) to three arbitrators, one to be

/appointed by



E/CN.11/TRADE/L.92 Page 20

561

appointed by each party to the dispute and the third, who shall be of a

nationality other than that of the parties, shall be appointed by o?. ?. <> ?? ? .?00.0?. (name of the appointing authority). The arbi

tration shall be conducted at (a) .o..??o?.*o.?*o...?e...' (name

of the place) in accordance with the local laws and regulations. The contract

shall be governed by the law of The award shall be final and

binding on the parties. Judgement upon the award rendered by the arbitrators

may be entered in any Court having jurisdiction or application may be made to

such Court for a judicial acceptance of the award and an order of enforce

ment as the case may bet!?

km (Alternative No.IV") (Where there is an arbitration service agreement between

arbitration associations of two countries, the following arbitration clause

may be used by traders of the two countries):

All disputes or differences whatsoever arising between the parties out of

or relating to the validity, construction, meaning, operation or effect

of the contract, or the breach thereof, shall be settled by arbitration

pursuant to the 000*0000*000000000000000 Agreement of 9o????e*?*??o?*o?o

rasoL?^N on cgmijj^mj)F_ INTERNATIONAL trade disputes

The Conference.,

Recognizing that the practice of referring disputes to conciliation

is in the tradition of many of the countries of the ECAFE region,

Haying considered the views expressed by the Preparatory Committee for

the Conference which met in 1964 in regard to the steps that might be taken by

the ECAFE Centre for Commercial Arbitration towards encouraging wider recourse

to conciliation in the settlement of international trade disputes and, in

particular, the view that the Centre should prepare and disseminate standards

for the conciliation of international trade disputes and maintain lists of

persons qualified to act as conciliators,

/Having regard



562 ^/?ri.ll/TR..iX;i/L.92 Paê 21

Ifeving regard to the standards of conciliation submitted to the

Working Party of Ebcperts on Commercial Arbitration which met in 1962 and

which were submitted to this Conference,

1# ?? F^??^. that, *ke standards for conciliation set out in the Annex

to this Resolution be adopted by the Centre as the ECAFE standards for the

conciliation of international trade disputes, to serve as a guide to parties

engaged in the international trade of the region who may wish to have recourse

to conciliation for the settlement of their disputes;

2# Recommends that these standards be disseminated widely throughout

the region and, in particular, be brought to the attention of chambers of

commerce, legal and business associations, universities and other appropriate

bodies and persons concerned with international trade and economic develop

ment activities related to international trade.

/Annex



Page 22

563

Annex^

ECAFE STANDARDS FOR CONCILIATION

1o ECAFE shall invite each.of the main Chambers of Commerce of the

region through their respective Governments to set up a panel of business men,

both nationals and foreign residents, of high standing and good repute, who

agree to sit on Conciliation Committees, upon the request of parties,

2o Parties between whom a difference has arisen may agree to try to

settle it by conciliationa Then each party is to appoint one conciliator,

and the conciliators thus appointed shall appoint another conciliator who will

preside over the Conciliation Committee0

3. Each of the parties may choose one conciliator from the nationals

of his country included in the panel of the Chamber of Commerce located in

the place agreed upon for conciliation. In that case, it is desirable that

the chairman of the Conciliation Committee be a national of a country other

than those of the parties.

ko The duty of the Conciliation Committee shall be to seek a friendly

and speedy solution of the difference. The Committee shall hear the parties or their representatives. The parties or their representatives may be

assisted by counsel or solicitors? In the latter case, it is desirable that

the party who intends to be so assisted should inform the other party of his

intention beforehand,

5o If both parties cannot appear in person or be represented, the

Committee shall acquaint itself with the details of the case through the

written statements sent by each party.

6o Each party is at liberty to accept or to reject the terms of

settlement proposed by the Committee.

7o Should a settlement not result, the parties shall be at liberty

to refer their dispute to arbitration or, if they are not bound by an

arbitration clause, to bring an action at law?,

/8.



564

Page 23'

8. Nothing that has transpired in c nnexiou vdth tfco prooooclin^

before the Committee shall in any way affect the legal rights of any of the

parties to the dispute, whether in an arbitration or in a court of lew*

9o No person having sat on a Conciliation Committee for the settlement

of a dispute may be appointed arbitrator for the same dispute, unless the

parties agree to the contrary*

10. If the parties agree to choose a single conciliator acceptable to

them, there is no objection to their doing so0

/x\jêndix 1



Documents

United Nations: Resolutions of E.C.A.F.E. Conference on Commercial Arbitration