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UNCITRAL Exp UNCITRAL Expedited Arbitration Rules (2021)
ZivilrechtZivilprozessrecht
Schiedsverfahrensrecht
- Article 16 provides the time frame for making the award, which refers to the final award. Paragraph 1 provides for a sixmonth time frame for making the award and a mechanism for extending that time frame in certain circumstances. The sixmonth time frame for rendering the award commences with the constitution of the arbitral tribunal. Parties are free to agree on a time frame different from that in paragraph 1, which may be shorter or longer depending on their needs.
- The general discretion provided to arbitral tribunals under article 10 to extend or abridge any period of time prescribed under the Expedited Rules and those agreed by the parties is subject to article 16. The first sentence of article 16(2) specifically authorizes the arbitral tribunal to extend the time frame for rendering the award established pursuant to paragraph 1, but only in exceptional circumstances and after inviting the parties to express their views. It would be up to the arbitral tribunal to determine whether the circumstances are exceptional or not. While the arbitral tribunal should generally indicate the reasons when extending the time frame, paragraph 2 does not require reasons so as to provide flexibility to the arbitral tribunal, particularly when the extended time period is rather short.
- The second sentence of paragraph 2 provides that the maximum overall time frame, including any extended period, should be no longer than nine months from the date of the constitution of the arbitral tribunal. This responds to the expectations of the parties that an award would be rendered within a short time period, one of the key features of expedited arbitration. Paragraph 2, however, does not impose limitations on the number of extensions within the overall time frame. As parties are free to modify any time frame in the Expedited Rules, paragraph 2 also does not prevent the parties from agreeing on a time frame that is longer than nine months.
- In case the arbitral tribunal considers that it is at risk of not rendering an award within the time frame provided for in paragraph 2, paragraph 3 provides a mechanism whereby that time period could be extended for one last time. This mechanism intends to address a situation where the arbitral tribunal is at risk of not being able to render an award within the time frame, for example, due to unusual circumstances arising near the end of the time frame or if only a short period of time beyond that time frame is required for rendering the award.
- Parties and the arbitral tribunal should be mindful of the consequence when the time frame in paragraph 2 lapses without an award being rendered. Depending on the applicable law, this may result in the termination of the proceedings or the award rendered subsequently being the subject of possible annulment. In some jurisdictions, such an award might also be refused enforcement. To avoid such situations, paragraph 3 permits the arbitral tribunal to propose to the parties a final extended time limit, stating the reasons for the proposal. In so doing, it must also fix a time period within which the parties should express their views on the proposal. The proposed extension would only be permitted when all parties agree to the extension within the fixed time period. It will be the responsibility of the arbitral tribunal to ascertain that the agreement to its proposal is expressed without ambiguity. For example, if in response to the proposal, a party agrees only to a time frame shorter than that proposed by the arbitral tribunal, the arbitral tribunal may invite the other parties to express their agreement to such shorter time frame. In addition, if one party agrees to the proposal within the fixed time period and the other party agrees after the time period has lapsed, the arbitral tribunal may wish to consult the parties to confirm whether it could assume that there was agreement by the parties, thus avoiding a possible application of paragraph 4.
- Paragraph 3 does not set a maximum time frame that can be proposed by the arbitral tribunal. Nonetheless, to obtain the agreement of the parties, the extended time frame requested by the arbitral tribunal should be reasonable taking into account any concerns of the parties, and be sufficient for the arbitral tribunal to render the award.
- Considering that in certain jurisdictions, extension of the time frame could only be granted upon the agreement or consent of the parties or by an entity other than the arbitral tribunal, paragraphs 2 and 3 underline that parties, by agreeing to the application of the Expedited Rules, are granting the arbitral tribunal the authority to extend the time period established in paragraphs 1 and 2.
- Paragraph 4 alerts the parties and the arbitral tribunal to the mechanism provided for in article 2(2) of the Expedited Rules in case there is no agreement by the parties to the extension proposed by the arbitral tribunal. In such a case, any party may make a request to the arbitral tribunal that the Expedited Rules no longer apply to the arbitration. Indeed, the arbitral tribunal may wish to suggest this possibility along with its proposal to extend the time period in accordance with paragraph 3 as the consequence. Doing so could avoid a situation where none of the parties makes the request under paragraph 4 despite there being no agreement by the parties on the extension. Paragraph 4 could be particularly useful if one of the parties intentionally delays the proceedings as well as the issuance of the award within the time frame and does not agree to the extension.
- After inviting the parties to express their views, the arbitral tribunal may determine that the Expedited Rules shall no longer apply to the arbitration, which in effect lifts any time limit for rendering the award in the Expedited Rules including those agreed by the parties. As the arbitral tribunal would have stated the reasons in proposing the extension under paragraph 3, the arbitral tribunal might consider that exceptional circumstances exist as required under article 2(2) and would not need to repeat the reasons when determining that the Expedited Rules shall not longer apply. Should the arbitral tribunal make the determination under paragraph 4, the arbitral tribunal will remain in place and continue to conduct the arbitration but will do so in accordance with the UARs.
- Article 16 should also be read together with articles 37 and 38 of the UARs, which respectively provide that the interpretation and the correction form part of the award. If the final award was made within the time frame in article 16, any subsequent interpretation or correction to that award after the lapse of the time frame shall not affect the timeliness of the final award for the purposes of article 16. Similarly, an additional award made in accordance with article 39 of the UARs after the lapse of the time frame in article 16 shall not affect the timeliness of the award made within that time frame.
- It should be noted that article 16 does not aim to address the instances of de jure or de facto impossibility of the arbitrator to perform his or her functions. In such a situation, articles 12(3), 13 and 14 of the UARs will likely lead to the termination of the arbitrator’s services and his or her replacement. In the case of replacement, article 15 of the UARs provides that the proceedings shall resume at the stage where the arbitrator who was replaced ceased to perform his or her functions. In practice, this would have the effect of suspending the time period in article 16 of the Expedited Rules from the time the replaced arbitrator ceased to perform his or her functions to the date of replacement. If the new arbitrator considers that the remaining time would not be sufficient to render an award, he or she could rely on article 16 to extend the time frame. Also, if an arbitrator is temporarily unable to perform his or her functions and is not replaced, the arbitrator as well as the parties could rely on article 16 to extend the time frame and cope with any delay that may have occurred during such a period.
- A similar solution applies if the arbitral tribunal suspends the proceedings in accordance with article 43(4) of the UARs, due to non-payment of the required deposits. In that case, the time period in article 16 would cease to run during the suspension.
- Article 16 should be read together with article 34 of the UARs, in particular paragraph 3, which provides that the parties may agree that no reasons need to be given in the award. This could reduce the time required by the arbitral tribunal in rendering the award and allow the arbitral tribunal to meet the time frame in the Expedited Rules. However, unless the parties have agreed that no reasons are to be given, arbitral tribunals in expedited arbitration shall state the reasons upon which the award is based. Requiring the arbitral tribunal to provide a reasoned award can assist its decision-making and provide comfort to the parties as they will find that their arguments have been duly considered and would be aware of the basis upon which the award was rendered. The absence of reasoning in an award could have an impact on the control mechanism and its scope, as such reasoning might be necessary for the court or any other competent authority to consider whether some of the grounds for setting aside the award or refusing its recognition and enforcement exist.
Quelle: UNCITRAL
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