The Making of the Award: Comments on Case Law Developments Under the UNCITRAL Model Law

Abstract

This article discusses selected cases interpreting and applying Arts 28-33 of the UNCITRAL Model Law on International Commercial Arbitration, which deal with (in the words of the UNCITRAL Secretariat) the ‘‘not unimportant’’ topic of the making of the award. It addresses four questions: (1) When can the tribunal resolve disputes on the basis of equity and fairness (ex aequo et bono or amiable compositeur)? (2) Can the parties agree to have the tribunal rely on the lex mercatoria as the basis for its decision? (3) Under what circumstances can the tribunal revisit its prior rulings (that is, when does the tribunal’s authority terminate)? (4) To what extent can courts review a tribunal’s ruling that it lacks jurisdiction over the dispute? In addition, the article offers some brief comments on the limited role the Model Law has played in American arbitration law (and hence the limited contribution American case law has made in interpreting the Model Law).