Post 1991 Developments: Adapting the UNCITRAL Model Law,1985. Pt.1
With the inception of India’s new Economic Policy starting from 1991 which heavily involved liberalisation of the economy, there was an increasing demand from the business community as well as of international investors for reforms in the Indian Legal system especially dealing with arbitration law, in order to make it an appealing forum for heavy business investments. The Chief Ministers Conference and Chief Justices Conference of December 1993, had set up working groups in order to tackle the menace of arrears of cases in courts as well as tribunals which involved the use of alternative means of dispute resolution in the form of arbitration,mediation as well as negotiation.
In the month of September, in the year 1994, the Law Minister’s Working Group ended up proposing a brand new unified arbitration law for the resolution of national as well as international trade disputes primarily through arbitration and conciliation instead of relying on litigation. The government had several international models from which to choose from and it ended up choosing the UNCITRAL Model Law of International Commercial Arbitration,1985 as well as the UNCITRAL Conciliation Rules of the year 1980 which essentially harmonised both common as well as civil law methods and approaches towards arbitration and were arguably universal in application. The UNCITRAL Model Law on International Commercial Arbitration, 1985 also known simply as the UNCITRAL Model law had prescribed judicial non intervention in arbitral proceedings in tandem with Article 5 and also affirmed party autonomy with respect to arbitral procedures in tandem with Article 19(1) as well as Article 19(2). It also subsequently ended up providing for judicial assistance to the arbitral process in the form of provisional measures, the constitution of an arbitral tribunal as well as procedure for taking of evidence which were enshrined in Articles such as 9,11 to 13 and 27. The following developed as well as developing nations had previously enacted laws on the basis of the UNCITRAL Model Law, for the purpose of promoting international consistency among international as well as national domestic arbitral regimes in the form of Canada and separately the province of British Colombia in Canada, Cyprus, Bulgaria, Nigeria,California(which is deemed to be the largest state in the United States of America),Australia and Hong Kong, the states of Connecticut and of Texas(in the United States of America once again), Scotland,Peru,Bermuda, the Russian Federation, Mexico, Tunisia, Ukraine,Egypt,Bahrain,Hungary,Singapore,Kenya,Guatemala,Sri Lanka,Brazil,India,Lithuania,Malta, Zimbabwe and finally New Zealand as well.
The Working Group in India had before it three distinct adaptations of the UNCITRAL Model Law,1985 in the form of
the Adoption of the UNCITRAL Model Law and its subsequent incorporation: Countries like Canada(Federal),Australia, and Hong Kong have subsequently adopted the Model Law by attaching to it their respective national laws.
Secondly the adaptation of the UNCITRAL Model Law: Countries like the Netherlands as well as the United Kingdom which initially did not adopt the Model Law took special care to make their own national law compatible with it and
Finally, in terms of adopting several of the provisions of the Model Law and adapting some other provisions with amendments. In territories like the province of British Columbia in 1986 in Canada, and subsequently the state of California in the USA,legislation was framed based primarily on the basis of the UNCITRAL Model Law but also utilising the local drafting format for giving effect to several provisions of the Model Law.
Source: Harmony Amidst Disharmony: Fali S Nariman