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2 uNCItrAL <strong>2012</strong> <strong>Digest</strong> <strong>of</strong> <strong>Case</strong> <strong>Law</strong> on the Model <strong>Law</strong> on International Commercial Arbitration constantly, 5 as does the amount <strong>of</strong> related case law available from various sources. Its contribution to the goal <strong>of</strong> unification <strong>of</strong> international trade law is definitely significant. ProMotINg uNIforM INterPretAtIoN <strong>of</strong> uNCItrAL INstruMeNts: CLout AND DIgests 6. <strong>UNCITRAL</strong>, in accordance with its mandate, 6 has undertaken the preparation <strong>of</strong> the tools necessary for a thorough understanding <strong>of</strong> the instruments it develops and for their uniform interpretation. 7. <strong>UNCITRAL</strong> has established a reporting system for case law on <strong>UNCITRAL</strong> texts (CLOUT). 7 CLOUT was established in order to assist judges, arbitrators, lawyers, and parties to business transactions, by making available decisions <strong>of</strong> courts and arbitral tribunals interpreting <strong>UNCITRAL</strong> texts; and in so doing, to further the uniform interpretation and application <strong>of</strong> those texts. CLOUT covers case law related to conventions and model laws prepared by <strong>UNCITRAL</strong>, although the majority <strong>of</strong> its cases refers to the United Nations Convention on Contracts for the International Sale <strong>of</strong> Goods (Vienna, 1980), 8 and to the Model <strong>Law</strong>. 8. A network <strong>of</strong> national correspondents, appointed by the Governments <strong>of</strong> States that are party to at least one <strong>of</strong> the <strong>UNCITRAL</strong> conventions or have enacted at least one <strong>of</strong> the <strong>UNCITRAL</strong> model laws, monitors the relevant judicial decisions in the respective countries and reports them to the <strong>UNCITRAL</strong> Secretariat in the form <strong>of</strong> an abstract. Voluntary contributors can also prepare abstracts for the attention <strong>of</strong> the Secretariat, which may publish them in agreement with the national correspondents. The Secretariat edits and indexes all <strong>of</strong> the abstracts received and publishes them in the CLOUT series. The network <strong>of</strong> national correspondents ensures coverage <strong>of</strong> a large number <strong>of</strong> domestic jurisdictions. The availability <strong>of</strong> CLOUT in the six <strong>of</strong>ficial languages <strong>of</strong> the United Nations greatly enhances the dissemination <strong>of</strong> the information. These two elements are essential to promote uniformity <strong>of</strong> interpretation on the widest possible scale. 2 9. In light <strong>of</strong> the large number <strong>of</strong> cases collected in CLOUT on the Model <strong>Law</strong>, the Commission requested a tool specifically designed to present selected information on the interpretation <strong>of</strong> the Model <strong>Law</strong> in a clear, concise and objective manner. This request originated the <strong>Digest</strong> <strong>of</strong> case law on the Model <strong>Law</strong>. 9 10. The goal <strong>of</strong> harmonized interpretation <strong>of</strong> the Model <strong>Law</strong> has greatly benefited from CLOUT, and it is expected that the <strong>Digest</strong> will further support it. As highlighted by article 2A <strong>of</strong> the Model <strong>Law</strong>, in the interpretation <strong>of</strong> the Model <strong>Law</strong>, “regard is to be had to its international origin”, and the <strong>Digest</strong> aims at promoting uniformity in its application by encouraging judges to consider how the Model <strong>Law</strong> has been applied by courts in jurisdictions where the Model <strong>Law</strong> has been enacted. 11. The <strong>Digest</strong> presents the information in a format based on chapters corresponding to chapters <strong>of</strong> the Model <strong>Law</strong>. Each chapter contains a synopsis <strong>of</strong> the relevant case law for each article, highlighting common views and reporting any divergent approach. The <strong>Digest</strong> is meant to reflect the evolution <strong>of</strong> case law and, therefore, updates will be periodically released. While the CLOUT system reports cases in the form <strong>of</strong> abstracts, the present <strong>Digest</strong> makes reference also to the full text <strong>of</strong> a decision whenever this is useful to illustrate the point. This <strong>Digest</strong> was prepared using the full text <strong>of</strong> the decisions cited in the CLOUT abstracts and other citations listed in the footnotes. The abstracts are intended to serve only as summaries <strong>of</strong> the underlying decisions and may not reflect all the points made in this <strong>Digest</strong>. Readers are advised to consult the full text <strong>of</strong> the listed court and arbitral decisions rather than relying solely on the CLOUT abstracts. 12. The <strong>Digest</strong> does not constitute an independent authority indicating the interpretation to be given to individual provisions but rather serves as a reference tool summarizing and pointing to the decisions that had been included in the <strong>Digest</strong>. The purpose <strong>of</strong> the <strong>Digest</strong> is to assist in the dissemination <strong>of</strong> information on the Model <strong>Law</strong> and further promote its adoption as well as its uniform interpretation. In addition, the <strong>Digest</strong> is meant to help judges, arbitrators, 5 <strong>UNCITRAL</strong> prepares yearly a Bibliography <strong>of</strong> recent writings related to the work <strong>of</strong> <strong>UNCITRAL</strong>, available on <strong>UNCITRAL</strong>’s website at http://www.uncitral.org. 6 <strong>UNCITRAL</strong> should be active, inter alia, in “[…] promoting ways and means <strong>of</strong> ensuring a uniform interpretation and application <strong>of</strong> international conventions and uniform laws in the field <strong>of</strong> the law <strong>of</strong> international trade [and] collecting and disseminating information on national legislation and modern legal developments, including case law, in the field <strong>of</strong> the law <strong>of</strong> international trade; […]”: General Assembly resolution 2205 (XXI) <strong>of</strong> 17 December 1966, available on <strong>UNCITRAL</strong>’s website at http://www.uncitral.org. For details concerning the mandate for the progressive development <strong>of</strong> the law <strong>of</strong> international trade, see also the report <strong>of</strong> the Secretary-General contained in document A/6396 (Official Records <strong>of</strong> the General Assembly, Twenty-first Session, Annexes, agenda item 88, document A/6396, reproduced in <strong>UNCITRAL</strong> Yearbook, vol. I: 1968-1970, part one, chap. II, sect. B); the report <strong>of</strong> the Fifth Committee <strong>of</strong> the General Assembly at its twenty-first session on the relevant agenda item (Official Records <strong>of</strong> the General Assembly, Twenty-first Session, Annexes, agenda item 88, document A/6594, reproduced in <strong>UNCITRAL</strong> Yearbook, vol. I: 1968-1970, part one, chap. II, sect. D); and the relevant summary records <strong>of</strong> the proceedings <strong>of</strong> the Sixth Committee, which are contained in the Official Records <strong>of</strong> the General Assembly, Twenty-first Session, Sixth Committee, 947th-955th meetings and <strong>of</strong> which excerpts are reproduced in the <strong>UNCITRAL</strong> Yearbook, vol. I: 1968-1970, part one, chap. II, sect. C. 7 Official Records <strong>of</strong> the General Assembly, Forty-third Session, Supplement No. 17 (A/43/17), paras. 98-109. CLOUT reports are published as United Nations documents A/CN.9/SER.C/ABSTRACTS/1 to A/CN.9/SER.C/ABSTRACTS/xx. The CLOUT reports are also available on <strong>UNCITRAL</strong>’s website at http://www.uncitral.org. 8 United Nations Treaty Series, vol. 1498, No.25567, p. 3 (see FN 57). 9 Official Records <strong>of</strong> the General Assembly, Fifty-sixth Session, Supplement No. 17 (A/56/17), para. 390. 10 Official Records <strong>of</strong> the General Assembly, Fifty-ninth Session, Supplement No. 17 (A/59/17), paras. 87-91.
practitioners, academics and Government <strong>of</strong>ficials use more efficiently the case law relating to the Model <strong>Law</strong>. 10 13. States, when enacting the Model <strong>Law</strong>, have in certain instances made modifications to certain provisions, despite recommendation to make as few changes as possible when incorporating the text into their legal system (see above in this section, para. 3). The <strong>Digest</strong> indicates, to the extent possible, where a diverging interpretation <strong>of</strong> a specific provision originates from a modification made to the Model <strong>Law</strong> provision when enacted in the domestic legislation. ACkNowLeDgeMeNt <strong>of</strong> CoNtrIbutIoNs 14. The <strong>Digest</strong> is the result <strong>of</strong> the cooperation between the national correspondents and the <strong>UNCITRAL</strong> Secretariat. Introduction 3 3 Its first draft, prepared in <strong>2012</strong>, greatly benefited from the contributions <strong>of</strong> Frédéric Bachand, <strong>Law</strong>rence Boo and Stephan Kröll. Before being published in the current format, the <strong>Digest</strong> was further edited by the <strong>UNCITRAL</strong> Secretariat. For questions or comments on the <strong>Digest</strong>, please contact the Secretariat <strong>of</strong> <strong>UNCITRAL</strong> (International Trade <strong>Law</strong> Division, Office <strong>of</strong> Legal Affairs, United Nations, Vienna International Centre P.O. Box 500, 1400 Vienna, Austria, uncitral@uncitral.org).
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Page 5 and 6: Contents Introduction to the <stron
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Disregard of the c
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