I am interested in the general theory of international commercial arbitration and in the doctrinal issues raised by the laws of France, Luxembourg and the UNCITRAL Model Law on international commercial arbitration.
Commentary of the UNCITRAL Model Law
This book is a comparative commentary of the implementation of the UNCITRAL Model Law on International Commercial Arbitration (the Model Law). It seeks to offer an account of the operation of the Model Law in the numerous jurisdictions which have adopted it throughout the world. Model laws enter into force through local implementation and become binding as national legislation. Each Model Law jurisdiction has thus adopted local legislation for the purpose of implementing the Model Law, and this legislation has in turn been interpreted by local courts. Each Model Law jurisdiction has produced, therefore, a range of rules and interpretations in this context, which are the primary focus of this book.
For each of the articles of the Model Law, the book presents the original text adopted by the UNCITRAL and the most interesting amendments adopted by implementing legislations. These amendments are discussed in the commentary of the relevant article, but some of them are highlighted at the outset and presented with the original text, in order to enable readers to immediately realise whether a particular variation is commonly found in implementing legislations. More precisely, it was decided to highlight variations in two cases. The first is when they have been adopted by a significant number of Model Law jurisdictions and thus reveal a trend among at least some Model Law jurisdictions. The second is when an amendement is representative of the most widely shared interpretation of the rule on a given issue, irrespective of whether it was actually adopted by many Model Law jurisdictions.
The book also attempts to include references to and discuss as many cases as possible, originating from as many Model Law jurisdictions as possible. The goal is to identify the existence of potential variations in the interpretation of the Model Law or, conversely, to show that the courts of many Model Law jurisdictions have adopted similar interpretations. Article 2A of the Model Law encourages interpreters to consider its international origin and the need to promote uniformity in its application when interpreting it, and this has been rightly interpreted as a call for considering the case law of other Model Law jurisdictions.
Law Reform: New Arbitration Law in Luxembourg
The Luxembourg Parliament is currently considering adopting a new law on arbitration. Under the aegis of the Think Tank pour l’arbitrage à Luxembourg, I was one of the five drafters who wrote the bill (avant projet de loi portant réforme de l’arbitrage) which is currently under consideration.
I have also published on a number of doctrinal issues related to the enforcement of foreign arbitral awards in Luxembourg, including the interpretation public policy exception by Luxembourg courts and the enforcement of arbitral awards annulled in their country of origin.
I have developed, over a period of 10 years, the radical idea that arbitration should lose its contractual foundation and become the default mode of resolution of international commercial disputes. First in an article published in 2009 in an American law review, and then in a monograph (Rethinking International Commercial Arbitration, Towards Default Arbitration, Edward Elgar 2017), I proposed a fundamental rethink of the consensual foundation of arbitration. The book discusses the most important arguments against this proposal and responds to them. It then presents several models of non-consensual arbitration that could be implemented to afford neutral adjudication in disputes between parties originating from different jurisdictions, to offer an additional alternative forum in the doctrine of forum non conveniens or to save judicial costs. Finally, it offers several paths to implementations for lawmakers to consider.
Since my initial article, the proposal has been endorsed by a number of scholars who have built on it and further developed it (for instance, by proposing new paths for implementation or new arguments in its support – e.g. Fabio Núñez del Prado, La tragedia del consemiento, 2019).
“Jurisdiction to Grant Interim Measures in Support of Arbitration: The Influence of European Law” (2019/2020) 21 Yearbook Private Int’l L. 21 217
“The Law governing the modality of arbitral awards”, (2009) 25 Arb. Int’l. 347
“Parallel Litigation and Foreign Investment Dispute Settlement” (2006) ICSID Rev. Foreign Investment LJ 381