Introduction
Last week, the Netherlands Arbitration Institute (NAI) shared its experience on the legal framework and use of electronic awards. The venue was the 80th UNCITRAL: United Nations Commission on International Trade Law Working Group II session. The full programme and materials on the UNCITRAL electronic awards Colloquium are available here.
The issue | the use of electronic awards in enforcement proceedings
In the last few years, the UNCITRAL Secretariat did extensive stocktaking of developments in dispute resolution in the digital economy. This included recognising and enforcing electronic arbitral awards. It emerged that there was no widespread use of electronic awards. This hampers their potential to enhance efficiency and ensure uninterrupted justice delivery. The perceived issue is that the New York Convention does not explicitly address electronic awards. This may cause uncertainties and prevent the widespread use of electronic awards.
The experience
The use and acceptance of electronic awards worldwide vary greatly. In general, parties use a paper copy of the award in enforcement proceedings.
It was clear from the presentations (the presentation of the NAI is available here), that flexibility in using electronic signatures is pivotal for accelerating the use and benefits of electronic awards. For example, in the UK, the arbitral tribunal and the parties are free to determine the form of the arbitral award. Thereby allowing for less stringent ways of electronic signatures. In contrast, in the Netherlands, the Dutch Arbitration Act prescribes the use of a qualified electronic signature for arbitral awards (Article 1072b(3) of the Dutch Code of Civil Procedure (DCCP). This makes it more challenging to use an electronic signature. Flexibility in using electronic signatures is pivotal for accelerating the use and benefits of e-awards.
The solution and next steps
Electronic arbitral awards are enforceable under the New York Convention. This follows from the Travaux Préparatoires, the Vienna Convention on the Law of Treaties and the existing UNCITRAL texts on electronic commerce. This interpretation is crucial for the global acceptance and implementation of electronic awards.
The following options to address the issue are available:
– a definition of electronic arbitral awards
– a supplementary convention or protocol;
– a recommendation on the interpretation of the Convention; and/or
– an amendment of the model law.
The Working Group Session requested the member states to collect information on the enforcement of electronic awards in different jurisdictions, in particular, the following questions:
A. What is the status of foreign arbitral awards (a) in electronic form or (b) with digital signature for enforcement by courts? How would they be submitted to and treated by courts, including relevant practice and case law?
B. What is the status of domestic arbitral awards (a) in electronic form or (b) with digital signature for enforcement by courts? How would they be submitted to and treated by courts, including relevant practice and case law? If any relevant judgments are available, we would be grateful if you could provide us with copies of any such judgments, preferably in English if possible.
On the 81st session of the Working Group that will take place on 3-7 February 2025 in New York, the work for the UNCITRAL electronic awards will continue.
