Dear all,

 

I hope all is well with you. In advance of the upcoming WGII session, we were interested in holding a conference call as we have done in the past in order to discuss some of the topics on the agenda and to get a better sense of each other's ideas.

 

In general, we thought it might be prudent to raise the following issues, however we are open to discussing any topic which may be of interest to you.

 

1.       With regards to Model Clause A (Highly Expedited Arbitration), as mentioned in para. 16 of the Secretariat's note: Are there time frames which would need to be adjusted in response to the Highly Expedited Arbitration mechanism?

2.       With regards to Model Clause B (Multi-Tier Dispute Resolution) para 2(b) of the Model Clause- It would seem that if a side has not complied with the specialist determination, the side would effectively lose any chance to have the determination reviewed by arbitration as per para 3, as para 2(b) dictates that the arbitral tribunal would "render an award giving effect to the specialist determination" and as per the UNCITRAL Arbitration Rules there is no mechanism to review/appeal an arbitral award. It should also be noted that para 2 only has the arbitral tribunal reviewing compliance to the specialist determination and not the merits of the determination. While we understand the need for an arbitral tribunal to give effect to the specialist determination, is there a way we can preserve the ability of the side to appeal the specialist determination?

3.       With regards to the question raised in para. 25 and para. 26 of the Secretariat's note: What procedures and guidelines should be suggested to guide the specialists actions in reaching their determination, and what is the best way to incorporate them into the model clause.

4.       With regards to the question raised in para. 36 of the Secretariat's note: Do you support including a paragraph to limit the parties from initiating other dispute resolution proceedings during their agreed upon period?

5.       With regards to Model Clause D (Confidentiality): Would it be ideal to expand the ability of decision makers to publicize decisions?

 

In terms of times to hold the call, would any of the following options work?

·         25.1- 16:00 IST

·         25.1- 17:00 IST

·         26.1- 16:00 IST

·         1.2- 16:00 IST

·         1.2- 17:00 IST

·         2.2- 16:00 IST

·         2.2- 17:00 IST

 

Yosef Brander, Law Clerk.