CHAPTER ONE: INTRODUCTION

 

(1):      The National Committee on the Reform and Harmonization of Arbitration and ADR Laws in Nigeria

 

1.         The National Committee on the Reform and Harmonisation of Arbitration and ADR Laws was inaugurated by the Honourable Attorney General of the Federal Republic of Nigeria, Chief Bayo Ojo S.A.N., FCI. Arb on the 23rd of September 2005, with the following as members:

 

(i)                  The Hon. Dr J. Olakunle Orojo C.O.N., O.F.R., FCI.Arb (Chairman)

(ii)                H.E. Prince Bola A. Ajibola, K.B.E, S.A.N.

(iii)               Chief (Mrs) Tinuade Oyekunle FCI.Arb     

(iv)              Mr. Muhammed Belo Adoke

(v)                Mr. Paschal Madu

(vi)              Dr. Paul Idornigie

(vii)             Mr. Kelvin Nwosu

(viii)           Mrs. Doyin Rhodes-Vivour FCI.Arb

(ix)              Mr. Tony Amokeodo

(x)                Mrs. Bakare (Director, Solicitors Department, Federal Ministry of Justice)

(xi)              Mr. Dele Belgore, S.A.N. FCI.Arb

(xii)             Mr Tunde Busari FCI. Arb

(xiii)           Mr. Gbola Akinola

(xiv)           Chief J. K. Gadzama S.A.N., MCI.Arb  

(xv)            Babatunde J. Fagbohunlu MCI.Arb  (Secretary to the Committee)    

 

2.         The Committee was inaugurated with the following terms of reference, viz:

 

  • To review Nigeria’s laws on arbitration and other ADR mechanisms with a view to proposing necessary reforms and to bring the laws in  line with modern trends, and

 

  • To perform such other acts as are necessary for the realization of the objective of giving Nigeria a modern law and procedure on alternative disputes resolution.

 

 

(2)        The history of Arbitration and ADR in Nigeria

 

 

3.         The Arbitration Ordinance of 1914 was the first arbitration statute that applied to the whole of the territory now known as the Federal Republic of Nigeria. Based on the English Arbitration Act of 1889, the 1914 Ordinance was passed on the 31st of December 1914 after the amalgamation of the northern and southern parts of Nigeria. The 1914 Ordinance was subsequently re-enacted as the Arbitration Ordinance of 1958, and appeared as Chapter 13 in the Laws of the Federation of Nigeria and Lagos 1958.        

 

4.         Each of the Regions formally adopted the Arbitration Ordinance of 1958 into their own Laws. For instance, it was enacted by the Western Region as the Arbitration Law, Chapter 18, Laws of the Western Region of Nigeria 1959, and subsequently by Lagos State as the Arbitration Law Chapter 10, Laws of Lagos State 1973.       

 

5.         The above legal framework for arbitration continued in force until the 14th of March 1988 when the Arbitration and Conciliation Decree No 11 of 1988 (“ACD”) was enacted by the then Federal Military Government. Three significant features of the new regime introduced by the ACD are: (i) it applied as a federal enactment throughout the territory of the Federal Republic of Nigeria, and superseded all State arbitration legislations; this was possible because of the “unitary” legislative arrangements under the military regime, according to which the Federal Military Government was competent to legislate on any subject for the entire federation, including the States; (ii) secondly, it included for the first time in the history of arbitration legislation in Nigeria, provisions on international commercial arbitration; indeed, the overall framework of the ACD consisted of a mix of provisions which existed for domestic arbitration under the previous arbitration legislation and provisions which were applicable to international commercial arbitration, inspired by the UNCITRAL Model Law on International Commercial Arbitration and the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958; (iii) thirdly, the new legislation contained provisions on Conciliation, a form of Alternative Disputes Resolution (ADR) for which there had, hitherto, been no legislative framework.

 

6.         On the 29th of May 1999 a new constitutional and democratic regime emerged in Nigeria founded upon the Constitution of the Federal Republic of Nigeria 1999. An important aspect of the new constitutional arrangement is the distribution of legislative powers among the Federal and State legislatures. While the Federal Government had exclusive competence to make laws on matters itemized in the Exclusive Legislative List, the State Governments had legislative concurrent legislative competence in respect of matters in the Concurrent List, and excusive legislative competence in respect of matters that were not in the Exclusive or Concurrent Lists. Although arbitration is not in the exclusive and concurrent lists, section 315(1) of the 1999 Constitution preserves the validity of the ACD as an existing law, and provides that the ACD remains valid as a law enacted by the Federal and State legislatures to the extent of their respective legislative competence.       

 

 

(3)        The need for reform

 

7.         Nigeria’s arbitration legislation, the Arbitration and Conciliation Act (“the ACA” was passed into law on the 4th of March 1988. It is apparent from the provisions of the legislation that one of the purposes of its enactment was to implement Nigeria’s treaty obligations under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards made in New York on the 10th of June 1958 (“the New York Convention”). Also, since the legislation was to apply to international commercial arbitrations, there was a clear intention to incorporate the basic concepts of the UNCITRAL Model Law on International Commercial Arbitration of 1985 (“the UNCITRAL Model Law”) [1] .

 

8.         Eighteen years after the ACA was passed, it is clear that the legislation has not achieved the objectives that inspired its enactment. In a number of significant respects the standards for recognition and enforcement of international arbitration agreements and arbitral awards fall short of the standards prescribed by the UNCITRAL Model Law. Inelegantly drafted provisions have created confusion and generated conflicting or retrogressive judicial decisions. Outmoded concepts and definitions have prevented the arbitral process from keeping pace with contemporary trends in international trade and commerce. Above all, experience shows that the ACA has failed to achieve one of the underlying philosophies of the UNCITRAL Model Law and of most national arbitration legislations, viz. to minimize judicial intervention in the arbitral process. In Nigeria, arbitration is often perceived as the first step to litigation, and the arbitral process often becomes entangled in the extremely protracted and cumbersome process of Nigerian litigation. The judicial process itself presently lacks the capacity to give efficient support to the arbitral process. The Table drawn at the end of this Chapter demonstrates the unduly protracted length of time to conclude claims for judicial support (e.g. claims for enforcement of arbitral awards).                     

 

9.         The factors described above inspired the Federal Attorney-General and Minister of Justice, Chief Bayo Ojo S.A.N. to inaugurate the National Committee on the Reform and Harmonisation of Nigeria’s Arbitration and ADR Laws. As will be seen from the narrative that follows, reform is considered necessary because:

 

(i)                  It is indispensable to the Federal Government’s policy which aims to position Nigeria as an attractive centre for domestic and international commercial arbitrations. Such policy is reflected in the establishment of the Regional Centre for International Commercial Arbitration in Nigeria under the auspices of the Asian-African Legal Consultative Organisation (AALCO), and with the Federal Government of Nigeria’s cooperation and assistance [2] . Nigeria generates a significant volume of commercial transactions (both domestic and international) that are ultimately arbitrated in foreign countries when disputes arise. The flow of “domestic” (i.e. purely Nigerian) arbitration cases to arbitral venues outside Nigeria is unhelpful to Nigeria’s economic empowerment and development strategy programme (NEEDS) [3] .

 

(ii)                Business managers (or their legal advisers) who have to decide on the advantages of choosing Nigeria as an arbitration forum will be interested in knowing the adequacy and efficacy of Nigeria’s legal framework for arbitration. A perception that Nigeria’s arbitration laws and practices are antiquated (in the sense that they have not been updated to take account of modern business practices) or that they are unfriendly to the requirements of international commercial arbitration will dissuade business managers from choosing Nigeria as their arbitration forum. Countries that desire to establish themselves as attractive centers for commercial arbitration have reviewed their arbitration legislations to ensure optimal conformity with the fundamental tenets of international arbitration reflected in the UNCITRAL Model Law and the New York Convention, such as party autonomy and minimal judicial intervention [4] .           

       

10.       Therefore, the expected benefits of the reform proposals outlined in this document may be summarized as follows:  

 

(i)                  The proposed reform will establish confidence in Nigeria’s arbitration laws and institutions, and stem capital flight arising from the fact that business managers prefer to arbitrate Nigerian transactions in foreign countries;

 

(ii)                The proposed reform will promote the reputation of Nigeria’s arbitration laws and institutions, and will position Nigeria as a hub for the arbitral resolution of commercial disputes in and beyond the West Africa sub-region [5] . International perception that Nigeria’s arbitration regime is consistent with contemporary international standards, and that it works efficiently, will enable Nigeria to take advantage of its position in ECOWAS, and its affiliation with the Asian-African Legal Consultative Organisation to position itself for more international arbitration work [6] .        

 

(iii)               The proposed reform will complement Government’s efforts to re-energize the Nigerian economy and attract foreign investment. Business managers generally prefer arbitration because it is a speedy and efficient means of commercial dispute resolution, and because they have more control over the process. Confidence in Nigeria’s economy will be engendered by the knowledge that Nigeria’s arbitration process works in precisely this manner. The World Bank's report, “Doing Business in 2005” [7] classifies Nigeria as the eighth slowest country to enforce contracts (out of one hundred and forty-five countries surveyed). Effective implementation of the proposed reforms will help to reverse this perception.  

 

(iv)              The arbitration regime is an integral part of Nigeria’s civil justice system. The proposed reform will have a knock-on effect on the efficiency of the justice delivery system because, as more business managers have confidence in the arbitration process in Nigeria, fewer disputes will be litigated and there will be an overall reduction in caseload.

 

 

(4)        The Subject Matter of the Reform

 

11.       The Terms of Reference given to the Committee clearly shows that the reform should cover Arbitration and other ADR laws. In the Arbitration and Conciliation Act 1988, the only other method provided for is Conciliation. However, there are other well known forms of ADR, such as Mediation, Mini-trials and Med-Arb. Indeed some form of mediation before civil trial is now provided for in some High Courts’ civil procedure rules under the institutional administration of the Multi-Door Courthouse, to facilitate the resolution of civil disputes.

 

The Committee has made it clear that its approach is to follow that of the UNCITRAL which represents the global view, being an agency of the United Nations. In its consideration of the treatment of the various types of ADR methods, the Committee has come to the conclusion that there is only one process (in some jurisdictions called “conciliation”, and in others referred to as “mediation”) for which a legislative framework needs to be established.                

 

12.       It is the view of the Committee that the process by which disputing parties, by consensus request a third party to assist them in their effort to reach an amicable settlement is interchangeably referred to as “mediation” and “conciliation”. The Nigerian legislation refers to this process as “conciliation”.     

 

13.       The above views of the Committee are supported by the UNCITRAL which in the Model Law on Conciliation (2002) defined “conciliation” as follows:     

 

“ … a process whether referred to by the expression conciliation, mediation or any expression of similar import, whereby parties request a third person or persons (“the conciliator”) to assist them in their attempt to reach an amicable settlement of their dispute arising out of or relating to a contractual or other legal relationship. The conciliator does not have the authority to impose upon the parties a solution to the dispute”.

 

The Committee has adopted this definition in clause 51(2) of the draft Bill. 

 

14.       Since ADR is fully consensual, it is recommended that the section of the Act providing for the application of the rules should also provide that the parties may vary the rues as they wish.           

 

 

 

 

 

 

 

 

 

 

(5)        The Committee’s programme of work

 

15.       The Committee held its inaugural meeting on the 23rd of September 2005. At that meeting the Committee approved and adopted a four months work programme, which was projected to conclude at the end of January 2005 with the submission of a draft Bill and Report to the Honourable Attorney-General and Minister of Justice. Two events however resulted in a significant extension of the Committee’s original projected work programme, namely: (i) unenthusiastic and delayed responses to the Committee’s invitation to the public for Memoranda, and (ii) a consequent need to hold a National Stakeholders’ Forum before the Bill and Report are submitted to the Honourable Attorney-General.                

 

16.       On the 13th of October 2005, the Committee advertised an “Invitation for Memoranda” in “The Guardian”. Individual invitations were also communicated to all stakeholders, including the academia, the business community, the legal profession, the judiciary and arbitral/ADR institutions. Specifically, the Committee invited comments on issues such as:       

 

  • Defects in the legal and institutional framework which permit a high degree of judicial intervention in arbitration proceedings, contrary to what is permitted by international standards, and as a result of which arbitration in Nigeria has become a “first step to litigation”, rather than an “alternative to litigation”;

 

  • Delays in the disposal of “arbitration applications”, i.e. applications for court support, court supervision or court enforcement in relation to the arbitration process;

   

  • Other significant departures from international standards that are reflected in the UNCITRAL Model Law and the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, e.g. failure to give effect to international commercial arbitration agreements on a mandatory basis;

 

  • Legislative measures required to strengthen the mechanism for resolution of commercial disputes through mediation, conciliation and other non-arbitral dispute resolution processes.

 

  • Legislative authority for and general structure of any proposed implementing legislation. 

 

17.       The Committee originally set the deadline for the submission of memoranda for the 16th of November 2005, but as a result of the delayed responses, the deadline was extended several times. Ultimately, the Committee received memoranda from the following individuals and organizations:    

 

    1. Dr J. Olakunle Orojo, CON, OFR, FCI.Arb
    2. Chief Mrs Tinuade Oyekunle, FCI.Arb
    3. Mr. Dele Belgore S.A.N. FCI.Arb (Sofunde, Osakwe, Ogundipe & Belgore)
    4. Professor Andrew Chukwuemerie
    5. Mrs Funke Adekoya S.A.N., FCI.Arb
    6. Dr Paul Idornigie
    7. Mrs. Doyin Rhodes-Vivour, FCI.Arb (Doyin Rhodes-Vivour & Co)
    8. Mr. Tunde Busari FCI.Arb (Akinwunmi & Busari)
    9. Mr. Tunde Fagbohunlu MCI.Arb (Aluko & Oyebode)
    10. The Attorney-General of Kogi State
    11. Chief A.I. Idigbe, S.A.N. (Punuka Chambers)
    12. The Negotiation and Conflict Management Group

 

18.       Because of the problem of funding, the Committee decided to hold its meeting in Lagos where most of the members reside, instead of Abuja. As soon as a number of memoranda were received, the Committee commenced deliberations and formulated various ideas and guidelines. It collated the memoranda and the discussions for further consideration. In order to take account of the views of stakeholders, the following individuals representing stakeholder organizations were co-opted into the Committee’s plenary sessions.   

 

1.         Mrs Funke Agbor (Adepetun, Caxton-Martins, Agbor & Segun)

Representing The Nigerian Maritime Law Association

 

2.         Mrs Eunice Oddiri

The Director

Regional Centre for International Commercial Arbitration

 

3.         Dr Wale Olawoyin (Olawoyin & Olawoyin)

                        Department of Commercial ands Industrial Law, University of Lagos

 

4.         Chuka Agbu Esq (B.O. Babalakin & Co)

The Institute of Mediators and Conciliators

 

5.         The Negotiation & Conflict Management Group

(The Multi Door Court House)

 

6.         Mr Chidiebere Ibe

USAID Reforms Project

 

 

19.       The Committee held a two-day plenary session during which the proposals were debated. Drafting instructions were then formulated for a drafting sub-committee. The work of the drafting sub-committee resulted in three documents, namely: (i) a draft Federal Arbitration and Conciliation Bill (ii) a draft Model Uniform Arbitration Law for the States and (iii) a Report detailing the Committee’s work.         

 

20.       In addition to the work programme described above, the Committee has requested for and received technical assistance from the UNCITRAL and USAID Reforms. The Committee is being assisted by USAID Reforms to organize a National Stakeholders’ Conference which is scheduled for the 22nd of May 2006. Consequently, this document, originally intended to be the Report of the Committee, has been re-designated as a “discussion paper”, and will be published in advance of the Stakeholders’ Conference.           

 

 

 

 

 

 

 

 

 

CHAPTER TWO: LEGISLATIVE ARRANGEMENTS

 

The Problem:

 

21.       Arbitration, Conciliation and other ADR processes are not included in the Exclusive or Concurrent Legislative List in the Constitution.  Therefore, it has been suggested that the Federal Government has no constitutional power to legislate on them. On the supposition that this view is correct, various suggestions were made for the amendment of the Constitution to give the Federal Government to legislate on arbitration and conciliation.

 

Recommended Solution:

 

22.       However, the general view is that considering certain provision of the Constitution, the Federal Government does have the competence to legislate on arbitration and conciliation, but only in respect of certain commercial transactions. This view arises from the following:

 

(1)        That item 62 of the Exclusive Legislative List of the Second Schedule in the Constitution of the Federal Republic of Nigeria, 1999 is, inter alia:

 

(a)        “Trade and Commerce between Nigeria and other countries……. and trade and commerce between the States”.

 

(2)        That item 68 of the said Exclusive Legislative List is as follows:

 

“Any matter incidental or supplementary to any matter mentioned elsewhere in this List”.

 

(3)        That arbitration and conciliation, being means of resolution of disputes arising from trade and commerce, are incidental and supplementary to item 62.

 

In the light of the above, the following proposals are recommended:

 

(a)        That the Federal Government has the constitutional power and competence to legislate on arbitration and conciliation but only in respect of trade and commerce which are international or inter state.

 

(b)        That arbitration and conciliation in respect of matters not covered by item 62 of the Exclusive Legislative List are outside the legislative powers of the Federal Government, being residuary and, therefore, within the legislative competence of the States.

 

(c)        That in these circumstances, two sets of statutes are required, namely,

 

(i)         A Federal Arbitration and Conciliation Act which will apply to international trade and commerce and trade between the States.

 

(ii)        A Uniform Arbitration and Conciliation Law for the States to adopt as desired.  It is suggested that the draft of the Uniform Arbitration and Conciliation Law should be considered and approved by the Conference of Attorneys – General as necessary.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

CHAPTER THREE: REVIEW OF THE ARBITRATION AND CONCILIATION ACT

 

23.       In this Chapter it is intended to consider the existing law, i.e., the Arbitration and Conciliation Act, 1988, but before doing so, it is necessary to examine and take a decision on what comes under ADR laws as referred to in the Committee’s Terms of Reference.

 

24.       The expression “Alternative Dispute Resolution” (ADR), is said to be generally used to describe the methods and procedures used to resolve disputes either as alternative to the traditional dispute resolution mechanism of the court or in some cases as supplementary to such mechanism (see Orojo and Ajomo, Law and Practice of Arbitration and Conciliation in Nigeria, pp. 4-6 & 9-11).  Apart from Arbitration, the best known form of ADR is Conciliation which can take various forms such as Conciliation, Mediation, Mini-Trial and Med-Arb.

 

25.       It was generally agreed in the relevant memoranda submitted to the Committee and the discussions of the Committee at sub-committee and plenary sessions that the proposed legislation should not depart from the global view on the subject as demonstrated by the UNCITRAL in its Model Law on Conciliation.  It is noteworthy in this connection that Article 1.3 of the UNCITRAL Model Law on International Commercial Conciliation (2002) defines “conciliation” to include “….a process whether referred to by the expression conciliation, mediation or an expression of similar import …”   From the above, it is clear that the term “conciliation” includes all the processes with a similar import.  We should therefore follow the example of the UNCITRAL and legislate on Conciliation to cover all similar processes.

 

26.       With the above background, the Committee examined the provisions of the Arbitration and Conciliation Act, 1988 and, in doing so, considered the suitability and adequacy of the existing provisions in the light of experience and the need to meet local as well as global challenge and requirement of our national life and economy.  The Committee examined the Act section by section and recommended amendments as may be necessary.

 

Scheme of consideration:

 

27.       The provisions in the Arbitration and Conciliation Act 1988 (“the ACA”) are divided into four parts, namely:  

 

Part I: Arbitration

Part II: Conciliation

Part III: Additional provisions relating to international commercial arbitration and conciliation

Part IV: Miscellaneous

 

28.       One of the underlying philosophies that guided the Committee’s work was the need to apply (as much as possible) similar standards to both domestic and international arbitration. Therefore in the proposed Bill there is no longer a separate part dealing with “international commercial arbitration”. The provisions in Part I of the Bill apply to both international and domestic arbitration, except in those few instances where specific provisions are made in respect of international commercial arbitration.

          

The overall scheme of the proposed Bill is therefore as follows:

 

(1)        Part I: Arbitration

(2)        Part II: Conciliation

(3)        Part III: Miscellaneous Matters.

 

29.       The following paragraphs of this Discussion Paper discuss the Committee’s deliberations and recommendations. Aside from the overall schematic change discussed above, the consideration and decisions of the Committee cover the following:

 

(A)       The adoption without any modification of the provisions of some existing sections of ACA which the Committee considered suitable and adequate.

 

(B)       The modification of the provisions of some of the existing sections of ACA.

 

(C)       The introduction of entirely new provisions of topics not dealt with by ACA.

        

 

PART I: ARBITRATION

 

Section A: Provisions of Part I of ACA which have been adopted

 

 

30.       After the Committee had carefully considered the provisions of the following Arbitration sections of ACA, it decided that they should be adopted without any modifications as suitable and adequate.  They are:-

 

s.2       -           Arbitration agreement irrevocable except by agreement or leave of court.

            s.3        -           Death of party.

            s.11      -           Appointment of substitute arbitration.

            s.17      -           Commencement of substitute arbitration.

            s.18      -           Language to be used in arbitral proceedings.

            s.20      -           Hearing and written pleadings.

            s.21      -           Default of a party.

            s.25      -           Settlement.

            s.27      -           Termination of proceedings.

            s.28      -           Correction and interpretation and additional award.

            s.35      -           Extent of application of this Act to Arbitration.

            s.36      -           Extension of time.

            s.53      -           Application of Arbitration Rules set out in the First Schedule.

 

Section B: Provisions of Parts I and III of ACA that have been Modified

 

(i)        Section 1 of the ACA and clause 2 of the Bill: Formal Requirements for Arbitration Agreements:

 

31.       The 1988 Arbitration and Conciliation Act requires that an arbitration agreement must fulfill any one of the following formal requirements as a pre-condition for its validity, i.e.   

 

(a)                it must be contained in a document signed by the parties to the agreement, or

 

(b)               it must be contained in an exchange of letters, telex, telegrams or other means of communication which provide a record of the arbitration agreement [8] .

 

While the Act recognizes that parties to a contract may incorporate into their contract an arbitration clause contained in another document, nevertheless such incorporation by reference will only be valid if the underlying contract itself is in writing.

 

32.       The above formal requirement is based on Article 7 of the UNCITRAL Model Law. It is however now recognized that the requirement is not consistent with a significant number of well accepted business practices and contemporary forms of business communications. Indeed it has been said that in so far as Article 7 of the UNCITRAL Model Law seeks to reflect the needs of international commerce, it is now “anachronistic” [9] . It is submitted that this comment applies with equal force to the form requirement under Nigeria’s Arbitration Act, which was itself inspired by Article 7 of the UNCITRAL Model Law.      

 

33.       As presently worded, section 1(1) and (2) of the Nigerian Arbitration Act will invalidate arbitration agreements reached under the following forms of business arrangements; 

 

(i)                  Computer Software Licensing Agreements: acceptance of a computer software licensing agreement usually occurs when the offeree breaks the seal on the disk or CD-Rom container or clicks on an “I Agree” button on an initial screen. This form of tacit acceptance (by conduct or performance) will not be sufficient to validate an arbitration clause contained in the licensing agreement since there is no “signature” or “exchange” as required by section 1(1) of the Nigerian Arbitration Act. 

 

(ii)                Bills of Lading: in practice these are rarely signed by both parties, and are rarely “exchanged” in the sense contemplated by section 1(1) of the Nigerian Arbitration Act [10] .

 

(iii)               Salvage Agreements: these are usually concluded by VHF radio (i.e. oral offer and oral acceptance) by reference to the Lloyds Open Form (LOF), a standard industry set of terms and conditions which include an arbitration clause. Because the underlying salvage agreement itself is oral, the reference to the LOF is not sufficient to incorporate its arbitration clause under section 1(2) of the Nigerian Arbitration Act.

 

(iv)              Negotiable Instruments containing arbitration clauses, in the hands of non-signing third parties (such as subsequent holders or endorsees).

 

(v)                Companies’ Articles of Associations incorporating arbitration clauses.

 

(vi)              Universal Transfers of Assets, including successions, mergers, de-mergers and acquisitions of companies.

 

(vii)             Specific Transfers of Assets, including transfers of contracts, assignments of receivables or debts, novation, subrogation etc.

 

(viii)           Multiple Party Situations: involving groups of contracts or groups of companies [11] .                  

 

34.       It is noteworthy that many countries have adopted provisions relating to the formal validity of arbitration agreements which take cognizance of accepted business practices and advancements in communication technology, and which will therefore accommodate arbitration agreements reached under the types of business arrangements itemized above [12] . Article 7 of the UNCITRAL Model Law is itself under review in order to achieve this same objective. The modifications to Article 7 proposed by the UNCITRAL Working Group II (Arbitration and Conciliation) include provisions to the effect that: 

 

 

(2)               … “Writing” means any form, including without any limitation a data message that provides a record of the agreement or is otherwise accessible so as to be usable for future reference.

 

(3)               “Data Message” means information generated, sent, received or stored by electronic, optical or similar means, including, but not limited to, electronic data interchange (EDI), electronic mail, telegram, telex or telecopy.

 

(4)               …   ….   …   …   …   …   …   …   …   …   …   …   …

 

(5)               For the avoidance of doubt, the reference in a contract or a separate arbitration agreement to a writing containing an arbitration clause constitutes an arbitration agreement in writing provided that the reference is such as to make that clause part of the contract or the separate arbitration agreement, notwithstanding that the contract or the separate arbitration agreement has been concluded orally, by conduct or by other means not in writing. In such a case, the writing containing the arbitration clause constitutes the arbitration agreement for purposes of article 35. [13]              

 

 

35.       Significantly influenced by another UNCITRAL document (i.e. the UNCITRAL Model Law on Electronic Commerce) the proposed re-draft of Article 7 of the Model Law clarifies that arbitration agreements can be validly concluded by means other than in the form of paper-based documents, as for example, by electronic communications or other forms of data messages, provided such message is “accessible so as to be useable for subsequent reference”.           

 

36.       The Committee has considered concerns about the possible tensions between the proposed re-draft of Article 7 of the Model Law with its liberal requirements for formal validity and, on the other hand, the narrow requirements for formal validity contained in Article II(2) of the New York Convention of 1958. Specifically, Article II(2) of the Convention has been construed as requiring that an arb