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34.�(1) The parties to an
arbitration agreement may agree on the powers of the arbitrator or umpire
as regards the award of interest.
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(2) Unless otherwise agreed
by the parties, the arbitrator or umpire may award simple or compound
interest from the dates, at the rates and with the rests that he or she
considers meet the justice of the case�
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(a) on all or
part of any amount awarded by the arbitrator or umpire, in respect of any
period up to the date of the award;
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(b) on all or
part of any amount claimed in the arbitration and outstanding at the
commencement of the arbitration but paid before the award was made, in
respect of any period up to the date of payment.
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(3) Unless otherwise agreed
by the parties, the arbitrator or umpire may award simple or compound
interest from the date of the award (or any later date) until payment, at
the rates and with the rests that he or she considers meet the justice of
the case, on the outstanding amount of any award (including an award of
interest under subsection (2) and an award of costs).
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(4) References in this
section to an amount awarded by an arbitrator or umpire include an amount
payable in consequence of a declaratory award by the arbitrator or umpire.
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(5) This section shall not
apply to an arbitration commenced before the day on which the Arbitration
(International Commercial) Act, 1998, comes into operation unless�
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(a) the
arbitration is concluded after that day, and
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(b) the parties
agree that this section shall apply.
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(6) This section shall
apply to an arbitration commenced on or after the day on which the Arbitration
(International Commercial) Act, 1998 comes into operation�
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(a) under an
arbitration agreement entered into on or after that day, or
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(b) if the
parties so agree, under an arbitration agreement entered into before that
day.
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(7) This section shall not
apply to an arbitration conducted by a property arbitrator appointed under section
2 of the Property Values (Arbitration and Appeals) Act, 1960 .�.
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Amendment to
Arbitration Act, 1980.
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18.� Section 5 of the Arbitration Act, 1980 , is
hereby amended by the insertion of the following subsection after
subsection (2):
�(3)
Nothing in this section shall prevent any party to an arbitration agreement
from invoking the alternative method, provided by the Rules of Court (as
amended from time to time), of commencing and dealing with a civil proceeding
in respect of a small claim.�.
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SCHEDULE
Text of
UNCITRAL MODEL LAW ON INTERNATIONAL COMMERCIAL ARBITRATION as adopted by
the United Nations Commission on International Trade Law on 21 June 1985
(UNCITRAL) Model
Law
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Section 3 .
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CHAPTER I.
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General Provisions
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Article 1.
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Scope of
application *
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(1)
This Law applies to international commercial ** arbitration, subject to any agreement in force between
this State and any other State or States.
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(2)
The provisions of this Law, except articles 8, 9, 35 and 36, apply only if
the place of arbitration is in the territory of this State.
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(3)
An arbitration is international if:
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(a) the parties to
an arbitration agreement have, at the time of the conclusion of that
agreement, their places of business in different States; or
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(b) one of the
following places is situated outside the State in which the parties have
their places of business:
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(i) the place of
arbitration if determined in, or pursuant to, the arbitration agreement;
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(ii) any place where a
substantial part of the obligations of the commercial relationship is to be
performed or the place with which the subject-matter of the dispute is most
closely connected; or
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(c) the parties
have expressly agreed that the subject-matter of the arbitration agreement
relates to more than one country.
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(4)
For the purposes of paragraph (3) of this article:
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(a) if a party has
more than one place of business, the place of business is that which has
the closest relationship to the arbitration agreement;
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(b) if a party
does not have a place of business, reference is to be made to his habitual
residence.
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(5)
This Law shall not affect any other law of this State by virtue of which
certain disputes may not be submitted to arbitration or may be submitted to
arbitration only according to provisions other than those of this Law.
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Article 2.
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Definitions
and rules of interpretation
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For the purposes of this Law:
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(a) �arbitration�
means any arbitration whether or not administered by a permanent arbitral
institution;
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(b) �arbitral
tribunal� means a sole arbitrator or a panel of arbitrators;
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(c) �court�
means a body or organ of the judicial system of a State;
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(d) where a
provision of this Law, except article 28, leaves the parties free to
determine a certain issue, such freedom includes the right of the parties
to authorise a third party, including an institution, to make that
determination;
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(e) where a
provision of this Law refers to the fact that the parties have agreed or
that they may agree or in any other way refers to an agreement of the
parties, such agreement includes any arbitration rules referred to in that
agreement;
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(f) where a
provision of this Law, other than in articles 25(a) and 32(2)(a),
refers to a claim, it also applies to a counterclaim, and where it refers
to a defence, it also applies to a defence to such counter-claim.
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Article 3.
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Receipt of
written communications
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(1)
Unless otherwise agreed by the parties:
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(a) any written
communication is deemed to have been received if it is delivered to the
addressee personally or if it is delivered at his place of business,
habitual residence or mailing address; if none of these can be found after
making a reasonable inquiry, a written communication is deemed to have been
received if it is sent to the addressee's last-known place of business,
habitual residence or mailing address by registered letter or any other
means which provides a record of the attempt to deliver it;
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(b) the
communication is deemed to have been received on the day it is so
delivered.
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(2)
The provisions of this article do not apply to communications in court
proceedings.
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Article 4.
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Waiver of
right to object
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A party who knows that
any provision of this Law from which the parties may derogate or any
requirement under the arbitration agreement has not been complied with and
yet proceeds with the arbitration without stating his objection to such
non-compliance without undue delay or, if a time-limit is provided
therefor, within such period of time, shall be deemed to have waived his
right to object.
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Article 5.
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Extent of
court intervention
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In matters governed by
this Law, no court shall intervene except where so provided in this Law.
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Article 6.
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Court or
other authority for certain functions of arbitration assistance and
supervision
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The functions referred to
in articles 11(3), 11(4), 13(3), 14, 16(3) and 34(2) shall be performed
by..... [Each State enacting this model law specifies the court, courts or,
where referred to therein, other authority competent to perform these
functions.]
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CHAPTER II.
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Arbitration Agreement
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Article 7.
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Definition
and form of arbitration agreement
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(1)
�Arbitration agreement� is an agreement by the parties to submit
to arbitration all or certain disputes which have arisen or which may arise
between them in respect of a defined legal relationship, whether
contractual or not. An arbitration agreement may be in the form of an
arbitration clause in a contract or in the form of a separate agreement.
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(2)
The arbitration agreement shall be in writing. An agreement is in writing
if it is contained in a document signed by the parties or in an exchange of
letters, telex, telegrams or other means of telecommunication which provide
a record of the agreement, or in an exchange of statements of claim and
defence in which the existence of an agreement is alleged by one party and
not denied by another. The reference in a contract to a document containing
an arbitration clause constitutes an arbitration agreement provided that
the contract is in writing and the reference is such as to make that clause
part of the contract.
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Article 8.
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Arbitration
agreement and substantive claim before court
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(1)
A court before which an action is brought in a matter which is the subject
of an arbitration agreement shall, if a party so requests not later than
when submitting his first statement on the substance of the dispute, refer
the parties to arbitration unless it finds that the agreement is null and void,
inoperative or incapable of being performed.
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(2)
Where an action referred to in paragraph (1) of this article has been
brought, arbitral proceedings may nevertheless be commenced or continued,
and an award may be made, while the issue is pending before the court.
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Article 9.
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Arbitration
agreement and interim measures by court
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It is not incompatible
with an arbitration agreement for a party to request, before or during
arbitral proceedings, from a court an interim measure of protection and for
a court to grant such measure.
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CHAPTER III.
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Composition of Arbitral Tribunal
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Article 10.
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Number of
arbitrators
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(1)
The parties are free to determine the number of arbitrators.
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(2)
Failing such determination, the number of arbitrators shall be three.
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Article 11.
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Appointment
of arbitrators
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(1)
No person shall be precluded by reason of his nationality from acting as an
arbitrator, unless otherwise agreed by the parties.
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(2)
The parties are free to agree on a procedure of appointing the arbitrator
or arbitrators, subject to the provisions of paragraphs (4) and (5) of this
article.
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(3)
Failing such agreement,
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(a) in an
arbitration with three arbitrators, each party shall appoint one
arbitrator, and the two arbitrators thus appointed shall appoint the third
arbitrator; if a party fails to appoint the arbitrator within thirty days
of receipt of a request to do so from the other party, or if the two
arbitrators fail to agree on the third arbitrator within thirty days of
their appointment, the appointment shall be made, upon request of a party,
by the court or other authority specified in article 6;
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(b) in an
arbitration with a sole arbitrator, if the parties are unable to agree on
the arbitrator, he shall be appointed, upon request of a party, by the
court or other authority specified in article 6.
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(4)
Where, under an appointment procedure agreed upon by the parties,
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(a) a party fails
to act as required under such procedure, or
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(b) the parties,
or two arbitrators, are unable to reach an agreement expected of them under
such procedure, or
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(c) a third party,
including an institution, fails to perform any function entrusted to it
under such procedure,
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any party may request the court or other
authority specified in article 6 to take the necessary measure, unless the
agreement on the appointment procedure provides other means for securing
the appointment.
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(5)
A decision on a matter entrusted by paragraph (3) or (4) of this article to
the court or other authority specified in article 6 shall be subject to no
appeal. The court or other authority, in appointing an arbitrator, shall
have due regard to any qualifications required of the arbitrator by the
agreement of the parties and to such considerations as are likely to secure
the appointment of an independent and impartial arbitrator and, in the case
of a sole or third arbitrator, shall take into account as well the
advisability of appointing an arbitrator of a nationality other than those
of the parties.
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Article 12.
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Grounds
for challenge
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(1)
When a person is approached in connection with his possible appointment as
an arbitrator, he shall disclose any circumstances likely to give rise to
justifiable doubts as to his impartiality or independence. An arbitrator,
from the time of his appointment and throughout the arbitral proceedings,
shall without delay disclose any such circumstances to the parties unless
they have already been informed of them by him.
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(2)
An arbitrator may be challenged only if circumstances exist that give rise
to justifiable doubts as to his impartiality or independence, or if he does
not possess qualifications agreed to by the parties. A party may challenge
an arbitrator appointed by him, or in whose appointment he has
participated, only for reasons of which he becomes aware after the
appointment has been made.
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Article 13.
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Challenge
procedure
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(1)
The parties are free to agree on a procedure for challenging an arbitrator,
subject to the provisions of paragraph (3) of this article.
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(2)
Failing such agreement, a party who intends to challenge an arbitrator
shall, within fifteen days after becoming aware of the constitution of the
arbitral tribunal or after becoming aware of any circumstance referred to
in article 12(2), send a written statement of the reasons for the challenge
to the arbitral tribunal. Unless the challenged arbitrator withdraws from
his office or the other party agrees to the challenge, the arbitral
tribunal shall decide on the challenge.
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(3)
If a challenge under any procedure agreed upon by the parties or under the
procedure of paragraph (2) of this article is not successful, the
challenging party may request, within thirty days after having received
notice of the decision rejecting the challenge, the court or other authority
specified in article 6 to decide on the challenge, which decision shall be
subject to no appeal; while such a request is pending, the arbitral
tribunal, including the challenged arbitrator, may continue the arbitral
proceedings and make an award.
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Article 14.
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Failure or
impossibility to act
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(1)
If an arbitrator becomes de jure or de facto unable to
perform his functions or for other reasons fails to act without undue
delay, his mandate terminates if he withdraws from his office or if the parties
agree on the termination. Otherwise, if a controversy remains concerning
any of these grounds, any party may request the court or other authority
specified in article 6 to decide on the termination of the mandate, which
decision shall be subject to no appeal.
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(2)
If, under this article or article 13(2), an arbitrator withdraws from his
office or a party agrees to the termination of the mandate of an
arbitrator, this does not imply acceptance of the validity of any ground
referred to in this article or article 12(2).
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Article 15.
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Appointment
of substitute arbitrator
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Where the mandate of an
arbitrator terminates under article 13 or 14 or because of his withdrawal
from office for any other reason or because of the revocation of his
mandate by agreement of the parties or in any other case of termination of
his mandate, a substitute arbitrator shall be appointed according to the
rules that were applicable to the appointment of the arbitrator being
replaced.
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CHAPTER IV.
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Jurisdiction of Arbitral Tribunal
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Article 16.
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Competence
of arbitral tribunal to rule on its jurisdiction
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(1)
The arbitral tribunal may rule on its own jurisdiction, including any
objections with respect to the existence or validity of the arbitration
agreement. For that purpose, an arbitration clause which forms part of a
contract shall be treated as an agreement independent of the other terms of
the contract. A decision by the arbitral tribunal that the contract is null
and void shall not entail ipso jure the invalidity of the
arbitration clause.
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(2)
A plea that the arbitral tribunal does not have jurisdiction shall be
raised not later than the submission of the statement of defence. A party
is not precluded from raising such a plea by the fact that he has appointed,
or participated in the appointment of, an arbitrator. A plea that the
arbitral tribunal is exceeding the scope of its authority shall be raised
as soon as the matter alleged to be beyond the scope of its authority is
raised during the arbitral proceedings. The arbitral tribunal may, in
either case, admit a later plea if it considers the delay justified.
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(3)
The arbitral tribunal may rule on a plea referred to in paragraph (2) of
this article either as a preliminary question or in an award on the merits.
If the arbitral tribunal rules as a preliminary question that it has
jurisdiction, any party may request, within thirty days after having
received notice of that ruling, the court specified in article 6 to decide
the matter, which decision shall be subject to no appeal; while such a
request is pending, the arbitral tribunal may continue the arbitral
proceedings and make an award.
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Article 17.
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Power of
arbitral tribunal to order interim measures
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Unless otherwise agreed
by the parties, the arbitral tribunal may, at the request of a party, order
any party to take such interim measure of protection as the arbitral
tribunal may consider necessary in respect of the subject-matter of the
dispute. The arbitral tribunal may require any party to provide appropriate
security in connection with such measure.
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CHAPTER V.
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Conduct of Arbitral Proceedings
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Article 18.
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Equal
treatment of parties
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The parties shall be
treated with equality and each party shall be given a full opportunity of
presenting his case.
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Article 19.
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Determination
of rules of procedure
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(1)
Subject to the provisions of this Law, the parties are free to agree on the
procedure to be followed by the arbitral tribunal in conducting the
proceedings.
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(2)
Failing such agreement, the arbitral tribunal may, subject to the
provisions of this Law, conduct the arbitration in such manner as it
considers appropriate. The power conferred upon the arbitral tribunal
includes the power to determine the admissibility, relevance, materiality and
weight of any evidence.
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Article 20.
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Place of
arbitration
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(1)
The parties are free to agree on the place of arbitration. Failing such
agreement, the place of arbitration shall be determined by the arbitral
tribunal having regard to the circumstances of the case, including the
convenience of the parties.
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(2)
Notwithstanding the provisions of paragraph (1) of this article, the
arbitral tribunal may, unless otherwise agreed by the parties, meet at any
place it considers appropriate for consultation among its members, for
hearing witnesses, experts or the parties, or for inspection of goods,
other property or documents.
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Article 21.
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Commencement
of arbitral proceedings
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Unless otherwise agreed
by the parties, the arbitral proceedings in respect of a particular dispute
commence on the date on which a request for that dispute to be referred to
arbitration is received by the respondent.
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Article 22.
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Language
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(1)
The parties are free to agree on the language or languages to be used in
the arbitral proceedings. Failing such agreement, the arbitral tribunal
shall determine the language or languages to be used in the proceedings.
This agreement or determination, unless otherwise specified therein, shall
apply to any written statement by a party, any hearing and any award,
decision or other communication by the arbitral tribunal.
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(2)
The arbitral tribunal may order that any documentary evidence shall be
accompanied by a translation into the language or languages agreed upon by
the parties or determined by the arbitral tribunal.
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Article 23.
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Statements
of claim and defence
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(1)
Within the period of time agreed by the parties or determined by the
arbitral tribunal, the claimant shall state the facts supporting his claim,
the points at issue and the relief or remedy sought, and the respondent
shall state his defence in respect of these particulars, unless the parties
have otherwise agreed as to the required elements of such statements. The
parties may submit with their statements all documents they consider to be
relevant or may add a reference to the documents or other evidence they
will submit.
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(2)
Unless otherwise agreed by the parties, either party may amend or
supplement his claim or defence during the course of the arbitral proceedings,
unless the arbitral tribunal considers it inappropriate to allow such
amendment having regard to the delay in making it.
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Article 24.
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Hearings
and written proceedings
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(1)
Subject to any contrary agreement by the parties, the arbitral tribunal
shall decide whether to hold oral hearings for the presentation of evidence
or for oral argument, or whether the proceedings shall be conducted on the
basis of documents and other materials. However, unless the parties have
agreed that no hearings shall be held, the arbitral tribunal shall hold
such hearings at an appropriate stage of the proceedings, if so requested
by a party.
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(2)
The parties shall be given sufficient advance notice of any hearing and of
any meeting of the arbitral tribunal for the purposes of inspection of
goods, other property or documents.
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(3)
All statements, documents or other information supplied to the arbitral
tribunal by one party shall be communicated to the other party. Also any
expert report or evidentiary document on which the arbitral tribunal may
rely in making its decision shall be communicated to the parties.
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Article 25.
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Default of
a party
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Unless otherwise agreed
by the parties, if, without showing sufficient cause,
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(a) the claimant
fails to communicate his statement of claim in accordance with article
23(1), the arbitral tribunal shall terminate the proceedings;
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(b) the respondent
fails to communicate his statement of defence in accordance with article
23(1), the arbitral tribunal shall continue the proceedings without
treating such failure in itself as an admission of the claimant's
allegations;
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(c) any party
fails to appear at a hearing or to produce documentary evidence, the
arbitral tribunal may continue the proceedings and make the award on the evidence
before it.
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Article 26.
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Expert
appointed by arbitral tribunal
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(1)
Unless otherwise agreed by the parties, the arbitral tribunal
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(a) may appoint
one or more experts to report to it on specific issues to be determined by
the arbitral tribunal;
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(b) may require a
party to give the expert any relevant information or to produce, or to
provide access to, any relevant documents, goods or other property for his
inspection.
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(2)
Unless otherwise agreed by the parties, if a party so requests or if the
arbitral tribunal considers it necessary, the expert shall, after delivery
of his written or oral report, participate in a hearing where the parties
have the opportunity to put questions to him and to present expert
witnesses in order to testify on the points at issue.
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Article 27.
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Court
assistance in taking evidence
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The arbitral tribunal or
a party with the approval of the arbitral tribunal may request from a
competent court of this State assistance in taking evidence. The court may
execute the request within its competence and according to its rules on
taking evidence.
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CHAPTER VI.
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Making of Award and Termination of Proceedings
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Article 28.
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Rules
applicable to substance of dispute
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(1)
The arbitral tribunal shall decide the dispute in accordance with such
rules of law as are chosen by the parties as applicable to the substance of
the dispute. Any designation of the law or legal system of a given State
shall be construed, unless otherwise expressed, as directly referring to
the substantive law of that State and not to its conflict of laws rules.
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(2)
Failing any designation by the parties, the arbitral tribunal shall apply
the law determined by the conflict of laws rules which it considers
applicable.
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(3)
The arbitral tribunal shall decide ex aequo et bono or as amiable
compositeur only if the parties have expressly authorized it to do so.
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(4)
In all cases, the arbitral tribunal shall decide in accordance with the
terms of the contract and shall take into account the usages of the trade
applicable to the transaction.
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Article 29.
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Decision
making by panel of arbitrators
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In arbitral proceedings
with more than one arbitrator, any decision of the arbitral tribunal shall
be made, unless otherwise agreed by the parties, by a majority of all its
members. However, questions of procedure may be decided by a presiding
arbitrator, if so authorized by the parties or all members of the arbitral
tribunal.
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Article 30.
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Settlement
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(1)
If, during arbitral proceedings, the parties settle the dispute, the
arbitral tribunal shall terminate the proceedings and, if requested by the
parties and not objected to by the arbitral tribunal, record the settlement
in the form of an arbitral award on agreed terms.
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(2)
An award on agreed terms shall be made in accordance with the provisions of
article 31 and shall state that it is an award. Such an award has the same
status and effect as any other award on the merits of the case.
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Article 31.
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Form and
contents of award
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(1)
The award shall be made in writing and shall be signed by the arbitrator or
arbitrators. In arbitral proceedings with more than one arbitrator, the
signatures of the majority of all members of the arbitral tribunal shall
suffice, provided that the reason for any omitted signature is stated.
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(2)
The award shall state the reasons upon which it is based, unless the
parties have agreed that no reasons are to be given or the award is an
award on agreed terms under article 30.
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(3)
The award shall state its date and the place of arbitration as determined
in accordance with article 20(1). The award shall be deemed to have been
made at that place.
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(4)
After the award is made, a copy signed by the arbitrators in accordance
with paragraph (1) of this article shall be delivered to each party.
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Article 32.
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Termination
of proceedings
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(1)
The arbitral proceedings are terminated by the final award or by an order
of the arbitral tribunal in accordance with paragraph (2) of this article.
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(2)
The arbitral tribunal shall issue an order for the termination of the
arbitral proceedings when:
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(a) the claimant
withdraws his claim, unless the respondent objects thereto and the arbitral
tribunal recognizes a legitimate interest on his part in obtaining a final
settlement of the dispute;
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(b) the parties
agree on the termination of the proceedings;
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(c) the arbitral
tribunal finds that the continuation of the proceedings has for any other
reason become unnecessary or impossible.
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(3)
The mandate of the arbitral tribunal terminates with the termination of the
arbitral proceedings, subject to the provisions of articles 33 and 34(4).
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Article 33.
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Correction
and interpretation of award; additional award
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(1)
Within thirty days of receipt of the award, unless another period of time
has been agreed upon by the parties:
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(a) a party, with
notice to the other party, may request the arbitral tribunal to correct in
the award any errors in computation, any clerical or typographical errors
or any errors of similar nature;
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(b) if so agreed
by the parties, a party, with notice to the other party, may request the
arbitral tribunal to give an interpretation of a specific point or part of
the award.
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If the arbitral tribunal
considers the request to be justified, it shall make the correction or give
the interpretation within thirty days of receipt of the request. The
interpretation shall form part of the award.
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(2)
The arbitral tribunal may correct any error of the type referred to in
paragraph (1)(a) of this article on its own initiative within thirty
days of the date of the award.
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(3)
Unless otherwise agreed by the parties, a party, with notice to the other
party, may request, within thirty days of receipt of the award, the
arbitral tribunal to make an additional award as to claims presented in the
arbitral proceedings but omitted from the award. If the arbitral tribunal
considers the request to be justified, it shall make the additional award
within sixty days.
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(4)
The arbitral tribunal may extend, if necessary, the period of time within
which it shall make a correction, interpretation or an additional award
under paragraph (1) or (3) of this article.
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(5)
The provisions of article 31 shall apply to a correction or interpretation
of the award or to an additional award.
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CHAPTER VII.
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Recourse against Award
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Article 34.
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Application
for setting aside as exclusive recourse against arbitral award
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(1)
Recourse to a court against an arbitral award may be made only by an
application for setting aside in accordance with paragraphs (2) and (3) of
this article.
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(2)
An arbitral award may be set aside by the court specified in article 6 only
if:
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(a) the party
making the application furnishes proof that:
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(i) a party to the
arbitration agreement referred to in article 7 was under some incapacity;
or the said agreement is not valid under the law to which the parties have
subjected it or, failing any indication thereon, under the law of this
State; or
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(ii) the party making the
application was not given proper notice of the appointment of an arbitrator
or of the arbitral proceedings or was otherwise unable to present his case;
or
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(iii) the award deals
with a dispute not contemplated by or not falling within the terms of the
submission to arbitration, or contains decisions on matters beyond the
scope of the submission to arbitration, provided that, if the decisions on
matters submitted to arbitration can be separated from those not so
submitted, only that part of the award which contains decisions on matters
not submitted to arbitration may be set aside; or
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(iv) the composition of
the arbitral tribunal or the arbitral procedure was not in accordance with
the agreement of the parties, unless such agreement was in conflict with a
provision of this Law from which the parties cannot derogate, or, failing
such agreement, was not in accordance with this Law; or
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(b) the court
finds that:
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(i) the subject-matter of
the dispute is not capable of settlement by arbitration under the law of
this State; or
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(ii) the award is in
conflict with the public policy of this State.
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(3)
An application for setting aside may not be made after three months have
elapsed from the date on which the party making that application had
received the award or, if a request had been made under article 33, from
the date on which that request had been disposed of by the arbitral
tribunal.
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(4)
The court, when asked to set aside an award, may, where appropriate and so
requested by a party, suspend the setting aside proceedings for a period of
time determined by it in order to give the arbitral tribunal an opportunity
to resume the arbitral proceedings or to take such other action as in the
arbitral tribunal's opinion will eliminate the grounds for setting aside.
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CHAPTER VIII.
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Recognition and Enforcement of Awards
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Article 35.
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Recognition
and enforcement
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(1)
An arbitral award, irrespective of the country in which it was made, shall
be recognized as binding and, upon application in writing to the competent
court, shall be enforced subject to the provisions of this article and of
article 36.
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(2)
The party relying on an award or applying for its enforcement shall supply
the duly authenticated original award or a duly certified copy thereof, and
the original arbitration agreement referred to in article 7 or a duly
certified copy thereof. If the award or agreement is not made in an
official language of this State, the party shall supply a duly certified
translation thereof into such language. ***
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Article 36.
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Grounds
for refusing recognition or enforcement
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(1)
Recognition or enforcement of an arbitral award, irrespective of the
country in which it was made, may be refused only:
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(a) at the request
of the party against whom it is invoked, if that party furnishes to the competent
court where recognition or enforcement is sought proof that:
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(i) a party to the
arbitration agreement referred to in article 7 was under some incapacity;
or the said agreement is not valid under the law to which the parties have
subjected it or, failing any indication thereon, under the law of the
country where the award was made; or
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(ii) the party against
whom the award is invoked was not given proper notice of the appointment of
an arbitrator or of the arbitral proceedings or was otherwise unable to
present his case; or
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(iii) the award deals
with a dispute not contemplated by or not falling within the terms of the
submission to arbitration, or it contains decisions on matters beyond the
scope of the submission to arbitration, provided that, if the decisions on
matters submitted to arbitration can be separated from those not so
submitted, that part of the award which contains decisions on matters
submitted to arbitration may be recognized and enforced; or
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(iv) the composition of
the arbitral tribunal or the arbitral procedure was not in accordance with
the agreement of the parties or, failing such agreement, was not in
accordance with the law of the country where the arbitration took place; or
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(v) the award has not yet
become binding on the parties or has been set aside or suspended by a court
of the country in which, or under the law of which, that award was made; or
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(b) if the court
finds that:
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(i) the subject-matter of
the dispute is not capable of settlement by arbitration under the law of
this State; or
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(ii) the recognition or
enforcement of the award would be contrary to the public policy of this
State.
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(2)
If an application for setting aside or suspension of an award has been made
to a court referred to in paragraph (1)(a)(v) of this article, the
court where recognition or enforcement is sought may, if it considers it
proper, adjourn its decision and may also, on the application of the party
claiming recognition or enforcement of the award, order the other party to
provide appropriate security.
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*Article headings are for reference
purposes only and are not to be used for purposes of interpretation.
**The term �commercial� should
be given a wide interpretation so as to cover matters arising from all
relationships of a commercial nature, whether contractual or not.
Relationships of a commercial nature include, but are not limited to, the
following transactions: any trade transaction for the supply or exchange of
goods or services; distribution agreement; commercial representation or
agency; factoring; leasing; construction of works; consulting; engineering;
licensing; investment; financing; banking; insurance; exploitation
agreement or concession; joint venture and other forms of industrial or
business co-operation; carriage of goods or passengers by air, sea, rail or
road.
***The conditions set forth in this
paragraph are intended to set maximum standards. It would, thus, not be
contrary to the harmonization to be achieved by the model law if a State
retained even less onerous conditions.
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