Like the ICSID Rules, the UNCITRAL Arbitration Rules (UNCITRAL Rules) provide a number of safeguards against awards that are ambiguous, contain typographical or other unintentional errors, or are incomplete. However, none of these mechanisms offer a means for reviewing or challenging a tribunal’s reasoning, the substance of an award or the adequacy of the evidence upon which the award was based. The UNCITRAL Rules do not provide for an annulment procedure. If a party believes that an award ought to be set aside for a lack of jurisdiction on the part of the tribunal or procedural unfairness, then that party must apply for relief from a court where the arbitration was seated.
Possibly for these reasons, requests for reconsideration under UNCITRAL Rules arise in the context of final awards, as well as orders and decisions.
The UNCITRAL Rules provide that an award is “final and binding”, and grant no explicit authority to a panel to reconsider its award, or for that matter, any final decision (tribunals do have express authority under Article 26 to modify, suspend or terminate interim measures).
The general consensus at present is that tribunals composed under the UNCITRAL Rules lack a general power to reconsider final awards. However, like tribunals formed under ICSID Rules, it is possible that they may have a limited power to reconsider awards and decisions which are the product of false testimony or fraud, on the basis of a tribunal’s inherent powers.
This possibility was recognized in Biloune v Ghana, a 1989 arbitration where the tribunal stated that it “would not hesitate to reconsider and modify its earlier award were it shown by credible evidence that it had been the victim of fraud,” but concluded that no such evidence had been produced.
More recently in 2005, the NAFTA tribunal in Methanex Corporation v United States of America refused to consider a request for reconsideration of an earlier partial award. It found there was nothing in the UNCITRAL Rules to suggest that a tribunal has jurisdiction to reconsider a final and binding award that it has already made, though it acknowledged a “possible exception for fraud by a party”, though this was not relevant on the facts of this case.
In view of the Standard Chartered panel’s recent affirmative ruling on this point, it is not unreasonable to hypothesise that a tribunal constituted pursuant to the UNCITRAL Rules might follow the Standard Chartered line of reasoning if presented with new evidence that had been deliberately concealed by a party. However, it is to be hoped (and expected) that such occurrences will be rare.