I. Introduction
 
  International commercial arbitration is a mechanism that resolves disputes; the ways of resolving disputes include multilateral treaties, bilateral treaties, domestic law, principles and private and informal dispute resolution.[1] International commercial arbitration has the characteristics of dispute resolution: economy, succinctness, privacy and speed, so it becomes popular and is gradually adopted by trade businesses of each state.[2] However, international commercial arbitration may touch upon the applicability of law of different states due to the differences of politics, social regimes, as well as cultures, economies and customs. If arbitration is held in different states, the fact that different arbitration procedural rules are applied may cause different outcomes. This reflects that the country where the arbitration takes place and its laws is still very important.[3] In recent years, international commercial arbitration seems like a new idea attempting to detach the control from law of the seat of arbitration. This school of thought intends to establish a theory which is subject to the control of the law of the country where the recognition and enforcement is sought.[4] In general, it is called “delocalisation” or “denationalisation”. The “delocalisation” theory of arbitration brought up a new challenge to the traditional “seat” theory.[5] In other words, the effect of arbitral award has the same validity both in the law of the situs and the enforcing states.  Thus a “floating award” is produced due to the detachment from the lex fori.[6] Nevertheless, national courts and laws are still playing a role of supporting and supervising while arbitration proceeds.[7] Therefore, the General Assembly of the United Nations unanimously passed UNCITRAL Model Law on December 11, 1985, with the hope to harmonize arbitration concepts of different legal systems, to reach the judiciary control on the aspect of arbitration procedures, and to be adopted by states which have different legal, economical and political regimes of the world.[8] It hoped to further the development and harmonization [9]of the international economy, so as to establish a set of fair and efficient legal structures expected by each state and to fulfill the purpose of the harmonization and integration of arbitration laws.[10]
 
Model Law is not mandatory towards countries around the world. Each country may refer to the Model Law at their free will, and then decide if they want to adopt the Model Law. More and more countries have already adopted or referred to the Model Law, but there are still countries that have not made the adoption while making or revising the laws of arbitration. Differences among the arbitration laws of countries that have or have not adopted the Model Law will be discussed in this paper. Discussions of whether Model Law can assist Harmonization to reach its goal, along with to what degree cans Harmonization can say that its work is completed. This text not only compares the arbitration laws based on the Model Law in various states to see whether it has been enacted, but also finds the differences among laws of various states to check whether the Model Law has reached the goal of harmonization . This text especially studies the extent the harmonization of arbitration can at most reach, besides problems caused in the Model Law and solutions that can be possible given are also some problems that the text wants to study.
 
II.Background of UNCITRAL Model Law
 
The Asian-African Legal Consultative Committee (“AALCC’) passed a resolution on July 5, 1976. It invited the UNICITRAL to prepare a protocol of the New York Convention in order to clear some problems on arbitration procedures, such as an impartial judicial investigation, legitimate procedures and renouncement of state immunity.[11] This suggestion and the comments to this suggestion by the Secretariat of the UNCITRAL were jointly submitted for discussion in the 1977 annual meeting of the UNCITRAL, and the UNCITRAL requested that the Secretariat, the AALCC and the other institutions which showed interests on the preparation of the protocol negotiated to research on this issue.[12] Therefore, the Secretariat held a Consultative Conference in Paris in September 1978, and the representative of the AALCC, the members of the International Council for Commercial Arbitration and the arbitrators of the ICC attended the meeting.[13]The experts in the meeting unanimously believed that, in order to strengthen the legal structure of international arbitration, the most effective action that the UNCITRAL could adopt was to start preparing a set of Model Law. They considered that, if each state could adopt this Model Law, it could not only establish a coherent arbitration procedure which accommodates the needs of international trade, but it could also help fulfill universal fairness advocated by the AALCC.[14] Besides, the experts also believed that the Model Law could help confine adequately the reasons for rescinding arbitral awards.[15]       
 
The Secretariat submitted the conclusion reached in the Paris meeting to the 1979 Annual Meeting of the UNICITRAL; it also submitted a detail report on interpretation and application of the New York Convention in the meeting.[16] The conclusion of the report shows that, through stipulating a set of model or uniform law, the harmonization of the practice of enforcing arbitral awards by the international community and the judiciary control on the aspect of arbitration procedures can be effectively fulfilled. Modifying the New York Convention or passing a protocol to supplement the harmonization and control will not be necessary.[17] The UNICITRAL agreed to the abovementioned conclusion and therefore requested that the Secretariat and the relevant institutions, especially the AALCC, formed a discussion with the International Council for Commercial Arbitration, and prepared a preliminary draft on the model law of arbitration procedures. At the same time, the UNICITRAL also held that the scope of the draft should be restricted to international commercial arbitration, not domestic arbitration, and it should adequately consider the relevant provisions of the New York Convention and the UNICITRAL Arbitration Rules. Since 1977, it had taken eight years to prepare, draft the Model Law and extensively seek for opinions on the draft. In 1985, the UNICITRAL submitted it for review in the General assembly of the United Nations and the meeting passed the Model Law. The UNICITRAL recommended it to the government of each state and suggested adequate consideration on it.[18]
 
III. The Purpose of the Model Law
 
The Model Law, which was proposed by the UNCITRAL in the 18th meeting in Vienna where the UNCITRAL chaired the meeting, and which passed on June 21, 1985, is a set of international standard documents which deeply affect the international commercial arbitration regime. As more than 60 states and 18 international organizations took part in the formation of the draft, the Model Law itself represents widely the thoughts of the states and international organizations.[19] The General Assembly of the United Nations ratified Resolution 40/72 on UNCITRAL Model Law on December 11, 1985 and it suggested to each member state to consider the adoption of Model Law for the purpose of promoting the integration of arbitration procedural rules and materializing the specific needs of international commercial arbitration.[20] The basic purpose of Model Law is to promote the modernization and integration of world arbitration legislations and to further harmonizing domestic laws which regulate international commercial arbitration.[21] In Resolution 40/72, the General Assembly of the United Nations also clearly pointed out that arbitration was an important approach for resolving international disputes. If states of different legal and economical regimes can adopt the Model Laws, it will help the progress of harmonizing international economic relations.[22] They will further help to establish a set of fair legal regimes which resolve international commercial disputes effectively. Passing Model Law is the outstanding contribution towards the harmonization and modernization of present international commercial arbitration. It was the most outstanding development and the most influential accomplishment in the field of international commercial arbitration in 1980s.[23]
 
IV .Definition of Harmonization
 
This paragraph tries to discuss the definition of the word “harmonization” from the literal meaning which was first searched, later with articles deeper studied to bring light upon how scholars define the meaning of the word. Laws of the European Union were also subjects of this study, since due to their having to face so many member states and binding them into one law, it was deemed that they should also have some experience in harmonization.
 

1. Literal Meaning of Harmonization

 
Regarding the literal meaning of “harmonization”, different dictionaries have given different definitions. For example, a definition of the word “harmonization” is the adjustment of the discrepancies and unlikeness of different measurements, methods, procedures, specifications schedules, or systems to make them uniform or mutually compatible, is the meaning of “harmonization”.[24]Another definition of the word “harmonization” is the process and/or results of adjusting differences or inconsistencies to bring significant features into agreement.[25]
  Furthermore, another concept of harmonization defined the process by which member states of the EU make changes in their national laws, in accordance with Community legislation, to produce uniformity, particularly relating to commercial matters of common interest. The Council of Ministers has, for example, issued directives on the harmonization of company law and of units of measurement.[26]
Besides, the harmonization of law indicates the process of the applying of the same law to different countries, bringing national laws in line with each other. According to the results of the international contractual operations, the regulatory principle of stronger states usually is transplanted into those of weaker states, due to the results of the operation of international contracts.[27]
In Summary, from above dictionaries that define harmonization, they mostly mean that harmonization is to unify and make compatible differences and inconsistencies into some certain agreement. However, there are also other definitions that countries define the term as the process of different states adopting the same law, while others think that harmonization is the coordination of laws of various states.
 

2. Scholars’ View of Harmonization

 
Scholars also have different ideas regarding the definition of harmonization. One scholar state that the standards of different countries will be combined into one practical standard. Any extremes of the common points of these standards will gradually be eliminated until each country has the same standard as all the other countries in mutual consent.[28]  
 
Similarly, another scholar held that harmonization is the compatibility of both regulatory requirements and consistency of reviews. This does indicate that all countries do need the same policies, priorities, or strategies. The desired destination is the consistency of the regulations of data collection, testing procedures, and exchange of information.[29]
 
Nevertheless, other scholars define the term harmonization as the coordination of conflicts of laws. Legal conflicts are solved by these traditional solutions, but do not influence the rules of substantial laws of each country.[30] Likewise, harmonization is usually not all-inclusive but is relatively limited. This means that harmonization of law is not intending to build a unique authority of law on a particular topic.[31] In other words, harmonization looks to effect an approximation or co-ordination of different legal provision or systems by eliminating major differences and creating minimum requirements or standards.[32] The term harmonization discusses the appointing of one singular concept to reflect likewise characteristics or similar forms. Harmonization can only be achieved if the concept it represents is almost exactly the same.[33]
From above analysis, it can be found that regarding the definition of harmonization, some may think that standards have to be combined into one standard, eliminating all extremes until one same standard is agreed. However, others may hold that harmonization is only a coordination, and that harmonization is not all-inclusive, but relatively limited.    
 

3. How the European Union Defines Harmonization

When discussing harmonization, one of the most obvious examples is the demonstration of the European Union.[34] Harmonization is the process of the making of similar regulations of all EU member states.[35] This is especially so in aspects of economic and social policies. The European Union is not a federal government, also not an organization between governments and governments.[36] Due to the mutual social and economical benefit of its member states, the European Union has constituted a new legal order in the international law[37]. It sometimes will be classified as a supranational law[38]
 
However, the law of the European Union is a unique legal system that operates aside laws of European Union’s member states. Laws of the European Union has direct effect on the legal systems of its member states, and in some areas, the power of the law of the European Union is higher than national laws of these states. EC law was not only characterized by the European Court of Justice as part of domestic law, EC law was also declared supremacy over other domestic law.[39] Power also have been given to the EU to compel the national courts for the people of its 25 Member States to be fined or imprisoned if EU laws were broke. The Court of Justice in Costa v. ENEL[40] has in a primacy doctrine mentioned that Community law has a higher rank than even the national constitutions and is hierarchically superior to it.[41]
 
From above analysis, we can understand that harmonization for European Union does not request the laws of their member states to be the same, but only requires the laws of each member state to be similar.  
According to above reason, is the Model Law able to reach the standard of harmonization? What standard should it is considered on? It is necessary to discuss the definition of harmonization itself, and below we focus on different aspects to study harmonization.
 
V.Contents, Policy Goals and Significance of the Model Law
 
V-I Contents of the Model Law
 
The Model Law presents eight chapters and thirty-six articles and its contents concern each aspect of arbitration, the scope of application, the formation and effects of an arbitration agreement, the composition and powers of an arbitral tribunal, arbitration procedures, indictment of an arbitral award, the recognition and enforcement of an arbitral award. The Model Law provides that the scope of the application only applies to“international commercial arbitration,” and it also provides a wide interpretation on the terms, “international” and “commercial.” [42]In the same way, it confers an arbitral tribunal with considerable discretion. It emphasizes that due to irregular grounds, an arbitral award can be set aside;[43] it believes the universal effect of an arbitral award; and it also enumerates the grounds of enforcements and refusal to recognize an arbitral award in terms of the New York Convention. [44]All in all, the Model Law refers to the New York Convention for further development without conflicting with the New York Convention and the other related conventions.[45]
 
V -II The Model Law as a tool for Harmonizing Legislation
 
The stipulation of the Model Law was originated from the negotiation of the arbitration experts coming from different states and territories. The model is meant to be incorporated into the laws of a state, and it is recommended, though not obligatory, that states are supposed to inform the UNICITRAL Secretariat of any implementation of the law.[46] It is composed of the ideas of the countries where politics, economies and cultural backgrounds are different, and it also reflects the point of view of most member states on arbitration legislation.[47] Therefore, each state accepts this law fairly easily. In contrast with a convention, however, which typically severely restricts or prohibits changes to the uniform text, the Model Law can be modified and some of its provisions left out when it is incorporated into a state’s national law. This flexibility might to some extent diminish the overall degree of harmonization, but it allows the Model Law to be successfully incorporated into an already-established legal system, which is particularly relevant in cases where the uniform text and the legal system of the state are closely linked. This flexibility of the form contributes to model law finding more widespread acceptance than conventions. However, the UNICITRAL “Guide to Enactment and Use” encourages a minimum of adjustments to the Model Law, and in the interest of universality, these adjustments should remain within the purpose of the Model Law.[48]
 
When the Model Law was drafted, the following policies were stipulated first: confine the intervention of domestic courts, accept the principle of party autonomy, and allow parties to freely choose the ways to resolve their disputes, so as to materialize the liberalization of international commercial arbitration. Necessary mandatory rules were stipulated in order to guarantee that arbitration can proceed in terms of fair and appropriate procedures.[49] Establishing a set of international commercial arbitration procedural laws and regulations guarantees that arbitration can still proceed smoothly even if parties cannot reach an agreement on procedural problems. Stipulating such rules reinforce the enforcement of an arbitral award and points out the ways of solving those substantial problems. From the abovementioned, we can find that the Model Law digests the merits of domestic arbitration legislation and international arbitration legislation and it strives for balancing the party autonomy and the power of judicial control of courts. The Model Law also provides far-reaching influence on the harmonization of legislations of each state, as it stipulates and modifies arbitration laws of each state - this way herewith harmonizes different attitudes and grounds of each state towards international commercial arbitration and establishes a stable and predictable international legal framework for international commercial arbitration. 
 
V -III The comparison of the arbitral proceedings law in various states
 
This paragraph is under discussion the related arbitral proceeding law in each country arbitration law, and explore the harmonizing role of the Model Law in different countries. In the meanwhile, the author try to find the shortages of Model Law and provide some ideas for reform in the future.
 
VI Arbitration law among various states
 
 This Chapter is focusing on the study of arbitration laws in various countries, including the Model Law adopting states as well as the non-adopting ones. It is to understand the differences among various arbitration laws, and further to find out those differences among states, and to check whether it can achieve the purpose of harmonization through the delocalization theory or the Model Law or not.
 
VI-I Relevant provisions of Court Intervention in Model Law
 
   What exists between a national court and an arbitral tribunal is actually a relationship of constrained incompatibility and real partnership.[50]Even though modern international commercial arbitration already shows great deal of independence when involved with international trading, it cannot be intervened by national sovereignty.[51] The arbitration clause of the arbitration agreement, for example, is still generally known as an independent agreement, and not influenced at all by the losing effect of the entire agreement.[52]
 
It is stated in Article 5 of Model law that “In matters governed by this Law, no court shall intervene except where so provided in this Law. “ The term “intervene” mentioned in Article 5 was explained by the Commission that this term included court action, which can be categorized more as “assistance” to the arbitration instead of intervention in it.[53] In appropriate situations, Article 5 should not be seen as expressing hostility to court intervention or assistance, but only to satisfy the need for certainty, in relation to when court action is permissible. It can be seen from the following articles what the Model Law gives or visualizes in court involvement: 8 (arbitration agreement and substantive claim before court), 9 (interim measures), 11 (appointment of arbitrators), 13 (challenge procedure), 14 (failure or impossibility to act), 16 (competence of arbitral tribunal to rule on its jurisdiction), 27 (court assistance in taking evidence), 34 (setting aside an award) and 35 and 36 (recognition and enforcement of awards). In great majority of cases, Article 5 helps to describe the extent of permissible intervention, with difficulties only arising in marginal cases.[54]
 
  Based on the issue of court intervention in the Model Law, the purpose of Article 5 of the law is to ask the draftsmen to describe it as clearly as possible due to the circumstances that court might have the power to control, as a result, this will reduce the confusion between the parties and arbitrators and also further develop a universal standard. According to the Secretariat, the provision is mainly targeting to “exclude any general or residual powers” given to a court of the enacting State in statutes other than the Model Law” Also, the Commission had a clear definition of intervention mentioned in Article 5 which states that any action of the court might have taken in the arbitration is considered as assistance instead of intervention.[55]
 
Besides, the article 6 of the Model law states that “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.)” Apparently, it allows the legislature of a State enabling the Model Law to determine which court or authority in the State is to perform certain functions under the Law. Although in certain courts in a domestic mechanism system it may be served to consult competence, the Model Law’s main purpose is to assist foreign parties in pinpointing the competent court or authority and obtaining information on its procedures and practices.[56] Furthermore, the determination of a single court or authority would allow the Model Law to gain experience in arbitration.[57] It is made clear by the Article, however, that more than one court or authority may be determined.[58]
 
VI-I-II Comparison of various States adopting the Model Law
 
    An arbitration tribunal may have to announce interim measures to take and preserve evidence, safe-keep property, or other measures during an arbitration procedure, in order to maintain the status of the recent decision before the end of the arbitration procedure. Different types of decisions carry different names, some called “interim measure of protection[59]”,while others are called ”conservatory measures[60]”Basically no matter how you name it, they are all a type of conservatory measure that are made before a result of the arbitration procedure comes out.[61] Article 9 of the Model Law states that “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.”It clearly states that application to the court for interim measures does not contradict with the arbitration agreement. But if a party submits an application to the court for interim measures, the court might not be willing to make a decision that might influence the final result of the determination.[62]
    Under Article 17 of the Model Law, interim measures of protection are assumed “by order” of the arbitral tribunal.[63] Many states when adopting the Model Law amended the aspect that the Model Law does not provide the execution of orders. Egypt reversed the rule of Article 17 of the Model Law in its new arbitration law. In place of “unless otherwise agreed by the parties” the arbitral tribunal can order interim or conservatory measures under the condition that both parties “agree to confer upon the arbitral panel” this power [64] If the order to be issued was failed to be executed by the party against it, then the arbitral tribunal may authorize the other party to undertake the procedures necessary for its execution. These procedures will be carried without prejudice to the right of the other party in order to apply to the President of the Court for an execution order. This seems to equal to the order to an award.[65] The province of British Columbia of Canada has put in a definition of award of the Model Law into its International Commercial Arbitration Act. For the intention of this Act, the definition of ‘arbitral award’ is defined as any determination of the arbitral tribunal regarding the matter of the dispute “including an interim award made for the preservation of property.[66] In Scotland, another solution was introduced Law Reform 1990. Article 17 (2) of Law Reform (Miscellaneous Provisions) Act 1990. To Article 17 of the Model Law is added a second paragraph: “An order under paragraph (1) of this article shall take the form of an award and articles 31, 35 and 36 shall apply accordingly.” [67] In addition, the Law Reform Act 1990 of Scotland indicates that both the court and the arbitral tribunal acquire the authority to issue interim measure.[68] However, the Reform Act does modify its provisions based on the Model Law. It permits the arbitral tribunal to issue interim measure, but it indicates that the interim measure issued by the arbitral tribunal must be issued in the form of an award[69], which the Model Law does not impose such a limitation. Tunisia kept ‘order’ in its Law Arbitration Code that corresponds with Article 17 Model Law, but increased the part that if a party does not agree with the order, the assistance of the First President of the Court of Appeal of Tunis may be requested from the arbitral tribunal[70]. The Tunisian method can also be noticed in the United States where the law of California in its s.1297.171 repeats Article 17 of the Model Law. And at the same time, the court can request by s. 1297.92 to enforce interim measures of protection ordered by an arbitral tribunal.[71]
   Some states adopt UNCITRAL Model Law into their arbitration legal system: courts of Hong Kong and Japan have greater power than arbitral tribunals in conducting the process of interim measures. For example, regarding to the special power of court in relation to arbitration proceedings, the law of Hong Kong states that the Court or a judge of the Court may make an order directing an amount in dispute to be secured, and issue an interim injunction or conduct any other interim measure to be taken and so on. However, The Court or a judge of the Court may reject to make an order regarding a matter is currently the subject of arbitration proceedings; and considers it more appropriate for the matter to be resolved by the relevant arbitral tribunal.[72] Some scholars[73] state that the High Court of Hong Kong[74] holds the same authority for granting interim measures as the arbitral tribunal. Moreover, seeking for such power from the high court does not contradict the arbitration agreement[75] Besides, the Model Law does not indicate any grounds which prohibit tribunal from giving orders to parties in regards of the arbitral proceedings, whereas under Hong Kong’s law there are two situations where the tribunal cannot order the parties to provide any security deposit[76]. Furthermore, the courts have the power to overturn the decision which was given by the arbitral tribunal; therefore the court does acquire higher authority compared to the arbitral tribunal.[77] Thus, when a conflict between decisions made by court and arbitral tribunal happens, the court has the right to take over the jurisdiction of the arbitral tribunal. Also, Japan permits the court to issue interim measures as well as the arbitral tribunal[78].There is no provision established in the CCP (The Code of Civil Procedure, Japan) [79] governing the interim measure of protection in the field of arbitration. However, the claimant to arbitration is able to request the competent court to issue a provisional measure or provisional attachment[80]. On the other hand, the Model Law only authorizes the arbitral tribunal to issue such an order for the parties in the arbitral proceedings[81].
In comparison, the IAA (International Arbitration Act, Singapore) makes a clear indication to show that the High Court or judge would have the same power as the tribunal in governing the arbitration dispute.[82] Yet, IAA further gives specific authority to the arbitral tribunal to issue interim measure upon properties or valuable goods that are involved in the dispute. And the reason to that action is mainly for the arbitral tribunal to preserve the value as well as its meaning of the final award as much as they can. Also, the arbitral tribunal is able to grant all kinds of injunction under the IAA.[83] On the other hand, IAA, Singapore also permits the High Court[84] to exercise the same power as the arbitral tribunal; therefore, a party who is not satisfied with the award which was made by the arbitral tribunal is able to request to the High Court for re-evaluation. Since the High Court of Singapore has the same power as the arbitral tribunal in dealing with the arbitration issues, according to Sect. 12(6) of IAA[85], the interim measures were issued by the arbitral tribunal also acquire the same power as the order which was issued by the High Court. Also, according to the Singaporean law, it made specific provisions upon the costs and expenses within the arbitral proceedings as well as many of the property-related issues to be governed by the arbitral tribunal.[86] Besides, it made a clear indication that the high court will have the same power as the arbitral tribunal on the arbitration disputes.[87]
Another good example would be Australia, which indicates that both the court and the arbitral tribunal have the authority to issue interim measures.[88] Accordingly, article 7(2) and (3) of the International Arbitration Act, 1974,indicates that the High Court has the authority to issue interim measure, however, article 23 of the Act also mentioned that Australia will adopt the Article 17 of the Model Law which empower the arbitral tribunal to issue the interim measure. In short, the Act of Australia does not give a clear indication between the court and the arbitral tribunal, whereas other countries mentioned above do clarify the duties and obligations. The authority lies between the courts and the arbitral tribunals. On the other hand, Zimbabwe has an opposite provision than Australia. According to Zimbabwe, The parties may request from the High Court an interim measure of protection except  the arbitral tribunal has not yet been appointed and the matter is urgent; or the arbitral tribunal is not capable to issue the order or interdict; or the matter is urgent makes it impracticable to pursue such order or inhibit from the arbitral tribunal; and the High Court shall not grant any such order or interdict if the arbitral tribunal is able to grant the order or interdict, and he /she has determined an application therefor.[89]Canada is another country adopting the Model Law. There are different arbitration laws among its provinces. Ontario is one of the provinces[90] that follow closely with the Model Law; it permits the arbitral tribunal to issue interim measure, and the order given by the arbitral tribunal shall have the same attention as the award. However, as another province Quebec [91]has a different provision. According to Quebec, arbitral tribunal does not acquire the authority to issue interim measure, only courts are capable of doing so.[92]
In Malta, which has quite different laws upon authority to intervene the arbitral proceedings. For instance, Malta’s law indicates the Registrar will be the bridge between the arbitral tribunal and the parties, such as when initiating arbitration, the claimant is required to submit its notice to the Registrar in order for the arbitration procedure to begin[93]. In other words, there is no direct communication between the parties and the arbitral tribunal, every document or request must be submitted through the Registrar. However, among those Model Law adopting countries, the biggest difference upon the court intervention is whether the interim measure will be issued by the court[94] or the arbitral tribunal[95]. Furthermore, the court does not only acquire the power to grant interim measure, it also has the authority governing other part of the arbitration.
In addition, Mexico states that the court will examine the validity of the arbitration agreement o determine whether the dispute is arbitrable or not.[96] Moreover, unlike the Model Law empowering the arbitral tribunal with high level of authority, In Germany, The parties may make an arbitration agreement for agreeing on a court to grant, before or during arbitral proceedings, an interim measure of protection relating to the subject-matter of the arbitration.[97] To put it in another way, if parties have not agreed in the contract that the court has the power to issue an interim measure of protection, then the court has no power to do so. Besides, Peru also has a different law than the Model Law, which states that the arbitrators have the right to settle raise conciliation at any time and to hear and settle all related issues, including the validity or efficacy of the agreement, which may arise during the proceeding.[98] 
Nigeria indicates that“A court before which an action which is the subject of an arbitration agreement is brought shall, if any party so requests not later than when submitting his first statement on the substance of the dispute, order a stay of proceedings and refer the parties to arbitration.”[99]. In other words, if the parties have not made such an indication, the court will be monitoring the arbitral proceeding, which is different than the purpose of the Model Law, to separate arbitration from the litigation. Yet, When parties in an arbitration proceeding, has not make an objection to the other party for surpassing the limit of its submission of arbitration or arbitration clauses, then the party cannot on this ground be held to be challenged or null.[100] Furthermore, according to Indian’s Arbitration and Conciliation Act 1996, the court also has a greater power in conducting the arbitral proceedings. For instance, in India, the court[101] has the same power as the arbitral tribunal[102] in issuing the interim measure; also, the court must examine the award before enforcement. In order for the award to be qualified as a foreign award seeking enforcement in India, the court is required to examine three documents: the copy of the award; the copy of the arbitration agreement; and any necessary document that is needed to prove that the nationality of the award does not belong to India.[103] Besides, the state remains its power to intervene in the issue where the dispute matter is relating to the public claim.[104] However, it is obvious that there are different jurisdictions between different countries. The provisions of Court intervention in the Model Law are still subject to the social, and culture background of the countries.   
Due to this reason, while adopting the Model Law into their arbitration system, different states by different considerations, modified the Model Law in its adoption. Hence, it seems like the Model Law does not achieve the purpose of harmonizing the jurisdiction between different States.
 
VI-I-III Comparison of various States not adopting the Model Law
 
Many cases of interim measure have been discussed above for those countries who have adopted the Model Law, here are some examples in several countries that do not adopt Model Law to establish their arbitration system. For instance, the provisions of Greek’s arbitration law are different than those of Model Law. According to the Code of Civil Procedure of Greek, it states “The arbitrator may not order, amend or revoke interim measures of protection[105]. It can be seen from above that in Greece, the arbitral tribunal still has not the power to issue interim measures. And this power is considered as a privilege of the national court.[106] Also, China’s arbitration law also has such provision. Under Arbitration Law of the People’s Republic of China, 1994 states that “ If a party to a foreign-related arbitration applies for taking interim measures of protection of evidence, the foreign-related arbitration commission shall submit his application to the intermediate People's Court in the place where the evidence is located.”[107] A similar provision is the Italian Code of Civil Procedure as provides that: “The arbitrator may not grant attachment or other interim measures of protection.”[108]According to the regulation above, the arbitral tribunal has no power to issue interim measures, only the court has such a power. What is relatively special is the Swiss Private International Law Act, which states “1. Unless the parties have agreed otherwise, the arbitral tribunal may, at the request of a party, order provisional or protective measures .2. If the party so ordered does not comply voluntarily, the arbitral tribunal may request the assistance of the court. Such court shall apply its own law.”[109]Besides, above provision stipulates arbitral tribunal can base on one of the parties and issue provisional or conservatory measures; meanwhile when the assistance of the court is required, the court can also issue these provisional or conservatory measures. Regarding the time before the arbitral tribunal is composed, the arbitral tribunal virtually cannot issue interim measures. But in this period of time, because lots of evidence or property may disappear, thus parties should wish to receive the assistance of the court. Generally speaking, arbitrators can not issue interim measures of protection before an arbitral tribunal is established. .[110] However, recently new rules of the Netherlands Arbitration Institute have amended on Article 42 that, an arbitrator may be designated to issue an interim measure[111] before an arbitral tribunal is established, yet that arbitrator cannot attend in the arbitral procedure.[112]
 
VI-II Arbitration Agreement
 
VI-II-I Regulation of the Model Law
 
The definition of “arbitration agreement” in the article 7 of the Model Law states one of the most important attempts that the Model Law has towards the unification of the national arbitration statues. According to UNCITRAL Model Law, the form of the arbitration agreement shall be in written form. Whether the content of the arbitration agreement or contract is concluded orally, or by conduct or other means, the arbitration agreement has to be written down. And if the information contained in the agreement is accessible or usable by electronic communication for subsequent reference, then the requirement that an arbitration agreement shall be in writing can be met. “Electronic Communication” here means communications of data messages that can be made by the parties. “Data messages” here means information that can be produced, sent, stored, or received by magnetic, electric, optical, or similar methods. These methods include, but are not limited to electronic mail, telex, electronic data interchange (EDI), telecopy, or telegram. Also, if the arbitration agreement contains the exchange of claim and defence statements and the existence of this agreement is said to be existed by all parties, then the arbitration agreement shall also still be in writing. When arbitration clauses are included in a contract or any document, and the reference is made to that clause part of the contract, then the arbitration agreement has to be constituted in writing.[113]
 Two principles of Article 7 states that “it indicates that an arbitration agreement may relate to the dispute that has already happened or has not happen yet. By doing some, it would help to eliminate the difference between a compromise and a clause compromissoire. It also requires that the arbitration agreement must be in a written form”[114] The first paragraph of the article is trying to assist people instead of imposing strict regulations. The arbitration agreement was only permitted in respect of an already existed or future dispute, which can be caused by a contractual or non-contractual relationship. The agreement can be in many forms, it can be written as an arbitration clause or as an independent agreement. Paragraph 2 indicated the only form of the agreement must be in writing. However, regarding the written form requirement of Article 7(2) UNCITRAL Model Law, there have been different interpretations concerning form requirements of arbitration agreements. First discussing the goal of this article, the intention behind Article 7(2) of the Model Law is to ensure that parties agree to go into arbitration voluntarily. This article will divide in the order of states that follow the UNCITRAL Model Law, and those that do not. The intention that Model Law is to ensure that parties agree to go into arbitration voluntarily, can be evidenced by a written form of arbitration agreement, exchanged letters of records of the arbitration agreement, and exchanges of statements of claim and defence that one party has stated there is an existence of an agreement, while the other party does not deny or agree.[115]
 The Model Law is being considered as lack of the regulations upon the arbitration agreement, some scholars has pointed out the following Restrictions on the permissibility of the arbitration agreement can also be found in the other applicable law. The Working group admits the fact that the Model Law does not govern the legality of parties to enter into arbitration agreement. [116]Also, the Model Law does not make any indication[117] which will be suitable for situations involving States Immunity.[118] However, by comparing to the domestic law, the Model Law does not prioritize in the situations where there is doubt directly towards the arbitration such as the validity of the material and the arbitration agreement come into consideration.[119] Last but not least, the Model Law does not establish any provision that will be able to set up the standard of whether an issue is arbitrable. Even though the Model Law does not mention any possibility to oral agreement, however, it does not mean that it is not under the scope of the Model Law. An Oral agreement can still be enforceable when the parties apply to the arbitral tribunal for a waiver for the requirement for the agreement form.[120]
 
VI-II-II Comparison of various States adopting the Model Law
 
By referencing to the Model Law, most of the countries have similar laws upon the format of the arbitration agreement[121], however, among those adopting the provisions of the Model Law, the Egyptian arbitration law imposes a stricter law of people signing the arbitration agreement. According to the Egyptian Arbitration Law, arbitration is prohibited in matters which can not be compromised. Besides, if one of the parties does not acquire its civil right, then, the agreement signed by him/her is considered as null.[122] Furthermore, the Egypt law requires the arbitration agreement to include the laws of penalty and nullity. Yet, if an arbitration agreement has not identified its existing dispute issues when submit to arbitration, the agreement will be considered as invalid as well as not being able to indicate its subject matter. Also, if the arbitration is for a future dispute issue, it is required to identify its relationship of how and why the existing situation might link to a future problem, and the agreements failed to make such link between the present and future disputes will be considered as invalid and does not acquire any efficiency.[123]However, neither of the submission or an arbitration clause contained in the arbitration agreement will contain the effectiveness of binding before the parties perform their appointments of the arbitrators whom will be responsible for conducting the arbitral proceedings for existing or future disputes.[124] And, based on Egypt’s arbitration Act, an arbitration agreement must also satisfy the legal contract laws to be valid,  whereas none of the above statements has been indicated in the Model Law except only restrict on its form.[125] Finally, Japan’s law also indicates that that an arbitration agreement concerning future disputes shall not be valid unless it involves a specific relationship of rights and controversies arising between the parties[126]. Last but not least, Denmark’s law indicates that no matter if the arbitration dispute is or not contractual, the parties due to their clear legal relationship can agree to hand in arbitration disputes that might arise, or have already arisen between them for arbitration. Forms of an arbitration clause or separate agreements are what an arbitration agreement may appear like. And in the situation of a consumer contract, if an arbitration agreement has ended before the dispute is resolved, then an arbitration agreement said shall not be bound to the consumer.[127]
Besides, regarding to the issue of “opting-out of the Model Law Regime” for international arbitration, there are different views in various States. Several States believe that the parties to an international arbitration may be allowed agreeing on opting-out of the Model Law regulation, and to have their international arbitration governed by the rules for domestic arbitration.[128] For example, In Australia parties to an international arbitration held in Australia can reject the application of the Model Law by an agreement in writing.[129] Nevertheless, the written form requirement of Model Law, there has been different interpretations concerning form requirements of arbitration agreements. When analyzing Article II (2) of the New York Convention[130], the Austrian Supreme Court considered that if a submitted letter consists of the signature of the other party, then this letter fulfills the written requirement.[131] It is further considered by the court further that the reply of the respondent is to be signed on the signed copies of these letters. The court does not think it necessary for the dependant to draft another text.[132] The Austrian Supreme Court has been addressed before in Austria for the enforcement of an Italian award in Austria.[133]
The Model Law has not clarified which documents must satisfy references in agreements regarding validly incorporating arbitration clauses. Thus two questions have arisen, which are whether references can clearly state arbitration clauses, or whether references are sufficient to the document.[134]In 1993, the Supreme Court of Bermuda by “the reference is such as to make that clause part of the contract” as stipulated in Article 7 of the Model Law, has handled the question whether it is possible for arbitration clauses to be incorporated to another document through reference. The Supreme Court of Bermuda held that although it is not necessary for a clear reference of arbitration clauses of the contractual documents, the incorporating of general wordings are sufficient.[135] Similarly, Bermuda legislated that the parties may agree in the arbitration agreement or any other document in writing, agreed that any dispute that has arisen or may arise between them is not to be settled in accordance with the Model Law.[136] Likewise, Hong Kong’s Ordinance also states that the Parties to an international arbitration agreement may agree in writing “(a) that this Part is to apply; or (b) that agreement is, or is to be treated as, a domestic arbitration agreement; or (c) that a dispute is to be arbitrated as a domestic arbitration.”[137]Furthermore, the Supreme Court of Hong Kong in referring the issue of written form requirement, has stated that Article 7(2) of the Model Law besides prevents application of written evidence to be relied on as it postdates the arbitration agreement, it also further expressed that there is direct conflict between arbitration agreement and the exclusive jurisdiction clause.[138] It also concluded that even though this written form requirement can be compiled, amount of manipulation beyond the court's competence is still needed, considering that the arbitration agreement being bound to both of the parties.[139] However, one year later, the Supreme Court of Hong Kong “provide a record of the agreement” is wide enough to include the exchanging of letters of the arbitration agreement that has happened in the same time or postdated.[140] Then in the issue that discusses no further clarification regarding the phrase “ statement of claim and defence” have been made, correspondence of the court is considered by the Supreme Court of Hong Kong to be sufficient to complete the written form requirement of Article 7(2) of the Model Law.[141] It later made the conclusion that there was “no reason why they should be read as referring only to the pleadings in the formal sense once an arbitration has commenced”.[142]
Furthermore, Exchanging of letters and relevant arbitration agreement whether should be signed by the parties is not regulated in Article 7(2) of the Model Law. In one case, the court held that the exchange of the telefaxes between the parties is sufficient to complete the written requirement of Art. II (2) New York Convention.[143]. These telefaxes concern the commencement of arbitral procedures, in which these parties express their intention to resolve their disputes through arbitration.[144] In another case of the above issue, the German court sees the reference of one contract to another contract as sufficient to construct a valid arbitration agreement. Concerning the issue of form requirement, it held that if general reference of general conditions is printed on the opposite side of the respective contract, then the arbitration agreement is valid.[145] This arbitration agreement can include an arbitration clause between one of the parties and the third party in the letter of one party to another.[146]
Generally speaking, if parties can publicly state their agreement to written arbitration, then the requirement of writing can be fulfilled. However, application without exceptions cannot be applied by form requirements.[147] Regarding the issue that form requirement also applies with exceptions, the Queen's Bench of the Saskatchewan Court, Canada had in 1996 stated that the act of acceptance does not have to be in written form, but can be deduced by the conduct of the parties. The Court thus concluded that the defendant rather than denying the existence of the previous arbitration agreement, should by repeating his intention to fulfill its terms and affirm the contract.[148]The United States Court of Appeal also agrees with the exceptions mentioned above, in the act of interpreting Article II(2) of the New York Convention[149]. It is then considered by the court whether arbitration clauses are contained in the exchange of letters, to hold that even if there are no enclosed arbitration clauses in the reference of letters, arbitration clauses will still be incorporated.[150] The court  referred in its reasoning to the decision of the Second Circuit of the Court of Appeals, in which signature of the parties are not required, yet regulate that arbitration agreement is subject to the exchange of letters of the parties. The court determined that the New York Convention regulates that “an arbitral clause in a contract be signed by the parties or contained in an exchange of letters or telegrams”.[151]
 
Beside, regarding to the issue of article 7 of Model Law, several States conceived that it is helpful to insert a provision related to the capacity of the State or a State agency to constitute an arbitration agreement. For instance, Peru’s new arbitration law contains a similar provision which states that “without any prior authorization being required, issues arising from contracts entered into by the Peruvian State and governmental entities with foreigners, as well as those related to their goods, may be freely submitted to international arbitration before arbitral tribunals established by virtue of international agreements to which Peru is a party.” [152] Clearly, the State and governmental entities to submit disputes to arbitration relied  on international agreements to which Peru is a party, and permitting privately managed or mixed economy State-owned companies to arbitrate in or outside of Peru [153] In addition, Bulgaria added a specific provision that parties to international commercial arbitration may also be a state or a state agency.[154] Also, Egyptian arbitration law states that “the provisions of this Law shall apply to all arbitrations between public law or private law persons, whatever the nature of the legal relationship around which the dispute revolves, when such an arbitration is conducted in Egypt, or when an international commercial arbitration is conducted abroad and its parties agree to submit it to the provisions of this Law”[155] Also, In Tunisia, the matter of “ disputes concerning the State, State administrative agencies and local communities with the exception of disputes arising in international relations of an economic, commercial or financial nature which are governed by Chapter Three of this Code.” may not be the subject of an arbitration agreement.[156]
 
VI-II-III Comparison of various States not adopting the Model Law
 
Meanwhile, countries that have established their own arbitration system without making the Model Law as their reference also have some difference based on the culture and economical background of each country itself. For example, According to Chinese Arbitration Law, arbitration agreements can only be made shall arbitration clauses be written in the contract, and written forms of submission of the agreement is also provided. The written form of the agreement shall be provided only before or after any disputes arises. The content of an arbitration agreement shall include the reason why arbitration is asked for, the subject that is needed for arbitration, and the list of the commission board planned for the arbitration. .[157] Meanwhile, although there are not many restrictions regarding an arbitration agreement, there are still circumstances that arbitration agreements will be considered null or void. .[158] One of the situations when the arbitration agreement shall be considered such, is when the range of the agreed matter for arbitration cannot be governed by law, also when Arbitration Agreement is concluded by one of the parties that hold no or limited capacity for civil conducts; or Arbitration Agreement is concluded by the forcing of one party on the other, are the time when arbitration agreement shall be considered null or void.  In addition, contents of arbitration shall include provisions that make subjects matters for arbitration or the arbitration commission to be clear. If the provisions are unclear or provide no matter clearly stating arbitration or the arbitration commission, then the parties may be allowed to reach a supplementary agreement. Arbitration Agreement shall be considered null and void shall no such supplementary agreement can be reached.[159] However, by giving a more broad sense, Norwegian law does not require a certain form for an arbitration agreement. It can be made orally, with a reference to a standard arbitration clause or as an express written agreement.[160]
In addition, Netherlands indicates the agreement must be in a written form which is same as the Model Law; however, Netherlands further requests that the agreement must be either expressly or impliedly show that the agreement has been accepted between the two parties[161]. Where the Model Law does not mentioned this procedure in its provisions. Nevertheless, when cases in Brazil are submitted to arbitration, the arbitral agreements related must have specific requirements for the information attached to it, which the Model Law does not regulate it on this matter.[162] Also Libya has different provisions than the Model Law, because it does not require the arbitration agreement to be in a written form[163]; Whereas According to UNCITRAL Model Law, the form of the arbitration agreement shall be in written form.[164] The intention that Model Law is to ensure that parties agree to go into arbitration voluntarily, can be evidenced by a written form of arbitration agreement, exchanged letters of records of the arbitration agreement, and exchanges of statements of claim and defence that one party has stated there is an existence of an agreement, while the other party does not deny or agree.[165]
The Swiss Supreme Court, in the issue that form requirement also applies with exceptions, held that due to the development of the modern meaning of telecommunication, liberal interpretation should be given to Art.II(2) New York Convention. Regarding this, it held that “ in certain situations, the parties' behaviour may fill the gap in the observance of a formal validity requirement by virtue of the rules of good faith”.[166] Therefore it can be concluded that the Swiss Supreme Court have in the issue that form requirement applying with exceptions, similarly reached the same conclusion that the act of acceptance does not have to be in written form, but can be deduced by the conduct of the parties.
Also made by Swiss Courts, it has in an issue of form of references held the viewpoint that arbitration agreement can be considered validly incorporate in two situations. One is when in signing the contract, the contract contains certain reference that includes general conditions of arbitration clauses. The other is when general reference refers to the general conditions that are printed on the reverse side of the underlying contract. In the first case, parties have been clearly informed of the existence of the arbitration clause, thus general conditions here do not need to be attached. In the latter case, arbitration agreement can be moreover valid if it in general conditions are already known to the parties. The reasons that the parties might know of the general conditions might owe to their regular business relationship, or that the other party should know which document that the reference was made, when considering the trade usage and nature of the legal relationship.[167]Also, The Swiss Federal Supreme Court has in another issue regarding authority, considered that arbitration agreements can not be handled through representatives on behalf of its principal. It held that “ it must be acknowledged, given the nature of the transaction, that the forwarding agent, in discharging a bill of lading, was acting on behalf of the charterer, which thus in turn acquired title to the merchandise, subject to certain restrictions”, even if they have not signed the charterer as the person beneficiary.[168]
In this very same issue, Jurisprudence have not enough fully interpreted this issue. The Moscow City Court, Russia has once in a decision it rendered, confirmed an arbitral award to find in the conclusion of the contract, which contained an arbitration clause, the person who signed the contract in the person of the defendant. As this person does not have sufficient power as the parties to do so, thus there turned out to be no enforceable agreement to arbitrate. However, the issue on representation was not further clarified by the court.[169]
In addition to the written requirement, the form requirement of the termination of arbitration agreement is also another issue, yet one that has not been clarified by the Model Law. However, it can be accepted that the termination of arbitration agreement should not be bound to the same form requirements of arbitration agreement when it is concluded.[170]Therefore, as to the issue of arbitration agreement, there are differences among various states. For the parties, once the arbitration agreement has been signed, there will be no possibility for the parties to file this issue to the Court. On the other hand, from the Court’s view point, when the parties have established an arbitration agreement based on a specific dispute, by the moment this agreement has been signed, the parties had eliminated the right to apply for a suit, and hence arbitral tribunal will be the only competent authority for the case. Arbitration agreement plays a very important role, specially when the arbitration agreement has been considered as invalid by the law to which the parties have subjected or the law of country where the award was made, this agreement will in fact lost its effectiveness when it comes to recognition and enforcement. Nevertheless, even among those states which adopt the Model Law, there are still difficulties to achieve the purpose of harmonization. Yet, although the Model Law is taken as the harmonizing tool among arbitration laws in different states, it seems has not yet been widely accepted. The Model Law was seen as being possibly suitable for states with no developed law or practice of arbitration, for those with a reasonably modern law but not much practice and for those with outdated or inaccessible laws; it was not thought suitable for a country such as England, where the law of arbitration is up to date and where there is extensive current practice. The Model Law was also seen to be incomplete.[171]
 
VI-III  Number of Arbitrator
 
VI-III-I Regulation of the Model Law
 
Article 10 of the Model Law provides that “the parties are free to determine the number of arbitrators (2). Failing such determination, the number of arbitrators shall be three”. The Working Group (or the Commission) has considered at the beginning of the legislation that the regulating the numbers of arbitrators to be odd numbers and not even numbers can conveniently lower the possibility of deadlock.[172] But the Secretariat holds the view that the laws doesn’t need to be “overprotective”.[173] The Secretariat think that some of the parties may prefer an even number of arbitrators; and only if a deadlock has occurred shall there be a need to appoint an umpire.[174] The Working Group agrees to this view, as it also gives consideration to parties autonomy. Thus the Working Group clearly announces: “the parties are free to determine the number of arbitrators” is listed as the first section of this Article. The Working Group has three reasons to supporting the appointing of 3 arbitrators: (1) A panel can more guarantee to understand the position of the two parties equally; (2) The arbitral tribunal usually was composed by three person in International Commercial Arbitration; (3) Article 5 of UNCITRAL Arbitration Rules also provides that unless parties agree otherwise, the number of arbitrators shall be three.[175] 
 
 
VI-III-II Comparison of various States adopting the Model Law
 
Many countries have adopted this provision into their own arbitration law, and some stipulate similar provision into their own arbitral system[176]. However, some made some justifications to better satisfy their needs in their own countries For example, In Hong Kong. There are two regulations for the international and domestic arbitration. Thus, for the international arbitration, Hong Kong has adopted similar law indicated in article 10 of the Model Law, which indicates either one or three arbitrator will appoint if the parties cannot reach an agreement[177]. In Thailand, The arbitral tribunal shall be composed of an odd number of arbitrators. If the parties stipulate an even number of arbitrators, the arbitrators shall together appoint an additional arbitrator to be the presiding arbitrator. It indicates the parties can only agree upon an odd number of arbitrators[178].Similarly, Bangladesh establishes a similar provision to Thailand’s. According to Bangladesh’s law, it does not indicate that the parties must appoint an even number of arbitrators; however, it states that in the situation where the parties had an even number of arbitrators, the appointed arbitrators must appoint an additional person to be the chairman of the arbitration.[179] In other words, it also permits only odd number of arbitrators in conducting the arbitration. Based on the analysis of the above cases, every State’s arbitration law has different requirement for appointing arbitrators. Therefore, the Arbitration and Conciliation Act, 1996, India states that the parties are free to determine the number of arbitrators but such number shall be an uneven number. If the parties fail to determine the number, the arbitral tribunal shall be composed of a sole arbitrator.[180] Also, Mexico[181] and Kenya[182] indicate that if the parties cannot reach an agreement upon the number of arbitrator, their arbitration law state that only one arbitrator can be appointed. Besides, clearly carries different opinion in Scotland, as the Reform Act 1990 being enacted, the provision of number of arbitrator has been changed to only single arbitrator to be appointed when the parties are not able to reach an agreement.[183]Similarly, The Australia have stipulated that if the parties fail to determine the number of the arbitral tribunal according to law, it should be composed by a sole arbitrator.[184] Egypt [185]and Tunisia [186] evade the difficulty by asking the arbitral tribunal to in any case be consisted of an odd number of arbitrators. Tunisia states in the domestic part of its arbitration law that in case parties agree on an even number, the appointment of an arbitrator who shall also act as chairman, will complete the composition of an arbitral tribunal. However, this solution is not repeated in international part of the law. [187]
 
 
VI-III-III Comparison of various States not adopting the Model Law
 
Compare to the above countries, countries which have not taken the Model Law as the model to set up their arbitration law also have some differences to the Model Law. For example, In Belgium’s case, number of arbitrators should be an uneven number, which is similar to the Model Law, but somehow different, the Model Law requires three arbitrators if the parties had failed to reach an agreement, whereas Belgium only requires an uneven number or sole arbitrator.[188] Likewise, according to the Malaysia’s law, without mentioned in the agreement, there will be sole arbitrator[189]. On the other hand, Model Law indicated it has to be three[190]. 
Regarding to topic of the number of arbitrators, Brazil’s law states that if the parties have not determined the number of arbitrators in the arbitration agreement and do not reach agreement on the number, the arbitral tribunal shall be composed of an odd number arbitrators. Yet, Libya also established a different provision from the Model Law. It states that the number of arbitration must be an uneven number. According to Code of Civil and Commercial Procedure 1953, the parties are free to appoint a sole arbitrator or several of them. In the case of more than one arbitrator, the number of arbitrators must be an uneven number of people[191]. Similarly, based on the issue of number of arbitrators, The England, and USA have stipulated that if the parties fail to determine the number of the arbitrators according to regulation, it should be composed by a sole arbitrator.[192] Obviously, the Model Law has not yet being able to overcome the purpose of the harmonization and unification among every state’s arbitration law. Therefore, by speaking of this point of view, it is necessarily to search for another way to accomplish this task.^[193]
 
 
VI-IV Appointment of the Arbitrator
VI-IV-I Regulation of the Model Law
 
 Article 11 of the Model Law indicates the procedures for appointing arbitrators. It sets up an essential principle regarding nationality of arbitrators at the beginning, and it continues to provide the mechanics of appointment.^[194] In other words, this article provides that nobody should be rejected to be appointed as an arbitrator because of his nationality.[195]According to this provision, the parties are free to appoint arbitrator(s), but if the parties fail to agree to appoint the arbitrator(s), this provision regulates a mechanism that the parties are able to appoint one or a three- person tribunal, without the courts intervention. Just in case the methods above happen to fail, this article regulates that the court has the power to appoint arbitrator(s) and instruct the court to remain independent and just, and also managing related items of not limiting the nationality of the arbitrators.[196]As a general rule, according to the Model Law, the parties are free to agree upon the arbitrator appointment procedure. However, in the situation where the parties are not able to reach an agreement in a three-arbitrator’s arbitration, the parties will appoint one for each party and the two appointed arbitrators will then appoint the third arbitrator. In the situation of sole arbitrator arbitration, the court of appointed authority will appoint the arbitrator.
 
VI-IV-II Comparison of various States adopting the Model Law
 
Many of the countries adopt this provision into their system very closely^[197], but some countries establish laws which are somehow different than the Model Law. For example, Croatia indicates the only judges of the Croatian courts are able to be appointed as the presiding arbitrator or the sole arbitrator[198]. On the other hand, the Model Law does not restrict the qualification of the presiding or the sole arbitrator in the arbitration. The Croatia’s law of the presiding and sole arbitrator is somehow contradicts the main purpose of the Model Law which is trying to minimize the court intervention in the arbitral proceedings, because the Commission made clear that the term “intervene” in Article 5 included court action that might be thought as“assistance”to the arbitration but not intervention in it.  Article 5 should not to express hostility to court intervention or assistance in arbitral proceedings, but only to satisfy the need for necessity with regard to when court action is admissible.[199] Furthermore, the Model Law does not require any specific person or organization to be appointed as the third arbitrator, and the parties have absolute freedom upon appointment. Croatia’s law also indicates that if the parties wish to appoint a judge as one of the arbitrators, they can only appoint he/she as the sole or presiding arbitrator[200].
Moreover, the Egyptian law indicates that when an arbitrator has credibility issues arose from other incident, this person cannot be appointed as an arbitrator unless his/her credibility has been resumed. Also, the qualification of being able to be appointed as an arbitrator includes that the person must acquire his/her full legal capacity. Specifically, Egypt provides a detail list of categories of person who will not be considered as qualified, such as minors, persons under curatorship or guardianship, persons deprived of their civil rights due to criminal offences or persons declared bankruptcy without being restored to the full exercise of their rights[201].
Moreover, some countries decide to impose more restrictions upon the qualification of the arbitrator to be appointed. For example, according to the arbitration law in Hungary, there are certain people that cannot be appointed as arbitrator: such as people who are fewer than 24, who has committed to a crime, or those who are currently serving his/her sentence in the jail.[202] Besides, Malta and Iran have some specific limitations upon appointment. For Malta’s case, the appointment does not go through the parties or the arbitral tribunal, the parties must submit a statement of claim indicating the desire arbitrator to be appointed, and the chairman of the arbitration center will make the appointment for the parties[203]. On the other hand, Iran has a very different limitation towards the nationality of the arbitrator. It states that the arbitrator cannot have the same nationality as the party or parties[204]. However, many of the countries which stipulate different laws than the Model Law are mostly focusing upon the qualifications or the procedure to appoint, only Iran made a limitation that the dispute may not be accepted to be arbitrate if one or more arbitrator is of the same nationality as the party or parties.
 
VI-IV-III Comparison of various States not adopting the Model Law
 
Not only the ones being mentioned above, but some countries that have not adopted the Model Law made some important points. For example, China has stated the indication of certain criteria that “If the parties agree that the arbitration tribunal shall be composed of three arbitrators, they shall each appoint or entrust the chairman of the arbitration commission to appoint one arbitrator. The parties shall jointly select or jointly entrust the chairman of the arbitration commission to appoint the third arbitrator who shall be the presiding arbitrator. ”[205] However, the Model does not have such provisions. The Swedish arbitration Act is similar to China’s; it has settled certain limitations of the arbitrators, such as its relationship between in the parties and disputes. However the Model Law has not set up provisions which restrict this kind of the arbitrators to be appointed.[206] Also, according to the Switzerland Code on Private International Law, the arbitrator’s appointment is based on the agreement between parties. If there is no agreement between parties, either party may request to the court of the place of arbitral tribunal. The court will appoint the arbitrator for the party under the regulation for the appointing of an arbitrator under State Law.[207]In South Africa’s case, According to South Africa Arbitration Act, appointment of arbitration and fill vacancy are allowed by power of parties. Arbitrators may at any time appoint arbitrators up to three arbitrators, if an arbitration agreement gives for reference an even number of umpires, and unless a converse intention is then expressed. If there are three arbitrators appointed, and whom one of the arbitrators is appointed by the other two, then such agreements will be explained as providing for the appointing of an arbitrator by the other two umpires after they themselves are immediately appointed, unless an expression of converse intentions is expressed within. Parties or umpires may only appoint another arbitrator in another appointed arbitrator’s place, when the appointed arbitrator refuses or is incapable of acting, thus including death, removal from office, or purely a termination of appointment.[208]
 
VI-V To Challenge an Arbitrator
 
The Article 13 of Model Law allows the parties the freedom to agree on the procedure for challenging an arbitrator (para.1). Parties mostly agree on the procedure of challenging an arbitrator by reference to arbitration rules. It is added in para. 1 of the Model Law that this freedom is dependent on the provisions of para.3. If the parties have not yet agreed on a procedure, then the first step to be made is to ensure the arbitral tribunal (which includes the challenged arbitrator) to settle on the challenge (para.2). If the challenge is not successful, no matter under the procedure of para.2 (decision by the arbitral tribunal) or procedure agreed upon by the parties, then the challenging party may request the court to settle on the challenge, which decision shall be subject to no appeal. The arbitral tribunal, including the challenged arbitrator, may keep on the arbitral proceedings and the making of an award pending this request (para.3).
 
VI-V-I Comparison of various States adopting the Model Law
 
The Model Law has established the procedures and the grounds to challenge arbitrator(s). It indicates that when an arbitrator has impartiality problems in conducting the arbitration, one of the parties is able to challenge him/her. The challenge application will be firstly submitted to the arbitral tribunal to determine. If the challenge is not successful from the arbitral tribunal, one of the parties is able to submit it to the court or competent authority for reconsideration. However, if the court or the competent authority made the decision, it shall be final and subject to no appeal. These provisions have being widely adopted by many countries, and most countries follow closely to the Model Law[209]. However, there are still some countries made some modification of the provisions toward the process of challenge. For example, Malta does not allow direct communication between the parties and the arbitral tribunal. It has established an authority called the Registrar to deal with the communication among the parties and the arbitral tribunal. Every submission from the parties to the arbitral tribunal is required to go through the Registrar. Therefore, if a party wishes to challenge an arbitrator, this person will need to submit an application in writing which indicates the reason of this challenge to the Registrar, and the Registrar will then submit this application to the arbitral tribunal for determination.[210]
Nigeria does not involve the arbitral tribunal in the settling of the challenge. It, however, has delegated this task to the authority that was appointed.[211] The Secretary-General of the Permanent Court of Arbitration, The Hague, will act as the Appointing Authority, if no parties have been designated.[212] The UNCITRAL Arbitration Rules, under the decision on the challenge delegating to the Appointing Authority, may have inspired this procedure.[213] The Secretary-General of the P.C.A., however, does not under the Rules of UNCITRAL assign an arbitrator, but instead appoints an Appointing Authority. Therefore, Nigeria moves on another step by directing the Secretary-General the task of assigning an arbitrator in case parties fail to agree on an Appointing Authority.[214] In Tunisia, the parties are free to agree on a challenging procedure, for example, delegating the challenge to an Arbitral Institute dependent on the provisions of paragraph 3 of Article 58.[215] In case a challenged arbitrator does not withdraw from his office or the other party does not agree to the challenge, the Court of Appeal of Tunis will provide for the determination on the challenge mentioned in this paragraph.[216] The Model Law was deviated by Tunisia as a determination on the challenge taken by the arbitral tribunal (arbitrator), failed an agreement on the challenge procedure by the parties is omitted.[217] In Canada, The section 13 of the British Columbia, International Commercial Arbitration Act is practically the same as Article 13 of the Model law. But under paragraph 5 of the Act states that “If a request is made under subsection (4), the Supreme Court may refuse to decide on the challenge, if it is satisfied that, under the procedure agreed on by the parties, the party making the request had an opportunity to have the challenge decided on by other than the arbitral tribunal.” Thus the court in case the parties have delegated the decision to an Arbitral Institute, can reject to determine the challenge.
In addition, India has quite different law to the Model Law on challenging an arbitrator. According to the Model Law, the arbitral proceeding will not be suspended or delayed even the parties have filed a challenge application. The arbitral tribunal including the challenged arbitrator will continue the proceedings and make an award.[218] However, according to India, the arbitral tribunal will not resume the arbitral proceeding unless the challenge issue has been solved.[219] Also, Indian’s law indicates that once the arbitrator has been successfully challenged, the court will determine if the challenged arbitrator should be entitled with fees.[220] On the other hand, the Model Law does not require the court or the arbitral tribunal to punish or impose fees upon the challenged arbitrator. Egypt, virtually corresponding with Article 13 of the Model Law, adds to Article 19 of its new law on 1994, a fourth paragraph in which it stated that “if the arbitrator is successfully challenged, whether by a decision of the arbitral tribunal or by the court reviewing the challenge, the arbitral proceedings already conducted shall be considered null and void, including the arbitral award.” [221]The Model Law in such a case diverges from this as it provides an appointment of a substitute arbitrator[222]
Yet, Tunisia also made a modification of the Model Law; Unlike the Model law, Tunisia does not empower the arbitral tribunal the authority in determining the application of challenge an arbitrator. Instead, the decision of whether an arbitrator can be challenged is upon the court’s determination.[223]Lastly Demark has indicated that during the arbitral proceedings, in the situation where a party file a challenge to the arbitrator, Danish law follows very closely to the Model Law. However, according to the Model Law, there will be no appeal towards the decision which is made by the court.[224] Denmark, on the other hand, does not limit the right to appeal. The Danish law permits the parties to file further appeal after the court has made a decision.[225] For example, Danish law states that once the arbitrator is appointed, the parties are able to apply to the ordinary court to decide on the question[226].Also, the parties cannot eliminate the power of this provision by stating in the agreement or applying any other institutional laws. Furthermore, the court does not acquire any power to reinstate any retired arbitrator, or any arbitrator who had been successfully challenged by its appointing authority[227]. Similarly, Germany also omits the indication of no appeal in changing an arbitrator.[228] In other words, the parties have the right to seek for further appeal if they are not satisfied with the decision made by the court.
 
VI-VI Recognition and Enforcement of the Award
 
The purpose of arbitration is to ensure that the arbitral award shall be binding and final on the parties. Once this award has been made, the parties try to carry out the award immediately. It is a reasonable expectation that the successful party hopes the award to be performed in no time.[229]Generally, the majority of awards are achieved voluntarily. However, if the losing party rejects to accomplish an award, the winning party needs to take steps to compel performance of the award.[230]
A dispute might be arisen of the successful party arguing that this dispute has already been resolved. In order to prove this point, the party will present to the court the award, and ask for the court to admit that this award is valid, and that on relevant issues that are being dealt, all parties are all bound to it. To make a contrast, where a court is asked by the party to enforce an award, they not only request the court to admit the legal effect and result of it, but also requests for the court to operate practicable legal sanctions, to ensure that the award is being conducted. Enforcement is a step farther than admission. Maybe the reason that the court is prepared to grant such an enforcement of an award, is because it admits that the award is validly made, and by binding the parties to it, thus the award is suitable to be enforced.[231]
Recognition is used to stop the bringing up of any intention of issues in the
new procedure, with this issue resolved in the arbitration, and that award will be applied for recognition.[232] To make a comparison, the purpose of enforcement is to apply legal sanctions to force the party against the other party that the award is meant to carry out to.
 
  VI-VI-I Regulation of the Model Law
 
 The text of the Mode Law regime for enforcement is borrowed from the New York Convention (NYC). Article IV(II) of the NYC has been repeated by Article 35(2) of the Model Law “the award and the arbitration agreement or a duly certified copy with translation shall be accompanied by an application for enforcement. Article 36(1) of the Model Law repeats the grounds for refusal of enforcement as a contained in Article V of the Convention. Article 36(2) of the Model law repeats Article VI of NYC, which deal with the coincidence of an application for setting aside or suspension of the award with a request for enforcement. These provisions in international commercial arbitration regardless the location, have similarities that go a long way towards securing the uniform treatment of all award.[233]
   Based on the recognition and enforcement of the arbitral award, article 35(1) of the Model law states, “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. The enforcement regime under Article 35(1) applies regardless of the country in which the award was made. The Model Law can only apply if the place of arbitration is in the territory of the Model Law State, with an exception made especially for Articles 35 and 36.[234] Therefore these enforcement provisions can also apply to awards that are made abroad regardless whether the foreign country is a Model Law country or not.
 
VI-VI-I Comparison of various States adopting the Model Law
 
   Several states made some changes during the adoption process of the Model Law. Egypt is a good example, as it did not make the exception for Articles 35 and 36 as mentioned above. Thus its enforcement proceedings can only apply to domestic awards or awards made outside the Egypt territory, but still follow the Egyptian Law [235].Besides, Some States made complete change of deleting Article 35 and 36 of Model Law from their adoption. For example, the Act of Australia states that no matter where both Chapter VIII of the Model Law and Part II of the NYC would in relation apply to an award, but Chapter VIII of the Model Law does not also apply in relation[236]. The same is done to Bermuda’s Act, and it states that “Where, but for this section, both Chapter VIII of the Model Law and Part IV of this Act would apply in relation to an award, Chapter VIII of the Model Law does not apply in relation to the award.” [237]  Furthermore, Several States of the USA adopting the Model Law avoid inserting Articles 35-36, as they follow the Federal Arbitration Act. This Act, agreed by the USA in 1970[238] Oregon; however, has added a third paragraph to s.36.522 regulating in further details the enforcement action ,despite its repeating of Articles 35 and 36 in ss. 36.522 and 36.524 (grounds). California, in other words, otherwise following the Model Law, does not itself contain Articles 35 and 36. Only provisions on enforcement of interim awards in ss. 1297.92 and 171 are contained. However, the Texas statute consist of no provisions whatever on the enforcement of awards.[239] Peru, in its new law maintains the grounds for refusal as kept in Article 36(1) of the Model Law, nevertheless cancels Article 36(2) on the coincidence of the setting aside and enforcement of proceedings.[240] Mexico, maintaining the provision in coincidence, has also stated that Article 360 CCP will provide the procedure. Accelerated procedure and court decisions without appeal are what this article wants to introduce.[241]
 In addition, Germany has adopted the same legal system for New York Convention award and non-New York Convention award[242]as well as Japan.[243] Since there are too many contradictions toward the foreign award recognition and enforcement among different states. Some other states have not differentiated the recognition and enforcement of a New York Convention award and regular foreign arbitral award; they both adopt the same procedural rules. For example, Italy has the same recognition and enforcement procedural regulations toward New York Convention and Domestic arbitral award.[244]On the other hand, some other states have adopted the same procedural rules for both the convention award and domestic arbitral award, such as New Zealand, according to the 1996 Arbitration act, irrespective to which state the award was made, it should be recognized as binding; one arbitral award, without considering the state of the award is made, all courts should recognize this award is binding, and also it can go through register in the supreme court as an award or file a lawsuit in the supreme for enforcement.[245] The same situation happens in Sri Lanka and Thailand which they do not differentiate between members of non member award of the New York Convention.[246] Based on the analysis above, every state based on the recognition and enforcement of an arbitral award has adopted somehow different or partially from the Model Law or the New York Convention, and there are different regulations among every states. Furthermore, there are also differences between the regulations of the Model Law and the New York Convention.
There are certain laws to follow when applying for the recognition and enforcement of the award. Keep in mind that most of the countries, regardless of adopting the Model Law or not, indicate that once the arbitral procedures have violated the public policy, the enforcing state will be able to refuse the recognition and enforcement of the award.[247] In addition, the effectiveness of the arbitral award does not come from the place of country in which arbitration is held, instead, it is given by the enforcing court.[248] Even though the Model Law has established a well-organized provision for the award recognition and enforcement; while among those countries that integrated UNCITRAL Model Law into their arbitral legal system, some of the countries stipulate the provisions indicated in the Model Law[249]. However, there are still some countries have different requirements when recognizing and enforcing an award. For example, Cambodia has one additional requirement than the Model Law when applying for the recognition and enforcement of the award; it requires the parties to submit an original or duly certified copy of the agreement for application[250] as well as Egypt[251], Kenya[252] and so on[253]. For instance, Egypt requires that the award must have detailed indication such as name of the parties, and the nationality of the arbitrators, and etc[254]; whereas the Model Law only requires the award to indicate the place of arbitration and its date for it to be sufficient. Furthermore Egypt also indicates that when applying for the enforcement, the award will only be considered as valid if it is in writing and contains the following information: (1) the original or certified copy of the arbitration agreement; (2) a summary of the parties’ submission; (3) a list of the document was submitted by the parties; (4) the reason of such documents is being submitted; (5) expressly indicate that the decision has been agreed by the majority of the arbitral tribunal; (6) the place and date of the issuance; and (7) the arbitrators must sign the award.[255]
Yet, according to Lithuania’s law, the parties are required to submit their award to the court. The court will examine the validity of the award. If the court confirms the validity of the award, it will then make it as a judgment to enforce. In other words, the award itself does not acquire any power to be enforced; its effectiveness is given by the judgment of the court[256]. Furthermore, Sri Lanka also requires the examination of the court before enforcement[257]. According to Sri Lanka’s law, when the parties apply for enforcement or setting side to the court, the court must determine if there is any ground in the award that might be subject to appeal or set aside[258]. The court will only enforce such an award if it is satisfied that none of the setting aside elements can be found in the award. Yet, the law also sets a time limit for the parties to apply for enforcement. The law requires the party to submit their award for enforcement no longer than one year after the expiry fourteen days of the award[259]. Besides, other than the enforceability examination, Thailand has a very unique requirement. According to the arbitration law of Thailand, the court will only be enforcing the award that was made by the courts which the award was given in accordance with the treaty or convention that Thailand has agreed to committed to, and also, only to the scope where the Thailand has agreed to follow.[260] In other words, Thailand is only willing to cooperate with the authorities which it thinks appropriate. This contradicts to the Model Law’s harmonization purposes. For the Model Law, the arbitral tribunal has absolute power to decide on the disputes, the court or the country will not interrupt or damage the system of arbitration unless some specific problems have occurred[261]; nevertheless, that the enforceability will depend on the nationality of the applicable law has contradicted the major objective of the Model Law. Creating a set of laws that will unify and harmonize the arbitration among different countries.
In addition, a special case worth mentioning is Malta’s law of enforcement. There are two situations to enforce award in Malta, which will be based on the registration of awards. Once the arbitral tribunal has rendered the award, the parties are free to decide if the registered the award with the Arbitration Center, however, according to article 61(4) and 61(8) of the Arbitration Act 1996 of Malta, there are different procedures to be followed for the awards which have been registered with the center and the awards that has not been registered. And in the situation where parties is seeking for the registration of the award, it indicates that no award can be enforced if it is made within three months, hence if the parties wish to register an award that has only been made less than three months, then the parties are required to submit a statement of claim with the application of enforcement, which must indicate that none of the parties will file any further appeal towards the award in order for the award to be enforced[262]. From there, the center [263]will examine the enforceability of the award, and once it had approved its enforceability, the award will be enforced without going through the court examination.[264] On the other hand, for the parties who had decided not to register the award with the center, and to seek for enforcement of an unregistered award, the parties are required to submit the award to the court of evaluation, and once the court has confirmed its validity, it will issue an order to enforce the award[265].
 
VI-VI-II Comparison of various States not adopting the Model Law
 
    Other than the examples given above for those countries who have adopted the Model Law, here are some examples for the arbitration regulations among countries that do not adopt Model Law to establish their arbitration system. For instance, the parties object to the awards mainly by the court which made the arbitral award. Except for the way of court, in a few countries, the objection against awards could be addressed by the substance organizations excluding the court. For example, in Saudi Arabia, parties could address the objection against awards to the committee on settling aside the arbitral award.[266] At the phase of allowing parties to object awards, parties generally choose appealing to the court. French Code of Civil Procedure stated that laws apply to the enforcement of a domestic arbitral award would also apply to the enforcement of foreign award. This is a more simple way to recognize and enforce foreign award.[267] However, at the stage of enforcement after the award has been made, it must be supervised by the court.[268] Some countries have been influenced by the theory of non-domestic, and abandoned the authority to supervise in the country. For example, Article 1717(4) of Belgium Judicial Code provides that “The parties may, by an explicit declaration in the arbitration agreement or by a later agreement, exclude any application for the setting aside of an arbitral award, in case none of them is a physical person of Belgian nationality or a physical person having his normal residence in Belgium or a legal person having its main seat or a branch office in Belgium.”, so that the authority to control of arbitral proceedings from the country of the place of arbitration transfer to the country where the award was recognized and enforced. Judicial supervision in arbitral proceedings could only delay to the stage of recognition and enforcement after the award has been made.[269]
In Addition, according to the analysis above, we try to interpret the differences of the law by going through the delocalization theory. The scholars supporting the Delocalization theory claim that by adopting the Delocalization theory does not mean holding an opposing view towards supervision control in the arbitration. Its attempts are to transfer the jurisdiction from the place of country in which arbitration is held to the competent authority in the country where recognition and enforcement is sought, hence the enforcing state will determine whether to recognize or enforce the award or not. The arbitral awards which were made by the arbitral proceedings of delocalization theory are “delocalization award” or “a stateless award”. The scholars who opposed to “delocalization theory” consider that the recognition of common countries to arbitral awards shall be based on whether the awards apply to New York Convention or not. [270] The positive scholars state that according to New York Convention, an arbitral award does not need a nationality to be recognized and enforced. Even if the award has no nationality, it could still be recognized and enforced in the member countries of New York Convention. [271] From the scope of application of New York Convention, the convention established two standards: territorial standard and non-domestic standard.[272] On the basis of the former, the arbitral award will apply to the New York Convention if the award is made outside of the enforcing state. According the latter, though the award has been made by the recognizing and enforcing country, it could also apply to New York Convention except it is not considered as a domestic award. [273] From the standard of New York Convention, the recognizing and enforcing court shall ascertain whether the award has been made by the other country or not while deciding to enforce the award[274].
  From above, obviously the adopting countries of Model Law do not completely adopt the provisions of Model Law on this issue, and there are also some differences between the laws of adopting countries. Although the non-domestic awards which was made by “delocalization theory” according to the New York Convention, should have no difficulties while enforcing the awards. However, in practice, “non-domestic awards” could not obtained common support from each country. As to the arbitral awards whether will be recognized or enforced in the state of the enforcement or not is still a problem. Therefore, there are still differences among arbitration acts of countries. Although Model Law made efforts to negotiate the arbitration act of each country, it seems far away to have it unify and coordinate. Yet, United Kingdom, for example, the national court only reviews whether the foreign awards are valid or enforceable or not. It does not review the substance issues Therefore, if no evidence shows that such award is invalid or unenforceable, the arbitral awards will be enforced and recognized by the national courts.[275]
There are countries that have quite different laws, such as Libya. According to the arbitration law of Libya, the courts are required to examine the enforceability of the award and decide if to enforce such an award, and “The ruling is endorsed on the award and the clerk of the court notifies the parties of the registration as well as the grant of leave to enforce by the court according to the procedure provided for notification of judgments. Recourse against the decision to refuse leave to enforce must be made before the Court of First Instance, if the refusal was made by a sole judge and before the Court of Appeal if it was made by the Court of First Instance.”[276] Nevertheless, the Model Law does not require or empower the courts for such examinations. Yet, by establishing the provision which prohibits court intervention unless certain situations arose[277], the Model Law attempts to minimize the court intervention in the arbitration. Therefore, the arbitral tribunal will decide the content of the award as well as the enforceability. On the other hand, the court will not examine the enforceability when the party applies for enforcement and there is no need for the parties to submit their arbitration agreement[278]. On the contrary, according to the Libya’s law, the court will once make sure that the award is enforceable when the parties apply for enforcement, also for that reason, the parties are also required to submit a copy of the arbitration agreement to the clerk of the court[279]. Furthermore, Libya law states that an award will acquire its power as an executor before the interested party’s requested for the enforcement has been granted.[280] The order to grant such enforcement can only be granted by the judge of summary proceedings of the court with which the award is being enforced. The judge shall examine the award upon the elements of the existence of the arbitration agreement, and if there is any reason that might prohibit the enforcement of the award. After all the elements have been satisfied, the judge will then indicated in the bottom of the original award which grant the order for enforcement[281]. Although Libya does not require the parties to submit their arbitration agreement, it indicates that the court is not going to examine the reasons of the award. It will only be examining the legality of the award.[282]
Based on the analysis above, the scope of the reasons which refuse the recognition and enforcement of the award and whether the reasons can be approved have great impact upon if this award can be enforced in the future. Therefore, if every state is lack of unification upon the refusal of recognition and enforcement, then every state can decide to refuse an award based on whatever the reason they want. This would lead the result which the effectiveness of the award would be diminished.
 
 
VI-VII Recourse against Award and Setting Aside the Arbitral Award
 
 In international commercial arbitration, the arbitral proceedings will be end after rendering the arbitral award. As the party of winning party, they hope to enforce the arbitral award without delay. The purpose of arbitration is to make a decision which is binding for the dispute of parties. To prevent the award from enforcing, the losing party could indicate objection according to the arbitration law of countries. The related organizations and court may unable to enforce the award or set it aside.
    
 
VI-VII-I Regulation of the Model Law
 
    According to Article 34 of the Model Law, recourse to a court that is against an arbitral award can be made only under the condition that it is in the form of an application for setting aside (para 1). The grounds on which this can be applied are listed in para 2. Time limitations for the introduction of the action for setting aside is located in para 3. At the end, para 4 creates the possibility for the court to delay setting aside proceedings, for giving the arbitral tribunal an opportunity to discard the grounds for setting aside. The objection with validity against awards shall be addressed by the court with jurisdiction. Generally the court with jurisdiction means the court in the country which renders awards. In addition, parties could submit to arbitration under the law to which the parties have subjected it.[283] From the articles of Model Law, the intention of the drafter states that the courts of specific countries has the jurisdiction only setting aside the awards which has been rendered in native country.[284]
Evidently, the Model Law is trying to establish the position of the arbitral tribunal as the highest authority governing the arbitral proceedings. Therefore its decision should be the ultimate solution for the disputes within arbitration. However, there are still situations where the parties do not satisfy with the award, and seek for the grounds which enable them to set aside the award. For these cases, the Model Law has establishes the grounds for setting aside an award which are mainly focus on the award’s legality and if the award has been made according to the proceedings which are agreed by the parties[285]. However, at the phase of allowing parties to object awards, parties generally choose appealing to the court. Different countries have different ways while objecting awards through the court. Parties could appeal by law problems or address investigation and the application of setting aside the awards.
 
VI-VII -II Comparison of various States adopting the Model Law
 
   Despite the fact that most of the countries have adopted these grounds when determining the application of setting aside an award are very close[286]; there are still some countries that have adjusted some changes into their own arbitration law. For instance, Iran’s arbitration law has established provisions to indicate an additional ground for setting aside an award. According to the Iran’s law, if one of the parties has found other evidences to the dispute which will affect the award after the award is made, as long as the delay of this evidence finding is not due to the party’s fault, the court is able to set aside the award[287]. Also, in Iran’s case, the parties are required to submit certain amount of deposit when they file for setting aside the award. The court will only permit the application and suspend or delay the enforcement procedure if the party applying for set aside the award is able to provide enough deposit for the application[288]. Likewise, Croatia also indicates the above situation as the ground to set aside an award[289]. However, the above situation cannot be considered as the ground to set aside an award under the Model Law which mentions that if the parties have failed to provide relevant evidence towards the arbitration dispute, the arbitral tribunal is able to based on the information on hand and continue the proceedings to make an award[290].
Relating to the other grounds for setting aside, the only changes made regarding to violation of public policy of the Model will be discussed.[291] Afterwards, some procedural views of setting aside will be discussed. An award may be set aside if the court finds that “the award is in conflict with the public policy of this State”. Violation of public policies covers basic principles of law and justice in respect to the matter as well as procedure. [292]. Being that the court found the first ground as “the subject matter of the dispute is not capable of settlement by arbitration under the law of this State”; it is the second ground that the court will apply for setting aside. Several States made changes in the process of adoption. Firstly, It is stated by Australia that an award conflicts with the public policy of Australia “for the avoidance of any doubt, that, for the purposes of those subparagraphs, an award is in conflict with the public policy of Australia if: (a) the making of the award was induced or affected by fraud or corruption; or (b) a breach of the rules of natural justice occurred in connection with the making of the award.”[293] The same was done by Bermuda in its 1993 Act by stating that “Without limiting the generality of Articles 34(2)(b)(ii) and 36(1)(b)(ii) of the Model Law, it is declared, for removing doubts, that, for the purposes of Article 34(2)(b)(ii) and 36(1)(b)(ii), an award is in conflict with the public policy of Bermuda if the making of the award was induced or affected by fraud or corruption.”[294] The Law Reform (Miscellaneous Provisions) Act 1990 of Scotland kept‘the award is in conflict with public policy’as a ground which can enable the court to apply an application for setting aside .[295] Yet this also adds to the grounds that a party must give proof as a ground:‘if the award was procured by fraud, bribery or corruption’[296]. Article 34(3) the Act Scotland consists of the addition that the time-limit of three months starting from the receipt of the award, within which a party should make its application for setting aside, does not apply to the new ground.
  Some other changes related to public policy also have to be noticed. It is restricted in Tunisia’s new law of 1993 that an arbitral award may be set aside by the Court of Appeal of Tunis “When the court finds that the award is in conflict with public policy, as understood in private international law.”[297] Nevertheless, the provision of the latter is added “as understood in private international law”, pointing to the restrictive notion of international public policy.[298] On the other hand, the Decree Law of Peru states that “An application for annulment against an international arbitral award may only be filed with the Superior Court of the place where the arbitration was held, when the party filing the application proves that: 6. The award is contrary to public order in the Republic.”[299] Thus, it brought “the subject-matter of the dispute is not capable of settlement by arbitration and the award is contrary to public order in the Republic” both under the grounds as a party should prove. Then, this excludes the court from dealing these grounds with ex officio.[300]
 
VII Criticisms of the Model Law
 
The era of “globalization” has exponentially increased the demand for arbitration, and in turn the variety of disputes submitted to arbitration, and the differences in scale between these disputes, has multiplied. The Model Law has given certain degrees of effect to the purpose to encourage modernizing and unifying the international arbitration law, which would further harmonize the international commerce arbitration’s coordinated development,. Yet, due to its aim at universality and acceptability, the Model Law unfortunately can have little effect in advancing the state of arbitration procedure, but instead aims to be overly general, to ensure its acceptability by the “lowest common denominator”.^[301] Regarding the problem of the gap between countries whose arbitration policies are advanced and advancing and those countries whose arbitration policies have not been as successful, the adoption of Model Law could be considered, aimed at avoiding a situation where the policies of such countries are deeply estranged.^[302]
Some scholars assert that the Model Law is suitable for developing countries, whose legal systems are not fully formed and may be more able to accommodate the inclusion of an international oriented Model Law. On the other hand, the Model Law far less suitable, however, for developed States where arbitration legislation is already in place and practiced.[303] While the Model Law has been successfully adopted by some countries, some other countries have ostensibly adopted it but failed to effectively incorporate it, and some have not adopted it at all.[304]Also, the formal adoption of the Law is not enough to guarantee the practical functioning of its policies within a country.  Thus, while some countries lag behind, other countries are revising and advancing their arbitration policies, and the gap in the development of arbitration culture between countries widens.[305] The Model Law, as such, can be said to be deficient insofar as it lacks the effect of an international treaty; along with being arguably incomplete, the Model Law has no substantive power.[306]
During the last decades, this relationship of the courts to the arbitration process has shifted away from one of control, in which courts generally could intervene almost every aspect of the arbitration proceedings. Ultimately, arbitration is unable to enforce its decisions on its own, without the assistance of the courts.[307] The fact is, then, that the arbitration process cannot be accurately described as being independent from the courts; in the suggestion of one commentator, the relationship between the courts and the arbitration process is at minimum one or “complementarity”. In addition, by developing the emphasis on party autonomy would have weaken the control of courts on arbitration process[308].Nevertheless, the Model Law has being criticized in its development of emphasis on the party autonomy which can not resolve the problem of arbitration’s dependence upon court enforcement.
 
VIII Reform of the Model Law 
 
The matter of the relation between the judiciary and the arbitration process is a difficult one. The Model Law seeks to reduce the interference and involvement of the judiciary in the arbitration process; to achieve this, it is necessary that judiciaries respect arbitral decisions, and that the arbitral tribunal approach their decisions with the knowledge that their decisions are authoritative and outside the reach of the judiciary, and must therefore be beyond reproach.[309] The development of the Model Law will have to take this objective into account and in this respect the qualifications and authority of the arbitral tribunal will have to be considered further and perhaps given great weight in the text of the Law.[310] Insofar, to settle the tension between the arbitration process and the judiciary, either national law must not play any part in arbitration, or national laws on arbitration must be harmonized.[311]
 It may be advisable that the courts be given a certain degree of discretion in deciding how to enforce an interim measure, and even whether or not it should be enforced, as well as be advisable to deal with the issuance of interim measures in a harmonized text.[312] On the other hand, the international/national arbitration distinction should be done away with. For one, this would eliminate the problem of possible confusion within a Model Law country that has its own domestic arbitration policies. A full universalization of the arbitration process would further the aim of affirming the validity and autonomy of the arbitration agreement form, as to a great extent independent of the judiciary.[313] Those recommendations seem to be beneficial to the future reform of the Model Law.
 
IX Conclusion
 
International commerce has been continuously expanding; thus the chances of contracting between two or more states are also increasing. There are different commercial laws between different countries, hence without any unified arbitration law; it will cause massive conflicts and contradictions while the laws were applied in different countries，Meanwhile, it would also make the law unstable and ambiguitable.[314]In view of the above discussion, it demonstrates that arbitration proceedings are not easy to be independent from the national legal system. Apparently, the majority arbitration proceedings are governed by the laws of the seat of arbitration.[315] The enforcement of the award all depend on enforcement by the law of the state.[316] The delocalization theory can not avoid the need of the support and assistance from the law of the state where the award was made; otherwise it will have negative influence upon the arbitral proceedings.[317]In other words, the arbitration will be meaningless, and invalid unless the domestic law recognizes that the parties’ have the right to submit to arbitration, and to enforce the award. The arbitral award is worthless if it is not enforceable.[318]
The 1985 UNCITRAL Model Law shortened the gap between countries. Hence, it has definitely helped on unifying and settling the law procedures[319].Furthermore, the Model Law itself presents extensive applicability and elasticity. Because it does not exist in the form of a convention, states can delete provisions or supplement the Model Law based on their needs upon adoption of the Model Law. Therefore, the Model Law itself shows much elasticity and applicability. In another words, the UNCITRAL Model Law has certain effect on reducing the conflicts among international arbitration, thus it provides great improvement on maintaining the harmonization of international commercial arbitration.[320]
   A comparison is made of “intervention of court”, arbitration agreement and other issues regulated by the arbitration laws of countries that have already adopted the Model Law. The concept of harmonization of laws are held with different ideas, some require that laws to be consistent to reach harmonization, while others consider being similar does the job. The definition of the word harmonization mostly means to coordinate, which the former idea mentioned does not seem to fully reach its goal. The latter although seems to fulfill the meaning of harmonization, yet only partial countries carry the same concept. In fact, even European Union does not require the laws of its member states to be the same.
According to the above, it is further discussed if the Model Law fulfills its goal of harmonization. In summary, it can be found from the above comparisons that although many countries referred to and adopted the content of the Model Law and have already legislated their own arbitration law. It seems that the contents of the regulations are not quite the same. But if we judge from this that the Model Law does not include the function of Harmonization, it seems to be too dogmatic, since many countries have actually adopted and made reference to the Model Law, and have tried their best to accept the purpose and intention of the legislation of the Model Law. It can be seen that the Model Law still holds great value in trying to eliminating the differences of the main arbitration law of each country, and coordinating the legislation of each country to modernize and unify.[321] We have to admit from the consideration of the definition and function of harmonization, that the Model Law still to some extent contains effects of harmonization to a certain degree.
  Nonetheless the Model Law does not have the effect of an international convention, thus the Model Law cannot force every country in adopting it. Although the Model Law is already adopted by some countries; [322]the laws of those countries are not quite the same as the Model Law, especially the laws of certain regulated items after its legislation has also shown difference. This also makes scholars believe that the Model Law not only still has places to improve, but also lacks great influence.[323] Furthermore, it is calculated that in the total 195 sovereign nations, 61 dependent areas, and 6 disputed territories throughout the world,[324] there are 192 countries that belong to the United Nations.[325] But up to now, only 51 countries and 3 partial territories of a country out of the 192 countries of the United Nations have adopted the Model Law[326]. This makes there to be 140-150 countries not to have adopted the Model Law, which among these are some developed countries; for example, England, France, Italy, Switzerland. Yet due to their different backgrounds in politics, economics, and culture, many of these countries that have not adopted the Model Law, have legislated arbitration laws that cannot be combined into one identical version. From the analysis of the above factors, we rather believe that the Model Law have at most fulfilled partial harmonization throughout the world, and still has not reached the purpose of completely fulfilling harmonization. It is time to rethink on how to satisfactorily revamp the theory. The author will discuss how to address this issue in the next chapter.