1. Introduction

Robert Briner's chairmanship of the ICC International Court of Arbitration coincides with and is marked by-among other things-the final break-up of the Soviet system and the emergence of autonomous commercial arbitration in a part of the world where arbitration had been firmly linked to State institutions. It would have been uncharacteristic of him not to become engaged in the process and shape it with his personal views, convictions and experience. I had the pleasure and privilege of working with him in Mongolia, Central Asia and the Caucasus. Together, we tried to introduce the concept of commercial arbitration, encourage debate, orientate legislation, and prevent new-monopolistic- institutions from being founded (which would of course also have been detrimental to the work of the ICC Court). In all that we never felt 'lost in translation', because Frances guided us safely through the linguistic turmoil.

2. Challenges

Legal and judicial reform in the field of commercial arbitration consists of several interrelated steps, which cannot be taken at random or with equal facility. Their acceptability varies, for historical more than structural reasons, and a specific order must therefore be observed for pedagogical as well as practical purposes. This is especially true in countries which only recently gained independence and take understandable pride in their sovereignty.

The first, basic step towards integration into the global network of arbitration is of course for a country to adhere to the major international conventions and institutions of which most other countries are members notwithstanding their ideological and political preferences. Foremost among these are the 1958 New [Page463:]

York Convention on the Recognition and Enforcement of Foreign Arbitral Awards and the 1965 Washington Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (ICSID Convention). To spread knowledge about these instruments in a part of the world that had been shut off from direct international relations during the Soviet era, regional and national seminars had to be organized. Robert Briner participated in a considerable number of these, explaining how arbitration works and pointing out its advantages. To date, all countries concerned except Turkmenistan and Tajikistan have achieved this first step, with Albania being the last of the countries to ratify the New York Convention, which it did in 2001. Tajikistan will most certainly follow. However, given the political regime in Turkmenistan, it is difficult to predict whether any advice will be heeded in the near future, although we certainly intend to continue our efforts. Strange as it may seem, no transition country hesitated over adhering to the ICSID Convention. No doubt it was considered part of the 'package' of Bretton Woods institutions that were accepted en bloc at an early stage without any hesitation.

It is undoubtedly easier to convince governments to adhere to international conventions, especially those already accepted worldwide, than to draft national laws. Discussions relating to the ratification of international conventions are of course important in themselves, but they can also serve as a prelude to the second step, which is the drafting and adoption of appropriate national legislation on arbitration. 'Appropriate' is consistently interpreted as meaning based on the 1985 UNCITRAL Model Law on International Commercial Arbitration (hereinafter the Model Law). More than one country has used the Model Law and added provisions relating to national arbitration, which is technically feasible without much drafting effort. Armenia and Georgia are examples. The Russian Federation and Ukraine, on the other hand, hesitated and preferred to distinguish in law between international and national disputes. A third case is illustrated by Azerbaijan, which decided to restrict its legislation to the international sphere, leaving national disputes unregulated. As will be shown below, distinguishing between international and national disputes serves the pedagogical purpose mentioned earlier.

The process was and still is highly laborious. This may seem surprising, given the existence of the Model Law, its undisputed quality and the fact that it has already been successfully used in so many countries with a wide variety of legal cultures. There are many likely reasons, not least the novelty of party autonomy in contrast to the previous all-embracing control of the State. [Page464:]

Many of the arguments obstructing the development of arbitration elsewhere in the world have reappeared here in a condensed form and from a different perspective.

Major areas of concern and difficulties are clearly reflected in the somewhat distorted legislative processes in various countries mentioned below. They can be categorized as follows:

- a lack of comprehension of the private character of arbitral proceedings as distinct from judicial power, which has led to problematic decisions by constitutional courts and councils, as well as to the detailed regulation of areas that should be left to party autonomy (such as determining the qualities required of the arbitrators);

- a lack of understanding of the procedural character of legislation on arbitration as distinct from institutional regulation, which has led in some cases to confusion over requirements for creating 'arbitration courts' in addition to procedural rules;

- a reluctance to render private awards enforceable by State bodies in the same way as court decisions, which persists despite ratification of the New York Convention and is even stronger when legislators realize that internationally it might be easier to enforce arbitral awards than State court decisions;

- the traditional belief that enforceability should depend upon the award's conformity with national law, which is felt to be undermined by the freedom to choose the applicable law and by allowing arbitrators to decide ex aequo et bono;

- the fear of a partial loss of State control over international trade and foreign investment, as especially voiced by procuracies, which in Soviet times were empowered to control the legality of all court decisions,

- a vague apprehension of possible competition with State courts, which may lead to a more or less explicit obstruction of the codification process by the judiciary, especially the State arbitration courts or economic courts, as they are now called, in many transition countries.

As has been said, some of these obstacles can certainly be attributed to Soviet traditions. This is particularly true of the virulent conviction that courts (and procuracies) have a strict constitutional mandate to defend and, as expressed in Article 97 of the German Democratic Constitution of 1968, should uphold [Page465:] 'socialist legality' out of allegiance to the USSR example. This belief left little room for party autonomy and also limited the potential for settlements on agreed terms. In addition, commercial arbitration was for a while confused with the old system of State arbitration, the purpose of which was to monitor, supervise and orientate the execution of central plans by State enterprises, not to decide disputes between an independent claimant and an equally independent respondent.

Other obstacles, however, are not peculiar to the Soviet system. Mistrust of private awards to be enforced by State agencies, the alleged exclusiveness and territorial limits of the judicial process or at least the dominance and supervisory powers of State courts in arbitration, and misunderstanding of the nature of arbitral proceedings are all well-known phenomena in traditional market economies and democratic systems. Although slowly loosing ground, they are still to be reckoned with. It would indeed have been astonishing had the legislative process not been confronted with the basic theoretical questions that have long shaped discussions on arbitration in countries whose legal systems were firmly based on decentralized property and freedom of contract.

The equation between substantive party autonomy and the procedural freedom to have disputes decided by third parties was far from evident and only during recent decades has it been translated into practice. The conviction that the monopoly of State power had as a quasi natural corollary the monopoly of the judiciary to decide cases and disputes with binding force has far-reaching ramifications in the theory and practice of the nation State. From this perspective, the possibility of agreeing on alternative dispute resolution outside the apparatus of the State was seen as a kind of concession by the courts, a departure from 'normality'. Accordingly, it could be applied to varying degrees, with a distinction being made, for instance, between international, foreign and national awards, or more or less supervisory power being maintained for State courts.

True though this may be, it was in fact the practical necessities of economic globalization that reinforced the dynamics of commercial arbitration, thereby facilitating international investment and trade. Hence, it was much less political theory or legal doctrine that paved the way to autonomous arbitration than international business law, where national jurisdiction was traditionally less impinging than in the domestic sphere.

These general considerations are particularly apparent in States transitioning to market economies. The dynamics of all forms of ADR depend upon the extent to which voluntary integration into the global economy is sought. At the[Page466:] beginning they were looked upon with mistrust and even resisted. However, the long-standing distinction between international and national arbitration has been used to 'pedagogical' advantage by allowing the focus to be placed first on the more fertile international field. Efforts here have borne fruit, exposure and experience easing the way towards ratification of international conventions. In turn, this has provided strong arguments in favour of national legislation based on these conventions, covering at least the international sphere, in line with the UNCITRAL Model Law.

Russia and the Ukraine are good examples. In the Soviet era, international disputes to which commercial Soviet entities were parties had to be channelled through Moscow and-albeit to a lesser extent-Kiev. These were the places of exposure and, consequently, experience, and it is not surprising that Russia and the Ukraine were the first two post-Soviet countries to enact modern laws on arbitration. Russia came first with its international arbitration law of 14 August 1993, and the Ukraine quickly followed with its similarly named law of 24 February 1994. Both laws closely follow the Model Law. Interestingly, they both expressly restrict their scope to international disputes. It took almost another ten years for a legal base to be created for bringing national cases before arbitral tribunals. Russia again led the way in 2002 by enacting a law on national arbitral tribunals (Law No. 102 of 24 July 2002). This law is explicitly restricted to national disputes and is less liberal than the law of 1993, especially as it embeds arbitral procedures within the Russian legal system and judicial process. The Ukraine followed the same approach and more or less copied the Russian statute with its law on arbitration courts of 11 May 2004 (Law No. 1701-IV).

Most other newly independent States that had been barred from direct international contacts during the Soviet era were much slower in opening up to commercial arbitration. When they did it was again due to international relations. Given the State's tight monopolistic grip over all domains of Soviet society, it is understandable that mistrust and resistance ran much deeper than in traditional market economies.

The path of liberalism and freedom is not in itself sufficient to overcome such apprehensions, nor does it get to the crux of the matter. Evolution towards State monopoly of force represents a great step in modern civilization and a key element in the dynamics of market economies. The judiciary is an integral part of the system and must be seen in this context. The question to be asked of State monopoly in traditional and transitional societies alike is not 'if?' but 'what kind?'-in other words, to define their essence, limits and contours. [Page467:]

A look back reveals that one of the decisive factors is the question of sanction and force: a neutral, objective and independent judicial power is indispensable and is indeed provided for in all modern constitutions. It is necessary whenever a person feels his or her rights have been violated and no restitution seems possible without recourse to enforceable sanctions against the violator; whenever force is needed to have the law respected by people who do not respect it voluntarily; whenever a forum is established where the law asks players to behave in a certain way even if this is not what they wish; and whenever a party insists on having its rights protected by the State. The legal and effective use of force by the State in all these settings at the same time legitimizes a prohibition upon people taking their rights into their own hands and using force to defend them. More than one post-Communist country has demonstrated with discomforting brutality entailing high transaction costs that mafia-like racketeering emerges when judicial and enforcement powers do not function properly.

Although the opposite is often claimed, concentration of power within the State is not based on the State's-fictitious-self-interest or on prerogatives inherent in the judiciary and other branches of government, but on historical experience and the fact that it is essential to realizing society's interest in sustainable market relations. That is why arbitration cannot exist and work separately from the State, for arbitrators would be unable to compel witnesses to testify before them; it would be impossible to deliver exequaturs and order bailiffs to enforce awards; and parties would be unable to make an institution appoint the chairman of an arbitration tribunal. Post-Soviet arbitration laws that have tried to eliminate all State court activity as a reaction to the previously over-powering State-as in Georgia-have failed in practice.

If the potential of using force when the law so requires is a hallmark of civilized jurisdictional power, then it is equally fair to say that dispute resolution that is based on agreement between the parties to resort to other institutions neither undermines such power nor implies weakness on the part of the State. It is certainly a sign of weakness not to use force to maintain legal order and protect citizens' rights, but a State is not weak if it allows people to pursue their affairs autonomously as long as they respect the law. The classical doctrinal controversy over the qualification of arbitration as a private convention or a procedural device has done more to obscure the real problems than to clarify them because it was formulated from a perspective of confrontation with the judiciary which feared its prerogatives were being eroded. Instead of limiting the scope of judicial monopoly to its civilizing and pacifying essence, i.e. the lawful exercise of force and sanction, scholars and especially practitioners insisted on judicial monopoly tout court. [Page468:]

Structurally speaking, however, there is no erosion of prerogatives, or delegation of power for that matter, as long as parties agree upon ADR in a wide sense and as long as none arrogates the right to use force. Arbitration is patently a private arrangement based on contract and it is equally patent that it follows proceedings set by law, the outcome of which is a decision binding upon the parties involved. If in the course or at the end of the proceedings one of them decides to change its mind and not comply voluntarily, it must be forced to stick to its undertaking. The necessary force to ensure that it does so can be exercised neither by the other party nor by the arbitrator, but only by the institutions that hold the monopoly of force, i.e. the State courts. The problem of a change of mind is not peculiar to procedural (arbitration) agreements but is common to agreements in general. It may be recalled that it took legal scholars in the eighteenth and nineteenth centuries quite some time and sweat to reconcile the concept of freedom of will with substantive self-commitment in a contract, which remains intact even if the will has changed. The reconciliation succeeded in substantive law and there is no reason why it should not apply to procedural declarations and agreements as well. Autonomy of contract is today constitutionally guaranteed in all transition societies. It needs to be universally understood that this freedom covers both substantive and procedural acts.

The lawmaker has, of course, discretionary power within the constitution to decree to what extent parties should be free or bound to agree on substance or procedure. The lawmaker can regulate the extent to which arbitration awards are legally binding and define the competence of State courts to exercise supervisory powers over the proceedings and the awards. It behoves internationally experienced and knowledgeable experts like Robert Briner to encourage discussions across the world on standards in the field, to explain the constraints and advantages of integration into the global system of arbitration, the link between ADR and sustainable economic development and the potential for fairness in arbitral proceedings, and to dissipate mistrust and resentment.

3. Roads to legislation

Efforts to draft legislation on arbitration proceeded with the support of close international cooperation. In all partner countries from Mongolia via Central Asia and the Caucasus to Moldova, where, in one way or another, Robert Briner and I had a common commitment, drafting groups were formed. We always tried to have sceptics present in these groups such as judges from State arbitration courts, staff from procuracies and the ('security') ministries, and sometimes deputies, but this did not always happen. More often they would stand by and comment on drafts at their convenience. [Page467:]

The Model Law was used, to which provisions on costs were added and it was proposed that the highest court in each country should fulfil the Article 6 functions or-if this was unacceptable-that at least appeals against court decisions should be prohibited. The drafts were presented in two forms, one of which extended the scope of the Model Law to purely national disputes, admittedly with mixed results. In all countries the drafting groups were given help to bring the drafts into a nationally acceptable form and prepare seminars at which the texts were explained to and discussed with political decision-makers.

Despite a common approach, the results that have so far been obtained vary from country to country. Turkmenistan has so far opted for isolation by refusing not only to ratify the New York Convention but also to include the draft texts on its legislative agenda, despite the fact that it has been party to more than one important international arbitration dispute. At the other end of the scale, it is probably Mongolia that has followed the Model Law most scrupulously. On 6 June 2003, after much debate, it enacted its law on arbitration, which covers both national and international disputes and contains an adequate clause on costs (Art. 41). There are some-unnecessary-deviations, which might be changed in the course of further consultation, such as the exclusion of judges and others from being arbitrators (Art. 15), the exclusion of decisions ex aequo et bono (Art. 34), the less-than-perfect definition of the scope of arbitrability (Art. 1), and a reference to certain arbitration institutions that might be interpreted as restrictive, but all in all the spirit of the Model Law is well respected, including in its extension to purely national disputes.

All other countries where we have been involved lie at some intermediary point on the scale between Turkmenistan and Mongolia. In most countries the work is far from over, even where laws already exist.

Armenia adopted its law on arbitration courts and arbitral proceedings on 5 May 1999. The UNCITRAL source is recognizable but inconsistently followed. The law contains-inadequate-rules for establishing permanent arbitration courts (Art. 2); the scope of application is narrow; the proceedings before the tribunal are less than adequately regulated; but most unfortunately all national and international arbitral proceedings are to be governed by Armenian procedural and substantive law (Arts. 22, 32, 38, 40). Given these imperfections, it is hardly surprising that arbitration practice makes little progress in Armenia and discussions are under way to profoundly overhaul the law or-probably better- replace it altogether. [Page470:]

Azerbaijan has followed the Model Law more closely in its law on international arbitration of 18 November 1999. It too restricts the scope of the law to international commercial arbitration (Art. 1). There was a contradiction within the law: Article 28 rightly allows for the free choice of applicable law. Articles 34(2)(b)(ii) and 36(1)(b)(ii), however, stipulated that an award may be set aside or its enforcement refused if it is contrary to 'the legislation of the Azerbaijan Republic'. This wording conflicted with contemporary thinking and it needed to be made clear, as may well have been intended by the legislator, that the term 'legislation' should be understood to mean fundamental constitutional legal principles or, in the language of the Model Law, public policy. Clarification could be achieved through court practice or, more conveniently, by amending the law. We proposed an amendment to this effect, which was passed by the Azerbaijani parliament in May 2005.

The Georgian parliament enacted an initial law on private arbitration on 17 April 1997. Although a mixed Georgian-German working group had presented a draft based on the Model Law, it was mutilated beyond recognition. The text as adopted uses extremely vague language, mixes procedural and institutional aspects, requires permanent arbitration centres to be set up as entrepreneurs (Art. 7), provides for the annulment of the arbitration clause if the arbitral tribunal fails to render its award within one month (Art. 31(4)), and empowers the chairman of the arbitral tribunal to issue an enforcement order (Art. 42). Seeing that arbitration had not started to flourish following the enactment of this law, the Georgian Ministry of Justice set up a new working group in early 2004 whose task was to draft a new law more in line with the Model Law. German and US specialists were asked to contribute to the process which was conducted through written statements and workshops. The last of the workshops, held in Tbilisi in July 2004, led to a draft considered final by the Minister of Justice in September 2004. He has declared-and repeated in May 2005-that he is confident that this draft, which encompasses national disputes, will be presented to the parliament in the near future.

In the Kyrgyz Republic it took a little longer to develop modern arbitration legislation, because the Constitutional Court had ruled on 5 December 1997 that arbitral awards were unconstitutional as there was no reference to arbitration courts in the provisions relating to the protection of citizens' rights and the judiciary. Although many Kyrgyz and non-Kyrgyz lawyers were of the view that arbitration courts-unlike the Soviet State arbitration courts-did not form part of the judiciary, were established by private charter and were therefore rightly not mentioned in the Constitution, the drafters of the recent extensive[Page471:] amendments to the Constitution erred on the safe side: since February 2003 the Kyrgyz Constitution is one of the few in the world that explicitly allows for commercial arbitration (Art. 38(3)). The positioning of this provision shows that it should be seen as a derogation from the general concept of the State's monopoly over the use of force and the protection of citizens' rights and freedoms (Art. 38(1) and (2)).

Soon after the referendum on these amendments, a law on arbitral tribunals was enacted (Law No. 135 of 30 July 2002), which deals mostly with the institutional requirements to be met by arbitration courts as products of the law rather than citizens' autonomy. It also deals to a certain extent with procedure. Seen within the context of post-Soviet codification practice, this law resembles the above-mentioned Russian law of 24 July 2002 on national arbitral tribunals. However, the Kyrgyz legislator failed to realize that the Russian statute does not address international disputes, which are governed by the special law on international commercial arbitration of 1993, for which there is no equivalent in Kyrgyzstan. Although there is some reference to the Model Law in the Kyrgyz law, there are an unwarranted number of deviations, which are certainly not due to Kyrgyz legal tradition. It is particularly regrettable that the legislator did not follow the Model Law or the New York Convention- despite being a party to the latter-on recognition and enforcement and that it did not specify the Article 6 authority. The law refers to an 'authorized court' (Art. 41 and following) and confers some of the Article 6 functions upon a 'permanent arbitration tribunal' (Arts. 3, 4, 9, 11, 16). It states that the permanent arbitration tribunal has to be created as a non-profit-making organization (Art. 3) pursuant to a procedure determined by Kyrgyz law (Art. 4), that it will draw up an (obligatory?) list of arbitrators (Art. 9), and that it will establish procedural rules for conducting arbitration (Art. 16). These articles are ambiguous, to say the least, and the discussions to which they have already given rise should be continued so as to clarify and refine them.

The problems of recognition and enforcement have now been dealt with as a result of amendments made to the Kyrgyz Code of Civil Procedure Code by Law No. 110 of 8 August 2004. A distinction is made between national and international/foreign disputes: national awards are largely subject to Kyrgyz legislation (Arts. 420-424) whereas the Model Law and the New York Convention are followed for foreign and international awards (Art. 442). These provisions contradict the enforcement provisions of the law on arbitral tribunals, which insist on conformity with Kyrgyz legislation (Art. 42). This should not be a problem, since the more recent Code of Civil Procedure prevails over the[Page472:] older arbitration law. However, given the uncertainties and inconsistencies, proposals have been made to the legislator to consolidate the legal framework. The first proposal is to thoroughly improve the law and introduce a comprehensive statute on commercial arbitration, inspired by the Model Law but covering national disputes too. The second best alternative would be to follow the Russian and Ukrainian examples further and adopt a separate statute on international arbitration modernizing the provisions on supervisory powers and institutional constraints.

Moldova has chosen an approach that again breaks the matter up into different statutes. The law on arbitration courts of 31 May 1994 lacks certain vital provisions. The legislator decided to introduce rules on recognition and enforcement into the new Code of Civil Procedure in 2003 (Law No. 225-XV of 30 May 2003) to which reference is made in a new provision in the arbitration law, also introduced in 2003. Although not a masterpiece of legislative technique, the result seems convenient, since the rules on recognition (Art. 475) and enforcement (Arts. 476/485) correspond exactly to the Model Law. Additional regulation is found in the Rules of the Court of International Commercial Arbitration attached to the Chamber of Commerce and Industry dating from 13 July 2001. Although they do not have the force of a law, these Rules were published in the Official Gazette and employ some of the language of the Model Law with respect to the composition of tribunals and procedures. It may be noted, in passing, that nothing in the Rules indicates that the Court seeks any kind of privileged position in institutional arbitration. Although the two vital spheres of recognition and enforcement are now in line with international standards, the legislator is advised to consider consolidating the various texts in a new law in the future.

In Kazakhstan legislative progress has long been hindered by the fact that the Constitutional Council, taking an attitude not unlike that of neighbouring Kyrgyzstan, has expressed mistrust towards commercial arbitration in several decisions since 1999. In its latest decision (No. 1 of 15 February 2002), it argued that Article 75 of the Constitution laid the basis of the judicial system by creating courts of general jurisdiction up to the Supreme Court and the Constitutional Council. It deduced from the absence of any reference to arbitration courts that such courts are not part of the judicial system. This is certainly correct. It went on to insist that Article 13(2) of the Constitution guarantees all citizens access to courts if they feel violated in their rights and freedoms and that an arbitral award that hinders a person from initiating court proceedings infringes this principle. The decision was apparently directed[Page473:] against a resolution of the plenum of the Kazakh Supreme Court of 19 October 2001, which had established general and operational rules for the enforcement of arbitral awards. As far as international disputes are concerned, the decision of the Constitutional Council left the door open for a more liberal approach, because it makes explicit reference to international conventions, which, according to Article 4 of the Constitution, take precedence over national law. The New York Convention is certainly a notable case in point.

In an effort to overcome the stalemate between different judicial bodies, practitioners and the scientific community, the GTZ project, UNCITRAL and the Kazakh Humanitarian-Juridical University joined forces and organized an international conference in Astana in February 2003. The constitutional issues were discussed in the presence of the General Procurator, members of parliament, high-ranking officials from ministries and judges. Not only was the Kazakh Constitution compared to others, but two Kazakh scholars, Professors Basin and Suleymenov, argued strongly against the conclusions of the Constitutional Council. They pointed out that it had not taken into consideration Article 13(1) of the Constitution. This provision allows citizens to freely decide how to protect their rights and freedom as long as the matter at issue is covered by the general principle of party autonomy. In the present context, Article 13(1)-(2) means that citizens may not be deprived, against their will, of the right to request court protection, but that they are not prevented from entering into arbitration agreements, opting for alternative dispute resolution and agreeing to be bound by it. The conference materials were published and distributed widely.

This strategy has helped to create a new dynamism and led to the adoption of new legislation. However, the procuracy and the government are at the present time ready to fully accept the principle of party autonomy and abandon control of legality only in international commercial arbitration, because it is recognized that this is in line with international standards expressed in the New York Convention and necessary to attract foreign investment. They are not prepared to make the same concessions for purely national disputes. As a (temporary?) compromise and in order not to jeopardize international proceedings and enforcement, two laws were enacted on 28 December 2004: one on international commercial arbitration, based on the Model Law, although rendering procedures of recognition and enforcement before State courts unnecessarily burdensome (Art. 33(2)); the other on arbitration courts, where State control is much tighter as far as national cases are concerned. The approach follows the Russian model in principle, although the proposed restrictions are far stricter. For instance, the sphere of arbitrability is extremely narrow and excludes any dispute where[Page474:] the interest of the State or State enterprises might be concerned and contractual relations with enterprises dominating the market (Art. 8 of the law on arbitration courts). Also, awards can be appealed in State courts, not only by one of the parties to the dispute, but by any person interested in the outcome (Art. 426 of the amended Code of Civil Procedure). These are but two examples from a law that has emerged out of tremendous mistrust and lack of confidence. It is of course to be hoped that experience and time will demonstrate that arbitration works well, does not compete unfairly with the court system, does not threaten Kazakh legal principles, and that the reflex of State control will wither.

In Uzbekistan a compromise identical to that of Kazakhstan was reached, although not necessitated by official decisions of a constitutional court or formal protest from the procuracy. It was instead achieved by informal means of obstruction exercised by part of the judiciary focusing on enforcement. In light of the Kazakh and Russian experiences, it was decided at an international conference in May 2004 to submit two different laws for deliberation. The draft law on international commercial arbitration scrupulously follows the Model Law, while the draft law on arbitration courts has more of an institutional character, provides for the application of Uzbek law (Art. 8) and generally leaves less room for party autonomy. Although the award is final (Art. 31), it can be challenged in court, with subsequent appeal, for a limited number of reasons that correspond only partly to those of the New York Convention (Art. 40). Nevertheless, the draft is fortunately less restrictive than its Kazakh equivalent.

4. Concluding remark

Central Asia and the Caucasus are linked by a long history and an ancient network of trade relations and openness which in former times contributed to regional wealth and culture. This was symbolized by the silk road which merchants trod for centuries to trade goods and services. There are efforts to revive this tradition through the creation of a modern physical infrastructure. It is an important development that will help to stabilize what is today a fragile region. However, it is equally important that the construction of roads, ports and railroads should be complemented by an intellectual and institutional infrastructure without which no exchange can develop. Fair mechanisms for settling business disputes are certainly one of the essential ingredients of this infrastructure. I have tried to present some of the ongoing developments to which Robert Briner made a valuable contribution. Although they attest to difficulties, from a comparative perspective they also reveal progress towards normality. [Page475:]