A. General

1. Sources

1998 saw Venezuela adopt its first commercial arbitration law (hereafter 'VCAL').1 The VCAL applies to all commercial arbitrations, whether national or international, that take place in Venezuela, apart from those subject to an international treaty or convention to which Venezuela is a party (Art. 1 VCAL). 2 Prior to enactment of the VCAL, arbitration in Venezuela was governed by the rules of the Venezuelan Code of Civil Procedure ('VCCP'), 3 which recognized the binding nature of arbitration agreements (cláusula compromisoria). In the event a party claimed not to be bound by such an agreement, the question of its validity was decided by the Court of First Instance (Arts. 612 and 613 VCCP). This is no longer the case, arbitrators being now empowered to determine themselves whether or not they have jurisdiction to hear a case (Art. 7 VCAL). 4

The New Venezuelan Arbitration Law is a blend of provisions from the Colombian Arbitration Rules ('CAR') 5 and the Uncitral Model Law on International Commercial Arbitration ('Uncitral Model Law'), plus various additions by the Venezuelan Congress.

The Uncitral Model Law was the standard for the definition of the scope of the law (Art. 1 VCAL), 6 determination of arbitral jurisdiction (Art. 7 VCAL), the place and language of arbitrations (Arts. 9 and 10 VCAL), 7 the rules regarding the form of awards (Arts. 2931 VCAL), interpretation and correction of awards (Art. 32 VCAL), the setting aside of awards (Arts. 43 and 44 VCAL) and recognition of foreign awards (Art. 48 VCAL).

The provisions regarding ad hoc arbitration (Arts. 1518 VCAL), the removal of negligent arbitrators (Art. 41 VCAL), and the length of arbitral proceedings (Art. 22 VCAL) derive from the CAR, as do the rules regarding institutional arbitration (Arts. 1114 VCAL), payment of arbitration fees in ad hoc arbitrations (Art. 19 VCAL), and the obligation to give notification of dissenting opinions (Art. 29 VCAL). [Page7:]

Aside from the VCAL, arbitration rules are also found in other Venezuelan statutes. These include the law on public works and concessions (1994), which provides that disputes between the Venezuelan government and private parties in connection with the interpretation of concession agreements can be referred to arbitration. There is also statutory provision for the compulsory use of ICC arbitration in relation to contracts in the oil sector. 8 Venezuela has furthermore ratified a number of international conventions regarding arbitration. 9

2. Scope

The VCAL applies to all commercial arbitration, 10 including all types of disputes arising out of contracts or otherwise. 11 Under a strict reading of Article 1 of the VCAL, non-commercial matters (civil matters) remain subject to the arbitration rules of the VCCP (Arts. 608-629). 12

The VCAL applies to all commercial arbitrations that take place in Venezuela, both national and international. 13 This makes the domicile of the parties and place of performance of a contract irrelevant to its application. The arbitrability14 of a dispute is determined by the rules of the country where the arbitration takes place. Such country may be chosen by the parties or, failing this, decided by the arbitral tribunal (Art. 9 VCAL). It must be specified in the award (Art. 30 VCAL). Awards rendered in arbitrations that take place outside Venezuela are considered as foreign awards (Art. 49 VCAL).

B. Arbitration agreements

(1) Binding nature

Like the Uncitral Model Law, the VCAL defines the agreement to arbitrate as that by which the parties agree to submit to arbitration some or all of the controversies or disputes that have arisen or will arise with respect to a contractual or non-contractual relationship (Art. 5 VCAL). The agreement to arbitrate can be included in a contract or exist separately (Art. 5 VCAL). It encompasses both general arbitration clauses submitting all future disputes to arbitration and specific agreements covering individual disputes of a contractual, tortious or other nature. Previously, under the VCCP, a distinction was made between arbitration clauses (cláusula compromisoria) and agreements formalizing arbitration or submission to arbitration once a need for dispute settlement had arisen (compromiso arbitral). 15[Page8:]

The VCAL states that the existence of an arbitration agreement constitutes a waiver by the parties of their right to submit a controversy to a court of law and, furthermore, that the arbitration agreement is 'exclusive of and excludes ordinary jurisdiction' (Art. 5 VCAL). This provision derives from the CAR (Art. 2 Decree 2279).

(2) Separability

The binding nature of agreements to arbitrate is endorsed by giving arbitral tribunals powers to decide their own jurisdiction (the principle of Kompetenz-Kompetenz). Furthermore, arbitration agreements (cláusula arbitral) inserted in contracts are to be considered independent of the other provisions of the contract (Art. 7 VCAL).

(3) Form

The VCAL requires arbitration agreements to be in writing and to give a clear indication of the parties' intention to refer disputes to arbitration. Reference made in a contract to a document that contains an arbitration clause constitutes an agreement to arbitrate as long as the contract is in writing and the reference implies that the arbitration clause forms part of the contract (Art. 6 VCAL). This is a somewhat modified equivalent of the corresponding Uncitral Model Law provisions, which, although stating that arbitration agreements shall be in writing, then go on to specify that a document shall be deemed to be in writing if it has been signed by the parties or is evidenced by an exchange of telex, telegrams or other means of telecommunications (Art. 7.2 Uncitral Model Law). No mention of such an exchange is to be found in the VCAL, which might suggest that the arbitration agreement should be contained in a physical document ('hard copy') signed by the parties. Arbitration clauses contained in electronic documents signed electronically would thus be excluded. In my opinion, however, the intention of the VCAL was sufficiently broad to allow the use of electronic documents. 16

In contracts of adhesion and general contract conditions (contratos normalizados), the intention of the parties to submit to arbitration must be express and independent (Art. 6. VCAL). General contract conditions include printed contracts and pre-recorded terms of contract.

(4) State entities

Past problems arising in connection with arbitration procedures involving state-owned companies in Venezuela probably explain why the VCAL lays down special formal requirements for state entities to be able to submit to arbitration. Any company in which the State or local government has a holding of 50% or more ('Public Company') can submit to arbitration only if the arbitration agreement specifies the type of arbitration (legal arbitrations as opposed to equitable arbitrations) and the number of arbitrators (not less than three) (Art. 4 VCAL). The agreement requires the prior approval of a competent corporate body of the Public Company as well as that of the relevant government minister (Art. 4 VCAL). 17[Page9:]

C. Institutional arbitration

Like its Colombian model (Decree 2279), the VCAL contains four articles (11-14) devoted to institutional arbitration, which is defined as that dealt with by an arbitration center, as opposed to ad hoc arbitration regulated by the parties independently (Art. 2 VCAL).

Arbitration centers may be set up by chambers of commerce, international bodies, organizations involved in economic and industrial activities, or any alternative dispute resolution provider (Art. 11 VCAL). They must comply with the requirements of the new law and be designed to offer and operate alternative dispute resolution services. Unlike their Colombian counterparts, they do not require prior approval or registration.

Four arbitration centers currently operate in Venezuela: the Arbitration Center of the Caracas Chamber of Commerce, established in 1988, 18 the Arbitration Center of the Maracaibo Chamber of Commerce, the Center for Business Arbitration and Conciliation (Centro Empresarial de Conciliación y Arbitraje, CEDCA), 19 and Universidad Católica del Táchira. There is also a dormant Colombian-Venezuelan Arbitration Center.

Arbitrations organized by international centers such as the ICC International Court of Arbitration may be based in Venezuela. The formal requirements laid down for Venezuelan institutions do not apply to such international centers. On the other hand, the cases they handle that are based in Venezuela do need to comply with other aspects of the new law such as those relating to the form of the arbitration agreement, limitations on arbitrability, the need for the place of arbitration and language used to be agreed to by the parties or the arbitrator(s), and the formal requirements of the award.

Venezuela-based arbitration institutions and centers are required to comply with the following rules: 20

(1) The arbitration center must draw up rules of procedure, covering, among others, notification of the parties, creation of the arbitration tribunal and removal of arbitrators (Art. 12 VCAL). It is free to adopt additional rules covering such matters as conservative and interim measures or security deposits. Failure to have such a set of rules for use by the parties disqualifies a center from being considered as a provider of institutional arbitration under Venezuelan law, with the consequence that the VCAL rules for ad hoc arbitration become applicable.

(2) An arbitration center must have an appointed director, whose responsibilities are defined in its rules (Art. 13(a) VCAL).

(3) The arbitration center must have a list of arbitrators, who are required to have satisfied certain minimum requirements laid down in internal regulations. The list should be reviewed at least once a year. The VCAL, like Colombian Law 24/91 (Art. 94), requires the list to contain a minimum of 20 arbitrators (Art. 14), from amongst whom all arbitrators must be chosen, including those arbitrators appointed by the parties. [Page10:]

(4) Arbitration centers must have a tariff and a procedure for the advance of costs and fees (Art. 13(d) VCAL), hence excluding from institutional arbitration the rules relating to fees in ad hoc arbitration (Art. 19 VCAL) (see infra D).

(5) An institution or center of arbitration in Venezuela must have a physical presence in the form of a permanent office (sede permanente) (Art. 14 VCAL).

D. Ad hoc arbitration

All of the fourteen articles in the VCAL dealing with arbitration procedure apply to ad hoc arbitration in Venezuela. Institutional arbitrations are exempt from some of them, not however, in my view, those relating to place and language of arbitration (see infra (6)), award by a majority, notification of the award and its minimum contents. 21

An ad hoc arbitration will follow the procedure agreed upon by the parties or, failing this, that laid down in the VCAL (Art. 15 VCAL).

(1) Appointment of arbitrators

The arbitrators are appointed by the parties. There shall be an odd number of them. The parties may fix their number, but if not, three shall be appointed (Art. 16 VCAL). Appointments are made jointly by the parties or delegated to a third party. 22 In the absence of agreement between the parties, each party elects one arbitrator, and the arbitrators so elected choose a third arbitrator, who will chair the arbitral tribunal. If any one of the parties refuses to appoint its arbitrator or if the two arbitrators cannot agree on the appointment of the third arbitrator, the appointment shall be made by the competent court. In the event of a sole arbitrator, if the parties cannot agree on his or her appointment, the relevant Court of First Instance shall make the appointment (Art. 17 VCAL). The arbitrators are required to give the parties written acceptance of their appointment; if not, they are deemed not to have accepted the appointment (Art. 18 VCAL).

(2) Constitution of the arbitral tribunal

The arbitral tribunal is formally established by the so-called 'Acto de Instalación'. The parties must be notified when this happens (Art. 19 VCAL). The date of this act marks the start of the six-month period allowed for the arbitral tribunal to render its award (Art. 21 VCAL). This is also the stage at which the arbitrators' fees are set. The Acto de Instalación is not required in institutional arbitration. The time limit allowed for the tribunal to render its award in an institutional arbitration, including international institutional arbitration, is calculated according to the rules of the particular institution.

(3) Agreement on fees

Following the setting of the arbitrators' fees and an amount to cover operating expenses in the ITLICActo de Instalación, a party has five days in which to object and suggest alternative figures. If a majority of the arbitrators rejects this objection, then the tribunal will be deprived of jurisdiction and it will cease to function (Art. 19 VCAL). [Page11:] This rule, which is not applicable to institutional arbitration, allows the parties to object to the fees even if they could be considered reasonable. To avoid this early risk of discontinuation of the proceedings, a formula fixing fees could be set in the arbitration agreement.

Once the parties have agreed on the fees and expenses, then each party has ten days to deposit the total amount of the fees, which will be held in a special account in the name of the chair of the tribunal (Art. 20 VCAL). If one of the parties refuses to do so, the other party may deposit the amount due from the other party within fifteen days after expiration of the initial ten-day period. If no fees are paid within this initial period, the arbitral tribunal may consider its functions to have ceased, leaving the parties free to go to the ordinary courts or recommence arbitral proceedings (Art. 20 VCAL).

(4) Initial hearing

Once formed, the tribunal must notify the parties of the first hearing (primera audiencia del trámite) (Art. 23 VCAL), with at least ten working days' notice. At this hearing, the tribunal shall present a document to the parties stating the claims submitted, the issues, and a reasonable estimation of the amounts in dispute (Art 24 VCAL). This document is a form of terms of reference. The VCAL does not require that the document be signed by the parties, but it must be signed by the arbitrators.

(5) Challenge and removal of arbitrators23

Arbitrators may be challenged and such challenge shall be decided by a majority of the arbitral tribunal. Failing this, it is decided by the Court of First Instance with jurisdiction over the territory where the tribunal operates (Art. 38 VCAL).

An arbitrator can also be removed for failing to attend two arbitration hearings without proper cause (Art. 41, 1st para. VCAL), or four arbitration hearings even if such failure is justified (Art. 41, 2nd para. VCAL).

(6) Place and language of arbitration

Both may be fixed by the parties. Failing this, the arbitral tribunal will decide (Arts. 9 and 10 VCAL). The award must be given in the language of the arbitration. If this is not Spanish, it will need to be translated into Spanish for the purposes of enforcement in Venezuela (Art. 48, 2nd para. VCAL). The award must state the date on which it was made (Art. 30 VCAL). If the place of arbitration is not Venezuela, the award is a foreign award and requires recognition in order to be enforced in Venezuela.

(7) Termination of arbitral jurisdiction

Jurisdiction ceases once the award has been rendered (Art. 32 VCAL). Failure to render it within the time limits set by the law has a similar effect (see infra (8)).

(8) Time limit for rendering the award

The VCAL sets a maximum term of six months from the formation of the arbitral tribunal for the award to be rendered. This term can be extended, either by a decision [Page12:] of the tribunal itself, or at the request of any of the parties. The term can also be extended if the arbitration proceedings have been interrupted for legal or other reasons (Art. 22 VCAL). If the award is not rendered within the term of six months or any extension thereof, the arbitral tribunal shall cease its functions (Art. 33(4) VCAL) and thereby lose its jurisdiction. It is my view that these time limits are not applicable to institutional arbitrations, provided the institution in question itself sets a maximum term.

E. Awards

The award must be in writing and signed by the arbitrators. If there is more than one arbitrator, the award is valid if signed by the majority, 24 with an explanation why the other signatures are missing, 25 and if a dissenting opinion was presented to the tribunal this must be indicated (Art. 29 VCAL) 26 (see infra (4)). A strict reading of the VCAL requires awards to exist in hard copy and to be signed; those in electronic form are not valid.

Awards must be dated and state the place where the arbitration was held (Art. 30 VCAL). They are presumed to have been made at the place of the arbitration (Art. 30 VCAL). 27

Awards in Venezuela, unlike those in Colombia, do not have to be registered. They are binding once each party has been notified and given a signed copy (Art. 31 VCAL).

(1) Correction and clarification of awards

The arbitral tribunal may, upon its own initiative or at the request of any of the parties, clarify, correct or complement the award. Clarification must be requested within 15 working days of the issue of the award (Art. 32 VCAL). 28 Although, unlike the Uncitral Model Law, the VCAL does not refer explicitly to interpretation, 29 clarification should be understood as including interpretation that does not change the substance of the award.

(2) Awards by consent

The VCAL has no rules regarding a settlement reached after the arbitration procedure has commenced. Most arbitration centers in Venezuela follow ICC Rules and allow a settlement to be rendered in the form of an award. 30 As a practical matter, a settlement in an ad hoc arbitration should be rendered in the form of an award; otherwise it cannot be considered res judicata. [Page13:]

(3) Reasons

The award must state the reasons upon which it is based, unless the parties agree otherwise (Art. 30 VCAL). Some local commentators consider an award without reasons, whether foreign or national, to be incapable of enforcement in Venezuela due to infringement of basic principles of procedure.

(4) Dissenting opinions

Although, as noted above, mention must be made of the existence of a dissenting opinion presented prior to the award being given, it is my view that the VCAL does not require the text of the opinion to be included as part of the award. 31 However, the dissenting opinion should be sent to the parties together with the award. 32

F. Vacating awards

Since an agreement to arbitrate excludes ordinary jurisdiction (Art. 7 VCAL), an award is final (Art. 31 VCAL) and not subject to appeal before any court of ordinary jurisdiction. However, in line with the Uncitral Model Law, the VCAL allows a party in arbitral proceedings to file an application for an award to be vacated 33 (Art. 43 VCAL). The application must be made within five working days of notification of the award or any correction to the award (Art. 43 VCAL). 34

The application must be made to the competent appellate court (tribunal superior) at the place where the award was rendered (Art. 43 VCAL). No stay of execution ensues automatically; for this parties must show cause and post a bond. 35

The grounds upon which an award may be set aside under the VCAL are very similar to those contained in the Uncitral Model Law and include the following: incapacity of one of the parties at the time of entering into the arbitration agreement, failure to serve notification of the appointment of an arbitrator or of the arbitral proceedings, non-compliance with the VCAL with respect to the formation of the arbitral tribunal or the arbitral proceedings in general, awards made ultra petita36 or in violation of public policy, and non-arbitrability of the dispute (Art. 43 VCAL). 37[Page14:]

G. Recognition of foreign awards

Venezuela ratified the New York Convention in 1994, which has led to a change of attitude by Venezuelan courts towards foreign awards. 38 This is endorsed by the VCAL, which provides that an arbitral award, irrespective of the country in which it was given, shall be recognized and binding and shall be enforced without need for exequatur and in accordance with the VCCP, upon written application to a Court of First Instance (Art. 48 VCAL). 39

The party relying on an award or requesting its enforcement must submit as part of its application a certified copy of the award together with a translation into Spanish, if necessary (Art. 48 VCAL). This provision is akin to Art. 35(2) of the Uncitral Model Law, except that the VCAL does not require authentication but simply certification of the award by the arbitral tribunal. The reason for this is that authentication under Venezuelan law would require the award to be signed before a judge, notary public or equivalent, which might not be feasible under the laws of the place where the award was handed down.

1
Ley de Arbitraje Comercial approved by Resolution of Congress of March 25, 1998, published in Official Gazette No. 36.430 of 7 April 1998.

2
Such treaties and conventions, when approved by the Legislative Assembly, prevail over the VCAL (Venezuelan Constitution, Art. 154).

3
The current Code of Civil Procedure was enacted in 1986 (Official Gazette No. 3.964 Ext. of 22 January 1986) and partially amended in 1987 and 1990. The prior Code of Civil Procedure, dating from 1916, did not recognize the binding nature of an arbitration clause. On arbitration under the VCCP, see James O. Rodner, 'Arbitration in Venezuela' (1997) ICC ICArb. Bull. Special Supplement (ICC Publication No. 580) 90.

4
See infra B(2).

5
These are found in: Decree 2279 of 1989, Law 23 of 1991, Decree 2051 of 1991, Law 315 of 1996 and Law 446 of 1998. Decree 2279 repealed the arbitration provisions of the Colombian Commercial Code and the Code of Civil Procedure and was partially amended by Law 23 and Decree 2051 of 1991. All of these influenced the VCAL. Law 446 of 1998 was passed after the VCAL was enacted. Law 315 refers only to international arbitrations. For the text of Law 315, see Fernando Mantilla-Serrano, 'Colombian Arbitration Legislation' (1997) ICC ICArb. Bull. Special Supplement (ICC Publication No. 580) 21 at 32.

6
Cf. Uncitral Model Law Art. 1(1).

7
As an almost word-for-word copy of Art. 16(1) of the Uncitral Model Law, Art. 7 VCAL should be interpreted in the broad form in which the Uncitral Model Law is interpreted. Thus, the agreement to arbitrate is to be considered a separate clause independent of the other provisions in the contract and unaffected by any decision by the arbitration panel to the effect that the contract is null and void. Unlike the Uncitral Model Law, the VCAL does not set a time limit for asserting the arbitral tribunal's lack of jurisdiction.

8
See James O. Rodner, 'Arbitration in Venezuela' (1997) ICC ICArb. Bull. Special Supplement (ICC Publication No. 580) 90.

9
For a list of international conventions and treaties ratified by Venezuela, ibid. at 91-92. These notably include Venezuela's ratification, in 1985, of the Inter-American Convention on International Commercial Arbitration and, in 1994, of the New York Convention.

10
The VCAL refers simply to 'commercial arbitration', whereas the Uncitral Model Law refers to 'international commercial arbitration'. The absence of the word 'international' in the former implies that it applies both to international and national arbitration.

11
According to the commentary on the Uncitral Model Law, Art. 1 should be interpreted broadly to include all types of relations of a commercial nature, arising out of contracts or other sources. The list of commercial transactions it gives includes sales of business services, distribution agreements, representation, agency, transfers of credit, factoring and leasing of equipment. The Venezuelan Commercial Code, as amended in 1955, contains an extensive list of acts considered as commercial (Art. 2), based on the list of commercial acts included in the original French Commercial Code.

12
However, in my opinion, if the parties in a civil (that is, a non-commercial) matter specifically agree to refer a controversy to arbitration under the VCAL rules, then such rules should apply.

13
As the VCAL, unlike the Uncitral Model Law, does not limit itself to international arbitration, there is no need for such arbitration to be distinguished by being defined. Nor is it explicitly stated that the VCAL applies only to arbitrations that take place in Venezuela, since this results automatically from general principles of law.

14
Under the VCAL, all disputes are arbitrable except those where, by law, parties are not allowed to make settlements (e.g. family matters, matters concerning public policy, those involving minors except where court approval is obtained, and those involving functions of state). An award on non-arbitrable matters is considered null and void (Art. 44(f) VCAL). In relation to foreign awards, arbitrability is determined by Venezuelan law, not that of the place of arbitration (Art. 49(f) VCAL). Disputes that have been the subject of a final judgment may not be submitted to arbitration (Art. 3(e) VCAL).

15
Arts. 608 and 609 VCCP. On this distinction see James O. Rodner, supra note 8 at 95.

16
The VCAL requires that agreements to arbitrate be in writing, as opposed to orally, but the law does not require signature by hand. In Spanish a physical signature (handwritten) is a firma hológrafa, but this expression is not used in the VCAL, which means that a modern interpretation of Art. 6 VCAL would allow the use of electronic documents with an electronic signature. A conservative approach, however, is to interpret the law restrictively as requiring a written document physically signed, at least until such time as case law or practice has developed sufficiently in Venezuela to be able to conclude that electronic documents are equivalent to physical documents.

17
This provision makes little sense when applied to municipal corporations, since these are not subject to any minister as they are political entities separate from central government. Some Public Companies have obtained a general approval to submit all contracts to arbitration, although doubts have been expressed as to the validity of such approval. It is unlikely that the formality of an approval by a minister will be strictly enforced in jurisdictions that do not allow a statecontrolled corporation to invoke its own law to challenge its capacity to be a party to arbitration (cf. Art. 177 Swiss LDIP).

18
The arbitration rules of the Caracas Arbitration Center (Reglamento de Arbitraje del Centro de Conciliación y Arbitraje de la Cámara de Comercio de Caracas) date originally from 1988, but were modified in 1998 and again in 2000. They currently comprise fifty articles.

19
The CEDCA was set up by the Venezuelan-American Chamber of Commerce in 2000, together with the Centro Venezolano-Americano.

20
See also James O. Rodner, 'Introducción al Arbitraje Institucional' (1999) in Special Bulletin of the Venezuelan Academy of Political Science, Caracas.

21
In my opinion, the rules in the VCAL that could apply to institutional arbitration taking place in Venezuela do not contradict the principles laid down in the ICC Rules of Arbitration, except for the requirement under the VCAL that the award be signed by a majority of the members of the tribunal (Art. 29 VCAL) (see infra note 24).

22
Request to ICC to appoint an arbitrator for any arbitration not conducted under the ICC Rules of Arbitration (Art. 3(1) Appendix III to the ICC Rules of Arbitration) is a valid delegation of appointment under Art. 17 VCAL.

23
These rules do not apply to institutional arbitration taking place in Venezuela: institutional arbitration centers must have their own rules for the appointment and removal of arbitrators.

24
The VCAL requires that the award be signed by a majority and not that it be given by a majority. Under the ICC Rules of Arbitration: 'If there be no majority, the Award shall be made by the chairman of the Arbitral Tribunal alone.' (Art. 25(1)). Under the Uncitral Model Law, unless there is agreement by the parties to the contrary, the award must be given by a majority (Art. 29). Paragraph 37 of the Uncitral Secretariat's Explanatory Note on the Uncitral Model Law states that the majority principle applies to both the rendering and the signing of the award.

25
The VCAL follows the Uncitral Model Law (Art. 31(1)) as opposed to the CAR, which requires all the arbitrators, including any who dissent, to sign the award. Under Colombian Decree 2279 of 1989, refusal to sign entails loss of the arbitrator's right to collect his or her fees.

26
Article 29 of the VCAL reads as follows: 'The arbitration procedure shall finish (culminar) with an award which must be given in writing and signed by the arbitrator or the arbitrators that are members of the Arbitral Tribunal. In arbitrations with more than one arbitrator the signatures of the majority will suffice as long as there is a statement (in the award) of the reasons why one or more signatures are missing, and if there is a dissenting opinion.'

27
It is my opinion that, under the VCAL, the award can be signed in different places, provided such signature(s) precede the date of the award. This follows the position adopted in the commentary on the Uncitral Model Law, which recognizes that an award may be drafted in several places/jurisdictions and that it is not necessary that it be signed by the arbitrators in the same place (§ 38 Uncitral Secretariat's Explanatory Note). The place of arbitration is necessary under the VCAL to determine if the award is foreign (i.e. made outside Venezuela) or not.

28
The term of 15 days should be interpreted as is a procedural rule. Therefore, in the case of institutional arbitration, such as that of ICC, the term for requesting clarification of the award will be that specified in the rules of the institution administrating the arbitration. In the case of ICC arbitration, a correction must be submitted to the International Court of Arbitration within 30 days of the Award (Art. 29(1) ICC Rules of Arbitration).

29
The Uncitral Model Law gives the parties 30 calendar days from receipt of the award to request correction or interpretation.

30
Art. 26 ICC Rules of Arbitration (1998). A similar provision is found in the CACCC (Arbitration Center of the Caracas Chamber of Commerce) Arbitration Rules (Article 56).

31
The VCAL takes its lead in part from the principle contained in Colombian Decree 2279 (Art. 34). The Arbitration Rules of the International Center for the Settlement of Investment Disputes (ICSID) contain a similar provision in Rule 47(3). Under the CAR the dissenting arbitrator must sign the award and give the reasons for his or her dissent in a separate written document (Art. 34, 2nd para. Decree 2279). Under the ICSID Rules any member of the tribunal may attach his or her individual opinion to the award whether dissenting or not. By confining the dissenting opinion to a separate document, the Colombian Decree makes it clear that it does not form part of the award.

32
To send the dissenting opinion to the parties could be interpreted as a violation of the principle of confidentiality which the VCAL asserts. According to Art. 42 VCAL, 'unless there is an agreement to the contrary by the parties, the arbitrators shall have the obligation to keep the acts of the parties in the procedure, evidence presented and all the contents related to the arbitral procedure confidential'. However, this should not be interpreted as not allowing the dissenting opinion to be sent to the parties. Whilst the dissenting opinion should not reveal the steps in the procedure, it should explain the different analysis made by the dissenting arbitrator and how his or her conclusion was reached.

33
The Uncitral Model Law uses the term 'set aside', which is translated as 'nulidad'. This is the term used in the VCAL. Nulidad literally means 'nullification' (vacating) or making something void, which seems to be stronger than 'setting aside'.

34
The Uncitral Model Law allows three months to request the setting aside of an award. For international arbitration taking place in Venezuela, the 5 working day rule, as compared to the Uncitral three months, may seem short.

35
The Uncitral Model Law allows the court where an application for setting aside an award is filed to suspend the setting aside proceedings in order to give the tribunal an opportunity to take such other action as in its opinion will eliminate the grounds for setting aside (Art. 34(4)). The VCAL does not offer a similar opportunity.

36
No express provision is made for setting aside an award on grounds of infra petita.

37
These grounds for vacating an award are taken almost literally from Art. 34 of the Uncitral Model Law, which, in turn, closely follows the New York Convention. Under the Uncitral Model Law, the first five reasons for setting aside an award require that the party making the application furnish the evidence. Under Venezuelan law, Art. 44 simply states that the reasons listed will be sufficient to vacate the award; no mention is made of proof. This seems to suggest that the Court of First Instance may consider there is ground for vacating an award, even in the absence of proof by the applicant.

38
On Venezuelan case law up until 1995, see James O. Rodner, supra note 8 at 103-105.

39
The wording of the VCAL is closely based on Art. 35(4) Uncitral Model Law, except that it stresses the fact that an exequatur is not required, in order to clarify existing Venezuelan case law which considered that foreign awards could only be introduced into Venezuela through an exequatur application filed before the Venezuelan Supreme Court.