08 · INTERNATIONAL INSTRUMENTS
International instruments
Eight questions on the role of conventions, the Model Law, procedural rules and international guidance.
What does the New York Convention regulate?
The 1958 New York Convention addresses arbitration agreements and the recognition and enforcement of foreign awards and awards considered non-domestic.
Its best-known role is to help awards operate across borders: the successful party can seek to give an award effect where the debtor has assets. It also requires courts to respect arbitration agreements under Article II.
It does not create an international arbitral tribunal or regulate every procedural stage. It imposes obligations on States and limits the grounds for refusing recognition or enforcement.
Hypothetical example
A seller obtains an award in Portugal against a buyer with assets in Mozambique. The Convention supplies the international framework for recognition and enforcement; the seller must still follow local procedure.
In Mozambique: The Convention entered into force for Mozambique on 9 September 1998. Its reciprocity reservation means it applies the Convention to awards made in other contracting States. The official record contains no reservation limiting application to commercial disputes alone.
Sources for this answer
- 1958 New York Convention · Articles I–VII
- UNCITRAL — New York Convention status and reservations · Mozambique’s status and reservation
What does the Washington Convention regulate?
The 1965 Washington Convention established ICSID for conciliation and arbitration of certain investment disputes between States and nationals of other States.
ICSID is the International Centre for Settlement of Investment Disputes, also known by the Portuguese acronym CIRDI. The Convention defines its jurisdiction and establishes its own system of proceedings, decisions and remedies.
Convention membership does not automatically mean consent to arbitrate every dispute with foreign investors. Consent and jurisdictional requirements must be satisfied. Nor should the Convention be confused with an investment-protection treaty: these instruments serve different functions.
Hypothetical example
An investment treaty may contain an offer of ICSID arbitration. An investor wishing to accept it must check treaty protection, coverage of the dispute and compliance with the offer’s conditions.
In Mozambique: The Convention has been in force for Mozambique since 7 July 1995. Resolution 10/92 is the Mozambican ratification instrument available on the portal; it neither replaces the Convention text nor by itself establishes consent to a particular dispute.
Sources for this answer
- Washington Convention — ICSID · Articles 1, 25 and 49–55
- ICSID — Contracting State: Mozambique · Contracting State: Mozambique
What requirements must be met to use ICSID?
Article 25 requires a legal dispute arising directly out of an investment, between parties qualifying under the Convention, and written consent to ICSID jurisdiction.
One side must be a contracting State, or a properly designated political subdivision or public agency; the other must be a national of another contracting State. Nationality has specific rules for individuals and companies.
Consent may arise, for example, from a contract, a treaty offer or a statutory provision accepted by the investor. The offer, its acceptance and any access conditions must be established. The definition and protection of the investment may also depend on the instrument invoked.
Hypothetical example
A foreign company alleges that a State measure harmed its investment. Before addressing breach, it must establish consent and show that it, the State and the dispute satisfy the jurisdictional requirements.
In Mozambique: Mozambique’s Convention membership is only one element. A particular case requires examination of the invoked contract, treaty or law, nationality, investment and consent. Mozambican investor nationality requires attention to Article 25’s exclusions and exceptions.
Sources for this answer
- Washington Convention — Article 25 · Article 25(1)–(3)
- ICSID — Report of the Executive Directors on the Convention · Consent and jurisdiction
What is the UNCITRAL Model Law and how does it relate to national law?
The UNCITRAL Model Law is a text intended to guide States in drafting or reforming international commercial arbitration legislation.
UNCITRAL is the United Nations Commission on International Trade Law. Its arbitration Model Law was adopted in 1985 and amended in 2006. It covers the agreement, tribunal formation and jurisdiction, procedure, interim measures, awards and court review.
It is a model because it does not automatically become law in each country. The legislation enacted nationally is binding. A State may adapt the model, so familiarity with it does not replace reading the law in force at the seat.
Hypothetical example
A lawyer finds an interim-measures provision in the Model Law. For an arbitration seated in Maputo, the lawyer must check Mozambican law rather than directly applying the 2006 text.
In Mozambique: The starting point is Law 11/99, including its chapter on international commercial arbitration. The Model Law assists understanding and comparison but does not replace Mozambican provisions or automatically incorporate later amendments.
Sources for this answer
- UNCITRAL — 1985 Model Law, with 2006 amendments · 1985 text and 2006 amendments
- Law 11/99 of 8 July — Arbitration, Conciliation and Mediation (Portuguese) · General framework and Articles 52–58
What is the difference between the UNCITRAL Model Law and Arbitration Rules?
The Model Law is primarily addressed to legislators; the UNCITRAL Arbitration Rules are procedural rules that may be selected for an arbitration.
The Rules organise appointments, communications, submissions, hearings and decisions. They are common in ad hoc proceedings and may also be used with institutional support. The applicable version must be identified.
UNCITRAL develops these texts but does not administer arbitrations. Selecting its Rules does not submit the dispute to UNCITRAL. Arbitration law remains relevant, particularly provisions the parties cannot displace.
Hypothetical example
A contract provides for UNCITRAL Rules arbitration seated in Maputo. The selected rules organise proceedings; Mozambican law supplies the legal framework. UNCITRAL does not receive or decide the case.
In Mozambique: Article 27 of Law 11/99 permits party choices on procedure within legal limits. That freedom does not turn selected rules into national legislation or dispense with applicable mandatory provisions.
Sources for this answer
- UNCITRAL — 1985 Model Law, with 2006 amendments · Nature and scope of the Model Law
- UNCITRAL — Arbitration Rules · Versions of the Arbitration Rules
- UNCITRAL — Frequently asked questions on arbitration · UNCITRAL does not administer arbitrations
- Law 11/99 of 8 July — Arbitration, Conciliation and Mediation (Portuguese) · Article 27
What is soft law and why does it matter in arbitration?
Soft law describes guidance and guidelines that help conduct arbitration without, by themselves, having the binding force of legislation or treaties.
These instruments help address recurring problems: organising evidence, assessing conflicts or preparing hearings. They may provide common ground for participants from different legal traditions.
Their effect depends on their use. Parties may adopt them in a procedural agreement, a tribunal may consult them as guidance, and legislation may refer to them. Identify which situation applies; the label soft law does not itself determine their force in proceedings.
Hypothetical example
The parties adopt the IBA Evidence Rules for document requests. The tribunal applies their agreement subject to mandatory law. That differs from merely consulting the Rules for useful guidance.
In Mozambique: Alongside the general law, read sectoral legislation. Electricity Law Article 51(5) refers to the IBA Evidence Rules. This illustrates why such texts cannot be described as invariably optional in every arbitration.
Sources for this answer
- UNCITRAL — Notes on Organizing Arbitral Proceedings (2016 and additional 2023 note) · Notes on organising proceedings
- IBA — Evidence Rules (2020) and Conflicts of Interest Guidelines (2024) · IBA instruments
- Law 12/2022 — Electricity Law (Portuguese) · Article 51(5)
What role do the IBA Evidence Rules and Guidelines play?
The IBA Evidence Rules help organise evidence; the Conflicts of Interest Guidelines assist assessment of arbitrator independence, impartiality and disclosure duties.
The IBA, or International Bar Association, is an international association of the legal profession. Its 2020 Evidence Rules address documents, witnesses, experts, inspections and hearings. They help reconcile different practices; clarify whether the parties adopted them or the tribunal merely consults them as guidance.
The 2024 Guidelines provide general standards and lists of situations to help identify conflicts. Listed situations should not be applied mechanically: read the category, standards and facts. Disclosing a relationship does not itself acknowledge disqualification.
Hypothetical example
An arbitrator discloses that their firm provided services to a party. The Guidelines may help assess the relationship; the decision requires the facts and applicable law and rules, not simply a keyword search in a list.
In Mozambique: Law 11/99’s duties and challenge mechanisms remain applicable. For evidence, Article 27 and special regimes must be considered alongside any adoption of the IBA Rules. The Guidelines do not replace statutory challenge deadlines or procedure.
Sources for this answer
- IBA — Rules on the Taking of Evidence in International Arbitration (2020) · 2020 Rules, Articles 3–9
- IBA — Guidelines on Conflicts of Interest in International Arbitration (2024) · General standards and practical application lists
- Law 11/99 of 8 July — Arbitration, Conciliation and Mediation (Portuguese) · Articles 21–23 and 27
How do transparency and confidentiality interact in investment arbitration?
In investment arbitration, the public interest may justify document disclosure and open hearings without eliminating protection of confidential information.
Transparency allows scrutiny of disputes involving State measures and public resources. The UNCITRAL Transparency Rules provide for publication of information and documents, access to hearings and, under certain conditions, third-party submissions.
Their application depends on the treaty, selected rules, relevant dates and agreements. The Mauritius Convention provides a mechanism to extend transparency to arbitration under treaties concluded before 1 April 2014, subject to its conditions and reservations. Exceptions protect confidential information and the integrity of proceedings.
Hypothetical example
In a concession dispute, a decision may be published with passages redacted to protect a trade secret. The choice need not be between disclosing everything and concealing the entire proceeding.
In Mozambique: In a dispute involving Mozambique, neither absolute confidentiality nor full publicity should be assumed. Identify the consent instrument, the transparency framework actually applicable and decisions on disclosure and protected information.
Sources for this answer
- UNCITRAL — Rules on Transparency in Investor–State Arbitration · Articles 1–3, 6 and 7
- UNCITRAL — Mauritius Convention on Transparency · Scope and reservations
Supplementary reading
FICHTNER, José Antonio; MANNHEIMER, Sergio Nelson; MONTEIRO, André Luís. Teoria geral da arbitragem. Rio de Janeiro: Forense, 2019. Chapters 1 and 2 as supplementary doctrinal references; the work focuses on Brazilian law.