Post on 28-Dec-2015
UNCITRAL United Nations Commission on International Trade Law
The Role of UNCITRAL in International Arbitration
16 July 2012
Renaud SorieulThe Secretary of UNCITRAL
UNCITRAL United Nations Commission on International Trade Law
Topics to be Covered
Origin & mandate of UNCITRAL
Structure
Working methods
Presentation of the work of UNCITRAL on arbitration and its significance
What constitute an “UNCITRAL Model Law on International Commercial Arbitration” country
The impact of divergences in enacting the Model Law
Consequences of arbitration law for arbitral institutions
UNCITRAL United Nations Commission on International Trade Law
Origin of UNCITRAL
Established in 1966 Reasons:
• Dramatic expansion of world trade• Need for uniform rules for international trade• Trade creates wealth• Trade is essential to the economic stability• Promotes world peace
UNCITRAL United Nations Commission on International Trade Law
Trade law and the UN
The UN… will employ international machinery for the promotion of the economic and social advancement of all peoples (Preamble of the UN Charter, 1945)
Develop further an open trading and financial system that is rule-based, predictable and non-discriminatory... [MDG 8 – Target 12, 2000]
UNCITRAL United Nations Commission on International Trade Law
Mandate of UNCITRAL
Facilitate International Trade
Coordinate work of organizations in the field of international trade law
Prepare and/or promote Conventions and Model Laws and ensure their uniform interpretation
Collect and disseminate information on developments in the field of international trade law
UNCITRAL United Nations Commission on International Trade Law
The Role of UNCITRAL
NOT INVOLVED IN
•Settling disputes between States
•Settling disputes between private parties
•Providing legal advice on disputes to parties
INVOLVED IN
•Promoting the unification & harmonization of the law of international trade and assisting in domestic law reform (legislative work)
• Strengthening uniform application & interpretation of the instruments adopted (technical assistance)
•Coordinating the work of other similar organizations (cooperation with UN and non-UN bodies /organizations)
UNCITRAL United Nations Commission on International Trade Law
Membership of UNCITRAL
60 member States
• Elected by the UN General Assembly for a term
of 6 years• Every 3 years terms of half the members expire• Ensure representation of the world’s various
geographic regions and its principal economic and legal systems
UNCITRAL United Nations Commission on International Trade Law
Organization and Methods of Work
Commission
Intergovernmental Working Groups
Secretariat
UNCITRAL United Nations Commission on International Trade Law
The Structure of UNCITRAL
Governing body Determines work programmeReviews and adopts texts prepared by the Working Groups
CompositionDelegatesReports to the General Assembly of the United Nations
MeetingsHolds annual meetings: alternating pattern New York – Vienna
The Commission
UNCITRAL United Nations Commission on International Trade Law
The Structure of UNCITRAL
Working Groups
*Intergovernmental bodies
*Composition
*Hold bi-annual meetings: alternating pattern New York City – Vienna
*Develop the topics on UNCITRAL’s work programme:Technical expertise: prepare legislative & other legal standards
UNCITRAL United Nations Commission on International Trade Law
Work of UNCITRALThe Working Groups
There are six Working Groups:
I. Procurement
II. Arbitration & Conciliation
III. Online Dispute Resolution
IV. Electronic Commerce
V. Insolvency Law
VI. Security Interests
UNCITRAL United Nations Commission on International Trade Law
The Structure of UNCITRAL
Working Group I
Just adopted in 2012: Guide to Enactment to the Revised Model Law on Public Procurement
Procurement
UNCITRAL United Nations Commission on International Trade Law
Work of UNCITRAL: Examples of Achievements
Procurement
Model Legislative Provisions
On Privately Financed
Infrastructure Projects
UNCITRAL Model Law on
Public Procurement 2011
UNCITRAL United Nations Commission on International Trade Law
The Structure of UNCITRAL
Working Group II
Transparency in
treaty-based investor-State
arbitration
InternationalArbitration
UNCITRAL United Nations Commission on International Trade Law
Work of UNCITRAL: Examples of Achievements
Dispute Resolution
UNCITRAL Arbitration Rules (1976 & 2010) 2002 UNCITRAL Model Law on
International Commercial Conciliation 1996 UNCITRAL Notes on Organizing
Arbitral Proceedings 1985 UNCITRAL Model Law on
International Commercial Arbitration (amended in 2006)
UNCITRAL United Nations Commission on International Trade Law
The Structure of UNCITRAL
Working Group III
Online Dispute Resolution
for cross-border
electronic commerce transactions
Online Dispute Resolution
UNCITRAL United Nations Commission on International Trade Law
The Structure of UNCITRAL
Working Group IV
Legal issues
relating to the use of
electronic transferable records
E-Commerce
UNCITRAL United Nations Commission on International Trade Law
Electronic Commerce
• UNCITRAL Model Law on
Electronic Commerce (1996)
• UNCITRAL Model Law
on Electronic Signatures (2001)
Work of UNCITRAL: Examples of Achievements
UNCITRAL United Nations Commission on International Trade Law
The Structure of UNCITRAL
Working Group V
1. Interpretation & application of selected concepts of the UNCITRAL MLCBI relating to COMI
2. D & O liabilities in insolvency & pre-insolvency cases
Insolvency Law
UNCITRAL United Nations Commission on International Trade Law
Insolvency Law
• UNCITRAL Model Law on Cross-Border Insolvency (1997)
• Legislative Guide on Insolvency Law (2004 & 2010)
• UNCITRAL Practice Guide on Cross-Border Insolvency Cooperation (2009)
Work of UNCITRAL: Examples of Achievements
UNCITRAL United Nations Commission on International Trade Law
The Structure of UNCITRAL
Working Group VI
Draft Security Registry Guide
Security Interests
UNCITRAL United Nations Commission on International Trade Law
Work of UNCITRAL: Examples of Achievements
Security Interests
• Legislative Guide on
Secured Transactions (2007)
UNCITRAL Legislative Guide
on Secured Transactions:
Supplement on Security Rights
in Intellectual Property
UNCITRAL United Nations Commission on International Trade Law
The Structure of UNCITRAL
The Secretariat
Division of UN/OLA (ITLD)
Assistance to the Commission and working groups
Technical Assistance and Cooperation (TAC)
Research
Preparation of studies and drafts
UNCITRAL United Nations Commission on International Trade Law
The SecretariatRegional Centre for Asia and the Pacific
*Enhance international trade and development in the Asia-Pacific region
*Provide technical assistance
*Engage in coordination activities with other organizations active in trade law reform projects in the region
*Function as a channel of communication between States in the region and UNCITRAL.
UNCITRAL United Nations Commission on International Trade Law
Regional Centre for Asia and the PacificFocus Area:
UNCITRAL United Nations Commission on International Trade Law
Regional Centre: Launch Event10 January 2012
UNCITRAL United Nations Commission on International Trade Law
Work of UNCITRAL Outcome
► What does UNCITRAL produce?
UNCITRAL United Nations Commission on International Trade Law
Work of UNCITRALOutcome
Development of different types of texts to
modernize & harmonize the law of int’l trade:
• Conventions• Model laws• Legislative guides• Recommendations • Contractual rules• Legal guides
UNCITRAL United Nations Commission on International Trade Law
Work of UNCITRAL Outcome
ConventionAn agreement among States establishing
obligations binding upon those States that
ratify or acceded to it.
Model LawA set of model legislative provisions that
States can adopt by enacting it into national
law.
UNCITRAL United Nations Commission on International Trade Law
Work of UNCITRALOutcome
Legislative guideA text that provides guidance for the development of laws, discussing relevant policy issues & choices & recommending appropriate legislative solutions.
RecommendationsA text that provides recommendations for the use of an UNCITRAL instrument.
UNCITRAL United Nations Commission on International Trade Law
Work of UNCITRALOutcome
Contractual rulesStandard clauses or rules designed to be
included in commercial contracts.
Legal guide A text that provides guidance for the drafting
of contracts, discussing relevant issues and
recommending solutions appropriate to
particular circumstances.
UNCITRAL United Nations Commission on International Trade Law
Work of UNCITRALPublications on UNCITRAL’s work Yearbook
Booklets and CD ROMs
Explanatory notes
Status of UNCITRAL texts
UNCITRAL United Nations Commission on International Trade Law
How does work get started?
Proposal by Member State(s) on new work
Commission
Secretariat
Explore topic further
UNCITRAL United Nations Commission on International Trade Law
How does work get started?Further exploration:
*Research and preparation of Studies
* Organization of an international colloquium related to that topic
Presentation to Commission, able to take decision
UNCITRAL United Nations Commission on International Trade Law
How does work get started?Working Groups:
*First session: Deliberations on the subject
On the basis of paper by the Secretariat
* Often: format open at the start of a new subject
UNCITRAL United Nations Commission on International Trade Law
Preparation by the SecretariatWorking papers:
*Research
*Consultations with other organizations
*Expert meetings
UNCITRAL United Nations Commission on International Trade Law
UNCITRAL Dispute Settlement Texts 2012 Recommendations to assist arbitral institutions and other interested bodies
with regard to arbitrations under the UNCITRAL Arbitration Rules (2010) 2010 UNCITRAL Arbitration Rules (as revised in 2010) 2006 Recommendation regarding the interpretation of article II (2), and article VII
(1), of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958)
2002 UNCITRAL Model Law on International Commercial Conciliation 1996 UNCITRAL Notes on Organizing Arbitral Proceedings 1985 UNCITRAL Model Law on International Commercial Arbitration (amended in
2006) 1982 Recommendations to assist arbitral institutions and other interested bodies
with regard to arbitrations under the UNCITRAL Arbitration Rules (1976) 1980 UNCITRAL Conciliation Rules 1976 UNCITRAL Arbitration Rules 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards
("New York Convention”)
UNCITRAL United Nations Commission on International Trade Law
The New York Convention
Adopted in 1958
Ensures recognition and enforcement of foreign arbitral awards (Article I, III)
Gives effect to arbitration clause (Article II (3))
Limits grounds for denial of enforcement (Article V)
UNCITRAL United Nations Commission on International Trade Law
New York Convention: Status
Universal acceptance: 146 Parties
UNCITRAL United Nations Commission on International Trade Law
Adopted in 1985, amended in 2006
A framework for the conduct of arbitral proceedings
Consistent with the New York Convention
Reflects world wide consensus
Form of Model Law
Model Law on Arbitration
UNCITRAL United Nations Commission on International Trade Law
Model Law: Main Purpose
• Reduce discrepancy between domestic procedural laws affecting international commercial arbitration
Uniform interpretation and application of the Model Law = equally important
UNCITRAL United Nations Commission on International Trade Law
Recommendation regarding
the interpretation of
article II (2) & article VII (1) of
the New York Convention
Recognizes that circumstances in article II (2) are not exhaustive
Encourages States to adopt the revised article 7 of the MAL
UNCITRAL United Nations Commission on International Trade Law
UNCITRAL work in arbitration
Digest
Recommendations
Topic for next seminar on 18 July 2012
UNCITRAL United Nations Commission on International Trade Law
What constitutes a MAL country?
No fixed criteria.
But a Model Law Country should:
Include key elements of the MAL
&
Not go against its spirit and purpose
UNCITRAL United Nations Commission on International Trade Law
Model Law: Status
Covers more than 1/3 of the world’s territory: 90 jurisdictions***USA: California, Connecticut, Florida, Illinois, Louisiana, Oregon, Texas
UNCITRAL United Nations Commission on International Trade Law
What constitutes a MAL country?
Examples
Costa Rica
Adopts the MAL word for word
Except for reversal of default rule
in article 10(2) (1 arbitrator)
UNCITRAL United Nations Commission on International Trade Law
Divergences of the Model Law
Consequences for arbitral institutions
- Restrictions in its operation
- Less attractive to parties
UNCITRAL United Nations Commission on International Trade Law
Divergences of the Model Law
Consequences
- Uncertainty about local law- Frustration by parties of unexpected
restrictions by mandatory provisions of applicable law
- Absence of any legislative provision may cause difficulties simply by leaving unanswered some procedural questions
- Impact on the selection of the place of arbitration
- Deterrent to foreign investment
UNCITRAL United Nations Commission on International Trade Law
UNCITRAL website
http://www.uncitral.org/
available in all 6 UN official languages
UNCITRAL United Nations Commission on International Trade Law
The End of Day 1
Thank you
&
See you on Wednesday