Guide to Uncitral

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UNITED NATIONS

A Guide to UNCITRAL

Basic facts about

the United Nations Commission

on International Trade Law

UNCITRAL UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE LAW


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Further information may be obtained from:

UNCITRAL secretariat, Vienna International Centre,

P.O. Box 500, 1400 Vienna, Austria

Telephone: (+43-1) 26060-4060 Telefax: (+43-1) 26060-5813

Internet: www.uncitral.org E-mail: [email protected]


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UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE LAW

A Guide to UNCITRAL

Basic acts about theUnited Nations Commission

on International Trade Law

UNITED NATIONS

Vienna, 2013


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Note

Symbols o United Nations documents are composed o capital letters with fgures.

Mention o such a symbol indicates a reerence to a United Nations document.

United Nations, January 2013. All rights reserved.

The designations employed and the presentation o material in this publication do

not imply the expression o any opinion whatsoever on the part o the Secretariat othe United Nations concerning the legal status o any country, territory, city or area,or o its authorities, or concerning the delimitation o its rontiers or boundaries.

This publication has not been ormally edited.

Publishing production: English, Publishing and Library Section, United Nations Ofceat Vienna.


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Contents

Pag

I. Origin, mandate and membership o UNCITRAL . . . . . . . . . . . . . . 1

A. Origin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1B. Mandate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

C. Membership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

II. General inormation on UNCITRAL . . . . . . . . . . . . . . . . . . . . . . . 3A. UNCITRAL website . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

B. Document numbering/symbols . . . . . . . . . . . . . . . . . . . . . . . . . 4

C. UNCITRAL Law Library . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

III. Organization and methods o work . . . . . . . . . . . . . . . . . . . . . . . 5A. UNCITRAL (the Commission) . . . . . . . . . . . . . . . . . . . . . . . . . . 5B. Working groups . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

C. Participation at sessions o UNCITRAL and its working groups . . . 8

D. Secretariat . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

1. Work programme . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

2. Technical cooperation and assistance to law reorm . . . . . . 10

3. Other activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

4. Interns and visiting scholars. . . . . . . . . . . . . . . . . . . . . . . 10

IV. Work o UNCITRAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11A. Selection o the work programme . . . . . . . . . . . . . . . . . . . . . . 11

B. Techniques o modernization and harmonization . . . . . . . . . . . . 13

1. Legislative techniques . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

(a) Conventions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

(b) Model laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

(c) Legislative guides and recommendations . . . . . . . . . . . 16

() Model provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

() Finalization and adoption o legislative texts . . . . . . . 172. Contractual techniques . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

3. Explanatory techniques . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

(a) Legal guides . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

(b) Practice and other inormation guides . . . . . . . . . . . . 19

(c) Interpretative declarations . . . . . . . . . . . . . . . . . . . . 20

C. Uniorm interpretation o legislative texts: Case law on

UNCITRAL texts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

D. Coordinating the work o other organizations . . . . . . . . . . . . . . 22

E. UNCITRALs position within the United Nations system . . . . . . . 25

F. Technical cooperation and assistance to law reorm . . . . . . . . . 26

1. Technical cooperation and assistance activities . . . . . . . . . . 26

2. Regional centres . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27


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v

Pag

G. Special events . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

H. General Assembly resolutions relating to UNCITRAL . . . . . . . . . 29

Annexes

I. General Assembly resolution 2205 (XXI) . . . . . . . . . . . . . . . . . . . . . 31II. UNCITRAL member States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

III. Chairpersons o UNCITRAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

IV. UNCITRAL working groups and chairpersons . . . . . . . . . . . . . . . . . . 45

V. Secretaries o UNCITRAL and urther inormation . . . . . . . . . . . . . . 49

VI. UNCITRAL texts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51


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1

I. Origin, mandate andmembership o UNCITRAL

A. Origin

1. In an increasingly economically interdependent world, the importance o an

improved legal ramework or the acilitation o international trade and invest-

ment is widely acknowledged. The United Nations Commission on International

Trade Law (UNCITRAL), established by the United Nations General Assembly

by resolution 2205 (XXI) o 17 December 1966 (see annex I), plays an importantrole in developing that ramework in pursuance o its mandate to urther the

progressive harmonization and modernization o the law o international trade1

by preparing and promoting the use and adoption o legislative and non-legislative

instruments in a number o key areas o commercial law. Those areas include

dispute resolution, international contract practices, transport, insolvency, elec-

tronic commerce, international payments, secured transactions, procurement and

sale o goods. These instruments are negotiated through an international process

involving a variety o participants, including member States o UNCITRAL, non-

member States, and invited intergovernmental and non-governmental organiza-tions. As a result o this inclusive process, these texts are widely accepted as

oering solutions appropriate to dierent legal traditions and to countries at

dierent stages o economic development. In the years since its establishment,

UNCITRAL has been recognized as the core legal body o the United Nations

system in the eld o international trade law.

B. Mandate

2. UNCITRAL gives eect to its mandate by:

(a) Coordinating the work o organizations active in this eld and encour-

aging cooperation among them;

1For details concerning the mandate or the progressive development o the law o international

trade, see the report o the Secretary-General, Ofcial Records o the General Assembly, Twenty-frstSession, A/6396 (1966); the report o the Fith Committee o the General Assembly at its twenty-

rst session, Ofcial Records o the General Assembly, Twenty-frst Session, A/6594 (1966); and the

relevant summary records o the proceedings o the Sixth Committee, which are contained in the

Ofcial Records o the General Assembly, Twenty-frst Session, Sixth Committee, 947th-955th meetings

(A/C.6/SR.947-955).


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2 A Guide to uNCitRAL

(b) Promoting wider participation in existing international conventions and

wider acceptance o existing model and uniorm laws;

(c) Preparing or promoting the adoption o new international conventions,

model laws and uniorm laws and promoting the codication and wider accept-

ance o international trade terms, provisions, customs and practices, in collabora-

tion, where appropriate, with the organizations operating in this eld;

(d) Promoting ways and means o ensuring a uniorm interpretation and

application o international conventions and uniorm laws in the eld o the law

o international trade;

(e) Collecting and disseminating inormation on national legislation and

modern legal developments, including case law, in the eld o the law o inter-national trade;

() Establishing and maintaining a close collaboration with the United Nations

Conerence on Trade and Development;

(g) Maintaining liaison with other United Nations organs and specialized

agencies concerned with international trade; and

(h) Taking any other action it may deem useul to ull its unctions.2

C. Membership

3. Members o UNCITRAL are selected rom among States Members o the

United Nations and represent dierent legal traditions and levels o economic

development. The original membership comprised 29 States.3 It was expanded

by the United Nations General Assembly in 19734 to 36 States and again in

20025 to 60 States. The expansion refected the broader participation and con-

tribution by States beyond the then existing member States and stimulated

interest in UNCITRALs expanding work programme. For detailed inormation

concerning the membership o UNCITRAL, see annex II.

4. Structured to ensure that the various geographic regions and the principal eco-

nomic and legal systems o the world are represented, the 60 member States include

14 Arican States, 14 Asian States, 8 Eastern European States, 10 Latin American

2General Assembly resolution 2205 (XXI), sect. II, para. 8, set orth in annex I to this

publication.3Ibid., para. 1.4See General Assembly resolution 3108 (XXVIII), para. 8.5See General Assembly resolution 57/20, para. 2. The expansion was eective rom the opening

day o the thirty-seventh annual session o UNCITRAL, in 2004.


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Basc facs ab h un Nans Cmmssn n inrnanal tra Law 3

and Caribbean States and 14 Western European and other States. The General

Assembly elects members or terms o six years; every three years the terms o hal

o the members expire.6 As a general rule, elections are held towards the end o

the year beore the year in which membership expires.7 The actual date o expiryis the day immediately beore the day on which the Commission session to be held

in that year commences. Membership is typically discussed beore the election within

the various regional groupings, each o which has the xed number o seats in the

Commission as noted above and Member States submit their candidatures through

their Permanent Missions in association with the chairpersons o their respective

regional groups. Membership does not entail any additional nancial contribution,

as UNCITRAL is a permanent commission o the General Assembly and its secretariat

is part o the United Nations Secretariat. The UNCITRAL secretariat is not involved

in the election o members o the Commission.

II. General inormation on UNCITRAL

A. UNCITRAL website: www.uncitral.org

5. UNCITRALs website is available in all six o the ocial languages o the

United Nations (Arabic, Chinese, English, French, Russian and Spanish). It is

requently updated and includes all recent UNCITRAL documents, including

those prepared or sessions o working groups and the Commission; inormation

relating to meetings and other activities o UNCITRAL, its working groups and

the UNCITRAL secretariat; adopted UNCITRAL texts and the related explanatory

notes;8 a list indicating the current status o adoption and implementation o

6See annex II to the present publication, endnotes a and c.7See annex II or the terms o members. Updated inormation is available rom: http://www.

uncitral.org/uncitral/en/about/origin.html8To date, explanatory notes have been prepared or the ollowing texts: (a) United Nations

Convention on the Carriage o Goods by Sea, (Hamburg, 1978) (A/CN.9/306); (b) United Nations

Convention on Contracts or the International Sale o Goods (Vienna, 1980) (A/CN.9/307); (c) Con-

vention on the Limitation Period in the International Sale o Goods (New York, 1974) (A/CN.9/308);

(d) UNCITRAL Model Law on International Commercial Arbitration (1985) (A/CN.9/309);

(e) United Nations Convention on International Bills o Exchange and International Promissory

Notes (New York, 1988) (A/CN.9/386); () United Nations Convention on the Liability o Operatorso Transport Terminals in International Trade (Vienna, 1991) (A/CN.9/385); (g) UNCITRAL Model

Law on International Credit Transers (1992) (A/CN.9/384); (h) United Nations Convention on

Independent Guarantees and Stand-by Letters o Credit (New York, 1995) (A/CN.9/431); and

(i) United Nations Convention on the Assignment o Receivables in International Trade (New York,

2001) (A/CN.9/557).
http://www.uncitral.org/uncitral/en/about/origin.htmlhttp://www.uncitral.org/uncitral/en/about/origin.htmlhttp://www.uncitral.org/uncitral/en/about/origin.htmlhttp://www.uncitral.org/uncitral/en/about/origin.html


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conventions and model laws; case abstracts and digests o case law rom the

Case Law on UNCITRAL Texts (CLOUT) system; General Assembly resolutions

relating to the work o UNCITRAL; a bibliography o scholarly writings on

UNCITRAL texts; UNCITRAL publications, including reports o special events(see paras. 75-76 below); inormation on ocial document numbering and sym-

bols; press releases; and summary records o meetings o UNCITRAL.9 Working

Group and Commission documents are also available rom the United Nations

Ocial Document System (ODS) at http://ods.un.org.

6. The Yearbook o the United Nations Commission on International Trade Law (the

UNCITRAL Yearbook) is a compilation o all substantive documents issued by the

Secretariat in relation to the work o the Commission and its working groups

or a given year, as well as other inormation, including reports o the SixthCommittee o the General Assembly.10 The UNCITRAL Yearbook is published in

English, French, Russian and Spanish and is available in libraries around the

world that unction as United Nations depository libraries, as well as rom the

UNCITRAL website (see annex V or urther inormation).

B. Document numbering/symbols

7. Individual documents prepared or consideration by UNCITRAL and its

working groups bear the symbol A/CN.9/). A indicates that the document is

a General Assembly document and CN.9 indicates that the document is or

UNCITRAL, as the ninth permanent commission to report to the General Assem-

bly. On documents prepared or the annual session o the Commission, this

symbol is ollowed by a consecutive number (e.g. A/CN.9/421). On working

group documents, the symbol is ollowed by WG and the number assigned to

the particular working group,

11

and then by WP (meaning working paper)and the consecutive number assigned to the specic document (e.g. A/CN.9/

WG.II/WP.23).

9The Secretary General provides summary records o those parts o the meetings o the Com-

mission, including committees o the whole established by the Commission or the duration o its

annual session, relating to the ormulation o normative texts. These records are reproduced in the

relevant UNCITRAL Yearbook.10

The Sixth Committee is one o the main committees o the General Assembly and considerslegal matters, including the annual report o UNCITRAL.

11As o 2012, there are six working groups o the Commission which are numbered I to VI.

The current task beore each o the working groups is indicated in parentheses ollowing the number

o the working group (I Procurement; II Arbitration and Conciliation; III Online Dispute Resolution;

IV Electronic Commerce; V Insolvency Law; VI Security Interests) see A/CN.9/638/Add.1, para. 28.


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8. Since its third session in 1970, annual reports o UNCITRAL have been

published as Supplement Number 17 to the Ocial Records o the General

Assembly and bear the symbol A/[ . . . ]/17 (the middle number indicating

the number o the applicable annual session o the General Assembly).

C. UNCITRAL Law Library

9. The UNCITRAL Law Library is the specialized trade law library o the

United Nations. It was established in 1979 in Vienna as a reerence and research

library or the UNCITRAL secretariat and participants in intergovernmental

meetings convened by UNCITRAL. Since its establishment, the Library has also

supported the research needs o permanent missions, other Vienna-based inter-national organizations, and legal scholars and practitioners. The Library prepares

and publishes an annual bibliography o scholarly writings on UNCITRAL texts;

the bibliographies prepared since 1968 have been compiled into a consolidated

version, which is available on the UNCITRAL website, together with monthly

bibliographic updates.

III. Organization and methods o work12

10. UNCITRALs work is organized and conducted at three levels. The rst level

is UNCITRAL itsel, oten reerred to as the Commission, which works through

an annual plenary session. The second level is the intergovernmental working

groups, which to a large extent undertake the development o the topics on

UNCITRALs work programme, while the third is the secretariat, which assists the

Commission and its working groups in the preparation and conduct o their work.

A. UNCITRAL (the Commission)

11. UNCITRAL carries out its work at annual sessions held alternately in

New York and Vienna.13 The work at these sessions typically includes naliza-

12See http://www.uncitral.org/uncitral/en/about/methods_documents.html

13See the report o the Committee on Conerences (Ofcial Records o the General Assembly,Thirty-ourth Session, Supplement No. 32 (A/34/32) (1979), para. 32 (e) (iii)). Prior to the relocation

o the UNCITRAL secretariat rom New York to Vienna, sessions o the Commission alternated

between New York and Geneva (see General Assembly resolution 2205 (XXI), sect. II, para. 6;

General Assembly resolution 31/140, sect. I, para. 4 (c); and General Assembly resolution 40/243,

part one, para. 4 (c); see also General Assembly resolution 66/94, para. 20.


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tion and adoption o drat texts reerred to the Commission by the working

groups; consideration o progress reports o the working groups on their respec-

tive projects; selection o topics or uture work or urther research; reporting

on technical cooperation and assistance activities and coordination o work withother international organizations; monitoring o developments in the CLOUT

system and the status and promotion o UNCITRAL legal texts; consideration

o General Assembly resolutions on the work o UNCITRAL; and administrative

matters.

12. Comprising a chairperson, three vice-chairpersons and a rapporteur, the

bureau o the Commission is elected by the member States at the commence-

ment o each annual session and serves until the commencement o the ollowing

annual session. The bureau represents each o the ve regions rom which themembers o the Commission are drawn.14 For a list o the chairpersons o

UNCITRAL, see annex III.

13. In addition to States members o UNCITRAL, other United Nations Member

States, as well as international and regional organizations (both intergovernmen-

tal and non-governmental) with expertise in the topics under discussion are

invited to attend both UNCITRAL annual sessions and working group sessions

as observers.

15

14. Decisions in the Commission are taken by member States o the Commis-

sion. The views o non-member States and observer organizations are or the

benet o member States, who may take such views into account in determining

their positions on the issues to be decided upon. The long-standing practice in

the Commission is to reach decisions by consensus.16 In 2010, the Commission

ormalised this practice, resolving that decisions should be reached by consensus

as ar as possible; in the absence o consensus, decisions are to be taken by

voting in accordance with the relevant rules o procedure o the GeneralAssembly.17

14See para. 4 above and Ofcial Records o the General Assembly, Twenty-third Session, Supplement

No. 16 (A/7216) (1968), para. 14.15For inormation on the participation o observers in UNCITRAL meetings, see Note by the

Secretariat: UNCITRAL rules o procedure and methods o work (A/CN.9/638/Add.5), section IV.

Status o observers; and Ofcial Records o the General Assembly, Sixty-fth session, Supplement No. 17(A/65/17) (2010), Annex III: UNCITRAL Rules o procedure and methods o work.16Ibid; see also Note by the Secretariat: UNCITRAL rules o procedure and methods o work

(A/CN.9/638/Add.4), section III, I.2 Decision-making in the Commission.17Ofcial Records o the General Assembly, Sixty-fth session, Supplement No. 17 (A/65/17) (2010),

Annex III: UNCITRAL Rules o procedure and methods o work, Summary o conclusions, para. 2).


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15. A report o the proceedings at annual sessions is ormally adopted by

UNCITRAL or submission to the General Assembly. In accordance with the resolu-

tion establishing UNCITRAL,18 the annual report is also provided to the

United Nations Conerence on Trade and Development (UNCTAD) or comment.

B. Working groups

16. The substantive preparatory work on topics on UNCITRALs work pro-

gramme is usually assigned to working groups,19 which generally hold one or

two sessions per year and report on the progress o their work to the Commis-

sion. The membership o the working groups currently includes all member

States o UNCITRAL. Once assigned a topic, a working group is generally let

to complete its substantive task without intervention rom the Commission,

unless it asks or guidance or requests the Commission to make certain decisions

with respect to its work, such as clarication o the Working Groups mandate

on a particular topic or approval o the policy settings o a particular text. 20 At

each working group session, member State delegations select a chairperson and

rapporteur rom among member State delegations.21 For a list o the working

groups and their chairpersons, see annex IV.

17. The secretariat o each working group comprises sta members o the

UNCITRAL secretariat. The secretariat is responsible or preparing working

papers or working group meetings, providing administrative services to that

working group and reporting on working group sessions. Reports are considered

and ormally adopted at the end o each working group session or submission

to the annual session o UNCITRAL. On several occasions, when the topics being

18General Assembly resolution 2205 (XXI), para. 10 (see annex I to this publication).19See Ofcial Records o the General Assembly, Thirty-third Session, Supplement No. 17 (A/33/17)

(1978), para. 67.20In 2002, or example, Working Group V requested the Commission to, inter alia, approve

in principle the drat o the Legislative Guide on Insolvency Law (see Ocial Records o the General

Assembly, Fity-eighth Session, Supplement No. 17 (A/58/17) (2002), paras. 172-197). A similar

approach was adopted in 2006 with respect to the recommendations o the Legislative Guide onSecured Transactions (see Ofcial Records o the General Assembly, Sixty-frst Session, Supplement No. 17

(A/61/17) (2006), para.13).21On a limited number o occasions, the chair o a working group has been appointed in a

personal capacity on the basis o expertise and experience in the topic under consideration (see

annex IV to the present publication).


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considered by dierent working groups have intersected, joint sessions have been

held to coordinate the work and ensure consistency.22

C. Participation at sessions o UNCITRAL and itsworking groups

18. Documentation or annual UNCITRAL sessions and working group sessions

is posted on the UNCITRAL website and is available in the six ocial languages

o the United Nations. Sessions are acilitated by simultaneous interpretation in

all six ocial languages.

19. Discussion takes place in a ormal manner, with the chairperson o the

meeting according delegations the opportunity to speak.

20. The size and composition o member and non-member State delegations

to annual sessions and working groups is a matter or those States and may vary

according to the subject matter under consideration. Member and non-member

State delegations typically include Government ocials, academics, experts or

private sector lawyers. Delegations rom invited intergovernmental organizations

typically comprise sta members o those organizations. The delegations o

invited non-governmental organizations are limited to ve representatives and

typically include academics, private sector lawyers or other experts. The mem-

bership o some delegations remains relatively constant throughout a single

project, while others may change rom meeting to meeting.

21. To acilitate the development o legislative texts, and in particular to iden-

tiy and resolve issues o terminology and translation in order to achieve uni-

ormity between the dierent language versions, drating group meetings areoten held in conjunction with the annual session o UNCITRAL and with

working group sessions. Delegates and observers rom the six ocial language

groups are invited to participate in these meetings with relevant ocers o the

secretariat and the United Nations editors and translators responsible or the

instrument under discussion.

22Working Groups V (Insolvency Law) and VI (Security Interests) held joint sessions in 2003and again in 2004 to coordinate insolvency aspects o the Legislative Guide on Secured Transactions

(A/CN.9/535 and A/CN.9/550). In 2005, an inormal joint meeting o experts rom Working Group

IV (Electronic Commerce) and Working Group III (Transport Law) took place in London to consider

the provisions o the drat instrument on the carriage o goods [wholly or partly] [by sea] as they

related to electronic commerce (A/CN.9/WG.III/WP.47).


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D. Secretariat

1. Wrk prgramm

22. The International Trade Law Division o the Oce o Legal Aairs o the

United Nations Secretariat provides the secretariat or UNCITRAL. Originally

located at United Nations Headquarters in New York, the Division was relocated

to the United Nations Oce at Vienna in September 1979, while ormally

remaining a part o the Oce o Legal Aairs in New York. Proessional sta

members o the Division include a small number o qualied lawyers rom di-

erent countries and legal traditions,23 with the Director o the Division serving

as the Secretary o UNCITRAL (see annex V).

23. To assist the work o UNCITRAL, the secretariat undertakes a variety o

dierent tasks, which includes preparation o studies, reports and drat texts on

topics that are being considered or possible uture inclusion in the work pro-

gramme; legal research; drating and revision o working papers and legislative

texts on topics already included in the work programme; reporting on Commis-

sion and working group meetings; and providing a range o administrative ser-

vices to UNCITRAL and its working groups. In preparing its work, the secretariat

may seek the assistance o outside experts rom dierent legal traditions, con-ducting ad hoc consultations with individuals or convening meetings o groups

o experts in a particular eld, as required. Such groups have included academics,

practising lawyers, judges, bankers, arbitrators and members o various interna-

tional, regional and proessional organizations.

24. On several occasions, substantive preparation o a text has not been under-

taken by a Working Group, but by the secretariat in consultation with experts.

For example, a preliminary drat o the 1976 arbitration rules, with commentar-

ies, was prepared by the secretariat in consultation with experts in the eld24

and then presented to the Commission and subsequently revised by the secre-

tariat in light o the Commissions deliberations. Drat chapters o the Legislative

Guide on Privately Financed Inrastructure Projects were prepared by the secre-

tariat and reviewed and adopted by the Commission. A similar approach was

taken with the Practice Guide on Cross-Border Insolvency Cooperation (2009),

The UNCITRAL Model Law on Cross-Border Insolvency: the judicial perspective

23

In December 2012, the UNCITRAL secretariat included 14 regular budget-unded posts orlegal ocers, including the Secretary o the Commission, recently supported by one extra-budgetary

programme manager at the Regional Centre or Asia and the Pacic.24See Report o the Secretary-General: preliminary drat set o arbitration rules or optional

use in ad hoc arbitration relating to international trade (UNCITRAL Arbitration Rules), A/CN.9/97

and Add.1-4.


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(2011) and Promoting Condence in Electronic Commerce: Legal Issues on Inter-

national Use o Electronic Authentication and Signature Methods (2007).

2. tchncal cpran an asssanc law rfrm

25. The work o UNCITRAL does not end with the nalization and adoption

o a text but, as noted above, includes promotion o the use and adoption o

those legislative and non-legislative texts. This work is organized through the

secretariat and is discussed in detail below (see paras. 69-73).

3. ohr acvs

26. The secretariat also assists the Commission in its unctions o coordinating

the work o other organizations; promoting the work o UNCITRAL within the

broader United Nations agenda (see paras. 67-68); promoting the uniorm inter-

pretation o legal standards through the CLOUT system; and organizing special

events. These unctions are discussed in more detail in the ollowing paragraphs.

4. inrns an vsng schlars

27. Each year a limited number o persons who have a rst level university

degree and are enrolled in a degree programme in a graduate school (working

towards a second university degree or higher) at the time o application and

throughout the internship, in commercial law, international trade law or private

international law are given the opportunity to work as interns in the International

Trade Law Division.25 Interns are assigned specic tasks in connection with

UNCITRALs work programme and projects being undertaken by the secretariat.

Individuals participating in this programme are able to amiliarize themselves

with the work o UNCITRAL and to increase their knowledge o specic areas

o international trade law. Legal scholars may, by arrangement with the secretariat,

use the UNCITRAL Law Library or private research on projects related to inter-

national trade law.

25http://www.uncitral.org/uncitral/en/vacancies_internships.html


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IV. Work o UNCITRAL

A. Selection o the work programme

28. Ater considering a number o suggestions by member States, at its rst

session in 1968, the Commission adopted nine subject areas as the basis o its

work programme: international sale o goods; international commercial arbitra-

tion; transportation; insurance; international payments; intellectual property;

elimination o discrimination in laws aecting international trade; agency; and

legalization o documents.26 Some o these subjects have not been taken up by

the Commission, or example, insurance, elimination o discrimination in laws

aecting international trade, agency and legalization o documents. Priority status

initially was accorded to international sale o goods, international commercial

arbitration and international payments. Other topics, such as trade nancing

contracts, transport, electronic commerce, procurement, international commercial

conciliation, insolvency, security interests, online dispute resolution and micro-

nance have subsequently been added.

29. On a number o occasions since that rst session, the Commission has

considered and revised its work programme on the basis o new developmentsin technology, changes in business practices, international trends and develop-

ments, economic and nancial crises and other orces aecting and shaping

international trade. Proposals or consideration o new topics can arise in a

number o ways: they may be made directly to the Commission by Governments

(or example the proposal or uture work on insolvency law in 1999);27 they

may arise rom consultation with various international organizations (or example

with the International Maritime Committee on international carriage o goods

(see para.76)); rom special colloquiums and seminars (such as the 1992 Congress

on International Trade Law (see para. 75), the 1994 Colloquium on Cross-BorderInsolvency,28 the 1998 New York Convention Day,29 and various colloquiums on

26Ofcial Records o the General Assembly, Twenty-third Session, Supplement No. 16 (A/7216)

(1968), paras. 40 and 48.27See document A/CN.9/462/Add.1; also Ofcial Records o the General Assembly, Fity-ourth

Session, Supplement No. 17 (A/54/17) (1999), para. 381.28See the report on the UNCITRAL-INSOL Colloquium on Cross-Border Insolvency

(A/CN.9/398) and the Ofcial Records o the General Assembly, Forty-ninth Session, Supplement No. 17

(A/49/17) (1994), paras. 215-222. For inormation on subsequent insolvency colloquiums, seehttp://www.uncitral.org/uncitral/en/commission/colloquia.html.

29See Possible uture work in the area o international commercial arbitration (A/CN.9/460).

For the texts o the 1958 New York Convention Day speeches, see Enorcing Arbitration Awards

under the New York Convention: Experience and Prospects , available rom http://www.uncitral.org/

uncitral/publications/publications.html.
http://www.uncitral.org/uncitral/publications/publications.htmlhttp://www.uncitral.org/uncitral/publications/publications.htmlhttp://www.uncitral.org/uncitral/publications/publications.htmlhttp://www.uncitral.org/uncitral/publications/publications.html


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transport, privately nanced inrastructure projects, international commercial

raud, secured transactions and online dispute resolution30); or they may arise

as topics that are related to subjects already under discussion in the working

groups (or example, the need or a text on electronic signatures was identiedduring development o the Model Law on Electronic Commerce and the possibil-

ity o developing model provisions on privately nanced inrastructure projects

was identied during the development o the legislative guide on that topic).

30. Topics may also arise rom experience gained in the implementation and

application o an existing text, which may suggest the need or revision o that

text31 or urther development o the explanatory material accompanying that text,

such as a guide to enactment in the case o a model law.32 In considering whether

particular topics should be added to the programme, actors such as globalsignicance, special interest to developing countries, developments in technology

and changing trends in commercial practice are taken into account.

31. The Commission initially considered some o the topics currently on the

programme as not likely to produce an agreed, harmonized legal text. However,

developments in international trade law and practices, as well as the successul

conclusion by UNCITRAL o work on related topics, have since created a demand

or reconsideration o those topics and made the development o legal textseasible (or example harmonization o national insolvency and secured trans-

actions law). Aspects o other topics that generally all within the mandate o

specialized international organizations, such as intellectual property, have been

the subject o coordinated work.33

30See paras. 75-76 below and generally http://www.uncitral.org/uncitral/en/commission/colloquia.

html.31For example, the decision in 2004, to revise the Model Law on the Procurement o Goods,

Construction and Services (1994) to address issues arising rom its implementation and the devel-

opment o electronic procurement practice (see A/CN.9/WG.I/WP.34). In 2010, the Commission

adopted revisions to the UNCITRAL Arbitration Rules, to conorm them to current practices in

international trade and to address developments in arbitral practice over the previous 30 years

(Ofcial Records o the General Assembly, Sixty-fth Session, Supplement No. 17 (A/65/17) (2010), para.

187.32Jurisprudence emerging rom application and interpretation o the Model Law on Cross-

Border Insolvency led to a proposal to address issues related to the concept o centre o main

interests as used in the Model Law. At the date o this publication, the work is being implementedthrough revision o the Guide to Enactment o the Model Law (see Report o Working Group V

on the work o its ortieth session, A/CN.9/738, para. 13).33The UNCITRAL Legislative Guide on Secured Transactions: Supplement on Security Rights in Intel-

lectual Property (2010) was developed in cooperation with the World Intellectual Property Organiza-

tion (WIPO) and other intellectual property organizations.
http://www.uncitral.org/uncitral/en/commission/colloquia.htmlhttp://www.uncitral.org/uncitral/en/commission/colloquia.htmlhttp://www.uncitral.org/uncitral/en/commission/colloquia.htmlhttp://www.uncitral.org/uncitral/en/commission/colloquia.htmlhttp://www.uncitral.org/uncitral/en/commission/colloquia.html


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B. Techniques o modernization and harmonization

32. UNCITRAL has adopted a fexible and unctional approach with respect to

the techniques it uses to perorm its mandate to modernize and harmonize the

law o international trade.34 These techniques all into three broad categories,

which operate at dierent levels and involve dierent types o compromise or

acceptance o dierence: legislative, contractual and explanatory (or a compre-

hensive list o UNCITRAL texts, see annex VI). To some extent, these techniques

also show the process o modernization and harmonization occurring at dierent

stages o business development. While the process typically works to bring long-

established practices closer together, there are cases that might be seen as exam-

ples o preventive harmonizationestablishing new principles and practicesthat will minimize divergence when national laws on new issues are developed.

This has been typical in areas aected by new technology or new business prac-

tices, such as electronic commerce, arbitration and procurement.

1. Lgslav chnqs

33. UNCITRAL has produced several dierent types o legislative texts: conven-

tions; model laws; legislative guides; and model provisions.

(a) Cnvnns

34. A convention is designed to uniy law by establishing binding legal obliga-

tions. To become a party to a convention, States are required ormally to deposit

a binding instrument o ratication or accession with the depositary (or conven-

tions prepared by UNCITRAL, the Secretary-General o the United Nations). The

entry into orce o a convention is usually dependent upon the deposit o aminimum number o instruments o ratication.35

34In this connection, see also the report o the Secretary-General entitled Question o coor-

dination: direction o the work o the Commission (A/CN.9/203, paras. 99-122); and the note by

the Secretariat entitled Alternative methods or the nal adoption o conventions emanating rom

the work o the Commission (A/CN.9/204).35These minimum numbers are specied in the ollowing articles: United Nations Convention

on Contracts or the International Sale o Goods (Vienna, 1980), art. 99, para. 1; the HamburgRules, art. 30, para. 1; United Nations Convention on Independent Guarantees and Stand-by Letters

o Credit (New York, 1995), art. 28, para. 1; United Nations Convention on the Assignment o

Receivables in International Trade (New York, 2001), art. 45, para. 1; United Nations Convention

on the Use o Electronic Communications in International Trade (New York, 2005), art. 23, para. 1;

and the Rotterdam Rules, art. 94, para. 1.


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35. A convention is oten used where the objective is to achieve a high degree

o harmonization o law in the participating States, reducing the need or a party

to undertake research o the law o another State party. The international obliga-

tion assumed by that State on adoption o the convention is intended to providean assurance that the law in that State is in line with the terms o that conven-

tion.36 I a high degree o harmonization cannot be achieved or a greater degree

o fexibility is desired and is appropriate to the subject matter under considera-

tion, a dierent technique o harmonization, such as a model law or legislative

guide, might be used.

36. Except to the extent that they permit reservations or declarations, conven-

tions aord little fexibility to adopting States. The conventions negotiated by

UNCITRAL generally do not allow reservations or declarations by States or allowthem only to a very limited extent.37 In some cases, the ability to make a res-

ervation or declaration represents a compromise that will enable some States to

become a party to the convention without being obliged to comply with the

provision to which the reservation or declaration relates.

(b) Ml laws

37. A model law is a legislative text that is recommended to States or enact-

ment as part o their national law.

38. A model law is an appropriate vehicle or modernization and harmonization

o national laws when it is expected that States will wish or need to make adjust-

ments to the text o the model to accommodate local requirements that vary

rom system to system, or where strict uniormity is not necessary or desirable.

It is precisely this fexibility that makes a model law potentially easier to negoti-

ate than a text containing obligations that cannot be altered, and can promotegreater acceptance o a model law than o a convention dealing with the same

36See, or example, the joint survey developed in cooperation with Committee D (now known

as the Arbitration Committee) o the International Bar Association to monitor legislation giving

eect to the New York Convention (Ofcial Records o the General Assembly, Fitieth Session, Supple-

ment No. 17 (A/50/17) (1995), paras. 401-404.37See, or example, the United Nations Convention on Contracts or the International Sale o

Goods (Vienna, 1980) articles 92-96. Although there may be limited provision or reservations or

derogations by States, the legal regimes o UNCITRAL conventions may be subject to contractual

derogation, or example, United Nations Convention on Contracts or the International Sale oGoods (Vienna, 1980), art. 6, United Nations Convention on the Use o Electronic Communications

in International Trade (New York, 2005), art. 3, and United Nations Convention on the Assignment

o Receivables in International Trade (New York, 2001), art. 6. For a list o States parties to these

Conventions and relevant declarations and reservations, see http://www.uncitral.org/uncitral/en/

uncitral_texts.html.
http://www.uncitral.org/uncitral/en/uncitral_texts.htmlhttp://www.uncitral.org/uncitral/en/uncitral_texts.htmlhttp://www.uncitral.org/uncitral/en/uncitral_texts.html


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subject matter. Notwithstanding this fexibility, in order to increase the likelihood

o achieving a satisactory degree o unication and to provide certainty about

the extent o unication, States are encouraged to make as ew changes as pos-

sible when incorporating a model law into their legal systems.

39. Model laws are generally nalized and adopted by UNCITRAL at its annual

session, as opposed to adoption o a convention, which requires the convening

o a diplomatic conerence. This actor may make preparation o a model law

less expensive than the preparation o a convention, unless the convention is

adopted by the General Assembly perorming the unction o a diplomatic con-

erence, as has been the case or most o the recent conventions prepared by

UNCITRAL (see paras. 47-49).

40. Recent model laws completed by UNCITRAL have been accompanied by

a guide to enactment setting orth background and other explanatory inorma-

tion to assist Governments and legislators in using the text.38 The guides include,

or example, inormation that would assist States in considering what, i any,

provisions o the model law might have to be varied to take into account par-

ticular national circumstances, inormation relating to discussions in the working

group on policy options and considerations, and matters not addressed in the

text o the model law that may nevertheless be relevant to the subject matter othe model law.

41. Within the category o model laws prepared by UNCITRAL, a comparison

o two texts, the UNCITRAL Model Law on International Commercial Arbitration

(1985) and the UNCITRAL Model Law on Electronic Commerce (1996), illus-

trates how the model law orm can be adapted to the subject matter under

consideration and to the degree o fexibility sought by the draters. The Model

Law on International Commercial Arbitration, which could be described as a

procedural instrument, provides a discrete set o interdependent articles. It isrecommended that, in adopting this Model Law, very ew amendments or changes

are made. As a rule, relatively ew deviations rom this text have been made by

States adopting enacting legislation, suggesting that the procedures it establishes

are widely accepted and understood as orming a coherent basis or international

commercial arbitration. The Model Law on Electronic Commerce, on the other

hand, is a more conceptual text. The legislation that has been based on this

38The Model Laws on International Credit Transers and International Commercial Arbitrationinclude short explanatory notes prepared by the secretariat o UNCITRAL or inormation purposes.

The Model Laws on Electronic Commerce; Electronic Signatures; Cross-Border Insolvency; Interna-

tional Commercial Conciliation and Public Procurement include more extensive, ocial guides to

enactment. These guides were considered by the Commission and generally adopted together with

the text o each model law.


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Model Law largely refects the principles o the text, although there are some

departures rom it in terms not only o drating, but also in the combination o

provisions adopted.39

42. As noted above, revision o one model law, the Model Law on the Procure-

ment o Goods, Construction and Services (1994) was completed in 2011 (now

entitled the UNCITRAL Model Law on Public Procurement) and the accompany-

ing Guide to Enactment was completed in 2012.

(c) Lgslav gs an rcmmnans

43. For a number o reasons, it is not always possible to drat specic provi-sions in a suitable or discrete orm, such as a convention or a model law, or

incorporation into national legal systems: national legal systems oten use widely

disparate legislative techniques and approaches or solving a given issue, States

may not yet be ready to agree on a single approach or common rule, there may

not be consensus on the need to nd a uniorm solution to a particular issue,

or there may be dierent levels o consensus on the key issues o a particular

subject and how they should be addressed. In such cases, it may be appropriate

not to attempt to develop a uniorm text, but to limit the work to a set o

principles or legislative recommendations.

44. In order to advance the objective o harmonization, and oer a legislative

model, the principles or recommendations would need to do more than simply

state general objectives. The text would provide a set o possible legislative solu-

tions to certain issues, but not necessarily a single set o model solutions or

those issues. In some cases, it may be appropriate to include variants, depending

upon applicable policy considerations. By discussing the advantages and disad-

vantages o dierent policy choices, the text would assist the reader to evaluate

dierent approaches and to choose the one most suitable in a particular national

context. It could also be used to provide a standard against which Governments

and legislative bodies could review the adequacy o existing laws, regulations,

decrees and similar legislative texts in a particular eld and update those laws

or develop new laws.

45. UNCITRALs rst legislative recommendation was adopted in 1985, to stim-

ulate review o legislative provisions on the legal value o computer records.40

39For a list o the States that have enacted UNCITRAL Model Laws, see http://www.uncitral.

org/uncitral/en/uncitral_texts.html.40Recommendations to Governments and international organizations concerning the legal value

o computer records (1985), Ofcial Records o the General Assembly, Fortieth Session, Supplement

No. 17 (A/40/17), para. 360.
http://www.uncitral.org/uncitral/en/uncitral_texts.htmlhttp://www.uncitral.org/uncitral/en/uncitral_texts.htmlhttp://www.uncitral.org/uncitral/en/uncitral_texts.htmlhttp://www.uncitral.org/uncitral/en/uncitral_texts.html


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() Ml prvsns

46. When a number o conventions deal with a particular question in a way

that may require unication and modernization, model provisions can be devel-oped and recommended or use in uture conventions and in revisions o existing

ones. In 1982, or example, UNCITRAL ormulated a model provision establish-

ing a universal unit o account o constant value that could be used, in particular,

in international transport and liability conventions, or expressing amounts in

monetary terms.41 In conjunction with that model provision, UNCITRAL adopted

two alternative model provisions or the adjustment o an amount set orth in

an international convention: a sample price index clause and a sample amend-

ment procedure or a limit o liability. Model provisions may also assist in sup-

plementing a provision o a convention. The United Nations Convention on theAssignment o Receivables in International Trade (New York, 2001) contains an

annex (o optional substantive law provisions) supplementing the conficts o

laws rules o the Convention that deal with priority issues. In 2003, UNCITRAL

adopted the Model Legislative Provisions on Privately Financed Inrastructure

Projects, which complement the legislative guide on the same topic.42

() Fnalzan an apn f lgslav xs

47. Ater a working group has prepared a drat text o a convention, modellaw or other legislative instrument, it is submitted or the consideration o

UNCITRAL at its annual session. I appropriate, the text may be accompanied

by an explanatory commentary prepared by the secretariat in order to assist the

Commission, Governments and international organizations in their deliberations.

Generally, the drat text and the commentary (i prepared) are circulated, beore

the applicable annual session, to Governments and interested international organ-

izations or comment. The comments received may be compiled by the secretariat

and provided to the Commission to acilitate its consideration o the drat text.43

41Provisions on a universal unit o account and on adjustment o the limit o liability in

international transport conventions (1982), Ofcial Records o the General Assembly, Thirty-seventh

Session, Supplement No. 17 and corrigenda (A/37/17 and Corr.1 and 2), para. 63. See the report o

the Working Group on International Negotiable Instruments on the work o its twelth session

(A/CN.9/215), para. 97; and Ofcial Records o the General Assembly, Thirty-seventh Session, Supplement

No. 17 (A/37/17) (1982), para. 63.42Ofcial Records o the General Assembly, Fity-eighth Session, Supplement No. 17 (A/58/17) (2003),

annex I.

43This procedure was rst ollowed in respect o the drat model law on legal aspects o electronicdata interchange and related means o communication (later adopted as the Model Law on Electronic

Commerce). See or example the compilation o comments by Governments and international organi-

zations on the Drat convention on contracts or the international carriage o goods wholly or partly

by sea (A/CN.9/658 and Add.1-14), the Model Law on Public Procurement (A/CN.9/730 and Add.1-2)

and the Judicial Materials on the Model Law on Cross-Border Insolvency (A/CN.9/733 and Add.1).


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48. Dierent procedures apply to the nalization and adoption o dierent types

o text. I the text concerned is, or example, a drat convention, UNCITRAL cannot

nalize it alone and action by the General Assembly is required. While a Diplomatic

Conerence is desirable, the General Assembly can act as a conerence o pleni-potentiaries44 to nalize and adopt the convention and open it or signature.45

49. I the drat text is to be a model law or a legislative guide, UNCITRAL

itsel can nalize the text and ormally adopt it; adoption by a conerence o

plenipotentiaries is not required. Although the General Assembly may adopt a

resolution on that text, that resolution typically expresses its support or the

UNCITRAL process, echoing the decision o the Commission and recommending

that States give the text due consideration when modernizing and reorming

their laws (see para. 78).46

2. Cnracal chnqs

50. In the drating o contracts, there are issues that can be resolved by reer-

ence to a standard or uniorm clause or set o clauses or rules. The process o

standardization o these clauses or rules has a number o advantages. It can

identiy all o the issues that parties should address in such clauses or rules;ensure that the clause is eective and not (as sometimes occurs in the case o

agreements to arbitrate), ineective or invalid (pathological); and provide inter-

nationally recognized and up-to-date solutions to specic issues. One common

example is in the eld o dispute resolution, where a contract can include a

standard dispute resolution clause reerring to the use o internationally recog-

nized rules or conduct o dispute resolution proceedings. The UNCITRAL Arbi-

tration Rules (1976, revised in 2010) and the UNCITRAL Conciliation Rules

(1980) are examples o such internationally recognized uniorm rules. This type

o text is nalised and adopted by the Commission. A list o contractual textsadopted by UNCITRAL is included in annex VI.

44This occurred, or example, with respect to the United Nations Convention on International

Bills o Exchange and International Promissory Notes (New York, 1988), the United Nations Con-

vention on Independent Guarantees and Stand-by Letters o Credit (New York, 1995), the United

Nations Convention on the Assignment o Receivables in International Trade (New York, 2001) and

the United Nations Convention on the Use o Electronic Communications in International Contracts

(New York, 2005).45

See the decision o the Commission at its orty-rst session with respect to the RotterdamRules, Ofcial Records o the General Assembly, Sixty-third Session, Supplement No. 17 (A/63/17) (2008),

para. 298 and General Assembly resolution 63/122.46See, or example, General Assembly resolution 66/95 on the Model Law on Public Procure-

ment; and General Assembly resolution 65/23 on the UNCITRAL Legislative Guide on Secured

Transactions: Supplement on Security Rights in Intellectual Property.


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3. explanary chnqs

(a) Lgal gs

51. When it is not easible or necessary to develop a standard or model set o

contract rules, an alternative may be a legal guide giving explanations concerning

contract drating. Parties negotiating complex international contracts, such as

construction contracts, oten experience diculties in negotiating and drating

appropriate contract clauses or reasons such as lack o specic expertise,

resources or reerence materials. Because such contracts must be tailored to the

circumstances o the case, it is normally not possible to develop a model contract

text that would be usable in a sucient number o cases to justiy the expense

o its preparation. Parties can be assisted, however, by a legal guide that discusses

various issues underlying the drating o a particular type o contract; considers

various solutions to those issues; describes implications, advantages and disad-

vantages o those solutions; and recommends the use o certain solutions in

particular circumstances. Such legal guides may also include sample contract

clauses to illustrate particular solutions. The rst legal guide adopted by the

Commission was the UNCITRAL Legal Guide on Drawing up International Contracts

or the Construction o Industrial Works (1987). That was ollowed by the UNCITRAL

Legal Guide on International Countertrade Transactions (1992) and, in 1996, theUNCITRAL Notes on Organizing Arbitral Proceedings.

52. The ocus o a legal guide may not be exclusively on contract drating, but

may have a broader purpose o discussing issues that would also be o interest

to legislators and regulators. One example is the UNCITRAL Legal Guide on

Electronic Funds Transers (1986), which discusses issues relating to the use o

electronic means o communication in making international payments.

53. A urther example is the comprehensive reerence document published bythe Commission in 2009 entitled Promoting Condence in Electronic Com-

merce: Legal Issues on International Use o Electronic Authentication and

Signature Methods, which discusses certain elements required to establish a

avourable legal ramework or electronic commerce.

(b) Pracc an hr nfrman gs

54. Other guides have been prepared or use by judges and legal practitioners.In 2009, the Commission adopted a practice guideThe UNCITRAL Practice

Guide on Cross-Border Insolvency Cooperationproviding inormation on practical

aspects o cross-border insolvency cooperation and coordination and in particular

compiling inormation on practical experience with the negotiation and use o


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cross-border insolvency agreements (also known as protocols). In 2011, the Com-

mission adopted a textThe UNCITRAL Model Law on Cross-Border Insolvency:

the judicial perspectivedeveloped in conjunction with judges and other insol-

vency experts to provide inormation and assistance to judges with respect toquestions arising under the Model Law on Cross-Border Insolvency.

(c) inrprav clarans

55. A urther example o an explanatory text is a declaration that could be

used to achieve a uniorm interpretation o a particular text, or texts, where the

desirability o that interpretation is dictated by widespread changes in commercial

practices, developments in technology, emerging divergence in interpretation bythe courts, or some other actor aecting the application o the text. Such an

instrument may be particularly useul in the case o a convention, where amend-

ment o the text might pose signicant technical problems. The possibility o

using this technique was discussed in the context o the writing requirement set

orth in article II, paragraph 2, o the New York Convention and more generally

in the context o the interpretation o article VII, paragraph 1, o that Conven-

tion.47 Ultimately, a recommendation regarding the interpretation o articles II

and VII was adopted by the Commission.48 The use o such a text to achieve a

uniorm interpretation was also discussed in the context o electronic commerce

and the desirability o interpreting a number o international trade law instru-

ments by reerence to the UNCITRAL Model Law on Electronic Commerce. That

question o interpretation has now been settled by the use o a dierent instru-

mentthe United Nations Convention on the Use o Electronic Communications

in International Contracts (New York, 2005), article 20.

47For a discussion on the New York Convention, see Ofcial Records o the General Assembly,

Fity-fth Session, Supplement No. 17 (A/55/17) (2000), paras. 410-412; the Reports o the Working

Group on Arbitration on the work o its thirty-second session (A/CN.9/468, paras. 88-106); thirty-

third session (A/CN.9/485, paras. 60-77), thirty-ourth session (A/CN.9/487, paras. 42-63); thirty-sixth session (A/CN.9/508, paras. 40-50); and orty-ourth session (A/CN.9/592, paras. 82-88).

48Recommendation regarding the interpretation o article II (2) and article VII (1) o the

Convention on the Recognition and Enorcement o Foreign Arbitral Awards (New York, 1958),

adopted by the Commission in 2006 and subsequently endorsed in General Assembly

resolution 61/33.


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C. Uniorm interpretation o legislative texts:Case law on UNCITRAL texts (CLOUT)

56. Since a number o UNCITRALs legislative texts include an article promoting

uniorm interpretation,49 in 1988, the Commission decided to establish a system

or the collection and dissemination o court decisions and arbitral awards relat-

ing to UNCITRAL legislative texts50 to assist in achieving uniormity in the

interpretation and application o those texts. The system is intended to provide

inormation or use by judges, arbitrators, lawyers, parties to commercial trans-

actions, academics, students and other interested persons.

57. The system is known as Case Law on UNCITRAL Texts or CLOUT. Themajority o cases reported concern the United Nations Convention on Contracts

or the International Sale o Goods (Vienna, 1980) and the UNCITRAL Model

Law on International Commercial Arbitration (1985). Other texts include the

UNCITRAL Model Law on Electronic Commerce (1996), the UNCITRAL Model

Law on Cross-Border Insolvency (1997), the Hamburg Rules; the New York

Convention51 and the Convention on the Limitation Period in the International

Sale o Goods (New York, 1974, both amended and unamended versions). Other

UNCITRAL texts will be included in the system as relevant case law develops.

58. The CLOUT system relies on national correspondents designated either by

States parties to a convention or by States having enacted legislation based on

a model law.52 National correspondents are requested to collect decisions and

awards, prepare abstracts o them in one o the ocial languages o the

United Nations and orward both the text and the abstract to the UNCITRAL

49Article 7 o the United Nations Convention on Contracts or the International Sale o Goods

(Vienna, 1980) has served as a model or subsequent texts, providing that In the interpretation othis Convention, regard is to be had to its international character and to the need to promote

uniormity in its application and the observance o good aith in international trade.50See Ofcial Records o the General Assembly, Forty-third Session, Supplement No. 17 (A/43/17)

(1988); and the note by the Secretariat entitled Collection and dissemination o inormation on

UNCITRAL legal texts (A/CN.9/312).51Prior to 2000, cases on the New York Convention were collected and reported in the year-

books o the International Council or Commercial Arbitration (see http://www.arbitration-icca.org).

Additional cases can be ound at http://www.newyorkconvention1958.org.52See Ofcial Records o the General Assembly, Forty-third Session, Supplement No. 17 (A/43/17)

(1988), para. 100. Since the twenty-second session o the Commission (1989), meetings o nationalcorrespondents are usually held in Vienna in conjunction with alternate annual sessions o the

Commission. In 2009, the Commission agreed that national correspondents be appointed or a

period o 5 years to ensure that the collection system was sustainable over time and could respond

to changing circumstances (Ofcial Records o the General Assembly, Sixty-ourth Session, Supplement

No. 17 (A/64/17) (2009), para. 370.


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secretariat. CLOUT abstracts are then edited, translated into the six ocial lan-

guages o the United Nations and issued as part o the regular documentation

o UNCITRAL. In order to increase the collection o case law, submissions rom

voluntary contributors, whether individuals or associations, are also welcomed.This practice is consistent with the Commissions request that the Secretariat

utilize all available sources o inormation that might supplement the inormation

provided by the national correspondents.

59. In December 2004, UNCITRAL published an analytical digest o court and

arbitral decisions identiying trends in the interpretation o the United Nations

Convention on Contracts or the International Sale o Goods (Vienna, 1980),

based on the case law collected through CLOUT. A second edition o the Digest

was released in 2008 and a third edition in 2012. In June 2012, UNCITRALpublished a digest o case law on the Model Law on International Commercial

Arbitration. In 2012, the Commission approved the preparation o a digest o

case law on the Model law on Cross-Border Insolvency.53

60. Both CLOUT abstracts and the Digests are available in the six United

Nations ocial languages rom the UNCITRAL website. Upon request, texts o

decisions and awards reported in CLOUT are available in the original language

rom the UNCITRAL secretariat.

61. The CLOUT system is instrumental in promoting the uniorm interpretation

o UNCITRAL texts through their application by courts and arbitral tribunals

worldwide, contributing to the development and renement o a global inter-

pretation o those texts, and enhancing their acceptability. It is also an important

resource or those countries and regions where there may be limited opportunities

to develop knowledge and expertise on UNCITRAL texts. The CLOUT system

has also proved useul in assisting those tasked with drating and executing

commercial contracts, as well as courts and arbitral tribunals in dealing with

disputes arising rom international transactions involving the application o an

UNCITRAL text and those researching UNCITRAL texts and their application.

CLOUT also unctions as an indirect source o inormation providing reerences

and abstracts to other similar repositories o inormation.

D. Coordinating the work o other organizations

62. An important part o the mandate o UNCITRAL is to coordinate the worko organizations active in the eld o international trade law, both within and

53 Ofcial Records o the General Assembly, Sixty-seventh Session, Supplement No. 17 (A/67/17)

(2012), para. 156.


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outside the United Nations system, in order to encourage cooperation between

them, avoid duplication o eort and promote eciency, consistency and coher-

ence in the modernization and harmonization o international trade law. In recent

years there has been a growing number o rule-making bodies developing textsin areas o law that aect international trade, making UNCITRALs coordination

unction increasingly important. To implement its mandate, UNCITRAL main-

tains close links with international and regional organizations, both intergovern-

mental and non-governmental, that are active participants in the work o

UNCITRAL and in the eld o international trade law in order to acilitate the

exchange o ideas and inormation. It is represented, through its secretariat, at

meetings o those organizations and actively ollows and participates in their

work where it relates to topics on UNCITRALs work programme. Those organi-

zations include the Hague Conerence on Private International Law; the Inter-

national Institute or the Unication o Private Law (Unidroit); the International

Maritime Committee (CMI); the Organization o American States (OAS); the

Organization or Economic Cooperation and Development (OECD); the United

Nations regional commissions; UNCTAD; the World Bank; the World Customs

Organization (WCO); World Intellectual Property Organization (WIPO); and the

World Trade Organization (WTO).

63. To assist the Commission in its task o monitoring activities and develop-ments in international trade law, the secretariat prepares general surveys o the

legislative and technical assistance activities o other organizations related to

international trade law,54 as well as in-depth reports on the activities o organiza-

tions on individual international trade law topics.55 International organizations

active in the eld o international trade law have the opportunity, at annual

sessions o UNCITRAL, to present reports (both ormal and inormal) on their

activities.56

64. As a urther part o this coordination unction, UNCITRAL undertakeswork, such as studies and seminars, in conjunction with other international

organizations, both governmental and non-governmental. Examples include a

54Reports are prepared pursuant to General Assembly resolution 34/142. See, or example,

Current activities o international organizations related to the harmonization and unication o

international trade law, a report prepared or the orty-third session o the Commission (2010)

(A/CN.9/707 and Add.1).55See Ofcial Records o the General Assembly, Thirty-sixth Session, Supplement No. 17 (A/36/17)

(1981), para. 100. See also, or example, papers related to current activities o other internationalorganizations in the areas o procurement (A/CN.9/598/Add.1) and security interests (A/CN.9/598/

Add.2) prepared or the thirty-ninth session (2006) and procurement (A/CN.9/657/Add.2), prepared

or the orty-rst session (2008).56For example, Ofcial Records o the General Assembly, Sixty-seventh Session, Supplement No. 17

(A/67/17) (2012), paras. 169-173.


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survey developed in cooperation with Committee D (now known as the Arbitra-

tion Committee) o the International Bar Association to monitor the implementa-

tion, in national laws, o the Convention on the Recognition and Enorcement

o Foreign Arbitral Awards (New York, 1958);57 a series o judicial colloquiumson cross-border insolvency in conjunction with INSOL International and, since

2007, the World Bank58 and a paper prepared jointly by the secretariats o

UNCITRAL and Unidroit and the Permanent Bureau o the Hague Conerence,

with the assistance o outside experts, comparing and analysing the major eatures

o international instruments relating to secured transactions.59 It has also under-

taken work to develop joint international standards with, or example, the World

Bank in the areas o insolvency law and secured transactions law.60

65. UNCITRAL has prepared publications in conjunction with other organiza-tions, such as the Commonwealth Secretariat, to explain substantive provisions

and various technical aspects o incorporating an UNCITRAL text into domestic

legal systems (known as accession kits).61

66. When appropriate, UNCITRAL recommends the use or adoption o instru-

ments related to international trade law developed by other organizations. For

example, UNCITRAL has encouraged the widest possible adherence to the Con-

vention on the Recognition and Enorcement o Foreign Arbitral Awards (NewYork, 1958),62 as well as ratication o the European Convention on International

Commercial Arbitration (Geneva, 1961).63 It has recommended the use o a

number o texts prepared by the International Chamber o Commerce, including

57United Nations, Treaty Series, vol. 330, No. 4739, p 3. See Ofcial Records o the General

Assembly, Fitieth Session, Supplement No. 17 (A/50/17) (1995), paras. 401-404; Ofcial Records o the

General Assembly, Fity-frst Session, Supplement No. 17 (A/51/17) (1996), paras. 238-243; and Ofcial

Records o the General Assembly, Fity-second Session, Supplement No. 17 (A/52/17) (1997),

paras. 257-259.58For reports o the colloquiums held since 1995, see note 28 and http://www.uncitral.org/

uncitral/en/commission/colloquia.html.59Comparison and analysis o major eatures o international instruments relating to secured

transactions, A/CN.9/720, The paper was approved by the Commission in 2011: see Ofcial Records

o the General Assembly, Sixty-sixth Session, Supplement No. 17 (A/66/17) (2011), paras. 280-282.60See the Creditor Rights and Insolvency Standard, based on the World Bank Principles or

eective insolvency and creditor/debtor regimes and the UNCITRAL Legislative Guide on Insolvency

Law, available rom http://siteresources.worldbank.org/INTGILD/Resources/FINAL_ICRStandard_

Jan2011_withC16and17.pd (last visited 15/10/2012).61

Accession kits have been published or the New York Convention, the United Nations Con-vention on Contracts or the International Sale o Goods (Vienna, 1980), the UNCITRAL Model

Law on International Commercial Arbitration (1985) and the Hamburg Rules.62United Nations, Treaty Series, vol. 330, No. 4739, p. 3.63United Nations, Treaty Series, vol. 484, No. 7041, p. 349. See also Ofcial Records o the

General Assembly, Twenty-eighth Session, Supplement No. 17 (A/9017) (1973), para. 85.
http://www.uncitral.org/uncitral/en/commission/colloquia.htmlhttp://www.uncitral.org/uncitral/en/commission/colloquia.htmlhttp://www.uncitral.org/uncitral/en/commission/colloquia.htmlhttp://siteresources.worldbank.org/INTGILD/Resources/FINAL_ICRStandard_Jan2011_withC16and17.pdfhttp://siteresources.worldbank.org/INTGILD/Resources/FINAL_ICRStandard_Jan2011_withC16and17.pdfhttp://www.uncitral.org/uncitral/en/commission/colloquia.htmlhttp://siteresources.worldbank.org/INTGILD/Resources/FINAL_ICRStandard_Jan2011_withC16and17.pdf


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the International Rules or the Interpretation o Trade Terms (Incoterms),64 Inco-

terms 200065 and Incoterms 2010;66 the Uniorm Customs and Practice or Docu-

mentary Credits (UCP 400, 500 and 600);67 the Rules on International Standby

Practices (ISP98); the Uniorm Rules or Contract Bonds;68 and the 2010 revisiono the Uniorm Rules or Demand Guarantees (URDG 758).69 It has also recom-

mended the use o the 2004 and 2010 UNIDROIT Principles o International

Commercial Contracts.70 A number o other organizations have recommended

and endorsed the adoption o UNCITRAL texts.

E. UNCITRALs position within the United Nations system

67. As the core legal body in the United Nations system in the eld o inter-

national trade law, UNCITRAL is an integral part o the United Nations system

and its work is relevant to the broader United Nations agenda in a number o

elds, including rule o law, legal empowerment o the poor, business and human

rights and the Millennium Development Goals.

64Ofcial Records o the General Assembly, Twenty-ourth Session, Supplement No. 18 (A/7618)

(1969), para. 60 (subpara. 3). See also Ofcial Records o the General Assembly, Forty-sixth Session,

Supplement No. 17 (A/46/17) (1991), paras. 350-352. The INCOTERMS 1990 are reproduced in

the annex to document A/CN.9/348.65See Ofcial Records o the General Assembly, Fity-fth Session, Supplement No. 17 (A/55/17)

(2000), paras. 428-434. The INCOTERMS 2000 are reproduced in annex II to the report o the

Secretary-General on ICC INCOTERMS 2000 (A/CN.9/479). The text is also available rom the

International Chamber o Commerce in publication No. 560.66See Ofcial Records o the General Assembly, Sixty-seventh Session, Supplement No. 17 (A/67/17)

(2012), paras. 141-144. The text is available rom the International Chamber o Commerce in

publication No. 715.67

See Ofcial Records o the General Assembly, Thirtieth Session, Supplement No. 17 (A/10017)(1975), para. 41; Ofcial Records o the General Assembly, Thirty-ninth Session, Supplement No. 17

(A/39/17) (1984), para. 129; Ofcial Records o the General Assembly, Forty-ninth Session, Supplement

No. 17 (A/49/17) (1994), paras. 230 and 231; report o the Secretary-General on uniorm customs

and practice or documentary credits (A/CN.9/395); Ofcial Records o the General Assembly, Sixty-

ourth Session, Supplement No. 17 (A/64/17) (2009), paras. 356-357.68See Ofcial Records o the General Assembly, Fity-fth Session, Supplement No. 17 (A/55/17)

(2000), paras. 428-434; report o the Secretary-General on International Standby Practices (ISP98)

(A/CN.9/477); report o the Secretary-General on Uniorm Rules or Contract Bonds (URCB) (A/

CN.9/478).69

See Ofcial Records o the General Assembly, Sixty-sixth Session, Supplement No. 17 (A/66/17),(2011), paras. 247-249.

70 See Ofcial Records o the General Assembly, Sixty-second Session, Supplement No. 17 (A/62/17)

(2007), paras. 209-213; Ofcial Records o the General Assembly, Sixty-seventh Session, Supplement

No. 17 (A/67/17) (2012), paras. 137-140. The text is available rom the Unidroit website, http://

www.unidroit.org.


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68. Since 2008, in the rule o law context or example, the Commission has

expressed it conviction that the promotion o the rule o law in commercial

relations should be an integral part o the broader agenda o the United Nations

to promote the rule o law at the national and international levels. In 2011, theCommission emphasized the relevance o the instruments and resources o the

Commission or creating an environment o sustainable economic activity con-

ducive to post-confict reconstruction and preventing societies rom sliding back

into confict. It called or innovative ways or the instruments and other tools

o the Commission to be engaged at an early stage in the post-confict recovery

operations o the United Nations and other donors, and or increased awareness

about the work o UNCITRAL throughout the United Nations system and beyond.

Direct involvement by the UNCITRAL Secretariat in relevant inter-agency coor-

dination and cooperation mechanisms has been an eective way to achieve results

and ensure the wider recognition o UNCITRAL instruments and their use in

relevant programmes (e.g. the United Nations Inter-agency Cluster on Trade and

Productive Capacity71).

F. Technical cooperation and assistance to law reorm

1. tchncal cpran an asssanc acvs

69. UNCITRAL undertakes a range o technical cooperation and assistance

activities to promote its work and the use and adoption o the legislative and

non-legislative texts it has developed. The adoption and eective use o uniorm

texts urthers the progressive harmonization and modernization o international

trade law. These activities include organizing brieng missions and participating

in seminars and conerences, organized at both national and regional levels;

assisting countries in assessing their trade law reorm needs, including by review-ing existing legislation; assisting with the drating o national legislation to imple-

ment UNCITRAL texts; assisting bilateral and multilateral development agencies

to use UNCITRAL texts in their law reorm activities and projects; providing

advice and assistance to international and other organizations, such as proes-

sional associations, organizations o attorneys, chambers o commerce and arbi-

tration centres, on the use o UNCITRAL texts; and organizing training activities

to acilitate the implementation and interpretation o legislation based on

UNCITRAL texts by judges and legal practitioners.

71See, or example, Note by the Secretariat: Coordination Activities (A/CN.9/749, para. 9),

prepared or the orty-th session o the Commission (2012).


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70. Technical cooperation and assistance activities ocus on regional approaches,

including in cooperation with regional economic integration organizations, to

promote newly adopted treaties, with a view to ostering their early adoption

and the universal adoption o texts considered undamental to the developmento a ramework or international trade. Initiatives to urther these strategies com-

plement technical cooperation and assistance eorts undertaken in reaction to

requests or technical assistance that traditionally have been received rom Gov-

ernments and permanent missions to the United Nations, as well as rom inter-

national and regional organizations and a range o commercial and proessional

organizations.

71. The CLOUT system and digests o case law, as well as teaching and other

technical materials prepared by UNCITRAL, are useul in technical assistanceactivities, as well as to practitioners, academics and other users o the texts.

72. A report on technical cooperation and assistance activities conducted in the

previous 12 months is provided to UNCITRAL at each annual session.72

73. The demand or UNCITRAL technical assistance has grown dramatically in

recent years. Because the regular budget does not include unds or such activi-

ties, these activities can only be conducted i unds can be obtained rom other

sources. UNCITRAL has established a trust und to acilitate its response to these

requests and the Commission and the General Assembly have made repeated

appeals or contributions. The Commission welcomes the nancial support o

States, organizations and individuals. Contributions may be made or general

technical assistance activities or or specic projects.73

2. Regional centres

74. At its orty-ourth session in 2011, the Commission approved the establish-

ment o the UNCITRAL Regional Centre or Asia and the Pacic in Incheon,

Republic o Korea. The main objectives o the Regional Centre will be to enhance

international trade and development in the Asia-Pacic region by promoting

certainty in international commercial transactions through the dissemination o

72See, or example, Note by the Secretariat: Technical cooperation and assistance (A/CN.9/753),

prepared or the orty-th session o the Commission (2012).73Contributions, making specic reerence to the Trust Fund or UNCITRAL Symposia, may

be made to:

J. P. Morgan Chase, International Agencies Banking, 277 Park Avenue, 23rd Floor, New York,

NY, 10172-0003, USA, United Nations General Trust Fund, Account Number 485-001969,

ABA Number 021-000-021, Swit Code CHASUS33.


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international trade norms and standards, in particular those elaborated by

UNCITRAL; to provide bilateral and multilateral technical assistance to States

with respect to the adoption and uniorm interpretation o UNCITRAL texts

through workshops and seminars; to engage in coordination activities with inter-national and regional organizations active in trade law reorm projects in the

region; and to unction as a channel o communication between States in the

region and UNCITRAL. The Centre was ofcially opened in January 2012.74

G. Special events

75. UNCITRAL has organized a number o special events relating to dierent

aspects o international trade law.75 In the context o the United Nations Decade

o International Law, or example, a congress on international trade law was held

in May 1992 during the twenty-fth session o UNCITRAL. The Congress con-

sidered accomplishments in the progressive unifcation and harmonization o

international trade law during the previous 25 years and the needs that could

be oreseen or the next 25 years.76 In 1998, at its thirtieth session, UNCITRAL

celebrated the ortieth anniversary o the Convention on the Recognition and

Enorcement o Foreign Arbitral Awards (New York, 1958) with a symposium

devoted to arbitration issues.77

A Uniorm Commercial Law Colloquium on cur-rent and potential topics o work in the areas o electronic commerce, privately

fnanced inrastructure projects, receivables fnancing and cross-border insolvency

ollowed the symposium. In 2007, a Congress, Modern Law or Glo

Guide to Uncitral

Documents

Transcript of Guide to Uncitral