UNCITRAL United Nations Commission on International Trade Law The Role of UNCITRAL in International...

UNCITRAL United Nations Commission on International Trade Law

The Role of UNCITRAL in International Arbitration

16 July 2012

Renaud SorieulThe Secretary of UNCITRAL


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


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


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]


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


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)


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


Organization and Methods of Work

Commission

Intergovernmental Working Groups

Secretariat


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



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


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



Working Group I

Just adopted in 2012: Guide to Enactment to the Revised Model Law on Public Procurement

Procurement


Work of UNCITRAL: Examples of Achievements

Procurement

Model Legislative Provisions

On Privately Financed

Infrastructure Projects

UNCITRAL Model Law on

Public Procurement 2011



Working Group II

Transparency in

treaty-based investor-State

arbitration

InternationalArbitration



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)



Working Group III

Online Dispute Resolution

for cross-border

electronic commerce transactions

Online Dispute Resolution



Working Group IV

Legal issues

relating to the use of

electronic transferable records

E-Commerce


Electronic Commerce

• UNCITRAL Model Law on

Electronic Commerce (1996)

• UNCITRAL Model Law

on Electronic Signatures (2001)




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


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)




Working Group VI

Draft Security Registry Guide

Security Interests



Security Interests

• Legislative Guide on

Secured Transactions (2007)

UNCITRAL Legislative Guide

on Secured Transactions:

Supplement on Security Rights

in Intellectual Property



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


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.


Regional Centre for Asia and the PacificFocus Area:


Regional Centre: Launch Event10 January 2012


Work of UNCITRAL Outcome

► What does UNCITRAL produce?


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


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.



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.



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.


Work of UNCITRALPublications on UNCITRAL’s work Yearbook

Booklets and CD ROMs

Explanatory notes

Status of UNCITRAL texts


How does work get started?

Proposal by Member State(s) on new work

Commission

Secretariat

Explore topic further


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


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


Preparation by the SecretariatWorking papers:

*Research

*Consultations with other organizations

*Expert meetings


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”)


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)


New York Convention: Status

Universal acceptance: 146 Parties


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


Model Law: Main Purpose

• Reduce discrepancy between domestic procedural laws affecting international commercial arbitration

Uniform interpretation and application of the Model Law = equally important


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 work in arbitration

Digest

Recommendations

Topic for next seminar on 18 July 2012


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


Model Law: Status

Covers more than 1/3 of the world’s territory: 90 jurisdictions***USA: California, Connecticut, Florida, Illinois, Louisiana, Oregon, Texas


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)


Divergences of the Model Law

Consequences for arbitral institutions

- Restrictions in its operation

- Less attractive to parties


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 website

http://www.uncitral.org/

available in all 6 UN official languages


The End of Day 1

Thank you

&

See you on Wednesday

UNCITRAL United Nations Commission on International Trade Law The Role of UNCITRAL in International...

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