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The Role of UNCITRAL in International Arbitration

The Role of UNCITRAL in International Arbitration. 16 July 2012. Renaud Sorieul The Secretary of UNCITRA L. Topics to be Covered. Origin & mandate of UNCITRAL Structure Working methods Presentation of the work of UNCITRAL on arbitration and its significance

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The Role of UNCITRAL in International Arbitration

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  1. The Role of UNCITRALin International Arbitration 16 July 2012 Renaud Sorieul The Secretary ofUNCITRAL

  2. 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

  3. 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

  4. 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] MDGs

  5. 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

  6. 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)

  7. 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

  8. Organization and Methods of Work Secretariat Intergovernmental Working Groups Commission

  9. The Structure of UNCITRAL The Commission Governing body Determines work programme Reviews and adopts texts prepared by the Working Groups Composition Delegates Reports to the General Assembly of the United Nations Meetings Holds annual meetings: alternating pattern New York – Vienna

  10. The Structure of UNCITRAL Working Groups *Intergovernmental bodies *Composition *Hold bi-annual meetings: alternating pattern New York City – Vienna *Develop the topics on UNCITRAL’s work programme: Technical expertise: prepare legislative & other legal standards

  11. Work of UNCITRAL The 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

  12. The Structure of UNCITRAL Procurement Working Group I Just adopted in 2012: Guide to Enactment to the Revised Model Law on Public Procurement

  13. Work of UNCITRAL: Examples of Achievements • Procurement Model Legislative Provisions On Privately Financed Infrastructure Projects UNCITRAL Model Law on Public Procurement 2011

  14. The Structure of UNCITRAL International Arbitration Working Group II Transparency in treaty-based investor-State arbitration

  15. Work of UNCITRAL: Examples of Achievements Dispute Resolution • UNCITRAL Arbitration Rules (1976 & 2010) • 2002 UNCITRAL Model Law on International Commercial Conciliation • 1996 UNCITRAL Notes on Organizing Arbitral Proceedings • 1985 UNCITRAL Model Law on International Commercial Arbitration (amended in 2006)

  16. The Structure of UNCITRAL Online Dispute Resolution Working Group III Online Dispute Resolution for cross-border electronic commerce transactions

  17. The Structure of UNCITRAL E-Commerce Working Group IV Legal issues relating to the use of electronic transferable records

  18. Work of UNCITRAL: Examples of Achievements • Electronic Commerce • UNCITRAL Model Law on Electronic Commerce (1996) • UNCITRAL Model Law on Electronic Signatures (2001)

  19. The Structure of UNCITRAL Insolvency Law Working Group V • Interpretation & application of selected concepts of the UNCITRAL MLCBI relating to COMI • D & O liabilities in insolvency & pre-insolvency cases

  20. Work of UNCITRAL: Examples of Achievements • 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)

  21. The Structure of UNCITRAL Security Interests Working Group VI Draft Security Registry Guide

  22. Work of UNCITRAL: Examples of Achievements • Security Interests • Legislative Guide on Secured Transactions (2007) UNCITRAL Legislative Guide on Secured Transactions: Supplement on Security Rights in Intellectual Property

  23. The Structure of UNCITRAL The Secretariat Division of UN/OLA (ITLD) Assistance to the Commission and working groups Technical Assistance and Cooperation (TAC) Research Preparation of studies and drafts

  24. The Secretariat Regional 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.

  25. Regional Centre for Asia and the PacificFocus Area:

  26. Regional Centre: Launch Event10 January 2012

  27. Work of UNCITRAL Outcome ► What does UNCITRAL produce?

  28. 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

  29. Work of UNCITRAL Outcome • Convention An agreement among States establishing obligations binding upon those States that ratify or acceded to it. • Model Law A set of model legislative provisions that States can adopt by enacting it into national law.

  30. Work of UNCITRALOutcome • Legislative guide A text that provides guidance for the development of laws, discussing relevant policy issues & choices & recommending appropriate legislative solutions. • Recommendations A text that provides recommendations for the use of an UNCITRAL instrument.

  31. Work of UNCITRALOutcome • Contractual rules Standard 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.

  32. Work of UNCITRALPublications on UNCITRAL’s work • Yearbook • Booklets and CD ROMs • Explanatory notes • Status of UNCITRAL texts

  33. How does work get started? Secretariat Explore topic further Commission Proposal by Member State(s) on new work

  34. 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

  35. 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

  36. Preparation by the Secretariat Working papers: *Research *Consultations with other organizations *Expert meetings

  37. 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”)

  38. 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)

  39. New York Convention: Status Universal acceptance: 146 Parties

  40. 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

  41. Model Law: Main Purpose • Reduce discrepancy between domestic procedural laws affecting international commercial arbitration • Uniform interpretation and application of the Model Law = equally important

  42. 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

  43. UNCITRAL work in arbitration • Digest • Recommendations • Topic for next seminar on 18 July 2012

  44. 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

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

  46. 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)

  47. Divergences of the Model Law Consequences for arbitral institutions • Restrictions in its operation • Less attractive to parties

  48. 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

  49. UNCITRAL websitehttp://www.uncitral.org/available in all 6 UN official languages

  50. The End of Day 1 Thank you & See you on Wednesday

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