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Sixty-eighth session

Report of the United Nations Commission on International Trade Law on the work of its forty-sixth session (Agenda item 79)

Summary of work

Background (source: A/68/100)

The General Assembly established the United Nations Commission on International Trade Law (UNCITRAL) at its twenty-first session, in 1966, to promote the progressive harmonization and unification of the law of international trade, and requested the Commission to submit an annual report to the Assembly (resolution 2205 (XXI)). The Commission began its work in 1968. It originally consisted of 29 Member States representing the various geographic regions and the principal legal systems of the world. At its twenty-eighth and fifty-seventh sessions, respectively, the General Assembly increased the membership of the Commission from 29 to 36 States (resolution 3108 (XXVIII)) and from 36 to 60 States (resolution 57/20).

For the composition of the Commission, see decisions 64/405 and 67/406.

At its sixty-seventh session, the General Assembly endorsed the efforts and initiatives of the Commission as the core legal body within the United Nations system in the field of international trade law. The Assembly commended the Commission for the finalization and adoption of the Guide to Enactment of the United Nations Commission on International Trade Law Model Law on Public Procurement (resolution 67/89).

At the same session, the General Assembly expressed its appreciation to the Commission for having formulated and adopted the recommendations to assist arbitral institutions and other interested bodies with regard to arbitration under its Arbitration Rules as revised in 2010 (resolutions 67/89 and 67/90).

Consideration at the sixty-eighth session

The Sixth Committee considered the item at its 9th, 10th, 28th and 29th meetings, on 14 and 16 October and on 8 and 15 November 2013 (see A/C.6/68/SR.9, 10, 28 and 29). For its consideration of the item, the Committee had before it the report of the United Nations Commission on International Trade Law on the work of its forty‑sixth session (A/68/17).

At the 9th meeting, on 14 October, the Chair of the United Nations Commission on International Trade Law at its forty-sixth session introduced the report of the Commission on the work of its forty-sixth session (A/68/17).

Statements were made by the representatives of Denmark (on behalf of the Nordic countries), Cuba (on behalf of the Community of the Latin American and Caribbean States (CELAC)), Austria, Switzerland, Belarus, Japan, Kuwait, the United States of America, the Philippines, Singapore, Australia, Malaysia, Canada, the United Kingdom of Great Britain and Northern Ireland, the Republic of Korea, China, Israel, the Russian Federation, Chile, Indonesia, Pakistan and Germany.

In their general observations, delegations noted the report of UNCITRAL, welcomed the progress made during its forty-sixth session and stressed UNCITRAL’s important contribution to the promotion of the rule of law as well as to the continued modernization and harmonization of international trade law. It was also emphasized that the Commission’s work should be further integrated into the broader efforts at the United Nations on the rule of law.  Some delegations also noted the important role played by UNCITRAL in the provision of technical cooperation and assistance, particularly with regard to developing countries, and it was suggested that UNCITRAL should consider enhancing its efforts in this area by drawing on the expereinces of other United Nations offices and agencies.

Several delegations emphasized the finalization and adoption of the UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration and the UNCITRAL Arbitration Rules (with new article 1, paragraph 4, as adopted in 2013) as a particularly positive development.  Several delegations expressed support for the proposal to establish a repository of published information under the Rules of Transparency in order to enhance their implementation and considered the UNCITRAL secretariat a natural host for such a repository. Other delegations supported the proposal for the UNCITRAL secretariat to serve as the host for such a repository, but stressed that any additional funding to support activities by UNCITRAL in this area must be made on a cost-neutral budgetary basis.

Some delegations emphasized that the Rules on Transparency applied only to future investment agreements and noted with appreciation the compromise achieved on this issue in the course of the sessions of Working Group II (Arbitration and Conciliation). It was also observed that the Rules on Transparency could nevertheless apply to existing agreements to the extent that such application was consistent with those agreements and if the parties had explicitly so agreed. The value of the Transparency Rules in striking an appropriate balance between the interests of States and private investors was also recognized, and it was expressed that these rules could make important contributions to building trust in international arbitration proceedings.

Several delegations also commended the Commission for its finalization and adoption of the UNCITRAL Guide on the Implementation of a Security Rights Registry and welcomed the Commission’s progress in the area of security interests and secured transactions.  Continued work to prepare a Model Law on Secured Transactions was also welcomed.  Several delegations also noted the progress made in the area of insolvency law, including with respect to the adoption of revisions to the Guide to Enactment of the UNCITRAL Model Law on Cross-Border Insolvency, and part four of the UNCITRAL Legislative Guide on Insolvency Law on the obligations of directors of an enterprise in the period approaching insolvency. Some delegations further referenced the update of the UNCITRAL Model Law on Cross-Border Insolvency: the Judicial Perspective and acknowledged the progress made in the area of public procurement.

Morevover, several delegations recognized the efforts of the UNCITRAL Working Groups. The creation of a new Working Group I on Micro-, Small- and Medium-sized Enterprises was highlighted, and continued work in this area was encouraged. The view was also expressed that challenges remained on this topic, including in the harmonization of domestic legislation.  Some delegations also acknowledged the Commission’s efforts in the area of public procurement and it was suggested that rules on this topic should take account of both regional and national interests.

Attention was drawn to a proposal (A/CN.9/789) with suggestions to enhance the effectiveness and flexibility of UNCITRAL’s working methods, including by using alternative approaches, such as Special Rapporteurs, authorizing individual projects and allocating the needed resources to them, rather than maintaining six working groups, and engaging in more productive partnerships with other institutions, including the Hague Conference and the International Institute for the Unification of Private Law.  Some delegations also recognized the importance of activites undertaken by the UNCITRAL Regional Centre for Asia and the Pacific.

With regard to future work, it was suggested that the UNCITRAL Working Groups should focus on the adoption of legislative instruments, rather than soft law texts, which might be more optimally formulated by the UNCITRAL secretariat in collaboration with experts.  Continued work by UNCITRAL on electronic commerce was welcomed, and it was noted that efforts in this area must also take account of electronic crime, which represented a significant problem worldwide. Further attention to the issue of online dispute resolution was also welcomed. The work of UNCITRAL on public-private partnerships was also highlighted as an important area for future development.

Action taken by the Sixth Committee

At the 28th meeting, on 8 November, the representative of Austria, on behalf of  Argentina, Armenia, Australia, Austria, Belarus, Belgium, Brazil, Bulgaria, Chile, Croatia, Cyprus, the Czech Republic, Estonia, Finland, France, Gabon, Georgia, Greece, Guatemala, Hungary, India, Ireland, Israel, Italy, Japan, Jordan, Liechtenstein, Lithuania, Luxembourg, Malaysia, Mauritius, Mexico, Montenegro, the Netherlands, New Zealand, Nigeria, Norway, the Philippines, Portugal, the Republic of Korea, Romania, the Russian Federation, Serbia, Singapore, Slovakia, Slovenia, Spain, Switzerland, Thailand, the former Yugoslav Republic of Macedonia, Trinidad and Tobago, Turkey, Uganda, Ukraine, the United Kingdom of Great Britain and Northern Ireland, the United States of America and Venezuela (Bolivarian Republic of), introduced a draft resolution entitled “Report of the United Nations Commission on International Trade Law on the work of its forty‑sixth session” (A/C.6/68/L.9).

At the 29th meeting, on 15 November, Denmark, Germany and Malta joined in sponsoring the draft resolution. At the same meeting, the Committee adopted draft resolution A/C.6/68/L.9 without a vote.

Under the terms of draft resolution A/C.6/68/L.9, the General Assembly would, inter alia commend the Commission for the finalization and adoption of the Rules on Transparency, the UNCITRAL Arbitration Rules (with a new article 1, paragraph 4, as adopted in 2013), the UNCITRAL Guide on the Implementation of a Security Rights Registry, the Guide to Enactment and Interpretation of the UNCITRAL Model Law on Cross-Border Insolvency, part four of the UNCITRAL Legislative Guide on Insolvency Law, on the obligations of directors in the period approaching insolvency, the guidance on procurement regulations to be promulgated in accordance with article 4 of the UNCITRAL Model Law on Public Procurement and the glossary of procurement-related terms used in the UNCITRAL Model Law on Public Procurement as well as for the updating of the UNCITRAL Model Law on Cross-Border Insolvency: the Judicial Perspective. It would recognize the opinion expressed by the Commission that the secretariat of the Commission should fulfil the role of a repository of published information under the Rules on Transparency in Treaty-based Investor-State Arbitration (“transparency repository”); invite the Secretary-General to consider performing, in accordance with article 8 of the Rules on Transparency, the role of the transparency repository through the secretariat of the Commission and request the Secretary-General to report to the General Assembly and the Commission in this regard. The Assembly would take note with interest of the decisions taken by the Commission regarding its future work and the progress made in the areas of arbitration and conciliation, online dispute resolution, electronic commerce, insolvency law, security interests, international trade law aimed at reducing the legal obstacles faced by micro-, small- and medium-sized enterprises throughout their life cycle and public-private partnerships; reaffirm the importance of the work of the Commission concerned with technical cooperation and assistance in the field of international trade law reform and development; and welcome the activities of the UNCITRAL Regional Centre for Asia and the Pacific.

At the 28th meeting, on 8 November, the representative of Austria, on behalf of the Bureau, introduced a draft resolution entitled “Revision of the Guide to Enactment of the UNCITRAL Model Law on Cross-Border Insolvency and part four of the UNCITRAL Legislative Guide on Insolvency Law” (A/C.6/68/L.10).

At the 29th meeting, on 15 November, the Committee adopted draft resolution A/C.6/68/L.10 without a vote.

Under the terms of draft resolution A/C.6/68/L.10, the General Assembly would, inter alia, express its appreciation to the Commission for revising the Guide to Enactment of the UNCITRAL Model Law on Cross-Border Insolvency and for developing and adopting part four of the UNCITRAL Legislative Guide on Insolvency Law, addressing the obligations of directors of an enterprise in the period approaching the insolvency of that enterprise. It would request the Secretary-General to publish, including electronically, the text of those instruments and to transmit them to Governments and interested bodies for their use.

At the 28th meeting, on 8 November, the representative of Austria, on behalf of the Bureau, introduced a draft resolution entitled “UNCITRAL Guide on the Implementation of a Security Rights Registry” (A/C.6/68/L.11).

At the 29th meeting, on 15 November, the Committee adopted draft resolution A/C.6/68/L.11 without a vote.

Under the terms of draft resolution A/C.6/68/L.11, the General Assembly would, inter alia, express its appreciation to the Commission for the completion and adoption of the UNCITRAL Guide on the Implementation of a Security Rights Registry. It would request the Secretary-General to publish the instrument, including electronically, and to disseminate it broadly to Governments and other interested bodies such as national and international financial institutions and chambers of commerce for their use. The Assembly would also recommend that all States continue to consider becoming parties to the United Nations Convention on the Assignment of Receivables in International Trade and the optional annex, which refers to the registration of notices with regard to assignments.

At the 28th meeting, on 8 November, the representative of Austria, on behalf of the Bureau, introduced a draft resolution entitled “United Nations Commission on International Trade Law Rules on Transparency in Treaty-based Investor-State Arbitration and Arbitration Rules (as revised in 2010, with new article 1, paragraph 4, as adopted in 2013)” (A/C.6/68/L.12).

At the 29th meeting, on 15 November, the Committee adopted draft resolution A/C.6/68/L.12 without a vote.

Under the terms of draft resolution A/C.6/68/L.12, the General Assembly would, inter alia, express its appreciation to the Commission for having prepared and adopted the Rules on Transparency in Treaty-based Investor-State Arbitration and the Arbitration Rules (as revised in 2010 with new article 1, paragraph 4, as adopted in 2013). It would request the Secretary-General to publish, including electronically, these instruments and to transmit them to Governments and organizations interested in the field of dispute settlement. The Assembly would recommend the use of the Rules on Transparency in relation to the settlement of investment disputes within the scope of their application and that the Rules on Transparency be applied through appropriate mechanisms to investor-State arbitration initiated pursuant to treaties providing for the protection of investors or investments concluded before the date of coming into effect of the Rules on Transparency, to the extent that such application is consistent with those treaties.