LEGAL COMMITTEE CONCLUDES CONSIDERATION OF UNCITRAL REPORT19971007 As the Sixth Committee (Legal) concluded this afternoon its discussion of the report of the United Nations Commission on International Trade Law (UNCITRAL) on its thirtieth session, several speakers called for continued UNCITRAL technical assistance and seminars for the dissemination of information on its work on international trade law.
Representatives said the symposiums and workshops organized by UNCITRAL's Vienna-based secretariat were especially important for countries in the process of developing or modernizing their international trade laws. They also helped to publicize UNCITRAL's work.
The representative of the United States said the Bankruptcy Law Revision Commission, established by the United States Congress, had voted to recommend the adoption of the Model Law on Cross-Border Insolvency as amendments to the United States Code, and she suggested that other States should take similar action. The representative of Austria said that, as in previous years, his delegation would coordinate work on a draft resolution on UNCITRAL's report and recommendations.
Statements were also made by the representatives of Kenya, Indonesia, Czech Republic, Malawi (on behalf of the Southern African Development Community (SADC) member countries), Belarus, China, Ukraine, Egypt, Australia, Iran, Canada, Morocco and the Republic of Korea.
Joseph F. Bossa, UNCITRAL Chairman, in closing remarks, hoped that the support expressed by representatives for the Commission's work would be translated into enactment of the Model Law on Cross-Border Insolvency. He stressed the need for more resources for the UNCITRAL secretariat to meet the increasing requests for training and technical assistance.
Also this afternoon, the Committee Chairman, Peter Tomka (Slovakia), said he had received a letter from the Chairman of the Latin American Group proposing the candidature of Socorro Flores (Mexico) as Chairman of the working group on the United Nations Decade of International Law (1990-1999). There was no objection and she was accordingly elected.
The Committee will meet again at 10 a.m tomorrow, 8 October, to begin discussion of the report of the Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization.
Committee Work Programme
The Sixth Committee (Legal) met this afternoon to continue consideration of the report of the United Nations Commission on International Trade Law (UNCITRAL) on the work of its thirtieth session (Vienna, 12-30 May). (For background information of the report, see Press Release GA/L/3036 of 6 October.)
GERHARD LOIBL (Austria) drew the Committee's attention to the need for the UNCITRAL secretariat's involvement in efforts to disseminate information about the Commission's work and to give advice on its instruments as well as on the practical experiences by Member States in making use of them in their domestic legislating efforts. The secretariat should make use of outside resources. Support by Member States of an efficiently managed secretariat was also required in times of budgetary constraint. As in the past, his delegation would coordinate work on a resolution to be adopted by the General Assembly on UNCITRAL's work. Such a resolution could express the Assembly's appreciation for the completion of the elaboration of the Model Law on Cross- Border Insolvency, and also recommend that States give favourable consideration to it when enacting or revising their laws.
He said that all the endeavours of UNCITRAL in harmonizing and progressively developing international trade law would be in vain without the promotion of awareness of its work and dissemination of information on its legal texts. He regretted the lack of resources for the secretariat's activities in providing training and technical assistance. His delegation regarded the International Commercial Arbitration Moot, which was held in Vienna this year, as an excellent method of teaching international trade law and disseminating information about UNCITRAL law. He welcomed the Assembly's decision to include the trust fund for symposia and travel assistance in the list of funds and programmes to be dealt with at the United Nations Pledging Conference for Development Activities.
JULIET GICHERU (Kenya) said it had been noted in previous discussions that the work of the Commission's two working groups needed to be streamlined and restructured. The two working groups carried heavy work programmes and increasingly suffered from all manner of constraints. Those constraints arose from the inadequate amount of time available to governments to study and respond to their work. The Commission should consider merging the two working groups and reducing the number of sessions to a maximum of three per year.
On the topic of training and technical assistance activities conducted by the secretariat, she urged governments and international organizations to make contributions to the trust funds established to promote those activities. Proper funding would allow the Commission to effectively discharge its mandate in that area.
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HARRY P. HARYONO (Indonesia) said the work UNCITRAL had completed on cross-border insolvency legislation resolved many of the problems caused by the application of diverse national laws on the subject. Those efforts would contribute to the promotion of harmonized laws in matters where individuals had assets in several States. Those endeavours would also benefit cross- border insolvency cases involving the banking sector, reorganization following insolvency as well as arbitration proceedings.
He added that, as a developing country, Indonesia recognized that UNCITRAL had placed itself at the disposal of developing and developed countries alike in the formulation of a body of law governing international trade. Those efforts had contributed to all parties engaged in trade on the basis of mutual benefit, equity and justice.
MARTIN SMEJKAL (Czech Republic) welcomed the UNCITRAL Model Law on Cross-Border Insolvency, noting its pragmatic approach, particularly the need for flexibility adopted by its drafters. His Government would take advantage of the Model Law in the drafting of its own domestic law on cross-border insolvency issues. He hoped the final version of the guide to the Model Law would soon be available to Member States as it would be an important tool in preparing their domestic legislation on cross-border insolvencies.
He also welcomed the preparation of the legislative guide on build- operate-transfer (BOT) infrastructure projects, as well as the work on the assignment in receivables financing. On electronic commerce, he agreed to the guidelines given to the working group to prepare uniform rules on the legal issues of digital signatures and certification authorities. He welcomed the decision to devote special meetings of UNCITRAL's next session to commemorate the fortieth anniversary of the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Noting that the Assembly would be electing additional members to UNCITRAL, he said that the Czech Republic would appreciate an opportunity to become a full-fledged member of the Commission.
TREVOR P. CHIMIMBA (Malawi), speaking on behalf of the Southern African Development Community (SADC), said countries of the SADC had benefited from UNCITRAL's training and technical assistance programmes. The Pretoria Workshop held on 3 and 4 March had been of particular importance. The SADC countries strongly supported the Commission's calls for increased assistance in the area of training and technical assistance.
This year it had been particularly difficult for small missions to the United Nations to participate in the meetings of the Commission, he said, adding that SADC missions were among those in that category. The meetings of the Commission often clash with other United Nations meetings, but SADC countries valued the work of the Commission and hoped to minimize scheduling problems in the future. The participation of many Member States assured the universality of the Commission's work, he stressed.
SYARGEI SYARGEEU (Belarus) said the work of the Commission, particularly the Model Law on Cross-Border Insolvency, had tangible benefits for all States
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in improving cooperation among legislatures with differing social and economic systems.
The creation of draft laws by the Commission was especially important for countries like Belarus, which was involved in reforming its legal system, he said. The holding of training seminars and symposia, especially on a regional basis, was also appreciated by his Government, he said, adding that developing countries should take part in the seminar programmes.
GAO FENG (China) said his delegation hoped that in the future UNCITRAL would increase its assistance and training to Member States, especially the developing countries, to narrow gaps among them in the field of trade legislation. In drafting its conventions and model laws, UNCITRAL should incorporate more of the views of the various parties, taking account of the situations in different States.
He said UNCITRAL should publicize its legal instruments to ensure that it gained approval and acceptance in more countries and also played a greater role in international trade. As international trade developed, the harmonization and unification of its laws was becoming even more important. The Commission had a central role to play in that development. China hoped the United Nations would support UNCITRAL's work to enable it to achieve greater successes in its future work.
As a member of the Commission, China was ready to join others in making its contribution to the unification of international trade law, he said. New breakthroughs achieved by UNCITRAL in its work, with a growing number of countries acceding to its instruments, testified to its important role in harmonization and unification of international trade law.
VICTOR KACHURENKO (Ukraine) hoped the Model Law on Cross-Border Insolvency would facilitate coordination and cooperation between countries in rescuing financially troubled but viable businesses and improving reorganizations or liquidations of debtors' assets and affairs. Ukraine also expected the rules to adequately match the national and judicial systems and be acceptable by States with different legal and economic systems. He noted that the Commission's work on build-operate-transfer projects would help many countries, particularly developing ones and those with economies in transition, in providing legislative guidance for preparing or modernizing their legislation on infrastructure projects.
He said UNCITRAL's electronic commerce project was considered a high priority, and the Commission should continue with its work on the preparation of legal standards based upon the principle of contractual liberty that would bring predictability to electronic commerce and enhance international trade. Equally important was the work on a draft convention on assignment in receivables financing. He hoped the Commission would proceed expeditiously with the project, dealing especially with the outstanding issues such as effects of the assignment on third parties and conflict-of-law issues, bearing in mind the uncertainty existing in different legal systems. He also called
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for the expansion of UNCITRAL's training and technical assistance programmes.
HUSSEIN MUBARAK (Egypt) said the Model Law on Cross-Border Insolvency would contribute to the cooperation of various authorities in dealing with insolvency proceedings. He would have preferred, however, that the Model Law distinguished between civil and trade activities. The Model Law should exclude from its provisions those that related to persons whose debts were accrued for personal purposes and not commercial purposes.
While the Commission continued to contribute to the formation of international trade law, he said its future success depended on two factors. The first was the continuation of training programmes and seminars on international trade law, particularly, where developed and developing countries took part. The second was that delegations were represented in the Commission's meetings and working groups. To accomplish that last task, the Trust Fund for Granting Travel Assistance to Developing States Members of UNCITRAL should be placed on the agenda of the United Nations Pledging Conference for Development Activities.
CAROLYN WILLSON (United States) said her country strongly supported UNCITRAL's work which had remained technically focused and non-politicized. The Commission had taken an approach consistent with globalization of economies and compatible with emerging market practices. The consensus text on the Model Law was a response to needs flowing from globalization of economies in which assets, labour, production and offices were located within a number of States, and financial setbacks in one might jeopardize jobs and production in all, unless international cooperation was increased. The Bankruptcy Law Revision Commission, established by the United States Congress, had voted last August to recommend the adoption of the Model Law as amendment to the United States Code. Other States should consider taking similar action, she said.
She supported non-regulated market solutions to signature systems along with government authorized systems. The United States regarded the topic on international trade finance as a potentially important treaty development and believed that the goal should be a system that could increase commercial credit to developing and emerging markets. The treaty regime should provide an option for States to join an electronic notice registry system to make that happen.
She supported the effort on the preparation of legislative guidance for States on infrastructure project finance and development and welcomed planned regional meetings, at which the private sector and project and supplier States could assist UNCITRAL to define the scope of work that would be most productive.
MARK GRAY (Australia) said his country had been instrumental in emphasizing the need for an international approach to the problems raised by cross-border insolvency and supporting UNCITRAL's work in that area. It looked forward to the widespread adoption of the Model Law internationally as a means of resolving problems encountered by insolvency practitioners and creditors in relation to insolvent companies and individuals with assets in several countries. On the Model Law on Electronic Commerce adopted by the Commission
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last year, he said the Australian Government had already begun to consider its legal implications. The Australian Attorney-General had established an expert group on the regulation of electronic commerce transactions, he said, adding that the Model Law was an important international text which would provide a framework for addressing those questions.
He hoped UNCITRAL's work could be more widely publicized so that the value of its contribution to international trade law could be better known. Australia, whose participation in UNCITRAL dated back to 1966, remained actively committed to it.
SAEID MIRZAEE YENGEJEH (Iran) said the work of the Commission in holding seminars, symposiums and workshops was essential and should coincide with efforts to harmonize international trade laws. While the thirtieth annual session of UNCITRAL was able to finalize consideration of the Model Law on Cross-Border Insolvency, it did not give sufficient time to complete the consideration of the draft guide to enactment of the Model Law. The draft guide should be prepared in line with the Model Law and distributed as a single document.
He noted that the working group on electronic commerce had been entrusted to prepare uniform rules on the legal issues of digital signatures and certification authorities, while the working group on international contract practices had been mandated to continue with the preparation of a uniform law on assignment in receivables financing. He hoped that the working groups would fulfil the mandates assigned to them as scheduled and report back.
PRATIMA RAO (Canada) said the successful completion of the Model Law on Cross-Border Insolvency in such a short period of time showed the fine preparatory work done by, among other groups, the secretariat and the collaboration between UNCITRAL and the International Association of Insolvency Practitioners (INSOL). His Government encouraged States to consider adoption of legislation based on the Model Law.
The work of UNCITRAL was directly relevant to certain policy directions in Canada, he said. Federal and provincial initiatives were under way in Canada to develop legislation related to electronic commerce and UNCITRAL Model Law on Electronic Commerce was being used as a point of reference in developing legislation on that issue.
AMAL BELCAID (Morocco) said the Commission's work was especially significant for his country because it had established an economic structure based on foreign trade. The Commission's work provided the framework to create a proper international legal structure for investments.
He also stressed the importance of UNCITRAL training seminars and symposiums on international trade law especially for those countries that were not fully aware of UNCITRAL's work.
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SUNG KYU LEE (Republic of Korea) said his country was rapidly nearing the status of being the tenth largest trading nation in the world and, as such, was keenly interested in international trade laws. It would consequently continue to actively participate in the activities of the Commission although it was not a member.
If consensus were to be achieved on rules governing commerce, international norms and controlling factors should be harmonized, he said. Indispensable economic development efforts of any Member State could not be sacrificed for the sake of uniformity in international law. Also, States should not be content with the differences that existed among Member States. He hoped that issues relating to cross-border insolvency would be dealt with more effectively through the elaboration and institutionalization of uniform insolvency laws. He commended UNCITRAL for its achievements in such fields as electronic commerce and assignment in receivables financing.
JOSEPH F. BOSSA, Chairman of UNCITRAL, in closing remarks, hoped that the support expressed by representatives for the Commission's work would be translated into enactment of the Model Law on Cross-Border Insolvency. Noting the increasing appeals from Member States for training and technical assistance programmes, he stressed the need for more resources for UNCITRAL's secretariat to meet those requests.
He appealed to States parties to the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards to respond to the questionnaire relating to their legal regime governing such awards. (The questionnaire was prepared by the secretariat in cooperation with the International Bar Association). He also urged States, which had not done so, to accede to the New York Convention.
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