Legal Committee Delegates Applaud Positive Outcome of Latest Session of United Nations Commission on International Trade Law
Legal Committee Delegates Applaud Positive Outcome of Latest Session of United Nations Commission on International Trade Law
|Department of Public Information • News and Media Division • New York|
Sixty-fifth General Assembly
7th Meeting (AM)
Legal Committee Delegates Applaud Positive Outcome of Latest Session
of United Nations Commission on International Trade Law
UNCITRALDecisions on Arbitrations, Secure Transactions, Insolvency Are Noted
Delegates warmly praised three achievements of the last session of the United Nations Commission on International Trade Law (UNCITRAL) as the Sixth Committee (Legal) today considered the Commission’s report of the session, held in New York from 21 June to 9 July. The Chairperson of the Commission, Ricardo Sandoval López (Chile), said it was one of the most fruitful sessions he could recall over the past 20 years.
He noted the successful adoption and finalization of three revised texts that updated trade practices: the UNCITRAL Arbitration Rules, the Supplement on Security Rights in Intellectual Property, and part three of the Legislative Guide on Insolvency Law. He said these documents contributed to the modernization and enhancement of the existing legal framework. The third one – on insolvency – addressed the current business reality of enterprise groups as an important feature of the global economy; it was a reality not covered in the 2004 Legislative Guide on Insolvency Law.
He reviewed the Commission’s future work, including a newly established working group on online disputes. The promotion of the rule of law was also of great importance in the Commission’s work, and the Commission would be initiating a survey and several studies in order to see how and where it could develop and enhance this aspect of its work.
The delegates commended the work of the Commission and welcomed the finalization and adoption of the three texts as viable improvements to international trade and commerce and as a promotion of the rule of law. It was suggested that, through various briefing sessions, the Commission’s work should be given greater dissemination throughout United Nations bodies. Its discussions on the rule of law should not be limited to Commission members, but be open to all United Nations Members.
While the representative from the Russian Federation noted that the issue of transparency in the Legislative Guide on Secured Transactions addressed the sensitive question of immunities, Mexico’s delegate said that in a world where trade relationships went far beyond trade solutions, the Guide enshrined the work of the Commission and would be highly useful for judges and creditors, especially with the current economic crisis.
Pakistan’s representative spoke of the strong link between the harmonizing of international trade law and legislative work and development; he welcomed the Commission’s continued technical cooperation and assistance to developing countries. In the case of the future work on the online dispute resolution system, a concerted awareness of the global digital divide was necessary.
The delegate from Singapore, saying it was one of the fastest growing arbitration centres in the world, commended the revised Arbitration Rules. He added that it was crucial that the Commission complete its mandated work in a more timely fashion, especially in light of how its work promoted peace through unifying the legal rules of transnational commercial transactions.
Ghana’s representative said the Commission’s promotion of the rule of law in the context of international trade and development, particularly in Africa, could not be overemphasized. However, capacity building needed to receive the promised support, and he urged that the Commission’s role in developing Africa’s institutional architecture in this regard be emphasized.
Also speaking today were the representatives of Norway (also on behalf of Denmark, Finland and Sweden), Austria, Belarus, Thailand, United States, Republic of Korea, Japan, China, United Kingdom, El Salvador, Chile, Canada, India, Iran and Benin.
The Committee meets again at 10 a.m. tomorrow, Tuesday, 12 October, for discussions on the rule of law at national and international levels, and the scope and application of universal jurisdiction.
The Sixth Committee (Legal) met this morning to take up the annual report of the United Nations Commission on International Trade Law (UNCITRAL).
The UNCITRAL report covers the proceedings of the Commission’s forty-third session (New York, 21 June – 9 July) (document A/65/17). It begins with the reports from the Working Group II (Arbitration and Conciliation) on the UNCITRAL Arbitration Rules, and the finalization and adoption of a revised version of the Rules, which were based on the third reading, and revised to conform to and reflect current practices in international trade, and also to meet changes that had taken place over the last 30 years in arbitral practice, and which took note of comments submitted by Governments and international organizations. Language that authorized both electronic and traditional forms of communication was included, consistent with previous standards prepared by UNCITRAL in the area of electronic commerce.
The report then turns to the Commission’s finalization and adoption of a draft Supplement to the UNCITRAL Legislative Guide on Secured Transactions dealing with security rights in intellectual property, which was developed by Working Group VI (Security Interests), with contributions from Working Group V (Insolvency Law). (The Legislative Guide on Secured Transactions and a separate publication consisting of the terminology and recommendations of the Guide were now available through the UNCITRAL website.)
The report states that the Commission recognized the need to make secured credit more available and at lower costs to intellectual property owners and other intellectual property rights holders, thus enhancing the value of intellectual property rights as security for credit. Continuing, it noted that States would need guidance on the application of the Guide in adjusting their laws to avoid inconsistencies between secured transactions law and the law relating to intellectual property. It recommended that all States utilize the Supplement to the Guide in order to assess the economic efficiency of their secured transactions regimes as well as their intellectual property regimes.
On the issue of insolvency (Working Group V), the report says the Commission finalized and adopted part three of the UNCITRAL Legislative Guide on Insolvency Law on the treatment of enterprise groups in insolvency. It noted that part three took into account the close connection between the international aspect and the two instruments on cross-border insolvency cooperation. The Commission recognized that effective insolvency regimes were increasingly seen as a means of encouraging economic development and investment, fostering entrepreneurial activity and preserving employment. Although the UNCITRAL Legislative Guide provided a sound basis for the unification of insolvency law, it did not address the insolvency of enterprise groups.
In the area of procurement, according to the report, the Commission had before it a report on progress made during two sessions of Working Group I (Procurement) towards finalization of the 22 articles which would provide an update of the 1994 Model Law on Procurement of Goods, Construction and Services. Two readings of all chapters of the draft revised model law had been accomplished and a third reading of the text had begun. The update would reflect new practices, in particular those resulting from the use of electronic communications in public procurement and the experience gained in use of the 1994 Model Law as a basis for law reform.
The report notes that the Working Group had agreed to address the remaining outstanding issues throughout the draft revised model law. In view of that goal, the Commission requested the Working Group to complete its work on the revision of the Model Law during its next two sessions and present a draft revised model law for finalization and adoption by the Commission in 2011. The report also states that the Commission instructed the Working Group to exercise restraint in revisiting issues on which decisions had already been taken.
Turning to future work in the area of electronic commerce and online dispute resolution, the report says the Commission had a note updating the progress of the work of the World Customs Organization/UNCITRAL Joint Legal Task Force on Coordinated Border Management Incorporating the International Single Window. This included an update on electronic commerce developments, with particular regard to identity management and electronic commerce and payment conducted with mobile devices. With regard to the legal issues identified by the Joint Task Force, caution was urged in dealing with issues of enforcement which generally fell into the realm of domestic regulatory measures. With a goal of formulating a comprehensive international reference document, and taking into consideration the legal issues identified by the Joint Task Force, the Commission requested that work continue with the Task Force towards possible legislative work in this area.
On electronic transferable records the report says the Commission noted the description of legislation recently enacted by the Republic of Korea, on enabling the use of electronic bills of lading. Concern was expressed that any works of the Commission in this area not deviate from or contradict other UNCITRAL texts, such as the “Rotterdam Rules”. It was also noted that work on electronic transferable records could include issues related to single window facilities and identity management, and that it might be possible to address these topics in a single project. The Commission requested that a colloquium be convened, as well as possible additional informal meetings, to discuss these matters, among others. Based on those discussions a road map could be summarized and possibly developed into a road map for future Commission work in this area.
Dealing with possible future work on insolvency law (Working Group V), the report says the Commission was informed of a draft text being prepared that was based on requests during the judicial colloquiums held by UNCITRAL with the International Federation of Insolvency Practitioners and the World Bank. The text would offer a judicial perspective on cross-border-related issues, in particular the UNCITRAL Model Insolvency Law use and the interpretation of the Model Insolvency Law. The goal would be finalization and adoption by the Commission, possibly in 2011. Also, regarding future work in the area of security interests (Working Group VI), the report states that the Commission requested a study on the feasibility of preparing a legal text with a view to removing specific obstacles to international trade in the context of intellectual property licensing practices.
The UNCITRAL report says the Commission reviewed a study and proposal in the area of microfinance with the purpose of identifying the need for a legal and regulatory framework aimed at protecting its development. Although microfinancing played an important role in alleviating poverty by serving the poor not currently engaged with a formal financial system, and was thus an important component in the Millennium Development Goals, there was concern that microfinance was not an appropriate field of work for the Commission, since it involved domestic banking and financial regulations. It was recommended that a colloquium convene with experts from the field to explore how microfinancing fell within the Commission’s mandate.
Turning to the New York Convention, the report states that the Commission was updated on a project monitoring the legislative implementation of the Convention, and on how States had incorporated it into national legal systems, as well as how it was interpreted and applied. Information collected had been published on the UNCITRAL website. To keep it current the Commission urged States to continue providing information regarding the implementation of the Convention.
The report describes the mechanisms through which technical assistance and cooperation were delivered, stressing that legislative technical assistance was no less important than the formulation of uniform rules. Besides the need for outreach, the Commission also made an appeal for States to partner with it in delivering technical cooperation and support for the promotion of legal texts. It also asked States to contribute to the Commission’s Trust Fund for Symposia. An update on activities in support of the uniform interpretation of the Commission’s texts includes a report on the status of compiled case law abstracts in the system of case law on UNCITRAL texts — established for the collection and dissemination of those texts — as well as a report on library and online resources activities. As of April of this year, 92 issues of compiled case law abstracts from the case law system had been published, dealing with 925 cases relating mainly to the United Nations Sales Convention and the Model Law on Arbitration.
The report concludes with a summary of the status of the Commission’s texts, a review of its working methods, its activities with regard to coordination and cooperation with other legal bodies, reports of other international organizations, and its role in promoting the rule of law at the national and international levels. Also covered are laws and practices of States in the domestic implementation and interpretation of UNCITRAL texts and the results of international commercial arbitration moot competitions, as well as General Assembly resolutions relevant to the Commission’s work. Other business relative to procedural matters is included, as is a list of documents before the Commission at its forty-second session.
Introduction of Report
RICARDO SANDOVAL LÓPEZ (Chile), Chairperson of UNCITRAL’s forty-third session, introducing the Commission’s Report, said this year’s session had been “one of the most fruitful” in his memory over the past 20 years of being associated with the Commission. During the first week, which focused on the revision of the UNCITRAL Arbitration Rules, the Commission also considered the progress of work in other legislative areas and in other programmes and activities of the Commission’s work. The second week focused on the Supplement to the UNCITRAL Legislative Guide on Secured Transactions dealing with security rights in intellectual property, as well as part three of the UNCITRAL Legislative Guide on Insolvency Law and the treatment of enterprise groups in insolvency. During the final week a panel, opening with a statement by the Deputy Secretary General of the United Nations, had been convened to discuss the role of UNCITRAL in promoting the rule of law.
He then turned to the three texts that had been finalized and adopted during the Commission’s session. On the issue of the revised UNCITRAL Arbitration Rules, he noted that the original Rules had been adopted more than 30 years ago, in 1976, and had been used in a broad range of disputes, including disputes between private parties, investors and States, as well as institutional and ad hoc arbitration.
However, in 2006 a Working Group was mandated to revise the Rules to reflect current arbitral practice while preserving the structure, spirit and drafting style of the original Rules. The revised Rules now include additional provisions dealing with multiple-party arbitration and joinder liability, among others, as well as the inclusion of several “innovative features” that addressed the replacement of arbitrators and a review mechanism regarding arbitration costs. These revisions, in his view, would continue to contribute to the “development of harmonious international economic relations”. Future work would focus on the topic of transparency in treaty-based investor-State arbitration, and Working Group II would be preparing a legal standard in this regard as well as identifying any other relevant topics that required future work and the Commission’s attention during its 2011 session.
On the finalization and adoption of the Legislative Guide on Secured Transactions, Supplement on Security Rights in Intellectual Property and future work in the area of security interests, he said the Guide had been established to assist States in developing modern secured transaction laws, with a view to promoting the availability of secured credit. A supplement to the Guide specifically dealing with security rights in intellectual property rights would subsequently be prepared. Although the Guide would generally apply to security rights in intellectual property, he said States would need further guidance on how the Guide would apply in an intellectual property context and how and what adjustments would be needed in their laws to avoid inconsistencies in secured transaction law and intellectual property law.
He said that Working Group VI on security interests focused, over five sessions, on the text of a supplement that would, without inadvertently interfering with the basic rules of intellectual property law, address the need to make secured credit more available and at lower cost to intellectual property owners and other right holders. He noted the contributions of several international intergovernmental and non-governmental organizations in the development of the Legislative Guide, repeating the Commission’s recommendation that all States utilize the Supplement. It would help them assess the economic efficiency of their secured transactions and intellectual property law regimes. They may consider the Supplement when revising or adopting relevant legislation. He said future work was also discussed by the Working Group, with a focus on the preparation of a text addressing such topics as the registration of security rights in movable assets and in non-intermediated securities, among others.
He said the finalization and adoption of the third text addressed the current business reality of enterprise groups as an important feature of the global economy; it had not been covered in the Legislative Guide on Insolvency Law adopted in 2004. Furthermore, few States had comprehensive regimes that dealt with such groups in insolvency. Future work on the UNCITRAL Legislative Guide on Insolvency Law on the treatment of enterprise groups in insolvency would provide timely guidance to States on how to develop and improve the administration of enterprise groups in insolvency, both domestically and in the cross-border context. He expressed the hope that the text would complement the Guide on Insolvency Law as well as the Model Law on Cross-Border Insolvency. Together, these would provide a sound basis for the harmonization of insolvency law.
The text, replicating the format of the Legislative Guide, consisted of commentary identifying key issues and various approaches as well as recommendations on how to address those issues in insolvency law, he said. They included the general features of an enterprise group, the application and commencement of insolvency proceedings, and the forms of cooperation and use of cross-border insolvency agreements, among others. As for future work in this area, he added, the topic of the Model Insolvency Law relating to the liabilities and responsibilities of officers and directors in the context of insolvency was discussed. The Secretariat was asked, resources permitting, to undertake a study on an instrument on cross-border resolution of the insolvency of large and complex financial institutions, and also the development of a text from a judicial perspective on the use and interpretation of the Model Insolvency Law.
Turning to the Commission’s future work, he said the Commission had requested the Working Group on Procurement (Working Group I) — entrusted with the revisions of the 1994 Model Procurement Law — to complete its work and present a draft revised model law for finalization and adoption by the Commission at the 2011 session. The colloquium held in Vienna last March investigated the new topic of online dispute resolutions, a technique using information and communication technology in resolving commercial disputes. Electronic commerce was also discussed with a view to closely follow legal developments in the area. A colloquium on these topics would be held in New York in February 2011.
On the topic of microfinancing, he said it was timely for the Commission to prepare a detailed study that would help legislators and policymakers in establishing a legal framework for it. A colloquium would be convened in Vienna in January 2011. The Commission held a panel discussion to consider its role in promoting the rule of law on national and international levels. The relationship between law and economics and the impact of the economic crisis on legal protection, justice and security for the most vulnerable and marginalized population was addressed. The Commission would be initiating a survey and studies on the impact of its activities on the rule of law and development.
AASMUND ERIKSEN (Norway), speaking also for Denmark, Finland and Sweden, said his country was an active participant in the working groups, which were characterized by open and inspiring discussions to produce excellent results. The overwhelming agreement and support for the underlying principles of the Commission’s work methods were a guarantee that the Commission’s activities in the field of international trade law would continue to produce successful outcomes.
Noting the work accomplished in the field of arbitration, including the 1958 New York Convention, he said his country had helped the Commission prepare for the discussion of transparency in treaty-based investor-State arbitration by providing information on current Norwegian regulation in the area. The Commission’s finalization and adoption of the Legislative Guide on Secured Transactions were welcome, as was the decision to take up the question of registration of security rights in movable assets. He also commended the adoption of part three of the Legislative Guide on Insolvency Law related to the treatment of enterprise groups in insolvency. The planned topics related to the liability of directors and providing guidance on selected concepts of the Model Insolvency Law were both topics of current importance. A greater degree of harmonization of national approaches would be beneficial in terms of delivery certainty and predictability in the area.
Welcoming progress made in the revision of the 1994 Model Law on Procurement, he noted the expected adoption of the revision in 2011. He also noted the decision to establish a new working group to undertake work in the field of online dispute resolution relating to cross-border e-commerce transactions, including business-to-business and business-to-consumer transactions.
ULRIKE KÕHLER (Austria) said the Arbitration Rules were recognized as a most successful text and were used in a wide variety of circumstances covering a broad range of disputes in all parts of the world. They included those between private commercial parties, between investors and States, and in commercial situations administered by arbitral institutions. The adoption of the revised Rules constituted an important contribution to the development of harmonious international economic relations and to the continued strengthening of the rule of law, an area in which the Commission played a key role. With a 40-year track record, the Commission had held a panel discussion on the rule of law in trade and commerce. The Commission’s work in the field should be intensified.
In closing, she said her country would be serving as coordinator for the four resolutions to be presented to the Committee this year. Delegations were invited to co-sponsor the Omnibus Resolution. The others would be submitted by the Bureau and would have no co-sponsors.
YURY NIKOLAICHIK (Belarus) said he appreciated the work done by the Commission on revision of the Arbitration Rules. The work on the use of e-communications to keep parties informed about developments was of particular note; it would enhance the transparency of the process, particularly between investors and States. Also of note was the work on the Legislative Guide on bankruptcy and the update of the Model Law. The Commission should continue to keep up with and to respond to rapid changes in trade law, particularly in relation to e-trade. The work on the responsibility of officers was important, as was the work on insolvency. More work should be done in the area of microfinance, which was an important contributor to development and an important tool in fighting poverty.
ANDREY KALININ (Russian Federation) commended the Commission’s work, noting its importance in promoting the rule of law. He welcomed the adoption of the Arbitration Rules, and their being brought “up to date” to current practices. Turning to the work on the Legislative Guide on Secured Transactions with the Supplement on Security Rights in Intellectual Property, he said the issue of transparency in this area touched on sensitive areas, including the question of immunities, so the need for the draft was timely. He said he supported the document dealing with the issues of enterprise groups. The continued progress on the working methods of UNCITRAL was welcome; he said he believed this would help the Commission in the future.
JUAN MANUEL SÁNCHEZ (Mexico) said that in a world where trade relationships went far beyond trade solutions, the work of the Commission was essential. On the topic of insolvency, he said that the Guide enshrined the work of the Commission, notably in relation to cross-border insolvency agreements; it would be highly useful for judges and creditors, especially with the current economic crisis. He said he was also pleased that work on the topic of Procurement upheld various principles — among others, information on security and confidentiality — and he urged that the related Working Group strive towards further productivity in its work. The document on Arbitration Rules, he said, was one of the most successful emanating from UNCITRAL; it was crucial that it had been updated, and he supported the future work in this area. Encouraging the continuation of joint debates in the area of Security Rights, and welcoming the efforts of the future work of Working Groups II, V and VI, he said he trusted that constructive dialogue within the Commission would lead to reasonable solutions, and contribute to its future work.
VACHARA PAWUTIYAPONG (Thailand) said the development of new forms of international commercial activities and the integration of technology into business transactions made UNCITRAL’s work more relevant and important than ever. The balanced, transparent, harmonized and modernized standards of law that the Commission facilitated were a contribution to economic growth and sustainable development. The scheduled future work on transparency in treaty-based investor-State arbitration and the decision to establish a working group in the field of online dispute resolution relating to cross-border e-commerce transactions were welcome.
GABRIEL SWINEY (United States) said the Commission’s forty-third session had been most productive and the adoption of the updated Arbitration Rules was welcome. The Legislative Guide on Secured Transactions concerning security rights in intellectual property was a complex area of increasing importance in commercial transactions, and the work had involved effective coordination with the World Intellectual Property Organization (WIPO). He said the global economic problems of recent years had highlighted the importance of effective cross-border cooperation in the area of insolvency. Agreement on the Commission’s working methods would allow it to maintain its historic role as one of the most effective bodies of the United Nations. Of note was the decision to establish a working group on online dispute resolution, which had great potential to help the growing number of consumers who made purchases over the Internet. The Commission’s work on transparency, security rights in movable assets and the promotion of cooperation in cross-border insolvency were also welcome, as were the forthcoming colloquiums on electronic commerce and microfinance.
DAREN TANG (Singapore) said his country was an international hub and one of the fastest growing arbitration centres in the world. The revision to the Arbitration Rules was particularly welcome. It was unfortunate that the work had taken so long. It was crucial that the Commission dedicate its limited resources towards completing the work it was mandated to accomplish, which was to further the progressive harmonization and unification of international trade law. While many areas of work relevant to the Commission were interesting, the temptation to stray must be resisted. The Commission’s work in promoting uniformity in the legal rules of transnational commercial transactions promoted peace, and the resources should be focused on the formulating of rules that made the most impact on increasing uniformity.
The Commission’s output should be useful to countries looking for practical legal solutions to harmonize international trade law, he said. Instruments with legal impact, such as guidelines, were less effective than more formal instruments. Further, guidelines could accommodate a variety of views, even those that were conflicting, and thus they did not have the same level of certainty as was found in conventions and model law. They were of limited value in harmonizing international law. Again, the Commission should continue to focus on producing high-quality international conventions and model laws that formed the cornerstone of national legal rules on cross-border commercial transactions throughout the world.
KIM HYUNG-JUN (Republic of Korea) said the adoption and finalization of the Rules and Legislative Guides in three important areas “should be considered major achievements this year”. The Arbitration Rules would be, in his view, “widely recognized as a successful text” and would contribute to the efficiency of arbitration. The Legislative Guide on Secured Transactions dealing with security rights in intellectual property would support adjustments needed in order to avoid inconsistency between secured transactions law and law relating to intellectual property. He said the Legislative Guide on Insolvency Law was a document with the potential to play a central role in developing effective insolvency regimes and facilitate fast and fair conduct in such proceedings.
TOMOKO KAKEE (Japan), commending the work of the Commission, said that it was essential to adjust the Model Law on Procurement in response to current changes and she hoped the Working Group would successfully address the challenges faced today. The modernization of the Arbitration Rules had been much needed and the revised text would be beneficial to all. As for the Insolvency Law, she said it was important for States to investigate how enterprise groups were treated in insolvency, and she welcomed the future work addressing the responsibilities of officers and directors in insolvency cases. Furthermore, the formulation of legislative guidelines in the area of intellectual rights was of “wide benefit”, since it took on increased importance in the world, and she called for the development of a guide for registration of security rights in movable assets; through a flexible legal framework, this would promote provision of credit and enhance economic growth and international trade for security interests.
YANG YUYA (China) said the formulation of the legislative documents adopted and finalized by UNCITRAL would help coordinate and unify countries’ national laws on international trade and thus help develop international trade. Turning to the new agenda items designated to the Working Groups on government procurement, insolvency law and security rights, as well as the establishment of a new working group for online dispute resolution, she said that these all represented areas in which unification and coordination among countries and regions were much needed. She expressed hope that the work of the Commission would continue to progress in its efforts on these and other new subjects.
DOUGLAS WILSON (United Kingdom) commended the great and efficient efforts of the Commission which “after many difficult sessions” had come to a final solution regarding the Arbitration Rules. He also stated that the efforts of Working Group II, regarding the topic of the preparation of a legal standard on transparency in treaty-based investor-State arbitration, were of great importance. He expressed his appreciation for the spirit in which the debates took place and affirmed his continued participation and contribution in this area. With regard to the Working Group on Procurement, he expected the text of the Model Law to be completed during the next meeting in Vienna, and he stressed that its adoption in the next session of the Commission would be of great importance. On the topic of future work in the area of insolvency law, he expressed his appreciation for the Commission’s acceptance of his country’s contribution regarding future work on the responsibilities and liabilities of directors and officers in insolvency cases.
ABDUL HAMEED (Pakistan) said international trade for mutual benefit was an important element in promoting friendly relations among States. There was a strong link between the harmonizing of international trade law, legislative work and development. The technical cooperation and assistance activities provided to developing countries since the Commission’s fortieth session were welcome.
Expressing appreciation for particular aspects of the Commission’s work, he said the procurement process involved a great many issues regarding the credibility, applicability and comprehensiveness of using electronic communication. The outstanding issues in the revised model law should be carefully considered. Amendments indicated a need to make the process more sensitive to the needs of the developing world. Also, given the current state of the global digital divide, the views of the developing world should be considered with regard to the online dispute resolution system. Finally, an annual report should be prepared on promotional activities for newly adopted legislative text. If nobody knew of the texts beyond a few capitals, it would be hard to harmonize them with different legal systems in various parts of the world.
CLAUDIA MARÍA VALENZUELA DÍAZ (El Salvador) said her country played an active role in the Commission and its working groups because it was a strong proponent of promoting development through trade. The Commission was invaluable in its work of helping countries develop new legal norms or revise existing instruments in a rapidly changing world that was constantly incorporating new technologies into its trade regimes. Arbitration was an important area in that regard, and the Commission had done well in its decision to revise the Rules in a way that left their spirit intact while upgrading them to fit the modern reality. The significant changes had clarified the processes involved in arbitration and they helped ensure the equality of the parties involved. The subject of secured financial credit in the area of intellectual property rights was an important emerging concern. The work on enterprise groups and insolvency provided for greater efficiency among enterprise groups.
ALEJANDRA QUEZADA (Chile) said the Commission’s work contributed to the trade world, and the finalized documents would greatly benefit international commerce. She noted that the Commission supported promotion of the rule of law through trade relations. Its sessions on this issue should not just be for Commission members, but open to all States. She said the work of UNCITRAL should be further disseminated and given greater attention throughout the larger Organization. In this regard, she suggested briefing sessions which would inform all Members of the United Nations of the Commission’s efforts, in order to bring its work closer to the international community.
SABA ZARGHAMI (Canada) heralded the finalization and adoption of the three documents. On the Arbitration Rules, she commended the Commission on the beginning of work regarding transparency in treaty-based investor-State arbitration. She stressed the importance of disseminating to Governments and other interested parties the text of the Supplement on Security Rights in Intellectual Property. This would assist States in assessing the economic efficiency of their secured transactions and intellectual property regimes. She said the Legislative Guide on Insolvency Law would contribute to the increased economic efficiency of insolvency law regimes.
Noting the significant progress on the revision of the Model Law on Procurement, she said she looked forward to the completion of this work in the near future, as well as the start of efforts toward a guide to enactment of the New York Convention, which would promote its uniform interpretation and application. It was important that the Commission collaborated with other organizations working in the field of harmonizing private law.
K.C. VENUGOPAL (India) said he hoped the revised Arbitration Rules approved by UNCITRAL would significantly enhance the efficiency of arbitration. Noting that the Rules had been adopted by consensus, he observed that this reflected the will of “all countries representing different legal, social and economic systems”. Through this legal framework and its harmonization of international economic relations, he said, the fair and efficient settlement of international commercial disputes would be supported. Turning to the Legislative Guide on Secured Transactions, he said it should assist States in assessing economic efficiency, as well as in revising or adapting legislation relevant to such transactions. He commended Working Group V for the Legislative Guide on Insolvency Law which now included provisions concerning enterprise groups. Stressing the need for technical cooperation and assistance to developing countries, specifically in the adoption and use of UNCITRAL texts on the national level, he said this was as important as the actual formulation of the uniform rules.
ESHAGH AL HABIB (Iran) said the work on the revised Rules on Arbitration was among the most important of the Commission’s accomplishments. The Rules should be read as instructed, in a manner that would not alter their flexible character or the structure or spirit of the original text. The Commission’s future work in the field of arbitration should be in line with the character and function of the arbitration institution, and with due consideration for the Commission’s nature and role. Similarly, the topic of transparency in treaty-based arbitration should be examined in the context of the Commission’s mandate and nature.
He said rules and legislative guides were important instruments for keeping up with the latest developments that affected international trade. Those rules and guides, however, needed to be applied in diverse jurisdictions, including in developing countries. Since many developing countries were unable to participate in the Commission’s work by attending meetings, it was all the more incumbent on the Commission to reach out and familiarize national institutions with its work so that all could benefit from the advanced mechanisms that existed for promoting international trade. Efforts to provide technical assistance to developing countries should be intensified.
JEAN-FRANCIS ZINSOU (Benin) noted that a particularly important area of UNCITRAL’s work was microfinance and he appreciated the Commission’s planned studies on the subject. This would contribute to providing credit to people who did not have access to more traditional forms of credit. His country had established a ministry on microfinance, and that institution would be pleased to share its experience with the Commission.
He said the concept of microfinance had evolved beyond microcredit into related areas such as insurance and other forms of banking. These were emerging fields in need of regulation. Moreover, microfinance was no longer an area of merely national scope but had grown to the level of being international. The Commission would benefit from the participation of more developing countries in its work, and the Secretariat should look into ways of providing assistance for developing country representatives to participate in meetings. Also, newly adopted legislation should be published as quickly as possible, with training sessions to be held to ensure uniformity of interpretation and application.
EBENEZER APPREKU (Ghana) said the Commission’s importance in promoting the rule of law in the context of international trade and development could not be overemphasized, particularly in view of Africa’s development needs. However, commitments must be honoured and capacity building must receive support. Further, more emphasis should be placed on the Commission’s role in helping to develop Africa’s institutional architecture to promote the rule of law in the context of Africa’s special development needs.
He said the Arbitration Rules were of particular importance to his country, because it was the only international mechanism for resolving investment disputes. The Ghana Arbitration Act made no direct reference to those Rules, although there was reference to them in practice. That was because the Ghana Chamber of Commerce considered the Rules more applicable to larger firms than to Ghana’s. An amendment to the legislation was under consideration to expressly provide for the Rules as an option for dispute settlement. A timely engagement of the Commission with Ghana’s Chamber of Commerce Committee of Experts would be helpful.
Noting that his country had been party to the New York Convention since 1958, he said Ghanaian courts looked favourably on foreign arbitral awards and subjected disputes to adjudication only when one party failed to act in good faith. UNCITRAL should consider taking a regional approach to promoting its work. It should also explore the possibility of funding the participation of skilled experts from developing countries in its meetings and its working groups.
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