United Nations International Trade Law Body Crucial to Rule of Law; Legal Committee Reviews Annual Report, Applauds Achievements
United Nations International Trade Law Body Crucial to Rule of Law; Legal Committee Reviews Annual Report, Applauds Achievements
|Department of Public Information • News and Media Division • New York|
Sixty-seventh General Assembly
9th & 10th Meetings (AM & PM)
United Nations International Trade Law Body Crucial to Rule of Law;
Legal Committee Reviews Annual Report, Applauds Achievements
Administration of Justice System Urged to Have Access
For Broader Category of Personnel, Judges Code of Conduct Needed
The work of the United Nations Commission on International Trade Law (UNCITRAL) was essential to upholding the rule of law and could only be realized when States put binding legal texts into action, Hrvoje Sikirić, Chairperson of the Commission’s forty-fifth session, told the Sixth Committee (Legal) as it considered the Commission’s report and concluded its debate on two additional items: criminal accountability of the Organization’s officials and experts on mission; and the administration of justice at the United Nations.
Because assisting Member States to reform their laws was inherent to UNCITRAL’s work, the Chairperson continued, the Commission should explore extrabudgetary resources and possible public-private partnerships to ensure States’ requests for assistance were met. States, international organizations and others interested should also consider contributing to the Commission’s Trust Fund.
Great strides had been made in UNCITRAL’s recent session, said the delegate of the Republic of Korea. The Commission’s adoption of the Guide to Enactment of the UNCITRAL Model Law on Public Procurement was one of the past year’s greatest achievements. As well, the first UNCITRAL Regional Centre, which recently opened in the Republic of Korea, would assist those in the Asia-Pacific with the progressive development and application of international trade law. Renaud Sorieul, UNCITRAL’s Secretary, said proposals were on the table for opening three additional regional centres in Singapore, Russian Federation and Kenya.
Speaking specifically about UNCITRAL’s utility to developing countries, the representative of Nigeria said an online dispute resolution mechanism, elaborated by the Commission, should seek to support medium-sized businesses in developing economies. Such rules would promote greater equality between developed and developing nations and improve access of developing nations to foreign markets.
The Commission’s legal texts and model laws were of “great practical value for all”, said India’s representative, and the Commission should be commended for promoting the uniform interpretation and effective application of its legal instruments. Certain subtopics of the Commission should be considered under the Sixth Committee’s work on the rule of law.
The representative of Austria also commended the Commission’s “impressive more than 40-year track record of contributions to the strengthening of the rule of law” as it related to international trade law, long-term development, conflict prevention and post-conflict reconstruction. She suggested that a regular dialogue between the Commission and the Rule of Law Coordination and Resource Group be held to ensure the integration of the Commission’s work into the Organization’s rule of law activities.
Turning to the administration of justice at the United Nations, Uruguay’s delegate pointed out that deadlines for delivering justice by the bodies in that system were shorter than those of Member States’ justice systems. “Whenever justice took too long”, he stated, “it was no longer justice.” He called for the study of including groups not currently under the jurisdiction of the Organization’s justice system.
Switzerland’s delegate also urged that a broader category of personnel be given access to that informal system, and that the Ombudsperson’s mandate be expanded. In addition, a mechanism was needed to address the potential misconduct of judges.
The representatives of New Zealand, speaking also for Canada and Australia and Chile, speaking for the Community of Latin American and Caribbean States (CELAC), said they were largely satisfied with the evolution of the administration of justice system during its first three years, with New Zealand’s delegate recommending that developments that aligned the justice system with its goals be considered in the future.
Concluding today’s debate on criminal accountability were the representatives of Nigeria, Bangladesh, United States, Thailand, Israel, Congo and Trinidad and Tobago. Also speaking in today’s debate on the United Nations Commission on International Trade Law were the representatives of Norway (on behalf of the Nordic countries), Belarus, Philippines, El Salvador, China, Canada, Singapore, Russian Federation, Japan, United States, Israel, United Kingdom, Greece and Iraq. Speaking on the administration of justice at the United Nations were the representatives of the Russian Federation, Nigeria and the United States. The Delegation of the European Union also spoke today on the administration of justice.
The Committee will meet again tomorrow, 16 October, at 10 a.m. to consider five requests for observer status in the work of the General Assembly.
The Sixth Committee (Legal) met today to conclude its debate on criminal accountability of United Nations officials and experts on mission (for background, see Press Release GA/L/3438). It then began its consideration on the annual report of the United Nations Commission on International Trade Law (UNCITRAL), as well as the report on the administration of justice at the United Nations.
The UNCITRAL report covers the proceedings of the Commission’s forty-fifth session ( Vienna, 25 June to 6 July 2012) (document A/67/17), including a review of the progress of the six Working Groups. The Working Group on the Model Law on Public Procurement (Working Group I) finalized their Guide to Enactment and the Commission adopted it. The Secretary-General was requested to edit and finalize the Guide, and then publish and disseminate it broadly, with the Model Law, through electronic means to Governments and other interested bodies.
The report states that the Commission also adopted the recommendations to assist arbitral institutions and other interested bodies with arbitration under the UNCITRAL Arbitration Rules, as revised in 2010, with a view to be used in settling disputes of an international and commercial nature. The Secretary-General was requested to transmit the recommendations broadly to Governments, publish them, and ensure that they become widely known and available, particularly to arbitral institutions.
According to the report, Working Group II (Arbitration and Conciliation) continued to prepare a legal standard on transparency in treaty-based, investor-State arbitration. Noting the Working Group’s differing views on the transparency rules’ scope of application, and concerned about its progress, the Commission urged completion of work on this issue, preferably at the Commission’s forty-sixth session (2013).
The report notes the progress made by Working Group III (Online Dispute Resolution) on the draft procedural rules on online dispute resolution for cross-border electronic transactions. The Commission requested that the Working Group consider and report on how the draft rules would respond to the needs of developing countries and those facing post-conflict situations; deliberate further on the effects of online dispute resolution on consumer protection in developing and developed countries, including those in post-conflict situations; and explore other means to guarantee effective implementation of online dispute resolution outcomes. Reaffirmed was the Working Group’s mandate in regards to low-value, high-volume cross-border electronic transactions.
According to the report, the Commission noted progress made by Working Group IV (Electronic Commerce) on electronic transferable records, and urged the Group to identify specific issues related to those records and to establish an international regime to facilitate their cross-border use. Colombia, Spain and the United States had transmitted to the Working Group a paper identifying current practices on electronic transferable records and related business needs. Other developments included the adoption of a resolution by the Economic and Social Commission for Asia and the Pacific (ESCAP) on enabling paperless trade and the cross-border recognition of electronic data and documents.
In regards to the legal issues of electronic single window facilities, the Commission highlighted the guide, “Electronic single window legal issues: a capacity-building guide”, jointly prepared by the United Nations Network of Experts for Paperless Trade in Asia and the Pacific, ESCAP and the Economic Commission for Europe, with substantive contribution from the UNCITRAL Secretariat. In addition, the American Bar Association submitted a paper providing an overview of identity management, its role in electronic commerce and relevant legal issues.
The report details the progress of Working Group V (Insolvency Law) in preparing guidance on the interpretation and application of selected concepts of the UNCITRAL Model Law on Cross-Border Insolvency. The Commission noted that, while that work would take the form of revisions to the Guide to Enactment of the UNCITRAL Model Law on Cross-Border Insolvency, it would not change the text of the Model Law itself. The Working Group also continued deliberations on the responsibility of directors of an enterprise.
Turning to security interests (Working Group VI), the report states that the recommendations on security rights registration in movable assets would take the form of a guide (the draft Registry Guide), to be finalized and submitted to the Commission for adoption at its forty-sixth session in 2013. The Working Group would also develop a simple, short and concise model law on secured transactions which would assist States in addressing urgent issues relating to credit access and financial inclusion. Security rights in non-intermediated securities, meaning other than those credited in a securities account, would remain on the Working Group’s agenda.
The report also details, among other subjects, current and possible future work in public procurement and related areas, microfinance, and international contract law by UNCITRAL; preparation of a guide on the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards; technical assistance to law reform; establishment of UNCITRAL regional presence; and the role of UNCITRAL in promoting the rule of law at the national and international levels.
Reports on Administration of Justice
Also before the Committee is the report on the Administration of Justice at the United Nations (document A/67/98). As the final report of the first Internal Justice Council, which served from 2008 to June of this year, the document states that all tasks the General Assembly designated to the Council were accomplished during its term. The Council had found suitable candidates for judicial positions on the United Nations Appeals Tribunal and the United Nations Dispute Tribunal. A code of conduct for judges had been drawn up and approved by the General Assembly, although no enforcement mechanism was established. In addition, Council members had monitored the justice system, providing regular updates and recommendations to the General Assembly.
The report goes on to say that, in regards to the established code of conduct, the Council stressed the importance of developing an enforcement mechanism that could be used to settle cases of those who felt aggrieved by possible breach of the code. The lack of such a mechanism was considered “a serious dereliction of duty”. Without an enforcement mechanism, a number of complaints remained outstanding.
The report also says that the General Assembly, through the establishment of the Internal Justice Council, had sought to institute an independent, transparent, effective, efficient and fair internal justice system. However, the work of the Council, impaired by resource shortages, strongly urged for adequate resources to be included in the future budgets of the Office for the Administration of Justice.
The report provides further details about the Council’s work and offers recommendations in its five main sections: enforcing the code of conduct; the Tribunals, including the registries; issues common to the United Nations Dispute Tribunal and United Nations Appeals Tribunal; the Office of Staff Legal Assistance; and the Office of Administration of Justice. Unlike its previous reports, the final report does not discuss the Management Evaluation Unit. The report also notes that the Office of Legal Affairs and the Administrative Law Section were fully staffed insofar as the internal justice system was concerned.
Additionally, the Committee has before it the report on the activities of the Office of the United Nations Ombudsman and Mediation Services (A/67/172). That report, the fourth of its kind, focused on activities undertaken between 1 January and 31 December 2011, and described services delivered to staff of the Secretariat, the funds and programmes, and the Office of the United Nations High Commissioner for Refugees. Root causes of conflicts addressed by the Office and corresponding outreach activities were also addressed.
Also before the Committee is the report on amendments to the rules of procedure of the United Nations Dispute Tribunal and the United Nations Appeals Tribunal (A/67/349). The amendments, if approved by the General Assembly, would increase the number of plenary meetings to be held by the United Nations Dispute Tribunal from one meeting to two per year. The number of ordinary sessions for hearing cases to be held by the United Nations Appeals Tribunal would increase from two sessions to three per year. Those amendments would have cost implications for the 2014-2015 biennium. A third amendment, if approved, would extend the time to submit an answer to an appeal. As well, the time for the party answering the appeal to file a cross-appeal would increase from 45 days to 60 days. Should the Assembly approve the proposed amendments, additional resource requirements amounting to $264,300 would be required
The Committee also has for its consideration the Secretary-General’s report on the administration of justice at the United Nations (A/67/265) and a Corrigendum to the report (A/67/265.Corr.1). The report notes that since establishing the new system of administration of justice in 2009, the Assembly had recognized the achievements of the new system, acknowledged its evolving nature and continued to monitor it to ensure achievement of its mandate. .
Statistics included in the report cover the 952 requests for review received and closed by the Management Evaluation Unit, as well as the 520 matters resolved. The Office of Staff Legal Assistance received 702 new cases and closed or resolved 526 cases. The offices representing the Secretary-General received 282 new cases, and were counsel of record in 219 of the judgements issued by the United Nations Dispute Tribunal. The Office of Legal Affairs was counsel of record for the Secretary-General in 80 of the judgements issued by the United Nations Appeals Tribunal. The Dispute Tribunal received 282 new cases and disposed of 272 cases. It issued 219 judgements and 672 orders, held 249 hearings and referred nine cases to the Mediation Division of the Office of the United Nations Ombudsman and Mediation Services. The Corrigendum before the Committee instructs that the last sentence of the Secretary-General’s report on the matter be amended.
Statements on Criminal Accountability
FATIMA AKILU ( Nigeria) commended States that were dedicated to providing information on nationals who had committed crimes while on mission, and welcomed cooperation between Member States and the United Nations on investigations and prosecutions. Those actions would certainly promote the cause of justice and equality, of which the United Nations was expected to be the epitome.
As a major troop-contributing country and active participant in United Nations peacekeeping operations, she went on to say that her country took seriously any exceptions to criminal impunity for United Nations personnel who were expected to be good ambassadors of the Organization. Nigeria had an accountability procedure in place on the punishment of transgression, particularly by military and peacekeeping personnel, and Nigerian laws governing those operations had extra-territorial effect. In recognition of the importance of sustained training programmes, education and reorientation of personnel, she closed by expressing her support for the Organization’s efforts to strengthen pre-deployment training and in-mission induction training on the standards of conduct.
ABULKALAM ABDUL MOMEN ( Bangladesh) said that the issue of criminal accountability was increasingly gaining importance because of the increase in conflict around the world and the enhanced engagement of the United Nations in peacekeeping and peacebuilding activities. Therefore, Member States’ full implementation of the relevant General Assembly resolutions would ensure criminal accountability of Organization officials. Further, training, awareness-raising activities and preventive measures at the mission level were critically important in all United Nations field missions.
He went on to say that the Department of Peacekeeping Operations and the Department of Field Support should continue to implement the United Nations three-pronged strategy to address misconduct, in particular sexual exploitation and abuse, through preventive measures and the enforcement of United Nations standards of conduct and remedial action. In addition, the comprehensive strategy on assistance and support to victims of such crimes could guide Member States positively in those endeavours.
As one of the top contributors to United Nations peacekeeping operations, he said his country always maintained a zero-tolerance policy in addressing all cases of abuse committed by Bangladesh peacekeeping personnel. When Bangladesh civilian peacekeeping personnel or civil servants engaged in United Nations military were suspected of sexual exploitation and abuse, they were reported to authorities and investigated in accordance with Bangladesh law. Also, all crimes under Bangladesh law committed by Bangladesh civil servants in foreign countries were punishable, as well.
JOHN ARBOGAST (United States) said it was important for the General Assembly to remain “seized” of the issue at hand and that it was “absolutely critical” that United Nations officials and experts on mission be held accountable if they had committed a crime. During the last reporting period, the United Nations had referred six more credible allegations against its officials to States than it had the previous year. That increase suggested the Organization’s efforts to strengthen its training on the code of conduct may have helped to increase awareness and the need to report.
However, it was the actions of Member States, he stated, that were integral to curbing abuses by nationals on mission. Member States should take appropriate action with regard to those individuals, and report to the United Nations on the disposition of cases. His country was not convinced of the need for a convention on the matter, as it might not present the most efficient or effective means through which accountability could be ensured, particularly in situations when a lack of jurisdiction might not be the principle hindrance to prosecutions. Other impediments could include lack of political will, resources or expertise, and local laws that did not adequately address the age of consent. The Committee might consider asking the Secretary-General to examine and report on those obstacles.
NORACHIT SINHASENI ( Thailand) said that any criminal conduct carried out by United Nations personnel while on mission, particularly involving sexual abuse, violence and exploitation of women and children, tarnished the integrity, credibility and effectiveness of the Organization, and must not go unpunished. The United Nations’ provision of technical support to Member States towards developing their domestic legal frameworks to deal with such crimes and trainings on the code of conduct were commendable.
To eliminate legal gaps which allowed United Nations personnel to escape justice, he called upon States to establish jurisdiction over serious crimes committed by their nationals while serving on mission. Cooperation with host States should also be enhanced under existing treaties or other arrangements. At the same time, measures taken by a State against United Nations personnel must be consistent with the convention on their privileges and immunities. Those personnel must continue to enjoy immunities under that convention unless those immunities had been officially waived. In that regard, the waiving of immunities was commendable, as long as due process was granted.
He went on to say that States should refrain from focusing on “the terminology or the constituent elements of the offence”, but instead focus on the totality of the acts or omissions alleged against the person whose extradition was sought. Expressing support for both the zero-tolerance policy and pre-deployment training on the Organization’s code of conduct, he said that before a convention could be considered on the matter, “unresolved concerns” needed to be addressed. In that regard, he looked forward to the outcome of the newly-established working group, particularly with regard to investigation and exchange of information.
NIMROD KARIN ( Israel) stressed the importance of ensuring that any United Nations official or expert who committed a serious crime in the course of a United Nations operation be held criminally accountable. His country supported the relevant General Assembly resolution on the matter and urged States to take all appropriate measures to ensure that such crimes were not met with impunity.
Commending the Secretary-General’s latest report that outlined States’ national legislation of States and their systems of cooperation with the United Nations, he urged all States to close the jurisdictional gaps and assert jurisdiction over serious crimes committed by their nationals while serving as United Nations officials and experts on mission abroad.
He welcomed the various prevention measures adopted by the Secretariat to eradicate misconduct, including the implementation of the three-pronged strategy. Recalling the disagreements among Member States over the question of a new convention, he said it would be more effective and useful at the current stage to focus on and address substantive and practical matters, while leaving the question of form to a later stage.
ERNEST TCHILOEMBA TCHITEMBO (Congo) noting the political conflicts across the world that continued to call for assistance in the maintenance of peace and security, said crimes committed by United Nations officials and experts on mission were not compatible with the people they were trying to help, nor the mandate of the United Nations. Those officials’ enjoyment of impunity was unjustifiable.
He went on to say that officials and experts on mission had to respect the laws of the country in which they were working. The host State, in that regard, had full jurisdiction over them. Furthermore, preventive measures could be taken by the Organization, including pre-deployment induction training on standards of conduct, as well as systems that could monitor the integrity of staff. An international convention on the matter should be considered, and certain crimes, particularly those involving sexual abuse, should be subjected to the jurisdiction of international courts.
EDEN CHARLES ( Trinidad and Tobago) said there was a need to bring to justice those persons who violated domestic and international law. If criminal acts were not prosecuted with due process and other judicial guarantees, the United Nations could be accused of contributing to a culture of impunity. Some of those crimes committed were particularly “heinous” in nature, he said, adding that sexual exploitation and abuse were most prevalent. Appropriate measures must be implemented to bring perpetrators of those acts to justice.
For its part, he said Trinidad and Tobago promoted a zero-tolerance policy in relation to crimes and other atrocities committed by United Nations personnel. Further, the Secretary-General’s report allowed his country to examine its own laws to ensure that they were in line with its international legal obligation to prosecute such personnel. At the domestic level, legal certainty was vital for prosecution of such serious crimes.
At the international level, he went on to say, there needed to be respect for laws that were accepted by all States in order to bring to justice experts and others whose criminal conduct brought the Organization to disrepute. He expressed hope that the Committee would continue to deliberate on the report by the Group of Legal Experts to ensure criminal accountability, which was indispensable to the promotion of rule of law at national and international levels, as well as the promotion of global peace and security.
Introduction to UNCITRAL Report
HRVOJE SIKIRIĆ ( Croatia), Chairperson of the forty-fifth session of the United Nations Commission on International Trade Law (UNCITRAL), introduced the Commission’s report, noting the progress made in the adoption of a Guide to Enactment of the UNCITRAL Model Law on Public Procurement, as well as recommendations to assist arbitral institutions and other like bodies. In other legislative areas addressed by the Commission, Working Group II should continue to complete work on the rules of transparency in treaty-based investor-State arbitration expeditiously.
He went on to say that there had been progress to help users of UNCITRAL texts, including, among others, the comprehensive digest of case law on the UNCITRAL Model Law on Arbitration, published earlier this year, and the Guide on the New York Convention. In July, a web platform was launched for the Guide to the New York Convention. Two additional accomplishments were the agreement by Working Group III that the standard for the resolution of cross-border, low-value online disputes should take the form of procedural rues, and the imminent entry into force, in March 2013, of the United Nations Convention on the Use of Electronic Communications in International Contracts. Further, the Commission approved the preparation of a digest of case law on the Model Law on Cross-Border Insolvency. Working Group VI, he said, should prepare a simple model law on secured transactions.
In regards to other future endeavours, the Commission had instructed the Secretariat to undertake a study of topics related to procurement planning, such as sustainability and environmental issues, which were not significantly addressed in the relevant Model Law and corresponding Guide. Noting the conclusions of Rio+20, which encouraged the use of public-private partnerships as a tool for economic development, the Secretariat had been requested to organize a colloquium on the matter, which would be the basis for the Commission’s work. One or more colloquiums on microfinance and related matters as well as a colloquium international contract law should be held.
As was recognized at the High-level meeting on the rule of law, held in September this year, he recalled that the adoption of legal texts by States was only the beginning of progress. Those texts then had to be promoted and carefully implemented. Thus, technical assistance to law reform was an essential element of UNCITRAL’s work. The Secretariat, in that regard, should continue to explore alternative sources of extra-budgetary funding for requests for technical cooperation and assistance and possible public-private partnerships. Further, States, international organizations and others interested should consider making contributions to the Commission’s Trust Fund.
In January, he went on to say, the first UNCITRAL regional centre had been established in the Asia-Pacific region. Other States had also expressed interest in hosting regional centres. The Commission had, in its session, taken note of 33 actions on UNCITRAL texts by States, including ratification of treaties and adoption of model laws. Another positive development had been a new trend among States to withdraw limiting declarations to UNCITRAL conventions, expanding the reach of those instruments. Once again recalling the High-level rule of law meeting, he noted the rare opportunity he had to talk about the rule of law from a commercial and trade law perspective. The outcome document of that meeting acknowledged the contribution made by UNCITRAL in harmonizing and modernizing international trade law.
In conclusion, he said UNCITRAL had been pursuing its mandate with great efficiency supported by a “remarkably small Secretariat” consisting of some 14 lawyers and half-dozen support staff. If the Commission were to “address the challenges of globalization”, however, it had clearly reached the limits of that small Secretariat. A strategic planning exercise based on a comprehensive review of the Commission’s current and future work programmes and their implementation would be undertaken next year.
ANNIKEN ENERSEN (Norway), speaking for Denmark, Finland, Iceland, and Sweden, said the Nordic countries had actively participated in the Commission’s working groups, and had performed the substantive preparatory work on topics within the Commission’s work programme. The activities of those working groups were characterized by open and inspiring discussions among its members which contributed to excellent results in their work.
She went on to say that the Nordic countries participated in the discussions in Working Group II concerning transparency in treaty-based investor-State arbitration. For disputes involving a State, principles of transparency and public access were of great importance. They also looked forward to further work within Working Group V (Insolvency) on the responsibility and liability of directors and officers of an enterprise in insolvency and pre-insolvency cases. That topic would be beneficial in delivering certainty and predictability towards a greater degree or harmonization of national approaches.
She went on to say that the work of Working Group III (Online Dispute Resolution) was of great interest, noting its great potential in agreeing on a solution that would gain broad, global support. She expressed appreciation for the efforts of Working Group VI (Security Interests) on the registration of security rights in moveable assets, and was encouraged by the ongoing efforts of Working Group IV (Electronic Commerce) to streamline its work.
YURY NIKOLAICHIK ( Belarus) said that the Guide to Enactment would not only help in the wide application and use of the Model Law, but would also implement best practices on procurement, improve international trade law and promote the rule of law as States and their entities managed their economic activities. Further, his country was interested in studying in detail the pilot project related to the establishment of a regional centre in the Republic of Korea.
He went on to say that the Secretariat must take additional measures to meet the needs of States with respect to technical assistance in training personnel and technical assistance in legal matters. Such assistance should come from extra-budgetary resources, as provided by donors. For its part, Belarus would continue to improve its own trade law in accordance with international legal standards and work in developing conditions to foster foreign ties and attract foreign investment.
EDUARDO JOSE ATIENZA DE VEGA ( Philippines) recalled that since its creation in 1966, UNCITRAL had facilitated world trade by progressively harmonizing and unifying international trade law. The Commission’s adoption of the Guide to Enactment of the Model Law on Public Procurement would contribute significantly to the Philippines’ public-private partnerships program, which aimed to achieve inclusive growth through infrastructure and development projects.
He went on to say that the Commission had also promoted the rule of law at the national and international levels. To further promote the rule of law, his Government would include mechanisms in its national legal framework to ensure transparency, accountability of public officials, wide participation of the private sector and fair access to information.
His country, he continued, was supportive of the proposal on electronic payments as it related to microfinance. Noting the opening of the UNCITRAL Regional Centre for Asia and the Pacific in January, he underscored its importance in providing technical assistance to developing countries and in promoting international trade and development. The establishment of a regional centre in Singapore would further enhance international trade and development for South-East Asian countries.
YONGHOON CHOI ( Republic of Korea) said the adoption of the Guide to Enactment of the UNCITRAL Model Law on Public Procurement could be considered one of the past year’s greatest achievements. He also welcomed the Commission’s adoption of recommendations for assistance with arbitration and progress made by the Working Groups, stating that “remarkable advancement” had been made by Working Group V, in particular, with respect to the guidance on the Model Law on cross-border insolvency and related matters.
In the future, he continued, the Commission would be able to pay more attention to commercial fraud issues. Also in the future, the Commission and its Working Groups should retain the existing rotation between New York and Vienna for its meetings. He then called attention to the opening of the first regional centre in his country and extended gratitude to Patricia O’Brien, the Organization’s Legal Counsel and Under-Secretary-General for Legal Affairs, who had emphasized the significant role of that centre toward enhancing international trade and development in the region. His country would continue to support that regional centre with the resources it had.
Joaquín Alexander Maza Martelli ( El Salvador) said, that as a member of the Commission for more than five years, his country had demonstrated its commitment to the Commission’s mandate through active participation in meetings and adoption of legislative and non-legislative instruments to promote international trade. In addition, it had helped to disseminate information on the use of those instruments by holding a training seminar that allowed different international institutions to become more aware of the Commission’s work.
He went on to say that El Salvador aimed to improve its investment and business atmosphere domestically by providing legal initiatives in electronic signing and securities for insolvency and investments. Being a member of the Commission had provided the opportunity to be involved in innovative areas that would have been otherwise difficult to learn about, and he expressed hope that his country would be able to continue its membership for another term in the Commission.
REN XIAOXIA (China) said her country had fully participated in the drafting of text in various working groups of the Commission, had referenced relevant model laws and legislative guidance promulgated by the Commission into its domestic legislation, and had actively facilitated the dissemination of the results of the Commission’s work.
She went on to say that the Guide to the Enactment was very helpful in interpreting and applying the UNCITRAL Model Law on Public Procurement, and was of significant importance for the improvement of legislation in procurement by governments. Further, the recommendations could promote the application of the UNCITRAL Arbitration Rules and facilitate the establishment of a uniform legal framework for fair and efficient settlement of international commercial disputes.
Concluding, she noted the achievements of the current session and the “high-quality” of the work of the Commission’s Secretariat. She hoped that its various working groups would deepen their work on the topics that further advanced the process of unifying legal rules on global trade.
CATHERINE QUIDENUS ( Austria), recalling the recent debates in both the Sixth Committee and at the High-level meeting on the rule of law, underscored the key role that UNCITRAL played in that matter. The Commission had an “impressive more than 40-year track record of contributions to the strengthening of the rule of law” as it related to international trade law, long-term development, conflict prevention and post-conflict reconstruction. No other body in the Organization was better equipped to provide internationally acceptable model law and rules in the field of commercial law.
She went on to suggest that a regular dialogue between the Commission and the Rule of Law Coordination and Resource Group be held through the Rule of Law Unit to ensure progress in integrating the Commission’s work into the Organization’s joint rule of law activities. The biannual briefing of the Rule of Law Unit held during the Commission’s forty-fifth session, in that regard, was of utmost importance.
Before closing, she turned the Committee’s attention to the two draft resolutions that her delegation was coordinating: the annual Omnibus Resolution on the Commission’s report, and a draft resolution on the 2012 recommendations to assist arbitral institutions and others interested. Delegations wishing to cosponsor the Omnibus Resolution were requested to sign the list at the Austrian desk.
DAVID KYFFIN ( Canada) noted the “eight years of work” that led to the successful conclusion of the Guide to Enactment of the UNCITRAL Model Law on Public Procurement. Following broad consultations with arbitral institutions, recommendations to assist those institutions with arbitration under UNCITRAL’s revised rules had also been adopted.
Working Group II’s progress, he continued, had underscored the Commission’s “sterling reputation in the area of international commercial arbitration”. Working Group III, likewise, had helped to safeguard consumer protection legislation, while Working Group VI had almost completed a much-needed guide on registries for security rights in movable assets, an important tool for States considering modernizing or creating a legislative regime for such security interests.
In regards to new topics for the Commission’s study, he went on to say that he was not supportive of undertaking work in the area of international contract law. That topic appeared to be academic rather than practical and would duplicate existing instruments. It was also unlikely to succeed when past efforts had not. The Secretariat’s resources should instead be allocated to other projects which responded to a demonstrated need and were more likely to lead to a successful result.
MARCUS SONG ( Singapore) said the increasing output of the Commission generated a corresponding increase in work required to promote and support the use of relevant texts. Such work included the production of guides, the collation of information on the texts, and the dissemination of the Commission’s completed work. Given its limited resources, it was necessary for the Commission to ensure that such resources be applied in the best possible manner. To that end, it should work only on areas where there was a clear need for harmonisation of legal rules and where it could ensure that its work would result in such harmonisation.
He went on to say that the Commission should also focus on efforts that addressed real commercial needs and removed legal obstacles to international trade, and that its “core work” should be to produce texts that would not or were unlikely to be generated without the Commission. The priority should be given to the production of binding international conventions and model laws, which were, in that order, the most effective means of ensuring harmonization of trade laws. Further, those items should be accorded priority over other work that might be less effective in leading to such harmonization.
He said that one way to optimize the Commission’s resources was through collaboration with Member States, experts and other organizations, including academic institutions, in disseminating UNCITRAL texts and making them more useful to potential users. In particular, the first Digest of case law on the UNCTIRAL Model Law on International Commercial Arbitration, produced by his country, was an example of such collaboration.
MIKHAIL PETROSYAN ( Russian Federation) said the Commission had a role to play in the harmonization of international trade law. It was important to ensure, in that context, that basic laws were “kept in line with the time” without damaging the harmony of international economic relations. During the recent High-level meeting on the rule of law, the role of UNCITRAL in upholding the principle was confirmed.
UNCITRAL’s work continued to be dynamic, he said, welcoming the adoption of the Guide to Enactment of the Model Law on Public Procurement. Also important was adoption of the recommendations on arbitration rules for arbitral institutions. The decision to hold a number of colloquia to determine future areas of work under the Commission, particularly on microfinance and public-private partnerships, was also welcomed. Noting that his country had been a member of the Commission since 1968, he said that the Russian Federation attached great importance to the progressive development of international trade law. There was an ongoing discussion, in that regard, about establishing a UNCITRAL regional centre in Moscow.
FATIMA AKILU ( Nigeria) said the Model Law on Public Procurement had become the benchmark in procurement law reform, as it set out procedures aimed at achieving competition, transparency, fairness, economy and efficiency in procurement processes. It would “afford” the international community to look at the impact of the Commission and commercial law reform on the promotion of the rule of law and also to facilitate progress in achieving effective integration of the Commission’s instruments, tools and expertise in the United Nations’ rule of law activities.
She went on to stress that efforts should be geared toward an elaborate preparation of legal standards on transparency in treaty-based investor-state arbitration, online dispute resolution for cross-border electronic transaction and electronic commerce as they affected developing countries in particular. The Guide to Enactment would help sharpen and promote the implementation of the Model Law on Public Procurement within her country’s legal framework.
Further, she said, the goal of ongoing negotiations for an online dispute resolution mechanism should be aimed at supporting, in earnest, medium-sized businesses in developing economies. Her country had always called for access to foreign markets for smaller enterprises in developing States and supported the work of Working Group III in that regard. The development of online dispute resolution rules, subject to final arbitration, would promote greater equality between developed and developing nations and improve access to foreign markets for the latter. Nigeria looked forward to further progress in that area, especially with regard to how online dispute resolution rules adequately addressed the needs of developing countries, and in particular with respect to arbitration.
DEREK O’BRIEN ( India) said that through its working groups, the Commission had been engaged in the preparation of legal texts that addressed a number of important areas including the international commercial dispute settlement, transport law, electronic commerce, insolvency, sale of goods, and procurement and infrastructure development. The legal texts and model laws developed by the Commission were directly relevant to the commercial transactions of individuals, corporations and States, and thus had “great practical value for all”. The Commission should be commended for promoting the uniform interpretation and effective application of its legal instruments, particularly with reference to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards.
He continued by expressing appreciation for the Commission Secretariat’s suggestion of three subtopics for consideration under the Sixth Committee’s agenda item on the rule of law, including the means of achieving effective coordination of rule-making activities at the regional and international levels; access to justice through alternative means of dispute resolution; and the mutually reinforcing impact of economic development on the rule of law. The decision to include any topics in an agenda item of the Committee would, however, require careful examination and deliberation. In closing, he reiterated the importance of technical cooperation and assistance to developing countries. The Secretariat should continue to provide such assistance, specifically in matters relating to adopting and using texts.
KENGO OTSUKA ( Japan) said it was important for every State to carefully examine how to ensure transparency while preserving efficiency of proceedings in relation to treaty-based investor-state arbitration. In that regard, his country would remain engaged with Working Group II on that issue. It would also continue to participate in the work of Working Group III on online dispute resolution and Working Group IV on electronic commerce.
Turning to Working Group VI, he said it was important to complete a legal text of registration of security rights in movable assets, as it would promote the provision of credit and enhance economic growth and international trade through the creation of a flexible and effective legal framework for security interests. Expressing satisfaction with the substantive deliberations of that Group, he said he would work toward the completion of that text in the next session of the Commission.
Concluding, he said his country attached great importance to the rule of law, also in the context of economics, because it promoted transparency at the national and international levels. Such transparency would expand secure investments and strengthen economic relationships among States.
JOHN ARBOGAST ( United States) said the Guide to Enactment of the Model Law on Public Procurement would assist States with implementing the Model Law. Further, the adopted recommendations on arbitration would provide important guidance to arbitral institutions and others under the Commission’s 2010 rules. The Commission’s report had highlighted its important role in furthering the broader rule of law agenda at the United Nations. UNCITRAL deserved recognition for that contribution.
Lauding the new regional centre in Republic of Korea, he then turned to the future work of the Commission. While he was supportive of the proposal for a model law on secured transactions, colloquia on microfinance and public-private partnerships, he expressed reservations regarding the proposal for work on international contract law. Several delegations had voiced objection to holding colloquia on that topic. It was, therefore, improper to conclude that consensus for further work on the matter was present. Neither the need for nor the feasibility of such a project had been designated.
NIMROD KARIN (Israel) said that, as a member of the Commission for the past decade, his country had been highly involved in its activities in a wide variety of fields, including, inter alia, the Model Law for International Commercial Conciliation, the 2010 UNCITRAL Arbitration Rules, public procurement, insolvency, transparency in State-investor arbitration proceedings, online dispute resolution and security rights.
Turning to Working Group III, he reiterated his country’s support for inclusion of a mechanism to ensure finality in resolving cross-border high-volume low-cost disputes, noting that such an arbitration mechanism would likely enhance and support consumer and business confidence in online international trade.
Concluding, he commended the Commission’s Secretariat for its “excellent professional work, continued responsiveness, rigor and sense of vision”. The Secretariat had, while handling an intensive workload and tight deadlines, consistently succeeded in maintaining an exceptionally high level of professionalism and in establishing a collaborative environment for all UNCITRAL parties.
JESSE CLARKE ( United Kingdom) said the Guide to Enactment of the UNCITRAL Model Law on Procurement was a most important contribution to the assistance available on procurement and would greatly enhance the use of the Model Law. Turning to Working Group II on the preparation of a legal standard on transparency in treaty-based investor-state arbitration, he said the Secretariat had produced “first-rate” papers for the group’s sessions and had facilitated progress in its work. He expressed hope that such progress would continue in a timely manner and looked forward to participating in the development of those draft rules.
In addition, he said his country continued to be actively involved in the work on insolvency law and had participated in the Group’s session in May of this year. At that last session, additional text and amendments to the Guide to Enactment of the Model Law on the interpretation and application of the main concept were further developed. Good progress had been made on that fundamental concept and, once completed, would provide invaluable guidance on the application of the Model Law in cross-border insolvency proceedings.
He went on to say that despite challenges in developing text for possible inclusion in the Legislative Guide on Insolvency Law on directors’ obligations in the period approaching insolvency, the Group was able to make progress on developing text through the “excellent” working papers produced by the Commission’s Secretariat.
MICHAEL STELAKATOS LOVERDOS ( Greece) said that since its creation in 1966 UNCITRAL had contributed to the advancement and uniform application of international trade law. With regard to the Guide to Enactment of the Model Law on Public Procurement, the Commission had rightly tackled the problem of collusion, which might occur when two or more suppliers or contractors and the procuring authority worked in tandem to manipulate the market. Such manipulation might involve an agreement to distort fair competition.
He then turned to the progress achieved by Working Group II on the draft legal standard on transparency in treaty-based investor-State arbitration. In that regard, the question of transparency under investment treaties was extremely complex and delicate, and demanded a thorough approach of the 1969 Vienna Convention on the Law of Treaties.
In conclusion, he emphasized the importance of uniform interpretation and application of UNCITRAL texts. Efforts made by the Commission to promote awareness and uniform application of such texts were welcome. Renewed appointment of correspondents covering case law on UNCITRAL texts was significant, as well, and would add new impetus to the system, providing wider dissemination of case law on key international trade law texts.
WAEL ALROBAAIE ( Iraq) underscored his country’s support for the proposals in the Commission’s report to provide training to judges and national authorities in order for them to consider international law disputes and increase research on the impact of trade law on the rule of law. There was also a need to continue work in capacity building for international trade law reforms. Iraqi investment law aimed to build confidence in the investment environment and disseminate information on investment opportunities. It also allowed investors to obtain investment licenses to apply to a single electronic window through the internet and provided them support after the issuance of licenses.
He went on to say that his country’s legislature was in the process of enacting a law on commercial registration to provide a sound climate for foreign investment. Iraq was committed to a number of regional treaties related to dispute resolution. Stressing that State parties should resort to an international convention to resolve investment disputes, he said investment disputes in his country would be covered by a treaty that provided for international commercial arbitration.
Concluding, he said there was major interest in establishing an international trade arbitration centre in his country. Such a centre would resolve commercial disputes through arbitration and promote policies, plans and programmes that would develop rules and regulations on commercial contracts.
Statements on Administration of Justice
JOSÉ ANTONIO GONZALEZ (Chile), speaking for the Community of Latin American and Caribbean States (CELAC), said that, notwithstanding difficulties experienced during the first year of its implementation, his group was satisfied with the evolution of the administration of justice system, adding that the system had improved relations between the Organization and its personnel. He also noted the important role the Sixth Committee took in making the system fully operational.
However, he continued, there were several outstanding issues. In that regard, his group welcomed the proposal for a procedure to enforce the code of conduct for judges of the Dispute and Appeals Tribunals, and was also prepared to discuss existing proposals for addressing possible misconduct. He looked forward to holding an exchange of views on proposed amendments to the rules of procedure for the two tribunals, as well as further deliberations on the possible establishment of expedited procedures for resolving disputes between the United Nations and certain categories of non-staff personnel, including possible access to the formal system by those who were non-staff.
He said further proposals for a staff-funded scheme in the Organization should continue to be explored, specifically to complement the work of the Office of Staff Legal Assistance. The Internal Justice Council, likewise, should continue to provide its views and contributions on the implementation of the administration of justice system. Regarding the Dispute and Appeals Tribunals, he noted their substantive volume of work, but expressed concern about the high dependency on the formal system.
More recourse should be sought in the informal system, he said. The Management Evaluation Unit was important to those tribunals, particularly in preventing unnecessary litigation. Reiterating the importance of an informal system of justice and a structure within the Office of the Ombudsman and Mediation Services that would be supportive of that informal system, he called on the Sixth Committee to coordinate closely with the Fifth Committee to ensure an appropriate division of labour and to avoid overlaps.
GILLES MARHIC, Minister Counsellor, Delegation of the European Union said the processing of cases in both the formal and informal systems had shown a marked improvement in efficiency and fairness of procedure. However, some challenges still remained to be addressed. Acknowledging the efforts of the Office of the United Nations Ombudsman and Mediation Services in advancing and encouraging the use of informal conflict resolution, he pointed out that it would be important to consider ways in which more cases could be resolved early through mediation, both at Headquarters and at regional offices, in order to revert the inclination towards formal grievance mechanisms.
Turning to specific issues addressed in the Secretary-General’s report, he said the expiration of the terms of office of three ad litem judges by the end of 2012 thereby reducing the number of judges, could result in a backlog and significant delays in the handling of cases, as well as raise serious concerns regarding due process. The different options of representation of staff members before the Tribunals could follow a mixed system, leaving the choice of representation to the staff members themselves.
He went on to say that on the issue of the legal protection of non-staff personnel, he favored a differentiated system that provided an adequate, effective and appropriate remedy. Discussions were also welcomed regarding a code of conduct for legal representatives, which would be prepared by the organs suggested by the Secretary-General in his report. Finally, he said the European Union was ready to consider the proposal in the Secretary-General’s report to increase the Tribunals’ sessions per year to two and three sessions respectively.
ALICE REVELL (New Zealand), speaking also for Canada and Australia, said she was pleased with the progress over the last three years of the new administration of justice system and the work of the new tribunals. The United Nations must continue to refine its internal justice system in the view of upholding respect for the rule of law and equality of access to a transparent and efficient system. It was essential that, as the new system evolved, developments, which would ensure the system was in-line with its goals, were considered
The Secretary-General, she went on to say, had put forward a number of proposals to strengthen the system, including increasing the role of the Ombudsman, and the use of informal mechanisms in response to a high case-load. The Secretary-General had also requested approval of proposed amendments to the legal procedures of the tribunals. Those amendments aimed to improve the effectiveness and efficiency of the administration of justice system. However, because those amendments had financial implications, they would also need to be carefully considered in the Fifth Committee.
NIKOLAS JOHANNES STUERCHLER GONZENBACH ( Switzerland) highlighted several points that the Sixth Committee should consider regarding the administration of justice system. First, the mandate of the ombudsperson should be expanded to give a broader category of personnel access to the informal system. Additionally, a mechanism should be established to address the potential misconduct of judges, and a code of conduct should be created for legal representation before the two tribunals. As well, an expedited arbitration procedure for consultants and individual contractors could be advanced as a pragmatic and potentially fair solution to provide legal remedy to that category of personnel.
Further, he said all persons working for the Organization, including non-staff personnel, should have access to an independent body that could deal with complaints and follow them up in an effective and economic manner. Turning to the immunity of international organizations, he stressed that in order to determine if immunity was admissible, it was necessary to determine whether plaintiffs had access to other reasonable methods of effectively protecting the rights guaranteed by the European Convention on Human Rights.
Speaking as a host country to the Organization, he pointed out that some national organizations had already refused to admit immunity of jurisdiction claimed by an international organization, including the United Nations. In other words, to better ensure that national jurisdictions would not refuse the United Nations immunity, the system established for settling the disputes of personnel and non-staff personnel alike must be sufficiently independent, transparent and effective to meet human rights standards.
MR. PETROSYAN ( Russian Federation) said the high number of claims settled by the Management Unit illustrated that staff had begun to trust it more. However, work remained to be done. Noting that backlogs could delay the administration of justice, he expressed support for measures to improve the working methods of both tribunals, called for expanded use of informal systems, and welcomed the steps taken in that regard by the Ombudsman.
He went on to say that the administration of justice could be further improved through regular review of its work. Further, the issues of access to legal protection and mediation by non-staff personnel, in particular consultants and individual contractors, required further study. More work needed to be done in that regard to provide non-Secretariat staff and others not covered by existing mechanisms for dispute settlement.
JOSÉ LUIS CANCELA (Uruguay), lauding the development of an internal justice system, pointed out that the deadlines for delivering justice by the bodies in that system were shorter than those of Member States’ justice systems. “Whenever justice took too long”, he elaborated, “it was no longer justice”. As the new internal justice system evolved it had to fight the backlog of the prior system. At the same time, there had been an increase in cases brought before the system.
He went on to say that inclusion of groups not currently under the jurisdiction of the Organization’s justice system, including consultants, contractors or non-staff personnel, should be studied. Concerning the Office of Staff Legal Assistance, proposals in Annex II of the Secretary-General’s report should be considered with the view towards strengthening that Office, alternatives for representation, and options for a compulsory financing mechanism.
As the number of cases brought before the justice system was increasing, he said, it was recommended that disputes be resolved in informal bodies, which would promote a culture of amicable dispute settlements. In closing, he pointed out that 33 per cent of cases brought to the Management Evaluation Unit were resolved through the informal system, particularly through the Office of the Ombudsman or bilateral consultations with staff.
MS. EYOMA (Nigeria) noting the importance of the Office of the Administration of Justice in the promotion of equity, transparency, equal representation and right to a fair hearing, said that the Organization must provide for the general welfare of its staff through the efficient and effective administration of justice. Further, holding individuals and the Organization accountable for their actions was critical to human resource management and strengthened the relationship between staff and management.
Turning to the need for adequate resources, she called for sufficient allocation of funds to cover all components of work of the Office of the Administration of Justice. The International Justice Council was an important component in promoting judicial independence. Stressing that experienced candidates would impact positively on the Office in general, she called for transparency in the judicial selection process, adding that an efficient administration of justice depended on qualified and experienced judges.
She also expressed support for a decentralized administration of justice that would reach more United Nations staff and promote their confidence in the system and aid in the reduction of conflicts of interest as they arose. Concluding, she said her delegation valued information sharing and strategic communication in this field and called on all Member States to share information with respect to the administration of justice.
STEVEN HILL ( United States) said that the establishment of an independent, transparent, professionalized, adequately resourced and decentralized administration of justice system was a major milestone in the reform of the Organization. The new tribunals, along with a number of other innovative reforms, had a significant positive impact on the transparency, fairness, efficiency and accountability of the United Nations personnel system.
Noting both professionalism and productivity of the new system, as well as its ongoing evolution, he said measures available to non-staff personnel for addressing disputes would continue to be at the “forefront” of the Sixth Committee’s work during the current session. Concerning mechanisms for addressing the misconduct of judges, he hoped that the General Assembly would be able to reach an appropriate outcome to address that matter.
Welcoming a discussion on the code of conduct for legal representation, he lauded the Secretary-General’s compilation of the practice in certain national legal systems, as well as comparable administrative tribunals of international organizations on the award of punitive damages. However, given the relatively low number of responses on national practice, additional information would be useful.
* *** *