Transcript Document
UNCITRAL United Nations Commission on International Trade Law The Role of UNCITRAL in International Arbitration 18 July 2012
Renaud Sorieul The Secretary of UNCITRAL
Topics to be Covered
Technical Assistance
CLOUT system
UNCITRAL MAL Digest
Recommendations to assist arbitral institutions & other interested bodies
Current work of Working Group II UNCITRAL United Nations Commission on International Trade Law
Work of UNCITRAL Technical Assistance & Coordination
Technical legislative assistance for modernization of trade laws & commercial practices
Promotion of understanding of international trade law texts
Emphasize benefits of international trade law texts to the expansion of international trade UNCITRAL United Nations Commission on International Trade Law
UNCITRAL TAC: Examples 2011-2012
Comments by the Secretariat on
Mediation laws of Montenegro, Serbia, Bosnia Herzegovina and Albania for modernization of the texts as part of a joint project with the GIZ
Draft arbitration law by Albania
Draft law by the Union of Comoros on recognition and enforcement of awards UNCITRAL United Nations Commission on International Trade Law
UNCITRAL TAC: Examples 2011-2012
Comments by the Secretariat on
Arbitration rules of arbitral institutions,
including
:
Bangladesh International Arbitration Centre (BIAC)
Cyprus Arbitration and Mediation Centre (CAMC) UNCITRAL United Nations Commission on International Trade Law
Work of UNCITRAL CLOUT
= Case Law on UNCITRAL Texts
A collection of court decisions & arbitral awards interpreting UNCITRAL texts
► Case abstracts in the 6 UN languages UNCITRAL United Nations Commission on International Trade Law
CLOUT : Texts covered
¤ ¤ CISG Convention on Independent Guarantees & Standby ¤ ¤ ¤ ¤ Letters of Credit Hamburg Rules Limitation Convention (1974) Limitation Convention, 1980 (amended text) Model Law on International Commercial Arbitration ¤ ¤ ¤ (1985) Model Law on Cross-Border Insolvency (1997) Model Law on Electronic Commerce New York Convention UNCITRAL United Nations Commission on International Trade Law
UNCITRAL United Nations Commission on International Trade Law
► in 1988: CLOUT The Digest History Collection of case law =
full text of decisions/awards by courts & tribunals
+
Summary of each decision & award UNCITRAL United Nations Commission on International Trade Law
The Digest
Commission: How to contribute to uniform interpretation of UNCITRAL texts?
CLOUT: interpretation of certain provisions not uniform
UNCITRAL United Nations Commission on International Trade Law
The Digest
The Commission*:
“It was suggested that the digest could be merely a compilation of differences in the interpretation of the Convention rather than a guide. In support of that view it was stated that if the digest to be drafted were to function as a guide, it would necessarily have to indicate preference for some views over others….the digest should not criticize domestic case law.
“
*Official Records of the General Assembly, Fifty-sixth Session, Supplement No. 17 (A/56/17), paras. 393-395.
UNCITRAL United Nations Commission on International Trade Law
The Digest – its purpose 1. Identifying trends in the interpretation of the Model Law 2. Identify whether any divergences as result of: Interpretation of the text or Law enacting the Model Law differs in substance from the Model Law UNCITRAL United Nations Commission on International Trade Law
The Digest The Digest A tool for technical cooperation
Providing users with a means to better understand, interpret and apply the enactments of the Model Law
UNCITRAL United Nations Commission on International Trade Law
The Digest on the Model Law
Launched on 9 June 2012 Organised according to the Chapters and Articles in the Model Law Summary of case law for each Article, highlighting common views and reporting any divergent approach Footnotes with live links to cases 725 cases from 37 States all over the world, 232 pages
UNCITRAL United Nations Commission on International Trade Law
The Digest
UNCITRAL United Nations Commission on International Trade Law
Guide on the New York Convention
• Currently being prepared by UNCITRAL (expected in 2013) • Meanwhile, online platform on the New York Convention Guide ( www.newyorkconvention1958.org
) was launched on 2 July 2012 • The website constitutes a platform which reflects the evolution of case law on the New York Convention
UNCITRAL United Nations Commission on International Trade Law
New York Convention
Other current projects *Monitoring implementation of the New York Convention
Decision of the Commission: Survey 108 replies Published on the UNCITRAL website *
Project of a guide UNCITRAL United Nations Commission on International Trade Law
UNCITRAL
Recommendations to assist arbitral institutions and other interested bodies with regard to arbitration under the UNCITRAL Arbitration Rules 1982 & 2012 UNCITRAL United Nations Commission on International Trade Law
Recommendations to arbitral institutions Origin of the 1982 Recommendations ► Adoption of the 1976 UNCITRAL Arbitration Rules ► Arbitration did not have the standing as it has today ► Mandate to Secretariat:
provide information & assistance to arbitral institutions and other relevant bodies in using the Arbitration Rules
► Adoption in 1982 UNCITRAL United Nations Commission on International Trade Law
History of the 2012 Recommendations
Revision of the 1976 Rules necessary to
“ conform to current practices in international trade and to meet changes … over the last 30 years in arbitral practice ” GA resolution 65/22 (2010)
UNCITRAL United Nations Commission on International Trade Law
History of the 2012 Recommendations
Origin of the 2012 Recommendations: Need for new recommendations
Revised UNCITRAL Arbitration Rules
Particular in view of extended role of appointing authority UNCITRAL United Nations Commission on International Trade Law
Recommendations to arbitral institutions Purpose of the Recommendations
Promote the use of the Rules
Increase inclination of arbitral institutions world-wide to act as appointing authority under the Rules UNCITRAL United Nations Commission on International Trade Law
Recommendations to arbitral institutions Mandate by the Commission
Similar Recommendations should be issued on the 2010 UNCITRAL Arbitration Rules
New recommendations to follow same pattern as 1982 Recommendations
2010: Commission mandate Secretariat UNCITRAL United Nations Commission on International Trade Law
Recommendations to arbitral institutions Secretariat
Consultation with
Arbitral Institutions & other bodies
Questionnaire on the use of the UNCITRAL Arbitration Rules in cooperation with IFCA
UNCITRAL United Nations Commission on International Trade Law
Consulted institutions
the American Arbitration Association (AAA), the Arbitration Court attached to the Commerce and Agricultural Chamber of the Czech Republic, the Arbitration Court attached to the Hungarian Chamber of Commerce and Industry, the Arbitration Institute of the Stockholm Chamber of Commerce (SCC), the Australian Centre for International Commercial Arbitration (ACICA), the Belgian Center for Arbitration and Mediation (CEPANI), the Board of Arbitration of the Central Chamber of Commerce of Finland, the Cairo Regional Centre for International Commercial Arbitration (CRCICA), the Centro de Arbitraje y Conciliacíon Cámara de Comercio de Bogotá, the Centro de Arbitraje y Mediación – Cámara de Comercio de Santiago (CAM Santiago), Chamber of Arbitration of the Milan Chamber of Commerce, China International Economic and Trade Arbitration Commission (CIETAC), the Court of International Commercial Arbitration attached to the Chamber of Commerce and Industry of Romania, the Court of Arbitration at the Polish Chamber of Commerce, the Danish Institute of Arbitration (DIA), the Dubai International Arbitration Centre (DIAC), the Foreign Trade Court of Arbitration of the Chamber of Commerce and Industry of Serbia, the GCC Commercial Arbitration Centre, German Institution of Arbitration (DIS), the Hong Kong International Arbitration Centre (HKIAC), the Indian Council of Arbitration, the International Arbitration Court of the International Chamber of Commerce (ICC), the International Commercial Arbitration Court – Russian Federation Chamber of Commerce and Industry, the International Commercial Arbitration Court at the Ukrainian Chamber of Commerce and Industry, the Japan Commercial Arbitration Association (JCAA), the International Centre for Settlement of Investment Disputes (ICSID), the Korean Commercial Arbitration Board, the Kuala Lumpur Regional Centre of Arbitration (KLRCA), the London Court of International Arbitration (LCIA), the Madrid Court of Arbitration, the Permanent Court of Arbitration at The Hague (PCA), the Mediation and Arbitration Center (CANACO), the Permanent Arbitration Court at the Croatian Chamber of Economy, the Permanent Arbitration Court of the Mauritius Chamber of Commerce and Industry, the Qatar International Center for Conciliation and Arbitration, the Singapore International Arbitration Centre (SIAC), the Swiss Arbitration Association (ASA), the Tunis Center for Conciliation and Arbitration, the Venice Chamber of Arbitration, the Vienna International Arbitration Centre (VIAC), the Waren-Verein der Hamburger Börse e.V.
UNCITRAL United Nations Commission on International Trade Law
Recommendations to arbitral institutions 2012 Adoption
Providing Guidance where
I.
II.
The UNCITRAL Rules are used as institutional rules Arbitral institutions administer arbitration under the UNCITRAL Rules or provide some administrative services III. An Arbitral institution acts as appointing authority UNCITRAL United Nations Commission on International Trade Law
Recommendations to arbitral institutions I. The UNCITRAL Rules are used as institutional rules 1.
Appeal to leave the Rules unchanged 2.
Presentation of modifications needed to the UNCITRAL Rules to be used as institutional rules UNCITRAL United Nations Commission on International Trade Law
Recommendations to arbitral institutions II. Arbitral institutions administering UNCITRAL arbitrations or providing some services 1.
Administrative procedures in conformity with the Rules 2. Offer of administrative services 3. Administrative fee schedule 4. Draft model clauses UNCITRAL United Nations Commission on International Trade Law
Recommendations to arbitral institutions III. Arbitral institution acting as appointing authority Part III: Guidance on the role of the appointing authority under the 2010 Rules based on the
travaux préparatoires
UNCITRAL United Nations Commission on International Trade Law
Recommendations to arbitral institutions III. Arbitral institution* acting as appointing authority *
or person 6 main functions for the appointing authority:
(a) Appointment of arbitrators (b) Decision on challenge of arbitrators (c) Replacement of arbitrators (d) Assistance in fixing the fees of arbitrators (e) Participation in the review mechanism on the costs and fees and (f) Advisory comments regarding deposits.
UNCITRAL United Nations Commission on International Trade Law
Revision of the UNCITRAL Arbitration Rules 1976 Rules : Revision: Recognized as very successful text Used in variety of circumstances Covering broad range of disputes In all parts of the world Keep flexibility, spirit and style Inclusion of investment arbitration?
Keep generic applicability of Rules UNCITRAL United Nations Commission on International Trade Law
UNCITRAL current work on transparency in treaty-based investor-State arbitration Mandate by the Commission: prepare a legal standard ► Too early for decision on form and scope ► Limited to preparation of rules of uniform law on transparency in treaty- based investor-State arbitration ► During that work, identify any other topic with respect to treat-based investor-State arbitration for possible future work UNCITRAL United Nations Commission on International Trade Law
Work on transparency in treaty-based investor-State arbitration of WG II
VARIOUS POSSIBLE FORMS: - Guidelines - Model Clauses - Stand-alone rules
whether complementing the UNCITRAL Arbitration Rules, or applying irrespective of the set of rules chosen by the parties.
UNCITRAL United Nations Commission on International Trade Law
UNCITRAL current work on transparency in treaty-based investor-State arbitration
Form
The Working Group: agreement to draft the legal standard on transparency on the basis of
rules
.
UNCITRAL United Nations Commission on International Trade Law
Work on transparency in treaty-based investor State arbitration of WG II
Form, after agreement on rules:
Open Question:
Stand-alone or annex Consequences UNCITRAL United Nations Commission on International Trade Law
Work on transparency in treaty based investor-State arbitration of WG II
Applicability of the rules to existing treaties -
Recommendation - Convention - Interpretative Declaration - Treaty Amendment or Modification
UNCITRAL United Nations Commission on International Trade Law
Work on transparency in treaty-based investor-State arbitration of WG II
Future work:
Many possibilities UNCITRAL United Nations Commission on International Trade Law
Future work
Revision of the UNCITRAL Notes on Organizing Arbitral Proceedings Designed to assist arbitrators Annotated list
for example: *
Arbitration rules *Language of proceedings *Place of arbitration - Non-binding text UNCITRAL United Nations Commission on International Trade Law
Work on transparency in treaty based investor-State arbitration of WG II
Interested in more:
Working papers, UNCITRAL texts, available for free download: www.uncitral.org
UNCITRAL United Nations Commission on International Trade Law
The End
Thank you
UNCITRAL United Nations Commission on International Trade Law