1. The Role of UNCITRAL in International Arbitration
16 July 2012
Renaud Sorieul
The Secretary of UNCITRAL

2. Topics to be Covered Origin & mandate of UNCITRAL Structure
Working methods
Presentation of the work of UNCITRAL on arbitration and its significance
What constitute an “UNCITRAL Model Law on International Commercial Arbitration” country
The impact of divergences in enacting the Model Law
Consequences of arbitration law for arbitral institutions

3. Origin of UNCITRAL Established in 1966 Reasons:
Dramatic expansion of world trade
Need for uniform rules for international trade
Trade creates wealth
Trade is essential to the economic stability
Promotes world peace

4. Trade law and the UN MDGs
The UN… will employ international machinery for the promotion of the economic and social advancement of all peoples (Preamble of the UN Charter, 1945)
Develop further an open trading and financial system that is rule-based, predictable and non-discriminatory... [MDG 8 – Target 12, 2000]
MDGs

5. Facilitate International Trade
Mandate of UNCITRAL
Facilitate International Trade
Coordinate work of organizations in the field of international trade law
Prepare and/or promote Conventions and Model Laws and ensure their uniform interpretation
Collect and disseminate information on developments in the field of international trade law

6. The Role of UNCITRAL NOT INVOLVED IN INVOLVED IN
Settling disputes between States
Settling disputes between private parties
Providing legal advice on disputes to parties
INVOLVED IN
Promoting the unification & harmonization of the law of international trade and assisting in domestic law reform (legislative work)
Strengthening uniform application & interpretation of the instruments adopted (technical assistance)
Coordinating the work of other similar organizations (cooperation with UN and non-UN bodies /organizations)
UNCITRAL’s mandate is different from the World Trade Organisation’s. UNCITRAL is not concerned with setting trade rules that apply as between states.
On the other hand, UNCITRAL is not involved in settling private commercial disputes either nor is it involved in giving a specific business a commercial opportunity in a particular country.
UNCITRAL is concerned with whether national laws are getting in the way of doing business effectively or where an absence of laws is creating uncertainty in the position of parties.
The mandate of UNCITRAL is thus to promote international business thereby creating greater wealth which will aid in the development of all countries. Laws tend to lag behind business development and the process of harmonisation has been used to bring long established practices together to adjust the laws to new techniques that have emerged and advance toward better or fairer balances between parties. 6

7. Membership of UNCITRAL
60 member States
Elected by the UN General Assembly for a term of 6 years
Every 3 years terms of half the members expire
Ensure representation of the world’s various geographic regions and its principal economic and legal systems

8. Organization and Methods of Work
Secretariat
Intergovernmental
Working Groups
Commission

9. The Structure of UNCITRAL
The Commission
Governing body
Determines work programme
Reviews and adopts texts prepared by the Working Groups
Composition
Delegates
Reports to the General Assembly of the United Nations
Meetings
Holds annual meetings: alternating pattern New York – Vienna 9

10. The Structure of UNCITRAL
Working Groups
*Intergovernmental bodies
*Composition
*Hold bi-annual meetings:
alternating pattern New York City – Vienna
*Develop the topics on UNCITRAL’s work programme:
Technical expertise: prepare legislative & other legal standards 10

11. Work of UNCITRAL The Working Groups
There are six Working Groups:
I. Procurement
II. Arbitration & Conciliation
III. Online Dispute Resolution
IV. Electronic Commerce
V. Insolvency Law
VI. Security Interests

12. The Structure of UNCITRAL
Working Group I
Procurement
Just adopted in 2012:
Guide to Enactment to the
Revised Model Law on Public Procurement 12

13. Work of UNCITRAL: Examples of Achievements
Procurement
Model Legislative Provisions
On Privately Financed
Infrastructure Projects
UNCITRAL Model Law on
Public Procurement 2011

14. The Structure of UNCITRAL
Working Group II
International
Arbitration
Transparency in
treaty-based investor-State
arbitration 14

15. Work of UNCITRAL: Examples of Achievements
Dispute Resolution
UNCITRAL Arbitration Rules
(1976 & 2010)
2002 UNCITRAL Model Law on International Commercial Conciliation
1996 UNCITRAL Notes on Organizing Arbitral Proceedings
1985 UNCITRAL Model Law on International Commercial Arbitration (amended in 2006)

16. The Structure of UNCITRAL
Working Group III
Online Dispute Resolution
Online Dispute Resolution
for cross-border
electronic commerce transactions 16

17. The Structure of UNCITRAL
Working Group IV
E-Commerce
Legal issues
relating to the use of
electronic transferable records 17

18. Work of UNCITRAL: Examples of Achievements
Electronic Commerce
UNCITRAL Model Law on
Electronic Commerce (1996)
UNCITRAL Model Law
on Electronic Signatures (2001)

19. The Structure of UNCITRAL
Working Group V
Insolvency Law
Interpretation & application of selected concepts of the UNCITRAL MLCBI relating to COMI
D & O liabilities in insolvency & pre-insolvency cases 19

20. Work of UNCITRAL: Examples of Achievements
Insolvency Law
UNCITRAL Model Law on
Cross-Border Insolvency (1997)
Legislative Guide on Insolvency Law
(2004 & 2010)
UNCITRAL Practice Guide
on Cross-Border
Insolvency Cooperation (2009)

21. The Structure of UNCITRAL
Working Group VI
Security Interests
Draft Security Registry Guide 21

22. Work of UNCITRAL: Examples of Achievements
Security Interests
Legislative Guide on
Secured Transactions (2007)
UNCITRAL Legislative Guide
on Secured Transactions:
Supplement on Security Rights
in Intellectual Property

23. The Structure of UNCITRAL
The Secretariat
Division of UN/OLA (ITLD)
Assistance to the Commission and working groups
Technical Assistance and Cooperation (TAC)
Research
Preparation of studies and drafts 23

24. The Secretariat Regional Centre for Asia and the Pacific
*Enhance international trade and development in the Asia-Pacific region
*Provide technical assistance
*Engage in coordination activities with other organizations active in trade law reform projects in the region
*Function as a channel of communication between States in the region and UNCITRAL. 24

25. Regional Centre for Asia and the Pacific Focus Area:25

26. Regional Centre: Launch Event 10 January 2012

27. Work of UNCITRAL Outcome
► What does UNCITRAL produce?

28. Work of UNCITRAL Outcome
Development of different types of texts to
modernize & harmonize the law of int’l trade:
Conventions
Model laws
Legislative guides
Recommendations
Contractual rules
Legal guides

29. Work of UNCITRAL Outcome
Convention
An agreement among States establishing
obligations binding upon those States that
ratify or acceded to it.
Model Law
A set of model legislative provisions that
States can adopt by enacting it into national
law.

30. Work of UNCITRAL Outcome
Legislative guide
A text that provides guidance for the development of laws, discussing relevant policy issues & choices & recommending appropriate legislative solutions.
Recommendations
A text that provides recommendations for the use of an UNCITRAL instrument.

31. Work of UNCITRAL Outcome
Contractual rules
Standard clauses or rules designed to be
included in commercial contracts.
Legal guide
A text that provides guidance for the drafting
of contracts, discussing relevant issues and
recommending solutions appropriate to
particular circumstances.

32. Work of UNCITRAL Publications on UNCITRAL’s work
Yearbook
Booklets and CD ROMs
Explanatory notes
Status of UNCITRAL texts

33. How does work get started?
Secretariat
Explore topic further
Commission
Proposal by Member State(s) on new work

34. How does work get started?
Further exploration:
*Research and preparation of Studies
* Organization of an international colloquium
related to that topic
Presentation to Commission, able to take decision

35. How does work get started?
Working Groups:
*First session: Deliberations on the subject
On the basis of paper by the Secretariat
* Often: format open at the start of a new subject

36. Preparation by the Secretariat
Working papers:
*Research
*Consultations with other organizations
*Expert meetings

37. UNCITRAL Dispute Settlement Texts
2012 Recommendations to assist arbitral institutions and other interested bodies with regard to arbitrations under the UNCITRAL Arbitration Rules (2010)
2010 UNCITRAL Arbitration Rules (as revised in 2010)
2006 Recommendation regarding the interpretation of article II (2), and article VII (1), of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958)
2002 UNCITRAL Model Law on International Commercial Conciliation
1996 UNCITRAL Notes on Organizing Arbitral Proceedings
1985 UNCITRAL Model Law on International Commercial Arbitration (amended in 2006)
1982 Recommendations to assist arbitral institutions and other interested bodies with regard to arbitrations under the UNCITRAL Arbitration Rules (1976)
1980 UNCITRAL Conciliation Rules
1976 UNCITRAL Arbitration Rules
1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards ("New York Convention”)

38. The New York Convention
Adopted in 1958
Ensures recognition and enforcement of foreign arbitral awards (Article I, III)
Gives effect to arbitration clause (Article II (3))
Limits grounds for denial of enforcement (Article V)

39. New York Convention: Status
Universal acceptance: 146 Parties

40. Model Law on Arbitration
Adopted in 1985, amended in 2006
A framework for the conduct of arbitral proceedings
Consistent with the New York Convention
Reflects world wide consensus
Form of Model Law

41. Model Law: Main Purpose
Reduce discrepancy between domestic procedural laws affecting international commercial arbitration
Uniform interpretation and application of the Model Law = equally important 41

42. Recommendation regarding
the interpretation of
article II (2) & article VII (1) of
the New York Convention
Recognizes that circumstances in article II (2) are not exhaustive
Encourages States to adopt the revised article 7 of the MAL

43. UNCITRAL work in arbitration
Digest
Recommendations
Topic for next seminar on 18 July 2012

44. What constitutes a MAL country?
No fixed criteria.
But a Model Law Country should:
Include key elements of the MAL
&
Not go against its spirit and purpose

45. Model Law: Status
Covers more than 1/3 of the world’s territory: 90 jurisdictions
***USA: California, Connecticut, Florida, Illinois, Louisiana, Oregon, Texas 45

46. What constitutes a MAL country?
Examples
Costa Rica
Adopts the MAL word for word
Except for reversal of default rule
in article 10(2) (1 arbitrator)

47. What constitutes a MAL country?
Montenegro: Article 477 Code of Civil Procedure (contains arbitration law)
If the arbitrator has not been appointed on time and the agreement does not state
otherwise the arbitrator shall be appointed by court upon proposal of the party. If the
arbitrators cannot agree as to the election of the President and the agreement does
not state otherwise the President shall be appointed by the court upon the proposal of
each arbitrator or a party. The court that would have been competent for the first
instance procedure if the arbitration agreement had not been concluded shall be
competent for appointment of arbitrator or President of the Arbitration Board. Appeal
against the court ruling shall not be allowed.
The party that does not want to use the authorization referred to in
the paragraphs 1 and 2 of this Article may request in the complaint
that the court competent for appointment proclaims the arbitration
agreement null and void.

48. Divergences of the Model Law
Consequences for arbitral institutions
Restrictions in its operation
Less attractive to parties

49. Divergences of the Model Law
Consequences
- Uncertainty about local law
Frustration by parties of unexpected restrictions by mandatory provisions of applicable law
Absence of any legislative provision may cause difficulties simply by leaving unanswered some procedural questions
Impact on the selection of the place of arbitration
Deterrent to foreign investment

50. UNCITRAL website http://www. uncitral
UNCITRAL website available in all 6 UN official languages

51. The End of Day 1
Thank you
&
See you on Wednesday