Update: Qatar enacts UNCITRAL Model Law on International Commercial Arbitration

From the Regional Centre:

The Emir of Qatar HH Sheikh Tamim bin Hamad al-Thani  issued on 16 February 2017, Law no. 2 of 2017 – Promulgating the Civil and Commercial Arbitration Law (“Arbitration Law”).  The Arbitration Law amends the old Arbitration Law by incorporating provisions largely based on provisions of the UNCITRAL Model Law on International Commercial Arbitration (1985) (“Model Law”), in Qatari law. The Arbitration Law came into effect 30 days from publication in the Official Gazette on 13 March 2017.    
 
The Arbitration Law has been recognised as enactment of the Model Law and its status has been updated on the UNCITRAL website.  Qatar becomes the 75th State worldwide and the 21st out of 56 States in the Asia Pacific region to adopt the Model Law.  
More information regarding status of implementation may be found here: http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/1985Model_arbitration_status.html.

UNCITRAL Congress to celebrate its 50th anniversary and explore new directions in cross-border commerce: 4-6 July 2017, Vienna

From the Regional Centre:

A three day Congress entitled “Modernizing International Trade Law to Support Innovation and Sustainable Development” hosted by the United Nations Commission on International Trade Law (UNCITRAL) will be held on 4-6 July 2017, Vienna International Centre, Vienna.

Please join us to celebrate the 50th anniversary of UNCITRAL and to engage with leaders in the field of international trade law, including practitioners, judges, academics, international officials and other experts to explore the opportunities that UNCITRAL should seize in the coming years.

Participants will examine ways in which UNCITRAL can contribute to managing new development issues and fostering innovation through the modernization of international trade law. The Congress will be open to anyone with an interest in international trade and business, the work of UNCITRAL and the potential of trade law reform and innovation to translate the United Nations sustainable development goals into action to advance business and trade at country level.

Please check the Draft Programme which will be regularly updated.

Attendance at the Congress is free of charge.

Any question and request for registration information can be directed to <congress@uncitral.org>.
More information is available at http://www.uncitral.org/uncitral/en/commission/colloquia/50th-anniversary.html.

Law Students in New York: UNLAWS Update

Through UNCCA’s UNLAWS program, three Australian law students are currently at the 55th Session of Working Group IV (Electronic Commerce) at UNCITRAL in New York. From 24-28 April, the Working Group is working on Cloud Computing, Identity Management and Trust Services.

Pictured (left to right): Hennie Lui, Luca Castellani (Legal Officer, UNCITRAL), Dr Alan Davidson (UNCCA Director), Emma Page, and Simon Brandis.

The three students are recipients of the Endeavour grant.

For more information on the UNLAWS program, contact Alan Davidson.

UNCITRAL-April17

UNLAWS Report – Working Group V

By Calum Paul

Going into the VIC I had the expectations of encountering a daunting, frightening process but excited by the thought of participating in global model laws. Upon arrival, the daunting and frightening expectations diminished.  The other delegations, who I perceived as ten-fold more experienced and attaining an intellectual right to be participating within the working group, were humble and generous people. These individuals were more than willing to help me, share their knowledge about the working group and the current issues with cross-border insolvency.

It was truly interesting observing the process from which global model laws are made. An aspect that I found most interesting, was the subtle politics of the working group. Prior to attending the working group, I had the naïve opinion that politics would not be played out, due to the consensual nature of the United Nations, however I was wrong. Throughout the working group, there was the conflicting models of universalism and state discretion. In particular, the countries with developed precedent, such as the United States and Canada, wanted the model law to enable discretion to each jurisdiction. In contrast, nations with under-developed precedent, typically Asian states, wanted the model law to provide strict steps informing the jurisdictions of what they can and cannot do.  In addition to the conflict of discretion, it was fascinating to observe the European Union. Although the EU is only an observer, it has the ability to compel its European nations into agreeing with its stance on particular issues. This was obvious when European delegations explicitly informed me that the European Union was forcing them to vote in favour of its polices.

I am thrilled and honoured that I had the opportunity to attend the working group regarding international Insolvency law. It was great to meet experts within the profession and to observe and participate in the process of creating an international model law. Attending the working group has broadened my understanding of international politics and hence has widened my perspective of potential career prospects.

Overview of 142: ‘Facilitating the cross-border insolvency of multinational enterprise groups: draft legislative provisions’.

Working paper 142 had few contentious issues. Most of the proposals by the delegations where merely clarifications of terms and the limitation of certain provisions. The working group was dominated by the delegations of the United States, Canada, United Kingdom, European Union and Korea. In this working paper the delegations that attained an observation status, such as INSOL International, FDC and ABA, had more input, than WP143.

Contentious Issues:

Article 11: ‘Participation by enterprise group members in a proceeding under [identify laws of the enacting State relating to insolvency]’

Article 11 addressed the term of ‘participation’. The working group identified that the term ‘participation’ was not defined within WP.142, thus the definition of ‘non-participation’ was also undefined. The observing delegations, such as the III, ABA and FDC, all proposed suggestions to the working group in order to clarify the meaning of ‘participate’ and the potential consequences of using the term ‘participate’. The chair concluded that the terms should be redrafted for the next working group to discuss.

Article 13: ‘Relief available to a planning proceeding’

Again the term ‘participation’ was under discussion. The FDC asked the working group for a definition and posed the question “can someone who participates opt out?”. The delegations of Canada and the United Kingdom proposed that participation should be defined and proposed a definition of what participation is.  The working group also questioned the need for sub-paragraph (g). The delegations of Canada and United States proposed that sub-paragraph (g) created limitations to finance, due to its significance in relief. The chair determined that no consensus was found and the issue should be re-drafted for the next working group.

Article 22: ‘Commitment to and approval of the treatment of foreign claims in accordance with applicable law: main proceeding’

This article needed clarification for the whole working group. The delegation of Canada questioned the structure of the text and its position as a supplemental provision. Canada proposed the removal of supplemental provisions, as developing nations adopt the whole text on the assumption that model laws are standardized. In contrast, the delegation of Germany disagreed, and supported the use of supplemental provisions.

 

Overview of 143: ‘Cross-border recognition and enforcement of insolvency-related judgements”.

Document 143, “Recognition and enforcement of insolvency-related judgements: draft model law”, was a very interesting and riveting way to gain an introduction to international insolvency law. This text was more contentious in comparison to WP142. As such, the discussions of the provisions were heated. The delegations of United Kingdom, United States of America, Canada and Singapore were aligned in most of their proposals. After discussions with the Canadian delegacy, I was informed they were purposely playing a ‘devils advocate’ in order to evoke reactions from other delegations.

On the other hand, the delegations of the European Union and it fellow nations also aligned in thought and was usually in opposition with America and its ‘allies’. The delegation of Korea, was highly critical of the model law and used the working group to clarify many elements of the text. The delegations of Thailand, Japan, China did not participate in regular discussion with the working group.

Contentious Issues

Article 2: Definition ‘Foreign proceedings’

The European Union, supported by the European delegates believed the terms ‘on the merit’ should be introduced into the provision. The United States, Canada, United Kingdom, Mexico, Singapore and Korea believed ‘on the merit’ would limit the scope of the model law. The delegations believed that limiting the scope is contradictory to the ideology of a model law. In the end the Chair suggested the text introduced by the European Union be placed in brackets and discussed at the next working group.

Definition Insolvency-related judgements’

The definition of “insolvency-related judgements” conveyed polarised opinions. The European Union introduced a document, to significantly adjust the provision. The introduction of the document was seen as a tactical move. Hence, the working group asked for a break in order to consult the document. Outside the conference the European Union and the United Kingdom and United States had a private meeting to discuss the document. Afterwards, the European Union introduced changes to the prepared document in order to reach a compromise. In the end Canada, United States and the United Kingdom saw the adjustments as a positive improvement. The chair asked the working group to continue discussing the provision, in order to provide guidance to the Secretariat, however the working group left the discussion to continue at the 51st conference in New York.

Article 3 and 3bis: ‘International obligations of this State’

Again the European Union introduced a complex proposal. The delegations of the United States of America, Canada, Singapore, Morocco and Argentina did not support the proposal of the European Union, as it limited the jurisdiction of nation states. The Canadian delegate was highly critical of the delegate from the European Union, as they did not provide ample time to consider the proposal, nor provide the document in all the languages of the United Nations. The consensus of the working group was the preference of 3bis and the European Unions proposal to be considered in the next working group.

Article 9: ‘Affect and enforceability of an insolvency-related judgement in the originating State’

Paragraph 2 brought intervention from numerous delegations.  The delegation of Singapore, suggested the use of variant 2 in paragraph 2. This was supported by the delegation of the United Kingdom, United States and Thailand, due to its clarity. In contrast the delegations of Mexico, Spain, Russian Federation, Argentina, Chile and Greece supported the retainment of variant 1. The delegations of Canada and the Republic of Korea sought no preference. As a result the Chair concluded the retainment of variant 1.

Article 12: ‘Grounds to refuse recognition and enforcement of an insolvency-related judgement’

The working group discussed the wording of paragraphs a, b, c and d. Deciding whether to omit or replace bracketed words. In general the delegations of United Kingdom, United States and Singapore were aligned in their view of editing the model law. Where as the European Union and the delegations from Europe were displaying opinions against this. In regards to subparagraph (g)(iv),(v) the working group did not come to a consensus and left the provisions for consideration at the next working group. The delegations of the United Nations and United Kingdom dominated the discussion of this subparagraph. The delegation of Canada sought to remove the whole of sub-paragraph (g), contrasted to the delegation of the European Union who stressed the importance of retaining the whole text.

Calum Paul is a law student at UTS.

Calum2.jpg

Update: Mauritius Convention on Transparency will enter into force on 18 October 2017

From the Regional Centre:

We are pleased to inform you that the United Nations Convention on Transparency in Treaty-based Investor-State Arbitration (New York, 2014) (the “Mauritius Convention on Transparency”) will enter into force on 18 October 2017.

In accordance with Article 9(1) of the Convention, the Convention shall enter into force 6 months after the date of deposit of the third instrument of ratification, acceptance, approval or accession.   The Mauritius Convention on Transparency was opened for signature on 17 March 2015 and Switzerland ratified on 18 April 2017, after Canada and Mauritius.

The text and status of the Mauritius Convention on Transparency is available at http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/2014Transparency_Convention.html.

Update: Fiji enacts UNCITRAL Model Law on Electronic Commerce

News from the Regional Centre:

We are pleased to announce that the Parliament of Fiji approved on 9 February 2017, Act no. 8 of 2017 – Electronic Transactions (Amendment) Act 2017 (“the Act”).  The Act amends the Electronic Transactions Act 2008 by incorporating substantive provisions of the UNCITRAL Model Law on Electronic Commerce and of the United Nations Convention on Convention on the Use of Electronic Communications in International Contracts (New York, 2005), in Fijian law.
The text of the Electronic Transactions (Amendment) Act 2017 is available at http://www.parliament.gov.fj/getattachment/Parliament-Business/Acts/Act-8-Electronic-Transactions-(Amendment)-Act.pdf.  

Fiji becomes the 68th State worldwide and the 28th out of 56 States in the Asia Pacific region to adopt the Model Law. More information regarding status of implementation may be found here: http://www.uncitral.org/uncitral/en/uncitral_texts/electronic_commerce/1996Model_status.html.