UNCCA Congratulates the Honourable Justice Clyde Croft AM

The Hon. Justice Clyde Croft AM

UNCCA congratulates the Honourable Justice Clyde Croft AM on his recent appointment as Member of the Order of Australia for significant service to the law, and to the judiciary, particularly through commercial arbitration.

Justice Croft AM’s continued involvement with UNCCA as a fellow Chair for UNCITRAL Working Group II (Dispute Settlement) is deeply valued and we are grateful for His Honour’s continued efforts in advancing the work undertaken by all at UNCCA.

UNCITRAL Colloquium on Contractual Networks, New York 25-26 March

The United Nations Commission on International Trade Law (UNCITRAL) is organizing a Colloquium on contractual networks and other forms of inter-firm cooperation on 25-26 March 2019 at the United Nations Headquarters in New York (USA).

The Colloquium will analyse the relevance of contractual networks to UNCITRAL work on developing an enabling legal environment for Micro Small and Medium-sized Enterprises (MSMEs). As you may already well note, contractual networks was proposed as a possible future work by UNCITRAL on alternative forms of organization to corporate-like models in MSMEs with the expectation of providing an opportunity to organize cooperation between business without a requirement for a legal entity to be formed and that work on such networks would complement the work on the UNLLO under.

In order to get a solid understanding of contractual networks and their objectives, the Colloquium will also discuss other legal tools in both civil and common law jurisdictions that achieve similar goals to those networks.  The conclusions of the Colloquium should assist UNCITRAL in evaluating the desirability of taking up work in this area in the future.

The Colloquium will be conducted on an informal basis and will be open to experts from government, the private sector, academia and the non-profit sector. Interpretation in the six official languages of the United Nations (Arabic, Chinese, English, French, Russian and Spanish) will be available. The colloquium will be followed by the thirty-second session of Working Group I on 27 to 29 March. Attendance at the Working Group will be restricted to representatives of Member and Observer States and those intergovernmental and non-governmental organizations invited to participate.

A registration form is available on the UNCITRAL website alongside with the programme (https://uncitral.un.org/en/events/25-26.03.2019) and should be completed and sent to the address indicated on the form, as soon as possible and no later than 15 March 2019. Upon receipt of the completed registration form, participants will be sent confirmation of their registration, alongside with instructions for gaining access to the UNHQ in New York.

UNCCA Fifth Annual May Seminar – 10th May 2019

We are excited to announce the Fifth Annual May Seminar which will be held on the 10th of May 2019. The May Seminar will be hosted at the University of Canberra with early bird registration now available until the 1st of April 2019.

This year we will be covering a range of topics including Cross-Border Insolvency, Micro, Small and Medium-Sized Enterprises, Judicial Sale of Ships and an update on the current works in trade law.

There will be a special Keynote from Jenny Clift, former Senior Legal Officer at UNCITRAL Secretariat, Vienna.

For more information, please see the flyer below.

Annual General Meeting

If you are an UNCCA member, we invite you to join us for the Annual General Meeting hosted at the University of Canberra on the 9th of May 2019 at 6:00pm

Following the Annual General Meeting, we will be hosting a cocktail reception

Cocktail reception:

Date: 9th May 2019

Time 7:00pm

Cost: $65

Location: University of Canberra, Building 11 Allawoona Street Bruce, 2617

For tickets for the May Seminar or the Annual General Meeting Cocktail Reception, please click the link below:

https://www.eventbrite.com.au/e/uncca-annual-may-seminar-tickets-55184083078

We look forward to seeing you at the seminar.

For more information, please contact events@uncca.org

UNCCA May Seminar 2019 (1)

 

UNCCA UN Day Lecture 2018 Recap by Dr Dalma Demeter

The Second United Nations Day Lecture organised by UNCCA was held on the 24th October 2018 simultaneously across all capital cities of Australia to celebrate the 60th Anniversary of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.

 

International commercial arbitration is founded upon one of UNCITRAL’s most successful conventions, the New York Convention, to which three-quarters of all nations, including Australia, have signed up over its 60-year history. With 159 parties, the Convention provides both a legal framework and global legitimacy to international arbitration, enabling the enforcement of awards across jurisdictions in a simplified and uniform manner, by this giving arbitration an advantage over state court litigation.

 

This year UNCCA hosted the UN Day Lecture mainly in the Federal Courts around Australia, at the ACT Supreme Court in Canberra, and at William Forrester Chambers in Darwin. Each event brought together a group of speakers and commentators including Judges, academics to legal professionals, and attracted a total of over 400 registered attendees nation-wide.

 

The Adelaide lecture was hosted at the Federal Court, chaired by Justice Anthony Besanko. Judge Patrick O’Sullivan was the main speaker for the event and Mrs Jessica Viven-Wilksch from the University of Adelaide provided commentary.

 

The Brisbane lecture was hosted at the at the Federal Court and was chaired by Justice Roger Derrington. Leading the lecture was Professor Khory McCormick from Griffith University, while Ms Erika Williams from McCullough Robertson provided commentary.

 

The Canberra lecture was hosted at the newly renovated ACT Supreme Court which was chaired by Justice Chrissa Loukas-Karlsson. UNCCA Deputy Chair, Dr Dalma Demeter from the University of Canberra was the lead Canberra speaker and Ian Govey AM, Executive Director of ACICA provided the final commentary for the evening.

 

The Darwin event was hosted by William Forrester Chambers and chaired by Justice Judith Kelly. Cameron Ford, Senior Corporate Counsel at Rio Tinto lead the conversation, and final commentary was provided by Associate Professor David Price from Charles Darwin University

 

The Hobart lecture was hosted at the Federal Court and chaired by Justice Duncan Kerr. Former UNCCA chair and barrister from 6 St James Hall Chambers Tim D. Castle FCIArb was the lead speaker, and Ms Anja Hilkemeijer from the University of Tasmania provided the final commentary.

 

The Melbourne lecture was hosted at the Federal Court and chaired by Ms Caroline Kenny QC, President of CIArb Australia. Chief Justice James Allsop AO was the lead speaker, and final commentary was provided by Justice Clyde Croft.

 

The Perth lecture was hosted at the Federal Court and was chaired by Justice Katrina Banks-Smith. UNCCA Chair Justice Neil McKerracher was the speaker for the evening, with final commentary provided by Professor Camilla Andersen from the University of Western Australia.

 

Finally, the Sydney UN Day lecture was hosted at the Federal Court by Justice Nye Perram. The conversation was led by the Honourable Roger Gyles AO, QC and Professor Vivienne Bath from the university of University of Sydney provided commentary to round up the event.

 

The UNCCA team is grateful and humbled by the level of engagement and interest the legal profession, academia and the judiciary showed to celebrating UN Day and the New York Convention through these simultaneous events. Next year the UNCCA UN Day Lecture will be dedicated to cross-border insolvency, celebrating the 25th anniversary of the seminal UNCITRAL-INSOL conference that led to the inception of the Model Law on Cross Border Insolvency.

 

 

UN Day Brisbane facilitators – Justice Roger Derrington, Professor Khory McCormick and Erika Williams

 

Presentation underway

 

UN Day Canberra facilitators – Justice Chrissa Loukas-Karlsson, Dr Dalma Demeter and Ian Govey AM

MAC Protocol Event: A Summary Report by Mudit Bhandari

The recent MAC Protocol event, co-hosted and promoted by UNCCA in conjunction with UNIDROIT and the International Law Committee of the ACT Law Society, successfully concluded on 29 August.

A report prepared by Mudit Bhandari, UNCCA intern, usefully summarises the event and the key discussions that took place. Please see the report below.

 


 

The ACT Law Society International Lawyers Committee and UNCCA hosted the first Australian national consultation regarding the Mining, Agriculture and Construction (MAC) Protocol to the Cape Town Convention on August 29th, 2018. Three leading experts in the field provided detailed information and discussed potential benefits and costs regarding the implementation of the MAC Protocol in Australia. This report offers a brief overview of each presentation.

William Brydie Watson is a legal officer at the International Institute for the Unification of Private Law (UNIDROIT). Mr Watson specialises in secured transactions, with expertise in the 2001 Cape Town Convention on the International Interests in Mobile Assets. His responsibility is towards the fourth protocol on matters specific to mining, agriculture and construction equipment, in relation to the Cape Town Convention. His presentation looked at the overview of the Convention and its economic advantage.

The Cape Town Convention creates an International Registry system for certain categories of equipment. The Protocol/Convention has a two-tier structure which allows a common core set of rules which are flexibly adapted to that specific market or collateral. The Cape Town Convention and Protocols provide for both debtors and creditors. It creates an opportunity to create an autonomous international interest over the equipment-including security agreements, sale with retention of title and leasing. In this area, the first to file-rule applies as the registered international interest is given priority from time of registration, including against interest in national law, and is enforceable in contracting states.

Furthermore, the MAC Protocol provides for economic benefits. Mr Watson referred to an independent MAC economic assessment that was produced by experienced British economists-part of the preliminary report released at second session of Committee of Governmental Experts in October 2017, through a competitive closed tender process. The report states that the buyers will have more exposed access to credit and borrowing terms will be better. These claims are achieved through lower interest rates, longer loan durations or high loan-to-loan ratios.

Bruce Whittaker is a senior consultant in the Finance team at Ashurst. Mr Whittaker has also been closely involved in the development of the draft MAC Protocol to the Cape Town Convention. Mr Whittaker presented the possible issues that the Cape Town Convention might have with the existing Personal Property Securities Act 2009 (PPSA) that Australia already has. The presentation provides for a possible solution at the end.

The five possible tractions provided by Mr Whittaker are different in their own ways.

First traction, is in relation to how the issues regarding number registry by manufacturers will be handled. To which, a possible solution being that, whilst registering a MAC equipment, more detail be added about the registered equipment, to ensure uniqueness.

Secondly, the PPSA contains priority rules that are more sophisticated, in comparison to The Cape Town Convention, which are more straight forward. It must be considered how the Cape Town Convention priority rules will fit into Australia and its PPSA rules which are more in-depth compared to those in the Convention.

Thirdly, the issue arises, regarding the ‘taking-free rules’. Take-free rules, is where under the circumstances where a buyer of an asset can acquire the product, free of any security interest from the seller who has previous grant over the asset. Overall, the PPSA contains a similar but differing take on this compared to the MAC Protocol. Therefore, there is general friction between the PPSA and the Protocol, that Mr Whittaker points out, being the main concern to the implementation of the Protocol in Australia.

The last two possible areas of friction arise from the financing of inventory and the general complexity of how the MAC Protocol will run alongside the PPSA rules.

It is to be noted that, the UNCITRAL Model Law on Secured Transactions published by the United Nations (2016), which is yet to be adopted-discusses the same concerns that Mr Whittaker has taken into consideration in his presentation.

A partial solution to all these problems is to construct an entry point to the MAC Protocol. This solution will not cover everything, but it can bring about a middle point to solving some of the potential areas of friction.

Ashna Taneja has conducted research at UNCITRAL’s Regional Centre for Asia and the Pacific (UNCITRAL RCAP) in South Korea, as well as UNIDROIT in Rome. The presentation Ms Taneja provided, looked at the benefits that the MAC Sectors will experience in Australia and a glimpse of the costs of implementation that would result from the Protocol.

The MAC industries are relatively strong in Australia. These sectors of the economy have a significant impact on Australian growth itself, as they make up a significant amount of Australia’s output. From 2016-2017 for the Gross Value-Added figures show that-mining took up 6.3%, agriculture, forestry and fishing took up 3% and construction amounted to 7.9%. Amounting to a total of 16.9% of Australia’s Gross Value Added. These figures provide for a significant impact on the Australian economy.

One of the potential benefits is associated with the effective enforcement of securities. Financiers can enforce securities in the event of default or insolvency immediately without referencing domestic rules. This makes it easier and cheaper in terms of regulatory compliance, particularly, for multi-national financiers. Additionally, the MAC Protocol will also provide for lower cost and credit through easier enforcement capabilities for financiers. Consequently, with the adoption of the MAC Protocol, an increase in competition in the finance industry will come about, leading to a decrease in the cost for finance for importers. There will be a signalling effect to businesses in adopting the Convention. Conversely, if Australia does not ratify there are two benefits that will affect Australia. The MAC Protocol will lower costs of enforcement of securities for overseas MAC equipment and, secondly, it will provide for a spill-over effect, which over time will make MAC equipment cheaper to access.

The possible friction with the MAC Protocol and the PPSA will need to be considered as a possible issue at hand. However, overall, Ms Taneja further highlighted that it is essential that Australia promotes this Protocol to its trading partners to maximise economic benefits. For those involved in the MAC industries or financing MAC equipment, it will significantly increase profits for both sides.

Conclusion

The MAC Protocol will create an international electronic registry that will allow creditors to protect their legal interests over high value MAC equipment, regardless of its location. The MAC Protocol provides uniform rules governing the creation, registration and priority of legal interests in MAC equipment, as well as facilitating expeditious and efficient enforcement of remedies in the event of a default or insolvency. Furthermore, a Diplomatic Conference will be held in 2019 where the MAC Protocol will be finalised. UNIDROIT invites Australia to send a delegation to the Diplomatic Conference in 2019 and consider signing and ratifying the MAC Protocol.

ACICA Symposium in Perth, 23 October 2018

UNCCA is glad to promote the Australian Centre for International Commercial Arbitration’s (ACICA) upcoming symposium in Perth on 23 October.

The symposium will explore the key role of the New York Convention in the growth of international trade over the course of 60 years, its significance in terms of enforcement of arbitration agreements and arbitral awards and the important role of the Courts in this process, as well as more recent international developments with respect to the enforcement of settlement agreements.

The line-up of experienced speakers include:

  • Wayne Martin AC QC, former Chief Justice of the Supreme Court of Western Australia
  • Andrea Gleason, Director, Western Australia State Office, DFAT
  • Simon Davis, Barrister, Francis Burt Chambers
  • Elizabeth Macknay, Partner, Herbert Smith Freehills
  • Dr Sam Luttrell, Partner, Clifford Chance

Drinks and canapes will be served at the conclusion of proceedings.

Date: 23 October 2018
Time: 4:45pm for a 5pm start to 6:30pm following by networking drinks
Venue: Herbert Smith Freehills, Level 36, 250 St Georges Terrace, Perth WA

Registration: by 18 October 2018 – Click Here
For more information, see the invitation flyer or ACICA website.

 

ACICA-NYC-Perth-Oct18-flyer-03

2018 UN Day Lecture: 60th Anniversary of the NY Convention

We are glad to announce the return of another year of UNCCA’s successful UN Day Lectures.

The following Australian cities will each simultaneously host their own UN Day Lecture this year on 24 October: Brisbane, Melbourne, Sydney, Canberra, Perth, Adelaide, Hobart, and Darwin.

Each lecture is scheduled for a 5pm start and a 6:15pm finish. Attendance is free however registration is required. Please register here: https://www.eventbrite.com.au/e/united-nations-day-lecture-2018-tickets-49461893856. 

Please see the following fliers for further details specific to your relevant city. Please utilise the “scroll pages” option (bottom left of PDF viewer) to arrive at relevant information for your respective city.

We look forward to greeting you at your city of choice.

UN_Day_flyers2018

 

 

 

The MAC Protocol: Video

Following the conclusion of our first jointly-hosted event with UNIDROIT and the ACT Law Society, UNCCA is proud to release our recording of the seminar:

 

 

UNCITRAL Working Group III: Personal Experience by William Vu

In the unusually chilly 2018 spring of New York City, I attended Working Group III of the United Nations Commission on International Trade Law (‘UNCITRAL’), which focused on Investor-State Dispute Settlement Reform. This was an opportunity offered by the UNCITRAL Coordination Committee for Australia, and I attended as a delegate of LAWASIA, the Law Association for Asia and the Pacific. This report reflects my experience at the Working Group and what I have taken from my week at the UN.

The work of Working Group III

With over 3,000 treaties and billions of dollars of foreign investment flowing into countries, the current regime governing investor-state dispute settlement (‘ISDS’) between investors and countries is a crucial one for the global economy, mixing both domestic foreign investment laws, public international law and politics. Whilst the dispute settlement regime was developed to encourage foreign investment, the regime is up for reform with a long list of concerns from both investors and countries as to its current operation. Working Group III has been mandated to: (i) first, identify and consider concerns regarding ISDS; (ii) second, consider whether reform was desirable in light of any identified concerns; and (iii) third, if the Working Group were to conclude that reform was desirable, develop any relevant solutions to be recommended to the Commission. Working Group III in New York was at phase (i).

Deliberations during the week

With three knocks of a gavel, Working Group III kicked off in the UN Conference Building, with the countries making up UNCITRAL and dozens of observers like ourselves and countries not party to UNCITRAL. The meeting opened up with general remarks from each country, which seemed to be prepared statements from their respective capitals to put on the record their positions. Some were vocal and passionate on their positions, others were more open to debate.

The Working Group then moved to systematically allowing comments on the working paper that listed out the concerns with the ISDS regime. Whilst many delegations simply read out prepared statements which was overwhelmingly similar to other countries, what was particularly interesting and exciting was the interaction between countries as well as between countries and observer organisations. For instance, there was open disagreement between Mauritius and Mexico on the importance of treaty text interpretations, with Mexico calling out the Mauritius delegation on their poor comparison between domestic and international law. Another example was Mauritius’ criticism of an observer organisation’s veiled complaint in having to wait for their time to talk, arguing Working Group III ‘has always been, [and] will always be a government-led process’. The European Union (‘EU’) as an observer also received attention, with some nations questioning their influence on these meetings and whether they were talking on behalf of the EU entirely or particular nations in the EU.

Beyond the meetings

Particularly special and an unexpected benefit were the opportunities outside of the actual Working Group. I was able to attend multiple side events that touched on international investment and its regulatory scheme: an Oxford Union-style debate at New York University School of Law (where I met an Italian Supreme Court judge and connected with NYU Law students), a talk by the Australian Mission to the UN about sustainable development of small island nations, and a lunchtime talk hosted by law firm Foley Hoag and the International Chamber of Commerce discussing the EU’s Multilateral Investment Court Project. I was also able to meet and network with other organisations, ranging from Berkley professors, a Korean delegation and a lobbyist for American businesses.

I was also grateful for the support of Prishika Raj, the lead delegate for LAWASIA who I accompanied. She invited me to side events, introduced me to her colleagues in attendance, and made me feel welcome at a foreign and at times confusing affair.

Lessons from my experience

There is something truly exciting in being witness to the beginnings of reform of a regime so crucial to the participating nations and observer organisations. Attending Working Group III of UNCTIRAL allowed me to get an insider perspective on the workings of the UN and a greater appreciation of international law and international politics. In applying for this opportunity I did not pretend to be an expert on international trade law, but promised to bring curiosity and openness to new experiences – I believe I have exercised both in gaining the most from this ‘fly on the wall’ experience. I am deeply thankful to Dr Alan Davidson for organising this opportunity, Dr Jonathan Bonnitcha for his recommendation and providing research resources, and the UNCITRAL National Co-ordination Committee for Australia for allowing me this wonderful opportunity. I return to Australia with fond memories of my first time in New York City and hope to share this opportunity with other students interested in international trade law like myself.

 

 

William with former UNCCA Secretary, Prishika Raj