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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.
The UNCITRAL National Coordination Committee for Australia (UNCCA) has established a scheme to allow Australian law students to attend UNCITRAL Working Group meetings as part of a delegation with Australian UNCCA Expert members. Expert members of UNCCA have been attending and contributing to the six Working Groups of UNCITRAL since 2013. Further information about the work of the Working Groups can be found on the UNCITRAL website www.uncitral.org.
There are six UNCITRAL Working Groups that typically meet biannually, in New York and Vienna. This provides twelve opportunities per year – (however WG II is not meeting in Vienna this year). To date more than 40 students have attended Working Group sessions with UNCCA delegates, including candidates from the following universities:
La Trobe University
University of Canberra
University of Newcastle
University of New South Wales
University of Queensland
University of Sydney
University of Wollongong
UNCCA invites Australian Law Schools to nominate law students to participate in the Scheme for the upcoming Sessions at the UNCITRAL headquarters in Vienna. The Convenor of the UNLAWS scheme is Dr Alan Davidson, Education Director of UNCCA. Dr Davidson may be contacted: firstname.lastname@example.org – 07 33652294
The dates for 2018 are:
Working Group I: Micro, Small and Medium-sized Enterprises: 8-12 October 2018, Vienna
Working Group II: Dispute Settlement – (Not meeting)
Working Group III: Investor-State Dispute Settlement Reform: 29 October-2 November 2018, Vienna
Working Group IV: Electronic Commerce: 19-23 November 2018 Vienna (Not available for 2018)
Working Group V: Insolvency Law: 10-14 December 2018, Vienna
Working Group VI: Security Interests: 17-21 December 2018, Vienna
The aim of the UNLAWS Scheme is to increase awareness of the work of UNCITRAL and to provide students with the unique opportunity to participate in the consideration and formulation of future harmonised legal texts in relation to international trade law.
Participation in the UNLAWS scheme will be limited to two students per session, based on merit selection. Not all sessions will be offered. Students must be self-funded, with individual law schools being encouraged to offer assistance to any students selected. No fee is payable to UNCCA. UNCCA will arrange for observer status for successful students.
Participation in the Scheme is open to all students enrolled in a Bachelor of Laws (or associated dual program) Master of Laws or postgraduate law program at an Australian Law School.
Students offered participation in the Scheme must fund all private costs (including airfares, accommodation, meals, travel insurance and incidentals – no fee is payable to UNCCA).
Application Procedure – 2018
Applications must be in writing to the Scheme Convenor, Dr Alan Davidson (by email).
Application Deadline for 2018 Vienna Working Groups: 31 August 2018.
Curriculum Vitae (1-5 pages).
Statement of Interest (2-4 pages). Please indicate any previous courses or experience which relate to the research area of the placement for which you are applying.
Letter of recommendation from a permanent member of the Law School including other relevant details for consideration by UNCCA.
Students may indicate preferences for up to three Working Groups. Decisions and offers of participation will be made by the UNCCA Board.
Welfare and safety
The welfare and safety of students involved is the responsibility of the individual participants. The success of the Scheme will depend upon a high standard of behaviour and courtesy being exhibited by participants.
UNCCA assumes no liability for any costs, expenses or liabilities arising from participation in the Scheme or attendance at a Working Group meeting. Successful participants will be required to have all appropriate passport, visa and travel insurance in place before leaving Australia.
Students receiving a position should make independent inquiries about the risks involved in overseas travel. This should include visiting Smartraveller for current information about risks overseas and how to prepare for overseas travel. Students should register with Smartraveller and subscribe to relevant travel advisories before starting their Project (http://smartraveller.gov.au/).
UNCCA is proud to support UNCITRAL-RCAP in advertising its call for prospective interns with the Centre in Incheon, South Korea.
The internships at UNCITRAL-RCAP are open for application at the United Nations Careers Portal(Job Opening Number: 97934 / Duty Station: Incheon City, Republic of Korea).
The internship positions are for a minimum duration of two months and a maximum duration of six months, with various starting dates within the period of 1 October 2018 – 31 March 2019.
Applicants for the internship must, at the time of application, meet one of the following requirements:
(a) Be enrolled in a graduate school programme (second university degree or equivalent, or higher);
(b) Be enrolled in the final academic year of a first university degree programme (minimum Bachelor’s level or equivalent);
(c) Have graduated with a university degree (as defined in (a) and (b) above) and, if selected, must commence the internship within a one-year period of graduation.
The internship will be unpaid and candidates will have to bear all costs related to travel, insurance, accommodation and living expenses. Visit the United Nations’ Careers Portal for the job description, requirements and other details.
It was one of those ‘pinch me moments’ wandering down the streets of New York into the United Nations Secretariat Building as a delegate to an international trade law conference. While the 30th session of the United Nations Commission on International Trade Law Working Group I (Micro, small and medium-sized enterprises) did not involve wholesale legal discussions, it was absolutely critical to the continued existence of the Working Group and an absolute privilege to attend- as part of the LAWASIA delegation and the UNCITRAL National Coordination Committee for Australia (UNCCA).
As a student with an interest in corporate and commercial law, Working Group I was well suited to my future career ambitions. Listening in on the discussions, I gained a fantastic insight into international diplomacy, the negotiations that underpin international law making and the process by which delegates from different legal traditions determine international best practice. There was also time for diplomacy of my own, with the opportunity to meet the incredibly gracious and welcoming students of the European Law Students Association (ELSA) and delegates from all over the world. The Canadian and Israeli delegations were especially generous with their time and expertise.
The spirit of diplomacy and compromise was critical to the progress achieved by the Working Group in this session. There was tremendous pressure to settle and submit the draft legislative guide (to the UNCITRAL Commission for adoption) and you could feel the urgency in the room. With tight time constraints imposed by the translators (who were forced to work very hard to keep up with the Spanish language speaking delegations), tensions were high and the Chairperson was forced to keep a firm check on issues that had been debated in previous sessions. In the midst of a particularly passionate debate on the role of notaries in the business registration process, the Chairperson (with typical good humour) was forced to ‘postpone’ the comments of the Council of the Notariats of the EU (CNUE). However, in line with the inclusive spirit fostered by UNCITRAL, the CNUE was given the opportunity to speak the very next day (despite the need to finalize the draft and the minutes of the meeting). This chain of events was emblematic of the Working Group session.
Aside from the formal sessions, I loved the opportunity to experience all that the United Nations had to offer. We were lucky enough to attend the Working Group sessions at the same time as meetings of the Commission on the Status of Women. Over 6,000 women descended on the United Nations Secretariat Building and fostered an energy and purpose that permeated throughout the building.
Having now moved past the administratively difficult (and at times drawn-out) discussions on business registration, this Working Group can pursue its true mandate- the United Nations Limited Liability Organisation. This was an experience I will not forget and one I would recommend to anyone!
In latest developments, UNCITRAL Working Group II has announced its completion of work on the preparation of a draft convention and a draft amended Model Law on international settlement agreements resulting from mediation.
Both draft instruments will be considered for finalization by the Commission at its upcoming session in New York (25 June -13 July 2018).
For more information, please refer to Working Group II’s latest General Assembly records, accessible here.
On 9 December 2017, UNCITRAL marked International Anti-Corruption Day by promoting its UNCITRAL Model Law on Procurement Promotion.
See the Call2Action from the Regional Centre:
To mark International Anti-Corruption Day (http://www.anticorruptionday.org/) on 9 December 2017, as designated by the UN General Assembly, UNCITRAL Regional Centre for Asia and Pacific issues a Call2Action. We encourage you to promote the UNCITRAL Model Law on Procurement Promotion by sharing the attached visual resources in your social media platforms with hashtags #uncitralmlpp#UnitedAgainstCorruption.
The 2017 joint international campaign focuses on corruption as one of the biggest impediments to achieving the Sustainable Development Goals (SDGs).
With the slogan ‘United Against Corruption’, UNCITRAL-RCAP joins the 2017 joint international campaign and call on people to jointly take action by changing their attitudes towards this crime.
The United Nations Convention against Corruption (UNCAC), which entered into force in 2005, played a significant role in the further development of the UNCITRAL Model Law on Public Procurement (UNCITRAL Model Law). The UNCITRAL Model Law was specifically designed to implement the procurement-related provisions in UNCAC, and is being used as a template by numerous governments around the world for shaping national public procurement legislation.
The Model Law has also been prepared with a view to supporting the harmonisation of international standards in public procurement, and takes account of the provisions of the WTO Agreement on Government Procurement, the European Union Directives (on procurement and remedies) and the procurement rules of the World Bank and other IFIs, such as the Asian Development Bank.
Inspiring to hear Hon Bob Ellicott QC at my last UN Day lecture in Sydney last night. Bob was Australia’s delegate to UNCITRAL as Solicitor-General in 1970, three years after it was founded. Even then he said he was struck by how this new body was based on a search for “the commonality of principles that bring people together – fairness, relevance, equity and integrity”. Thanks to all who attended these talks around Australia over the last month, and last night to Chair Chrissa Loukas-Karlsson SC and commentator Justice Steven Rares.
Pictured below: L to R – Chrissa Loukas, Justice Steven Rares, Hon Bob Ellicott AC QC, Tim Castle.