UNCITRAL Working Group I (Micro, Small and Medium-Sized Enterprises) Update by Dr Anne Matthew and Jennifer Anderson

Report to LAWASIA and UNCITRAL National Coordination Committee, Australia (UNCCA) on Participation at the 33rd Session, UNCITRAL Working Group I Micro, Small and Medium-Sized Enterprises (MSMEs), Vienna, 711 October 2019  

By Dr Anne Matthew and Ms Jennifer Anderson  

11 November 2019   

Executive Summary  

This report from the delegation representing LAWASIA at the 33rd session of UNCITRAL Working Group I details substantive issues arising at the Working Group, contributions from the expert delegates representing LAWASIA and makes observations relevant to LAWASIA’s membership. The focus of the 33rd session was to move expeditiously towards the completion of the Working Group’s second major output – a legislative guide for the formation of a limited liability organisation suitable as a business vehicle for micro, small and medium-sized enterprises (MSMEs). In short, the 33rd session saw the Working Group complete its step by step discussion of the draft legislative guide for the new limited liability entity. It is planned that the 34th session in New York 2020 will see the completion of a full read through of this legislative guide with a view to submission to the UNCITRAL Commission in mid-2020. In the interim, the UNCITRAL Secretariat has requested assistance with its development of model organisational rules suitable for limited liability organisations with single member/managers and multiple members. Such model internal rules will include model alternative dispute resolution clauses. This documentation will be considered at the 34th Session of the Working Group in New York 2020. 

 

The solutions Working Group develops for MSMEs are potentially relevant to the LAWASIA membership. The Legislative Guide for Business Registries highlights best practice features of modern business registries and may be of interest to members seeking to reflect upon or improve their own system for registration. The Legislative Guide for the UNLLO will be important for all members where the Legislative Guide is adopted or where UNLLOs feature within the business and trade environment.  

 

A Brief History of Working Group I Relevant to the 33rd Session  

The present mandate of Working Group I is to reduce the legal obstacles that confront MSMEs throughout their lifecycle.?It is envisaged that this will be accomplished through the production of a series of outputs useful for developing member states to establish a legislative framework for MSMEs. The objective of creating such a legislative framework is to foster a sound business environment encouraging entrepreneurship. A critical feature of such an environment is that it is in the interests of States and of MSMEs that MSMEs ‘operate in the formal economy’.1 The idea is that ‘entrepreneurs that have not yet commenced a business may be persuaded to do so in the formal economy if the requirements for formally starting their business are not considered overly burdensome, and if the advantages for doing so outweigh their interest in operating in the informal economy’.2 Similarly, MSMEs operating in the informal economy may be encouraged for formalise. The Working Group’s outputs aim to facilitate an enabling legal framework for the registration of MSMEs, in a form that is suitable and encouraging of entrepreneurs, innovators and MSMEs generally, and facilitation of options for their access to finance.3 The first of these steps was completed in 2018: The Legislative Guide for Modern Business Registries was approved by the UNCITRAL Commission in mid 2018.4 This was the first major output of Working Group I in pursuance of its present mandate. The UNCITRAL Secretariat has sought assistance from LAWASIA in bringing this Legislative Guide to the attention of its membership. The second step is the development of a legislative guide for the formation of a limited liability organisation suitable as a business vehicle for MSMEs.5 The third step will be a consideration of how to address issues that MSMEs face with access to finance. 

 

Working Group I commenced its work on legal obstacles facing MSMEs in February 2014. This work is ongoing. The latest meetingthe Working Group’s 33rd session, took place between 7–11 October 2019 in Vienna. The group’s Chair was Ms Maria Chiara Malaguti (Italy). The UNCITRAL Secretariat was represented by Ms Monica Canafoglia.6 The delegation from LAWASIA at the 33rd session of Working Group I was comprised of Dr Anne Matthew,7 and Ms Jennifer Anderson.8 The LAWASIA delegation had the opportunity to meet UNCITRAL Secretariat officers and delegates from various member states and observer organisations. The LAWASIA delegates offered all assistance to the Secretariat. The merit and impact of LAWASIA’s participation in UNCITRAL was again noted by the Secretariat. This was also shown in the Secretariat including the LAWASIA delegates in their ongoing work between group sessions, and requesting relevant input in preparation for the 34th Session in New York 2020. 

 

The UNCITRAL Limited Liability Organisation  

 The objective of the 33rd Session was to move expeditiously towards the completion of the Working Group’s second major output – a Legislative Guide for the formation of a limited liability organisation suitable as a business vehicle for MSMEs. For the time being the organisation is being called the UNCITRAL Limited Liability Organisation (UNLLO). At the 33rd session the Secretariat brought to the attention of the Working Group that the term ‘UNLLO’ does not translate well in all languages and that this is a matter that should be considered by the Working Group.   

 

It is envisaged that taking the form of an UNLLO will facilitate greater certainty for the MSMEs and the third parties dealing with them, increased participation in the formal economy, and ultimately enhanced economic growth and development. An UNLLO can be understood by consideration of the principles set out in the Draft Legislative Guide for the formation of the UNLLO and its commentary.9 The central tenet guiding the development of these principles is think small first’. This means focusing on the practical requirements of MSMEs.  At the 33rd Session the Secretariat reminded the Working Group of the importance of this central tenet, the freedom and autonomy of people to determine the terms upon which they are prepared to join in enterprise, and that the Draft Legislative Guide aimed to create a free-standing legal regime.  

 

The 33rd Session  

The Working Group continued its consideration of the Draft Legislative Guide for the formation of an UNLLO.10 Deliberations canvassed a broad spectrum of views reflecting the different policy positions, legal systems and experiences with small organisations of member states and observers. Many delegates referenced simple corporate structures within their jurisdictions or those understood to be successful in other developing member states. Common themes in the discussion were how the UNLLO framework would relate to a state’s existing company law, if any, and whether the UNLLO Recommendations were set standards or created a default position subject to a member state legislating otherwise.  In order to support the freedom of people to internally organise the UNLLO in a way that met their own needs, considerable thought was put in to how to create an attractive and minimalist structure offering flexibility. Two interventions were of particular significant impact.  

 

Firstlythe delegation from Italy expressed concern that in the effort to create flexibility the Working Group was leaving so many issues to be determined by states in applying the Draft Legislative Guide that the Working Group was essentially creating a hollow structure. A delegate suggested UNLLO may be an ‘empty box’. The central focus of these concerns was that excessive flexibility of the UNLLO and would militate against legal certainty in general, the operation of the UNLLO in practiceand its credibility. In response it was said that the focus of the regime for the UNLLO set out in the Draft Legislative Guide was to remove barriers to entry into the formal systemit would allow for the creation of a simplified, separate legal entity with limited liability that would cater for the needs of very simple businesses. The Working Group agreed to address the concerns raised in the introductory part of the Draft Legislative Guide by emphasising that the recommended regime be aimed at striking a balance between flexibility and simplicity on the one hand, and the need for legal certainty on the other. 

 

Secondly, Dr Matthew made an intervention leading the consideration of dispute resolution for UNLLOs. Recommendation 28 provides that the adopting State’s law should provide that disputes amongst UNLLO members may be submitted to alternate dispute resolution, unless there are restrictions in the domestic law of that state.11 Dr Matthew intervened to suggest that the Working Group consider making additions to the commentary on Recommendation 28 (para 124) and also to the commentary on recommendation 10. Dr Matthew expressed concern that while flexible, the legal framework put in place by Recommendation 28 would have little practical effect absent agreement between members to resolve disputes via alternative dispute resolution. Thinking small first required consideration of specific issues in this context. Dr Matthew explained the merit of considering the preferred mechanism for resolving disputes between members/members and managers at the point of formation of the UNLLO, rather than leaving it until when a dispute aroseat which point members may not cooperate 

 

“Disputes between members are a fact of life in small, closelyheld entities, but dispute resolution is generally far from their minds at the time of formalizing the business – when their relationship is positive and cooperative. Buildingin the possibility of alternative dispute resolution is one of the key features of the UNLLO that stand to make it attractive, functional, affordable for unsophisticated parties, and distinctive from many other limited liability entities. So, it is important that the Working Group turns its mind to how Recommendation 28 can achieve its objective in practice. Paragraph 124 acknowledges that when disputes arise in small, closelyheld entities the relationship between members may have completely broken down and become uncooperative and distrustful. Perhaps the commentary should add that at the time of formation of the UNLLO, members should consider how disputes between them will be resolved. Then in Part C ‘Organisation of the UNLLO’, consideration could be given to including reference to a dispute resolution agreement in paragraph 54, or alternatively, adding a comment in paragraph 56 to the effect that if members wish to resolve disputes between them via alternative dispute resolution, this is one of the matters that it would be in the best interests of members to record.”12   

 

This intervention struck a chord with the Working Group and shaped subsequent discussion of Recommendation 28. It was immediately supported and discussed in the interventions from a number of Member States.13 Some of these interventions considered the backdrop of the seminal role UNCITRAL has made in the area of dispute resolutionit’s relevance to unsophisticated parties, legal frameworks requiring agreement consenting to alternative dispute resolution and practical issues associated with flexibility and autonomy to choose the dispute resolution mechanism appropriate to their needs.  The Working Group agreed to add to the Draft Legislative Guide that UNLLO members should consider how they will agree to resolve disputes when they are forming their organisational rules. The guidance will stipulate that if there is nothing in the organisational rules, then unless there is cooperation at the time of the dispute such that there is an agreement to arbitrate, there will be no prospect of arbitrating the dispute. The Working Group also agreed that the matter will be included in the draft model organisational rules. Dr Matthew has been asked to provide the UNCITRAL Secretariat with links to potentially suitable dispute resolution clauses that might be useful to include in Model Organisational Rules. 

 

In addition, the Working Group focused on a range of matters attracting substantial discussion and numerous interventions, including: 

 

  • The issue of the quantum for decision-making where different views were expressed as to whether decisions reserved to the UNLLO members as members should require unanimity or qualified majority. Concerns were raised that decisions by qualified majority could result in minority oppression. There was wide support for particular fundamental matters to be decided unanimously, for example formation of the UNLLO’s organisational rules, as this approach was considered to be suitable for members of MSME. Other decisions would be resolved by vote of a majority of members. Further the Working Group agreed that the Secretariat’s Commentary on quantum should discuss the pros and cons of the decision-making approach based on unanimity or on qualified majority and should highlight that adopting states may opt for either option. 
  • What decisions should be reserved to members as members. The Working Group agreed to revise draft Recommendation 11 to clarify this point. At a minimum such decisions were to include decisions on amendment of its organisational rules, management structure and its modification, members share and contribution, restructuring or conversion and dissolution.  
  • Distributions to UNLLO members, particularly whether distributions could be made if the UNLLO was unable to meet its debts “in the ordinary course of business. It was noted this language was taken from the cessation of payments test that appeared in the UNCITRAL Legislative Guide on Insolvency Law. While there was wide agreement that the two UNCITRAL texts should be harmonised to the extent possible it was also noted that the cessation of payments test as presented in the Insolvency Guide was used in the context of a commencement standard for insolvency proceedings whereas draft Recommendations 20 and 21 pertained to the establishment of a clawback regime for improper distributions. After discussion and presentation of various suggestions in the context of distributions it was agreed the element of foreseeability should replace “in the ordinary course of business. 
  • Record keeping, inspections and transfer of rights of membership. 

 

Organisational Rules  

Clarity on organisational rules was identified as an issue in the context of discussion on particular matters. For example, in the context of draft Recommendation 18 the Working Group considered how members could agree to the type, timing and value of contributions in their organisational rules and that unless these were stated otherwise the contributions would be equal in value. This raised concern that a formal document would be required which may affect the flexibility of the UNLLO. It was noted that such issues will be better informed once a draft form of model organisation rules is prepared. 

 

The Secretariat indicated that as the Legislative Guide component of the group’s work is rapidly approaching conclusion, an important final element of the work is to draft model organisational rules for the UNLLO. The Secretariat informed the Working Group that it would draft model organisational rules for the Working Group to consider once the draft Legislative Guide had been completed. Model Organisational Rules would be annexed to the final version of the Legislative Guide. A number of delegates and observers participating in the meeting, including Dr Matthew and Ms Anderson, have been approached to assist the Secretariat in gathering samples to be considered in the Secretariat’s drafting of such model rules. 

 


Additional Resources  

UNCITRAL, Draft Report of Working Group I, A/CN.9/WG.I/XXXIII/CRP.1 (7 October 2019)  

UNCITRAL, Draft Report of Working Group I, A/CN.9/WG.I/XXXIII/CRP.1/Add.1 (7 October 2019)  

UNCITRAL, Draft Report of Working Group I, A/CN.9/WG.I/XXXIII/CRP.1/Add.2 (8 October 2019)  

UNCITRAL, Draft Report of Working Group I, A/CN.9/WG.I/XXXIII/CRP.1/Add.3  (9 October 2019) 

Working Documents for UNCITRAL Working Group I: https://uncitral.un.org/en/working_groups/1/msmes 

Working Group III (Investor-State Dispute Settlement Reform) Update by Marina Kofman

UNCITRAL Working Group III – Report to UNCCA and LawAsia on the 38th session (Vienna, 14-18 October 2019) 

Update from the Third Inter-sessional session  

At the outset of its 38th session, UNCITRAL Working Group III heard a report from the delegation of the Republic of Guinea on the result of the third Inter-sessional Regional Meeting on ISDS reform, held in Conakry, Guinea on 25 and 26 September 2019. The Working Group heard that the meeting provided the opportunity to raise awareness of the current work of the Working Group, to share experiences and views on ISDS and to explore the reform agenda.  

The Working Group was also informed of budgetary cuts at the UN, which would impact its work. Due to budgetary constraints, a word count would now be imposed on the reports from the Working Group’s sessions, among other impacts.  

 

Project scheduling  

The first substantive task of working group III during its 38th session was to develop a project schedule for the order in which reform options would be discussed over its next sessionsThe focus on developing the schedule was on how to move the reform options forward in parallel (broadly, ‘structural’ and ‘non-structural’ options, although this characterisation was challenged as unhelpful during the session) as agreed during the 37th session. The schedule was resolved on the morning of the second day of session after a range of views were expressed. Throughout the discussions the emphasis was on the need  

It was decided that during the remainder of the 38th session, the Working Group would discuss (a) a multilateral advisory centre and related capacity-building initiatives; (b) a code of conduct for arbitrators and (c) third-party funding.   

The 39th session would be allocated to (a) a stand-alone appellate mechanism; (b) standing multilateral investment court and (c) selection and appointment of arbitrators.  

The 40th session would be allocated to consider (a) dispute prevention, mitigation and other means of alternative dispute resolution; (b) treaty interpretation by States parties; (c) security for costs; (d) means to address frivolous claims; (e) multiple proceedings including counter-claims and (f) reflective loss and shareholder claims based on joint work with the OECD.  

It was said that the focus of the working group’s deliberations should be on providing guidance to the UNCITRAL Secretariat so as to guide it in providing preparatory work on the topics identified for the working group to consider.   

 

Advisory Centre 

Substantive discussions on reform options kicked off with a topic on which there was much agreement in the room – an ISDS advisory centre. Delegations from Africa, in particular, emphasised the importance of the advisory centre and capacity building. There was general support in the working group for establishing an advisory centre as a complement to other reforms. The focus of the discussions was on which stakeholders would be permitted access to the advisory centre’s services, the scope of its services and on how to finance it. There was also a focus on identifying services already provided by other organisations, with a view to eliminating overlaps. It was noted that funding and staff capacity issues would make it challenging for the centre to act as legal counsel in a dispute. The goal of the capacity building aspect was to increase the capacities of the centre-beneficiaries over time. It was suggested that the Advisory Centre on WTO Law could provide a useful model, but would need to be adapted to the ISDS regime.  

 

 Code of conduct 

There was widespread support in the working group for the development of a code of conduct for arbitrators, to address concerns or perceived concerns about a lack of independence and impartiality of arbitratorsIt was generally agreed that the code should be binding and of universal application in ISDS disputes, to reduce fragmentation and uncertainty. Conflicts of interest, diligence, integrity and efficiency will need to be addressed in the code of conduct. Various sanctions for breaches of the code of conduct were discussed, including consequences impacting arbitrator remuneration, such as repayment of arbitrator fees already paid in a case; disciplinary measures and measures that would tend to affect arbitrator reputation e.g. a database recording breaches. The Working Group gave detailed guidance to the Secretariat on a number of matters to be covered in the preparatory work in developing the code of conduct, as more fully set out in the Draft Report of the 38th session. 

 

Third-party funding 

Although some delegations expressed views that third-party funding should be prohibited, it was generally felt that third-party funding should be regulated rather than outright banned. The regulation would need to deal with a number of matters with a view to increasing transparency, especially given the potential for conflicts of interest in circumstances where the existence and identity of the funder is unknown. 

 

Delegations noted the importance of developing a definition of third-party funding and it was noted that existing definitions should be considered as a potential guide. Delegations generally agreed that the existence and identity of a funder should be disclosed at an early stage in the proceeding or as soon as a funding agreement had been concluded. Delegations also felt that disclosing the beneficial owners of a funder was important to addressing potential conflicts of interest. It was suggested that the disclosure should be made to the tribunal and also the opposing party. 

 

In relation to security for costs when a funder is involved, in line with prevailing jurisprudence, it was generally agreed that the mere existence of a funder, without more, was insufficient to warrant an order for security for costs. This is in line with the approach taken in the current ICSID Rules amendment process. The observer delegate for ICSID said that ICSID could postpone adopting the new provisions on third-party financing during the planned 2020 vote on its reform package if ICSID member States so desired, with a view to developing a harmonised approach with the process in Working Group III. The Secretariat was tasked with preparing draft provisions on third-party funding, incorporating alternative approaches for the Working Group to consider. 

 

Other discussions 

 The Working Group requested that the Secretariat begin to undertake preparatory work in respect of a possible multilateral instrument incorporating a suite of reform ‘options’, including both procedural reforms and structural reforms that could be used to update existing treaties. Both the United Nations Convention on Transparency in Treaty-based Investor-State Arbitration (the Mauritius Convention) and the Multilateral Convention to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Shifting  (BEPS Convention) were cited as possible models to examine.  

 

 

 

 

 

 

 

 

Update on UNCITRAL Working Group II (Arbitration and Conciliation/Dispute Settlement) 

UNCCA is grateful to Working Group II Chair, the Hon Dr Clyde Croft AM SC, for his Honour’s update on Working Group II (Arbitration and Conciliation/Dispute Settlement), and also to Tobias Hill and Lachlan Glaves for their separate report on the recent Working Group II session in Vienna in September this year.

Both reports are  embedded below (pages can be navigated via the PDF-reader interface).

UNCITRAL WGII Update December 2019
T Hill & L Glaves – Working Group II Report

UNCITRAL-RCAP Internships – Apply Now!

The internships at UNCITRAL-RCAP are open for application at the United Nations Careers Portal (Job Opening Number: 127171 / 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 April – 30 September 2020.

Applicants for UNCITRAL-RCAP’s 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.

For the internship advertised, proficiency in oral and written English is required, and knowledge of another United Nations official language, namely Arabic, Chinese or Russian, as well as of regional languages such as Japanese, Korean, or others, would be an advantage.

Please note that United Nations interns are not paid. All costs related to travel, insurance, accommodation, and living expenses must be borne by either the interns or their sponsoring institutions. Visit UNCITRAL-RCAP’s Careers Portal for the job description, requirements and other details.

Interested applicants must apply through Inspira, UN’s online employment application system.

The online application system for this job opportunity is available 24 hours a day until 29 December 2019, 11:59 p.m. (New York time).

Only shortlisted candidates will be contacted via email.

For more information on the work of UNCITRAL and UNCITRAL RCAP, please visit: uncitral.un.org

Season’s Greetings from UNCCA

With the holidays upon us, we’d like to take the opportunity to thank each and every member for your continued support and involvement in raising UNCCA’s profile in Australia and beyond. We’re incredibly excited about 2020 and look forward to continuing to deliver value for our membership base in the coming year!

On behalf of all of us at UNCCA, we wish you a Merry Christmas and a Happy New Year – Happy Holidays!

UNLAWS Program update – Vienna 2 to 5 December 2019 – Samantha Pacchiarotta

The beautiful city of Vienna is home to several United Nations organisations including the United Nations Commission on International Trade Law (UNCITRAL).  UNCITRAL’s mandate is to remove legal obstacles to international trade by progressively modernising and harmonising trade law. UNCITRAL’s Working Group V (Insolvency Law) meets twice a year, in New York each May and in Vienna each December to undertake the substantive preparation on UNCITRAL’s work program.

 

Whilst tourists enjoy the myriad of Christmas markets and the charming city in all of its festive glory; each December state officials, academics, insolvency experts and legal practitioners from around the globe meet at the Vienna International Centre to participate in Working Group V.  This year the 56th session of Working Group V was held from 2 to 5 December.

 

An orderly spectacle

 

The proceedings of the Working Group are fascinating. Each session takes place in a large boardroom which is able to accommodate representatives from all of UNCITRAL’s 60 member states as well as representatives from NGOs and inter-governmental organisations. The documents prepared by the UNCITRAL Secretariat for the Working Group’s consideration are available in the six official languages of the United Nations and translators are kept on standby to ensure that the discussion that takes place is communicated to all in attendance.

 

Discussion takes place in a formal manner governed by etiquette rules universally understood among delegations. A raised ‘flag’ (the delegation’s name card) will signify to the chairperson that the delegation wishes to speak and the delegation will be accorded the opportunity to do so. An intervention by a delegation always begins with thanking the chair or other distinguished delegates for their contribution.

 

The 56th session of Working Group V

 

At its 56th session, the Working Group focused on the important topic of a simplified insolvency regime for micro and small-sized enterprises (MSEs). A draft text, prepared by the Secretariat, was deliberated over by the Working Group while taking into account the need for a simplified insolvency regime to be equitable, fast, flexible and cost efficient. The draft text does not attempt to articulate the eligibility criteria for MSEs to access the simplified insolvency regimes and leaves that issue to states.

 

Finding middle ground

 

The diversity of the Working Group and the differing cultures and legal systems of delegations can give rise to a divergence in opinions. Notwithstanding, the fact that delegations come together at the Working Group with positive intent makes collaboration possible.  One such example was the point of contention raised during the Working Group regarding the ‘competent authority’ as defined in the draft text and whether the definition should explain the competent authority’s role and function. After more than two hours of deliberation, delegations were able to come to an agreement on the suitable elements of such a definition. It is when states are able to find ‘middle ground’ and compromise on a contentious sticking point that the Working Group is most effective.

 

The Working Group noted the importance of simplified proceedings as a quick and efficient mechanism allowing debtors the opportunity of a ‘fresh start’ to return to the economy. Mechanisms such as zero-asset proceedings were examined and deliberated on at length.

For more information on the substantive deliberations of the Working Group, please refer to the upcoming report of the LAWASIA delegation on the 56th session of Working Group V.


 

Updated Report on 56th session of WGV – December 2019

2020 UNCITRAL Working Group Session Dates

The following dates have been set for upcoming UNCITRAL Working Group sessions, including UNCITRAL’s 53rd session:

  • 6-17 July 2020
  • 7-11 October 2019, Vienna
  • 23-27 March 2020, New York
  • 23 -27 September 2019, Vienna
  • 3-7 February 2020, New York
  • 25-29 November 2019, Vienna
  • 6-9 April 2020, New York
  • 18-22 November 2019, Vienna
  • 20-24 April 2020, New York

A Special Invitation for Membership (UN Day 2019 Lecture Attendees)

As we close out our fifth year in Australia, we’re proud to look back, celebrate our progress, and invite you to join us for the next year.

As the first National UNCITRAL Coordination Committe of its kind, UNCCA was founded in 2014 by Sydney barrister, Tim Castle. We’ve enjoyed tremendous growth since then. UNCCA is today supported by a membership base of over 60 members, which include esteemed members of the judiciary, leading academics, engaged legal and non-legal professionals, and a diverse student base made up from various Australian universities.

UNCCA today continues to provide the following benefits for its member base, including:

  • opportunites to attend UNCITRAL Working Group meetings as observers;
  • up-to-date direct reports on UNCITRAL Working Group sessions as prepared personally by attendees;
  • discounted attendee rates for UNCCA events, includingUNCCA’s flagship May Seminar and UN Day Lecture series; and
  • exposure to directly circulated opportunities for participation at numerous UNCITRAL conferences and symposia in Asia and the Pacific;
  • opportunities for further engagement with UNCITRAL in direct areas of interest.

In 2019, five of our members were appointed by the Australian Attorney-General’s Department as CLOUT National Correspondents, UNCITRAL’s leading legal database of worldwide court decisions and arbitral awards on UNCITRAL texts.

UNCCA is considered to be the leading resource in providing these opportunities for engagement and for staying up to date with international trade laws developments through our regular Newsletters (see the latest edition here).

Australian lawyers and academics have much to contribute to the development of harmonized trade laws in our region and globally. UNCCA provides the vehicle for anyone who is interested in one of the nine key UNCITRAL areas to participate in that contribution.

In a special invitation for membership, UNCCA is pleased to invite all UN Day Lecture attendees to join us as members (either as Fellows or Associates). All UN Day Lecture attendees will benefit from an extended membership duration, valid until 1 January 2021.  

To become an UNCCA Fellow, please visit here.

To become an UNCCA Associate, please visit here.

We look forward to welcoming you to UNCCA.

UN Day Lectures 2019: Recap and Lecture Materials

UNCCA UN Day Lecture 2019 Recap by Aidan O’Callaghan

 Speakers and Attendees in Hobart

On 23-24 October 2019, UNCCA held its third United Nations Day Lecture series. Lectures were held in the capital city of nearly every Australian State and Territory, including Adelaide, Brisbane, Canberra, Hobart, Melbourne, Perth and Sydney. The Lectures reflected on 25 years of UNCTIRAL Cross Border Insolvency Law Reform.

The UN Day Lectures brought insight into the history, utility, domestic relevance and future of cross-border insolvency (‘CBI’) law. UNCITRAL’s role in reforming CBI law over the past quarter-century has resulted in the development of key instruments which continue to guide legal and commercial practice worldwide. Particularly, the UNCITRAL Model Law on Cross-Border Insolvency (1997) has been adopted in 46 States, including in Australia as the Cross-Border Insolvency Act 2008 (Cth). The UNCITRAL framework enables recognition and cooperation between domestic and foreign courts for insolvency proceedings which cross international borders.

UN Day was generously hosted Australia-wide by the Federal Court of Australia. This year’s Lectures attracted over 200 attendees, including students, academics, lawyers and public servants – a testament to the growing domestic recognition of the important role played by international trade law. Likewise, speakers came from a variety of backgrounds, including academics, lawyers, judicial officers, and policy makers; each brought a unique insight into the role of UNCITRAL’s CBI framework and its implications for the study and practice of international trade law, particularly in Australia.

In Adelaide, Professor Christopher Symes of the University of Adelaide provided the Lecture, tracing the idea and application of international insolvency law in Australia back to as early as 1886, and in comparison, provided detailed insight into the utility of the UNCITRAL Law today. The event was chaired by Justice Anthony Besanko of the Federal Court, and additional commentary provided by Brendon Roberts QC, of the Adelaide Bar.

The Brisbane Lecture was presented by Adjunct Professor Rosalind Mason of QUT, who provided a useful exposition of UNCITRAL’s resources and CBI instruments, as well as insight into the theoretical framework used by the Model Law. Additional commentary was provided by Scott Butler of McCullough Robertson, who gave a practical explanation of some of the Model Law’s most salient technical features. The Lecture was chaired by Justice Roger Derrington.

Canberra Speakers: Prue Bindon, Prof. Michael Murray, and Judge Dr Warwick Neville

UN Day in Canberra included a Lecture from Adjunct Professor Michael Murray of QUT who contrasted the UNCITRAL CBI framework’s sophisticated approach with the principles of comity and reciprocity previously relied upon in international relations, before examining some of the framework’s technical details, and UNCITRAL’s ongoing work. The Lecture was chaired by Judge Dr Warwick Neville of the Federal Circuit Court, with additional commentary provided by Prue Bindon of Key Chambers.

In Hobart, Tim Castle of the Sydney Bar and a former Chair of UNCCA referred to the importance of having a sound cross-border insolvency framework to reduce transaction costs associated with legal risk, as an accompaniment to the growth in world trade and global finance. Paul Cook, a former President of ARITA provided the commentary, and remarked on impact for Tasmanian industry and employees of global insolvencies. The Hobart session was well attended by over 30 practitioners, academics and students and was chaired by Judge Barbara Baker of the Federal Magistrates Court.

In Melbourne, the UN Day Lecture was provided by Stewart Maiden QC of the Victorian Bar, who highlighted the necessary imperfections of cross-border insolvency law in Australia, as revealed by recent case law, and the ongoing role of UNCITRAL in addressing them. In his commentary, Dr Neil Hannan of Thomson Geer highlighted the internationality of UNCITRAL’s CBI framework, noting the need for domestic authorities to properly balance the law’s features, as revealed in Australia through the example of Maritime Stays and Claims. The Lecture was chaired by Justice David O’Callaghan of the Federal Court.

Justice Katrina Banks-Smith Delivering the Lecture in Perth

The Perth Lecture was presented by Justice Katrina Banks-Smith of the Federal Court, with commentary from Julie Taylor of Francis Burt Chambers. Notably, the Lecture was chaired by UNCCA’s own Chair, Justice Neil McKerracher, also of the Federal Court.

Sydney Speakers: Justice Jacqueline Gleeson, Jenny Clift, and Scott Atkins

The Sydney Lecture was presented by Scott Atkins of Norton Rose Fulbright, who gave a unique insight into the role of the Australian legal profession in the UNCITRAL’s CBI work, and how the laws have been received and implemented domestically. Additional insight into the practical hurdles of negotiating UNCITRAL texts, as well as likely future developments of CBI law was provided by commentator Jenny Clift, the Former Secretary of UNCITRAL’s Working Group V. The Lecture was chaired by Justice Jacqueline Gleeson of the Federal Court.

UNCCA is thankful to all the speakers who presented at UN Day 2019; their contribution to the academic and legal practice of trade law in Australia cannot be understated. Further, without the interest and contribution of all who attended UN Day 2019, UNCCA would not be able to continue its role of promoting international trade law in Australia.

As a token of thanks, UNCCA is pleased to offer all non-members who attended UN Day 2019 an extended membership offer. As such, any membership registrations (Fellowship or Associateship) made by attendees before the end of the year, will be honoured until 1 January 2021.

We look forward to seeing you at UNCCA’s next event!


With immense gratitude to the speakers and commentators from the UN Day Lectures, UNCCA is pleased to share the following material:

 

 

UNCITRAL Colloquium on Civil Asset Tracing and Recovery (6 December 2019, Vienna)

At its fifty-second session, in 2019, the Commission requested the Secretariat to organize a colloquium, in cooperation with other relevant international organizations, to further clarify and refine various aspects of the Commission’s possible work on civil asset tracing and recovery, for consideration by the Commission at its fifty-third session, in 2020. The Commission was of the view that the colloquium should consider the elements of a possible toolkit on civil asset tracing and recovery and collect more information on civil law jurisdictions practices. The colloquium should also: (a) examine both criminal and civil law tracing and recovery with a view to better delineating the topic while benefitting from available tools; (b) consider tools developed for insolvency law and for other areas of law; and (c) discuss proposed asset tracing and recovery tools and other international instruments (A/74/17, para. 203). That decision followed the consideration by the Commission of the proposals submitted by the United States of America (A/CN.9/996) and (A/CN.9/WG.V/WP.154).

The Colloquium on Civil Asset Tracing and Recovery will be held in Vienna on 6 December 2019. The meetings will take place from 9:30-12:30 and 14:00-17:00 in Boardroom D of the Vienna International Centre (VIC).

The Colloquium is restricted to professionals who deal with asset tracing and recovery, in particular in insolvency proceedings. The Colloquium will be conducted on an informal basis. Interpretation in the six official languages of the United Nations (Arabic, Chinese, English, French, Russian and Spanish) will be available.

Participation is by invitation. All eligible and interested participants are invited to communicate their interest to the UNCITRAL secretariat at uncitral@un.orgDelegates and observers to the 56th session of Working Group V (Insolvency Law) are automatically invited to the Colloquium. 

Those eligible and interested to speak are requested to identify a topic they are proposing to cover and attach an outline of issues they intend to address at the Colloquium (the outline should be of no longer than 2 pages).

No fees are charged for participation at the Colloquium but participants are expected to cover travel and accommodation costs and make their own travel and accommodation arrangements.

To ensure comprehensive and balanced deliberations and outcomes, scholars and practitioners from different legal systems of the world and of developed and developing countries are encouraged to attend the Colloquium. In addition, the United Nations is mindful of gender balance, and women are therefore particularly encouraged to attend the Colloquium and present their candidatures as speakers.

The report of the Colloquium will be before the Commission at its fifty-third session (New York, July 2020) and upon its issuance will be made available on the web page of the Commission.

Programme