The Sixth Committee (Legal) took up the report of the United Nations Commission on International Trade Law (UNCITRAL) today, with delegates commending the progress of the various Working Groups and highlighting the finalization and adoption of a number of important legal texts.
Beate Czerwenka, Chair of the fifty-first session of UNCITRAL, introduced the Commission’s report (document A/73/17), noting that the body had finalized four legislative texts in the key areas of dispute resolution, micro-, small- and medium-sized enterprises and insolvency.
One such text, the Convention on International Settlement Agreements Resulting from Mediation, would allow parties to rely on a mediated settlement agreement and enforce it in a cross-border context according to simplified procedures. The Government of Singapore had offered to organize a ceremony for the signing of the Convention after its adoption, she said, which led to the suggestion that it be referred to the Singapore Convention on Mediation.
Another text finalized and adopted by the Commission is the Legislative Guide on Key Principles of a Business Registry, she said. This text draws on best practices worldwide and recommends a registration system that is accessible through a single entry point, allowing for simultaneous registration with the business registry and other relevant public authorities.
The Commission also finalized the Model Law on Recognition of Insolvency-Related Judgments and the Guide to Enactment of the Model Law, she said. In a world where enterprises and individuals have assets in more than one State, there is a need for an international regime that addresses recognition and enforcement of insolvency-related judgments, she said.
On the Commission’s Working Groups, she noted that they are currently working on texts on insolvency, secured transactions and dispute resolution. Working Group III has made progress in relation to investor-State dispute settlement reform and had welcomed contributions on the subject from various stakeholders, including intergovernmental and non-governmental organizations, an academic forum and a group of practitioners.
In the future, the Commission would turn its attention to the judicial sale of ships and issues related to expedited arbitration, she informed the Sixth Committee. In addition, more preparatory work will be undertaken on the subjects of warehouse receipts, legal issues related to the digital economy and civil law aspects of assets tracing and recovery in the context of insolvency.
Singapore’s delegate emphasized that UNCITRAL plays a vital role in the promotion of the rule of law and has also made great strides in progressively harmonizing and modernizing the law of international trade. Spotlighting the importance of finalizing the Convention of International Commercial Settlement Agreements, he underscored that this would complement other forms of dispute mediation. The Convention would show mediation as being on a par with arbitration as a preferred means of settling cross-border commercial disputes.
The representative of the Philippines, highlighting another area where UNCITRAL successfully modernized international trade law, welcomed the Commission’s Legislative Guide on Key Principles of a Business Registry and praised the provision on equal rights for women regarding access to the registration services of the business registry. She also underlined that it called on States to institute policies to collect sex-aggregated data for business registration on a voluntary basis. In that way, gender-neutral business registration frameworks can be established, she said.
The European Union’s representative stressed the vital role of the Commission in identifying and addressing underlying issues within the current legal system, noting that such work presents opportunities for greater transparency, openness and accessibility. The subject of investor-State dispute settlement presented various challenges and should be reformed, she noted, underscoring that the need to address such topics is ongoing.
However, the Russian Federation’s delegate, also speaking on the subject of investor-State dispute settlement, said that the issue should be based on wide consensus and objective analysis of existing mechanisms, taking into account regional needs. Without such an analysis it was premature to work on proposals to create new international institutions such as judicial bodies, she said.
Also speaking were representatives of El Salvador (also for the Community of Latin American and Caribbean States), Austria, Peru, Japan, India, Colombia, Belarus, Thailand, Mexico, Israel, Libya, Sudan, Sierra Leone, Cameroon, Viet Nam, Honduras, Malaysia, United States, Venezuela, Indonesia, Republic of Korea, United Kingdom and Algeria.
The Sixth Committee will meet at 10 a.m. on Wednesday, 17 October, to begin its consideration of Status of the Protocols Additional to the Geneva Conventions of 1949 and relating to the protection of victims of armed conflicts.
United Nations Commission on International Trade Law (UNCITRAL)
BEATE CZERWENKA (Germany), Chair of the fifty-first session of the United Nations Commission on International Trade Law (UNCITRAL), introduced the Commission’s report (document A/73/17). As the core legal body of the United Nations in the field of international trade law, the Commission finalized four legislative texts in key commercial areas: dispute resolution; micro-, small and medium-sized enterprises; and insolvency. Further, it heard progress reports from its Working Groups, decided on future work and deliberated on the technical assistance and coordination activities carried out by its Secretariat, she said, also highlighting an event held to celebrate the sixtieth anniversary of Foreign Arbitral Awards.
Turning to the texts adopted by the Commission, she said that the Convention on International Settlement Agreements Resulting from Mediation will allow parties to rely on a mediated settlement agreement and enforce it in a cross-border context according to simplified procedures. It contains reservations which will allow States to tailor its application in a flexible manner, including in the context of investor-State dispute settlement. Noting the offer by the Government of Singapore to organize a ceremony for the signing of the convention after its adoption, she added that the Commission adopted the suggestion that the convention be referred to as the Singapore Convention on Mediation by unanimous support.
In the field of micro-, small- and medium-sized enterprises, the Commission finalized and adopted the Legislative Guide on Key Principles of a Business Registry, she continued. That will be the first chapter of a larger and more ambitious project aimed at developing texts to promote an enabling legal environment for the operation of such enterprises. Drawing on best practices worldwide, the Guide recommends a registration system that is accessible through a single entry point, allowing for simultaneous registration with the business registry and other relevant public authorities.
Turning to insolvency law, she noted the adoption of the Model Law on Recognition and Enforcement of Insolvency-Related Judgments and the Guide to Enactment of the Model Law. It expands on and complements the 1997 UNCITRAL Model Law on Cross-Border Insolvency, which has now been enacted in around 45 jurisdictions. In a world in which it is increasingly easy for enterprises and individuals to have assets in more than one State and move them across borders, there is a need for an international regime specifically addressing recognition and enforcement of insolvency-related judgments.
Noting that the event to celebrate the sixtieth anniversary of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, she said that it provided an opportunity to consider how the Commission has contributed to the successful development of the international arbitration framework. The Commission also dealt with the Legislative Guide on Privately Financed Infrastructure Projects, she said, adding that it took note of and endorsed general policy proposals by the Secretariat for amending the Guide.
Working Groups are continuing the full agenda of legislative work, and several texts in the areas of insolvency, secured transactions and dispute resolution are likely to be submitted for finalization at the Commission’s 2019 session, she said. Highlighting the work of Working Group III on investor-State dispute settlement reform, she welcomed the broad contribution of expertise from various stakeholders, including intergovernmental and non-governmental organizations, an academic forum and a group of practitioners. However, she also reaffirmed that the process should be Government‑led.
Concerning the Commission’s future work, she said that in terms of allocation of working group time, priority will be given to two topics: judicial sale of ships and issues related to expedited arbitration. On other topics discussed, including warehouse receipts, legal issues related to the digital economy, contractual networks and civil law aspects of assets tracing and recovery in the context of insolvency, more preparatory work is required before further steps are taken.
The development of legislative texts is only the first step in the process of trade law harmonization, she said. Dissemination of information, as well as technical cooperation and assistance projects are vital to the further use, adoption and interpretation of Commission texts. Commending the Secretariat’s efforts to provide information and support domestic law reform through drafting assistance, she said that the ability of the Secretariat to respond to requests from States and regional organizations depends on the availability of funds. She welcomed the Secretariat’s efforts to explore alternative sources of extra budgetary funding.
Further, she noted, the UNCITRAL Regional Centre for Asia and the Pacific based in Incheon, Republic of Korea has continued to carry out its mandate, namely by providing capacity-building and technical assistance to States, as well as to international and regional organizations. The Centre has enhanced trade and development and has led to a tangible increase of accessions, ratifications and enactments of the Commission’s texts in the Asia Pacific region. She called on delegates to support the Commission in the Sixth Committee as well as in the Fifth Committee to provide the resources necessary to expand its activities to meet increasing demands. Member States, she stressed, are the true “shareholders” of the Commission.
RUBÉN ARMANDO ESCALANTE HASBÚN (El Salvador), speaking for the Community of Latin American and Caribbean States (CELAC), highlighted the significant progress made in each of the six Working Groups and noted the priority being given by the Commission to a proposal to develop an instrument on cross-border issues related to the judicial sale of ships. Given the growing challenges of codifying international trade law, the Commission’s work should, as much as possible, go hand-in-hand with the dynamics of commercial activities. That will not be easy, given the pace of commercial activities, but with the commitment and broad participation of Member States, substantive progress can be made towards the UNCITRAL goal of modernizing and consolidating international trade rules.
Emphasizing CELAC’s support for the Commission’s work, he also underscored that participation in its work requires a significant effort on the part of its 33 member States. Alternating between New York and Vienna made it easier to participate, especially for those countries with no diplomatic representation in Austria. That system should continue. He went on to reiterate the commitment of CELAC to the Commission’s work taking into account the 2030 Agenda for Sustainable Development, particularly Goal 16 on promoting peaceful and inclusive societies, facilitating access to justice for all and creating effective, accountable and inclusive institutions.
DANIELA GAUCI (European Union), thanking the Commission for its work on a wide variety of issues, including micro-, small-, and medium-sized enterprises, investor-State dispute settlement reform and electronic commerce, among others. She stressed that within that wide range of topics, investor-State dispute settlement presents various challenges and should be reformed. The debate on how to address these challenges is ongoing, she noted, adding that where dispute resolution involves public matters, a multilateral approach and a standing body are best suited to address all the issues.
Urging the Commission to continue identifying underlying issues and concerns within the current system, she highlighted the advantages that it presents in terms of transparency, openness and accessibility. She also encouraged all countries, international organizations and observers to actively take part in the discussions. The Union has contributed to the Commission’s Trust Fund, she said, encouraging other actors to do so as well.
NADIA ALEXANDRA KALB (Austria), aligning herself with the European Union, praised progress made on a range of topics by the Commission, which she noted her country proudly hosts. She reaffirmed strong support for UNCITRAL work on technical cooperation and assistance in the field of international trade law reform and development. In that regard, there is a need to strengthen support to Member States, upon their request, in the domestic implementation of their respective international obligations. She also welcomed the efforts of the Secretary-General to ensure greater coordination and coherence among United Nations entities and with donors and recipients in that context. As coordinator for UNCITRAL resolutions in the Sixth Committee, she encouraged Member States to co-sponsor the texts to show their support for UNCITRAL’s valuable work.
ANGEL HORNA (Peru) highlighted the progress made by the Working Group for micro-, small- and medium-sized enterprises and welcomed the legal efforts to remove obstacles to trade. With regards to the Working Group on possible reform of the dispute solution system between investors and States, his country will be providing support, given its experience in various key sectors. Establishing a section in legal advisory centres on investor disputes would be beneficial. With e-trade on the rise, the Working Group on this subject is vital, he said, expressing his Government’s readiness to share its experiences, including on its national registry for identification and in matters relating to digital identifications. He also spotlighted the importance of the rule of law and the 2030 Agenda for Sustainable Development, particularly Goal 16. This should be taken into account when considering subjects for the Commission’s future programme of work.
HOTAKA MACHIDA (Japan) underscored the importance of reducing legal difficulties faced by micro-, small- and medium-sized enterprises, particularly in developing countries. He added that he looked forward to Working Group I completing its current work on the draft legislative guide on an UNCITRAL limited liability organization. Working Group II has handled some challenging topics relating to the enforceability of settlement agreements resulting from mediation and should continue to make progress on its work. He expressed hope that Working Group III will follow the work sequence stipulated in the mandate without prejudice to the outcome and conduct discussions in an inclusive manner. Highlighting the work of Working Group IV on the topics of identity management and trust services, he encouraged it to continue to pay attention to technological neutrality. He also said he looked forward to further progress in future discussions on Working Group V and to Working Group VI completing its current work on a practice guide to the UNCITAL Model Law on Secured Transactions.
MARIA ANGELA PONCE (Philippines) expressed support for the finalization and adoption of the Convention on International Settlement Agreements Resulting from Mediation. It complements the existing legal framework on international mediation and is of much value to the fair and efficient settlement of disputes arising in international commercial relations. Also welcoming the finalization of the Legislative Guide on Key Principles of a Business Registry, she highlighted the provision for equal rights of women to access to registration services of the business registry and the call on States to institute policies to collect anonymized sex-aggregated data for business registration on a voluntary basis so that gender-neutral business registration frameworks can be established.
NATHANIEL KHNG (Singapore) said UNCITRAL has made great strides in its important mandate of progressively harmonizing and modernizing the law of international trade. It also plays an important role in promoting the rule of law. He congratulated the Commission for successfully completing work on the Convention on International Commercial Settlement Agreements, stressing that such mediation complements other forms of dispute mediation. If the Convention is widely adopted, mediation will be regarded by businesses as having parity with arbitration as a preferred means of settling cross-border commercial disputes. He called for stakeholders to “scan the horizon” and avoid being restricted to subject matters that are covered by the six specialized Working Groups established by UNCITRAL. Singapore will conduct workshops in various countries to raise awareness and promote understanding of the work outputs of Working Group II on mediation.
UMASANKAR YEDLA (India) said the instruments and texts developed by the Commission will go a long way to fulfilling alternative mechanisms for amicable dispute settlement while contributing to the development of international trade. Notwithstanding legal and practical challenges, he said he looks forward to deliberations on proposed reforms to the investor-State dispute settlement system that would make it fair, legitimate and self-contained. He highlighted the Commission’s role in providing technical cooperation and assistance to developing countries and encouraged the Secretariat to improve its outreach activities in that regard.
JUAN CUELLAR TORRES (Colombia), associating himself with CELAC, turned to the matter of Working Group III regarding investor-State settlement agreements. In light of possible reform of this system, he noted that his country had participated in two sessions on the topic, adding that he welcomed the discussion that will happen later this year in Vienna. Working Group III should continue to work on the mandate that has been entrusted to it by UNCITRAL; it should be possible for all countries to express their views. Efforts have been made to uncover relevant concerns regarding investor-State dispute settlement. These concerns should be assessed now so that solutions can be found.
RUSLAN VARANKOV (Belarus) welcomed the conclusion of work on international agreements resulting from mediation. Mediation is being used more and more frequently as an alternative to going to court, he said, underscoring that it will allow the resolution of disputes while maintaining trade relations. In reforming the area of investor-State dispute settlement, a mutual understanding on an entire range of issues needs to be reached. Based on the significance his delegation attaches to Working Groups II and III, there will an international conference on arbitration and mediation in Minsk in December. In addition to the registered themes, this activity will be an opportunity to discuss the mechanisms to implement the New York Convention [the Convention on the Recognition and Enforcement of Foreign Arbitral Awards].
PIRANAJ THONGNOPNUA YVARD (Thailand) recognized the important role UNCITRAL plays in the harmonization and unification of international trade law. Commending the finalization of the Singapore Convention on Mediation, she also welcomed last month’s intersessional regional meeting on investor-State dispute settlement reform. She drew attention to her Government’s submissions to UNCITRAL Working Group III’s thirty-fifth session on procedural concerns regarding investor-State settlement disputes, underlining that Thailand shared its concerns from the perspective of a developing State. For the Commission to shape the development of international trade law for the benefit of all it must engage closely with all relevant stakeholders.
PABLO ADRIÁN ARROCHA OLABUENAGA (Mexico), congratulating the Commission for its work in facilitating and improving global trade, said that codification of international law is central to his country’s foreign policy. Since 1968, when Mexico became a member of UNCITRAL, its delegations had been made up of independent legal experts dedicated to the normative framework of international trade law. The country has also developed its domestic legislation to bring it in line with the international trade law and the instruments adopted by the Commission. Highlighting this broad experience, he called on all delegates to support his country’s candidacy to continue as a member of UNCITRAL. Highlighting the modernization of the Commission’s methodologies, he also applauded its outstanding collaboration with the Hague Conference on Private International Law.
AHUVA SEIFERAS (Israel) welcomed the intent of UNCITRAL, based upon a proposal submitted by Israel and other States, to request the Secretariat to conduct next year’s session in a more streamlined manner and to enhance participation by Government representatives. Spotlighting some of the Commission’s recent achievements, she drew attention to its finalization and adoption of the Singapore Convention on International Commercial Settlement Agreements Resulting from Mediation, in whose negotiation Israel was involved. If ratified on a global scale, the agreement can contribute significantly to the promotion of the rule of law in international trade. In addition, the Commission’s finalization of the Model Law on Recognition and Enforcement of Insolvency-Related Judgments was another important milestone, she said.
CARLA ESPERANZA RIVERA SÁNCHEZ (El Salvador) associating herself with CELAC, noted her country’s active participation in the Commission, as well as its use and adoption of a range of instruments relating to international trade law. The process of preparing and promoting international instruments is especially important to developing countries. For El Salvador, trade and industry is a heritage that should be protected and developed, she said, also highlighting the work of Working Groups and the finalization of the Legislative Guide on Key Principles of a Business Registry, the Convention on Settlement Agreements and the Model Law on International Trade Mediation. These will result in a modern legal framework in international trade, she stressed.
ELENA A. MELIKBEKYAN (Russian Federation) stressed the need for a cautious and balanced approach in UNCITRAL’s discussion on improving the international system of investor-State dispute settlement. It should be based on wide consensus and objective analysis of existing mechanisms while also taking legal relationships and regional specifics into account. Until such an analysis is complete, it is premature to work on proposals to create new international institutions, including judicial bodies. On the future activities of the Working Group dealing with electronic commerce, she said the legal aspects of identity management and trust services should be subject to further examination. Regarding the Working Group on insolvency law, she expressed interest in the proposal to prepare a set of solutions to address common problems faced by micro-, small- and medium-sized enterprises in cases of insolvency.
YOUSEF SALAH (Libya) said that he attaches great importance to the central role of UNCITRAL and commended the progress made by its six Working Groups. He encouraged that contributions be made to the UNCITRAL Trust Fund so that it can achieve its goals. International commerce and the evolution of information and communications technology, which made the world a small village and enabled the ease of capital movement, have all created a need to develop international trade arbitration mechanisms as a tool to settle disputes. He welcomed the finalization of the two legal instruments on mediation. Furthermore, UNCITRAL should remain open to initiatives to enhance legal systems in this vital field for the benefit of all.
ABDALHAMEED AL BUSHRA (Sudan) said that he took note and welcomed the work achieved on the Convention on the Enforcement of Settlement Agreements to explore solutions and the possibility of a convention, model law or guidelines. He also highlighted the consensual decision arrived at in the Working Group, as well as the support for the Convention on International Settlement Agreements Resulting from Mediation. He noted the work done to finalize and adopt those instruments of mediation. With regard to the New York Convention, he said that it was considered one of the most successful Conventions adopted by the United Nations in the field of international trade law.
FRANCIS M. KAI-KAI (Sierra Leone), commending the finalization of the Convention on International Settlement Agreements Resulting from Mediation and the Model Law on International Commercial Mediation, said that their collective effect will certainly enhance the legal certainty of global business operations. The Commission should consider the issue of the prevalent use of limited liability protection which shields parent entities of multinationals or businesses trading across borders from the liabilities of their subsidiaries that they control or manage. Problems associated with this are weighing heavily on developing countries.
ZACHARIE SERGE RAOUL NYANID (Cameroon), noting that secure international trade transactions have been strengthened over the past few years, thanks to the substantive work of the Commission, highlighted the usefulness of the Convention on International Settlement Agreements Resulting from Mediation, the signing ceremony for which would be held in Singapore. Turning to the Commission’s work on micro-, small- and medium-sized enterprises, he said it would create a good legal environment for the operation of those three categories. Noting the amendments made to the legislative guide on key principles of a business registry, he thanked the Commission for noting the real estate system to which Cameroon belongs. Noting the Commission’s facilitation and enforcement of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, he added that his country was part of that Convention since 1998.
NGUYEN QUYEN THI HONG (Viet Nam), noting that her country is determined to build a regulatory environment most favourable to international trade, commended the work of the Commission concerning small- and medium-sized enterprises. Welcoming the adoption of the legislative guide on key principles of a business registry, she said that the finalization of the Convention on Settlement Agreements is a hallmark in the work of UNCITRAL as it sends a very strong and encouraging message to the commercial mediation community; it is consistent with her country’s belief that all disputes should be settled peacefully. Scholars and experts as well as Governments all over the world benefit from the Commission’s work, she said, adding that her country is seeking membership in UNCITRAL for the first time.
YOLANNIE CERRATO (Honduras), associating herself with CELAC, said that the report gives a detailed overview of the work undertaken by the six Working Groups. She welcomed the substantive work of UNCITRAL, noting that Honduras has been actively participating in the Commission’s work since 2008. She highlighted the work carried out on arbitration and online or in-person dispute settlement. The former has become important because the ultimate objective is the prompt settlement of disputes. She welcomed the adoption of the Convention on International Settlement Agreements, she said, adding that she looks forward to the adoption in the General Assembly of a draft text on international commercial mediation, as well as the signing of the Convention in Singapore in 2019.
AFZAN ABD KAHAR (Malaysia), acknowledging the Commission’s record of high-quality work, said his country recognizes mediation as an effective, peaceful way to settle commercial disputes. Malaysia has undertaken various efforts to promote the use of mediation and it will study UNCITRAL’s latest work to explore the possibility of their adoption. Noting that his country is a member of the Commission, he said it will continue to participate in its work.
JULIAN SIMCOCK (United States) said that he was delighted that UNCITRAL has approved a Convention on International Settlement Agreements Resulting from Mediation, which will be known as the Singapore Convention on Mediation. He also highlighted that the Commission has approved the related Model Law on International Commercial Mediation and International Settlement Agreements Resulting from Mediation, which updates the Model Law on International Commercial Conciliation. The revised Model Law may be utilized by States that do not become party to the Convention. In addition, UNCITRAL has approved a Model Law on Cross-Border Recognition and Enforcement of Insolvency-Related Judgements along with a Guide to Enactment.
FÁTIMA YESENIA FERNÁNDES JUÁREZ (Venezuela), aligning herself with CELAC, stressed the importance of the Working Groups and their adoption of different instruments, including the Convention on International Settlement Agreements, the legislative guide on key principles of a business registry and the Model Law on Recognition and Enforcement of Insolvency-Related Judgments, as well as its Guide to Enactment of the Model Law. Stressing that these instruments would contribute to strengthening the legal framework surrounding international trade, she reaffirmed her delegation’s support for constructive dialogue within the Working Groups.
AHMAD SHALEH BAWAZIR (Indonesia), stressing the role of the Commission in supporting the 2030 Agenda by promoting sustainable economic growth, said that the Commission also encourages the rule of law and governance in commercial relations. Its key role was recognized in the Sixth Committee’s previous debate on the rule of law, he said, adding that the implementation of its instruments helps achieve a uniform standard to reduce barriers in trade, investment and other commercial relations. As a country where micro-, small- and medium-sized enterprises serve as the backbone of the economy, Indonesia attaches great importance to cost-effective and efficient business registration, which is critical to assist business formation.
HWANG WOO JIN (Republic of Korea) said commemorations of the New York Convention provide valuable opportunities to consider how the Commission’s mandate contributes to the successful development of the international arbitration framework. The Republic of Korea hosted an intersessional UNCTRAL meeting on investor-State dispute settlement reform that resulted in proposals addressing the reconsideration and modification processes and the qualifications of arbitrators. His country is also providing financial support to the UNCITRAL Regional Centre for Asia and the Pacific in the country and is striving to make the Centre a permanent organization. He welcomed the Centre’s initiatives aimed at providing capacity-building and technical assistance for States, as well as its support for public, private and civil society initiatives to enhance international trade and development.
ELAINE GORASIA (United Kingdom), associating herself with the European Union, said that regarding Working Group III, she welcomed the Secretariat’s continued support and the approach it has taken in considering the views of stakeholders. UNCITRAL’s expertise makes it ideally suited to hosting discussions on the possible reform of investor-State dispute settlement. The Commission’s ability to bring together a wide variety of positions in Working Group III is valuable. She also voiced her continued support for Working Group IV, adding that she recognized the importance of verified electronic identity and strong authentication in online transactions in the support of international trade. Working Group V has made good progress on its mandate regarding the development of legislative provisions for multinational enterprise group insolvency and enforcement of insolvency-related judgments.
ZAKIA IGHIL (Algeria) said that the Commission is the core legal body for the unification and harmonization of international trade law. Cooperation among States in international trade is a factor in the maintenance of international peace and security. Through its model laws and legislative guides, UNCITRAL provides a valuable platform for countries to conduct dialogue on matters relating to international commerce. Welcoming the creation of a new legal framework on commercial mediation, she said it would contribute to the use of mediation to resolve cross-border disputes in a peaceful and efficient manner. Algeria will be participating actively in future work of the Commission, she said, highlighting the discussions relating to the instrument on cross-border issues relating to the judicial sale of ships.