Roberts & St. John: UNCITRAL and ISDS Reform: Visualising a Flexible Framework

Anthea Roberts (Australian National Univ. - Regulation & Global Governance) & Taylor St. John (Univ. of St. Andrews - International Relations) have posted UNCITRAL and ISDS Reform: Visualising a Flexible Framework. Here's the abstract:

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In UNCITRAL, states have broken through the impasse of the incrementalist and systemic reformer camps. They have all agreed that they want to pursue systemic reform, but they have different ideas about what that entails and what to prioritise. In broad terms, agreement seems to be coalescing around three main blocks of reforms: updating some of the procedural rules; enacting some sort of optional structural changes for dispute settlement; and creating a mechanism to support developing states with handling their treaties and disputes. Not every state is supportive of every proposal, but most seem open to pursuing all three in a (somewhat) simultaneous fashion.

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That leaves an important question, which is starting to bubble up on the side lines of the negotiations: how might these different reforms fit together? Instead of treating the proposals as oppositional, could a flexible framework be developed that would allow multiple reforms to be developed over time in order to create a more holistic approach? What would this look like? What are the component parts or building blocks and how might they fit together?

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Here we provide our initial thoughts on how to visualise a flexible framework for ISDS reform and how these more centralised reforms might operate within the wider more decentralised field. The framework we present is not simply a descriptive synthesis of the discussions to date, but rather a way to look at the various options raised in their entirety — including how they overlap and relate to one another.

Call for Papers: Modernizing International Trade Law to Support Innovation and Sustainable Development

The United Nations Commission on International Trade Law (UNCITRAL) has issued a call for papers for its fiftieth anniversary congress, to be held July 4-6, 2017, in Vienna. The theme is: "Modernizing International Trade Law to Support Innovation and Sustainable Development." The call is here.

Strong: Use and Perception of International Commercial Mediation and Conciliation

S.I. Strong (Univ. of Missouri - Law) has posted Use and Perception of International Commercial Mediation and Conciliation: A Preliminary Report on Issues Relating to the Proposed UNCITRAL Convention on International Commercial Mediation and Conciliation. Here's the abstract:

This report provides preliminary findings from the first-ever large-scale international survey regarding the use and perception of international commercial mediation and conciliation in the international legal and business communities. This information was gathered to assist the United Nations Commission on International Trade Law (UNCITRAL) and UNCITRAL Working Group II (Arbitration and Conciliation) as they consider a proposal from the Government of the United States regarding a possible convention in this area of law. The U.S. proposal will be considered in depth at the Working Group II meeting in February 2015, with a report from the Working Group due to the Commission in September 2015.

The project was constructed with two goals in mind. First, the study attempted to discover and describe current behaviors and attitudes relating to international commercial mediation and conciliation so as to set a benchmark for further analysis in this field. Second, the research attempted to determine whether the legal and business communities thought an international instrument in this area of law would be useful and if so, what shape they believed that document should take.

The study collected detailed data on 34 different questions from 221 respondents from all over the world. Survey participants included private practitioners, neutrals, in-house counsel, government lawyers, academics and judges with expertise in both domestic and international proceedings. The results described in this preliminary report will eventually be published in an article that will not only present an expanded final analysis of the underlying data but will also feature several normative proposals regarding the shape of any future international action in this area of law. However, this preliminary report is being offered early so as to provide participants in the UNCITRAL discussion with empirical data concerning the current state of international commercial mediation and conciliation as well as the international business and legal communities' views about the future of the procedure.

Croft, Kee, & Waincymer: A Guide to the UNCITRAL Arbitration Rules

Clyde Croft (Supreme Court of Victoria), Christopher Kee (Univ. of Aberdeen), & Jeff Waincymer (Monash Univ.) have published A Guide to the UNCITRAL Arbitration Rules (Cambridge Univ. Press 2013). Here's the abstract:

The first version of the UNCITRAL Arbitration Rules was endorsed by the General Assembly of the United Nations in December 1976. Now considered one of UNCITRAL's greatest successes, the rules have had an extraordinary impact on international arbitration as both instruments in their own right and as guides for others. The Iran-US Claims Tribunal, for example, employs a barely modified version of the rules for all claims, and many multilateral and bilateral foreign investment treaties adopt the UNCITRAL Rules as an arbitral procedure. The Rules are so pervasive and the consequences of the new version potentially so significant that they cannot be ignored. This commentary on the Rules brings the official documents together in one volume and includes the insights and experiences of the Working Group that are not included in the official reports.

Halliday, Pacewicz, & Block-Lieb: Who Governs? Delegations in Global Trade Lawmaking

Terence C. Halliday (American Bar Foundation), Josh Pacewicz, & Susan Block-Lieb (Fordham Univ. - Law) have posted Who Governs? Delegations in Global Trade Lawmaking. Here's the abstract:

Who governs international trade law regimes? Although this question has attracted much research for global regulatory regimes, very little is known about international trade law organizations which function as global legislatures. This paper focuses on hitherto invisible attributes of the inner core of global legislators - the state and non-state delegations and delegations that create global norms for private international trade law through the most prominent global trade legislature, the United Nations Commission on International Trade Law (UNCITRAL). Based on ten years of fieldwork, extensive interviews, and unique data on delegation attendance and participation in UNCITRAL’s Working Group on Insolvency, the paper positions the empirical question of delegation attributes within broader theories of global norm-making and specifies these with respect to several hypotheses. The data show that the inner core of global trade lawmakers at UNCITRAL represents a tiny and unrepresentative subset of state and non-state actors. This disjunction between UNCITRAL’s public face, which accords with a global norm of democratic governance, and its private face, where dominant states and private interests prevail, creates potential problems of legitimacy for UNCITRAL and the probable adoption and implementation of its trade law products.

UNCITRAL Report on Its 42nd Session

The United Nations Commission on International Trade Law (UNCITRAL) has released its report on its 42nd session (A/64/17), which was held June 29-July 17, 2009.

Symposium: The UNCITRAL Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea

The current issue of the Texas International Law Journal (Vol. 44, no. 3, Spring 2009) contains a symposium on the UNCITRAL Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea. Contents include:

• Mary Helen Carlson, U.S. Participation in Private International Law Negotiations: Why the UNCITRAL Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea Is Important to the United States
• Jose Angelo Estrella Faria, Uniform Law for International Transport at UNICTRAL: New Times, New Players, and New Rules
• Johan Schelin, The UNCITRAL Convention on Carriage of Goods by Sea: Harmonization or De-Harmonization
• Alexander von Ziegler, The Liability of the Contracting Carrier
• Tomotaka Fujita, The Comprehensive Coverage of the New Convention: Performing Parties and the Multimodal Implications
• Gertjan van der Ziel, Chapter 10 of the Rotterdam Rules: Control of Goods in Transit
• Manuel Alba, Electronic Commerce Provisions in the UNCITRAL Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea
• Chester D. Hooper, Forum Selection and Arbitration in the Draft Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea, or the Definition of Fora Conveniens Set Forth in the Rotterdam Rules
• Michael E. Sturley, Modernizing and Reforming U.S. Maritime Law: The Impact of the Rotterdam Rules in the United States

Kelly: The Politics of International Economic Law: Legitimacy and the UNCITRAL Working Methods

Claire Kelly (Brooklyn Law School) has posted The Politics of International Economic Law: Legitimacy and the UNCITRAL Working Methods. Here's the abstract:

The process of international lawmaking is, in part, a function of both politics and the attempt to engage in legitimate norms generation. States seek power through process in the international sphere. But States also use process enable representative, transparent, and effective rules. This paper considers how we might begin to deconstruct procedural proposals involving international norm generation by taking a look at a recent controversy over the methods of work at the United Nations Commission on International Trade Law (UNCITRAL). It will consider various paradigms to assess the legitimacy claims of international norms as applied to one particular controversy and consider specifically whether proposals to regulate decision-making as well as the participation of nonmembers serve legitimacy or politics or both.

UNCITRAL Report on Its 41st Session

The United Nations Commission on International Trade Law (UNCITRAL) has released its report on its 41st session (A/63/17), which was held in June 16-July 3, 2008.

UNCITRAL Report on Its 40th Session

The United Nations Commission on International Trade Law (UNCITRAL) has released its report on its 40th session (A/62/17), which was held in July and December 2007.

UNCITRAL: Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea

On July 3, at the conclusion of its most recent session, the United Nations Commission on International Trade Law approved the draft Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (not yet available online). The draft Convention will be presented to the U.N. General Assembly for conclusion during its sixty-third session later this year. It would effectively preempt the United Nations Convention on the Carriage of Goods by Sea (Hamburg Rules), which never gained widespread adherence, and the Hague-Visby Rules, which are outdated and were never uniformly adopted among major trading countries. (The United States didn't ratify the Hamburg Rules or the Visby amendments to the Hague Rules. The Carriage of Goods at Sea Act, enacted in 1936, codifies the original 1924 Hague Rules only.) The U.N. press release describes the Convention as follows:

The Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea aims to create a modern and uniform law concerning the international carriage of goods which include an international sea leg, but which is not limited to port-to-port carriage of goods. In addition to providing for modern door-to-door container transport, there are many innovative features contained in the draft Convention, including provisions allowing for electronic transport records, and other more technical features to fill the perceived gaps in existing transport regimes. Extensive negotiation by the Member States and observers of the Commission has resulted in overwhelming support for a significant increase to the limits on carrier liability for cargo loss or damage that apply in most countries. This is expected to be of substantial benefit for shippers, particularly those in developing and least-developed countries, which are consumers of transportation services. It is expected that harmonization and modernization of the legal regime in this area, which in many countries dates back to the 1920s or earlier, will lead to an overall reduction in transaction costs, increased predictability when problems are encountered, and greater commercial confidence when doing business internationally.

Japan Accedes to the CISG

On Tuesday, July 1, Japan acceded to the United Nations Convention on Contracts for the International Sale of Goods, becoming the Convention's seventy-first State party. The Convention enters into force for Japan on August 1, 2009. The Secretary-General's depositary notification is here. The Japanese Ministry of Foreign Affairs press release notes that "It is expected that the accession to the Convention will remove uncertainty regarding the law applicable to trade between Japanese parties and those of other contracting states, and will facilitate international trade involving Japanese parties."

Update: UNCITRAL

The fortieth session of the United Nations Commission on International Trade Law (UNCITRAL) will commence on June 25 in Vienna and continue through July 12. The formal deliberations will focus on the draft UNCITRAL legislative guide on secured transactions. Following the conclusion of the formal deliberations, UNICTRAL will hold the Congress "Modern Law for Global Commerce", which "will provide an opportunity to review the working methods and achievements of UNCITRAL, as well as related work of other organizations active in the field of international trade law, assess ongoing work and consider and evaluate topics for future work programmes." The session's provisional agenda is here, and documents (including the draft legislative guide and the reports of the working groups) are here.