My Reflections as an Observer Participate at the United Nations Commission on International Trade Law 68th Session Working Group II – Dispute Settlement Meetings United Nations Headquarters in New York Feb 5-9, 2018

 This post has been contributed by Jo Ewen[*] final year student at the College of Law and Justice, Victoria University.

 

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My name is Jo Ewen and I am a final year student at Victoria University College of Law and Justice. I was fortunate enough to have been granted observer status at the United Nations and attended United Nations international trade law meetings in both UN Headquarters in New York and in Vienna, Austria. This is post is about that experience.

Changes in dispute settlement regimes across the globe over the previous half century were largely due to the implementation of the New York Convention ratified in 1958.[1]  Whether or not the latest convention on The Enforcement of International Commercial Settlement Agreements resulting from mediation settlement agreements which was finalised in February 2018 will have a similar impact will remain a question for quite some time.

As an observer I saw the United Nations Commission for International Trade Law (UNCITRAL) and Working Group II complete the draft convention; “United Nations Convention on International Settlement Agreements [resulting from mediation]” and a draft amended Model Law on international settlement agreements resulting from mediation in New York; “UNCITRAL Model Law on International Commercial Mediation (2002), With Amendments as adopted in 201*” and “UNCITRAL Model Law on International Commercial Mediation and International Settlement Agreements.”

UNCITRAL was established by the UN General Assembly in 1966 as the core legal body of its member nations. UNCITRAL Working Group II performs work to further the harmonization and modernization of trade laws of its members by preparing and promoting its work.   In fulfilling its functions, UNCITRAL coordinates with other law reform bodies to produce legislative instruments as texts with various foci such ason contracts for the sale of goods, transport, dispute resolution, procurement, infrastructure, development, international payments, electronic commerce and insolvency. International trade law is largely a consensus-based system that does not have an overarching sovereign to regulate the system and enforce penalties. There is currently a total of 157 country signatories.

Working Group II focuses on dispute settlement specifically, International arbitration-mediation/conciliation-settlement agreements.  At the recent New York[2] meeting and at the previous Working Group II meeting in Vienna[3] last October, I observed discussion and consultation by the delegates from over fifty nations and observers from national and international legal bodies in support of the adoption and use of UNCITRAL texts being drafted and considered. This forms part of all UNCITRAL’s work as a subsidiary of the General Assembly in modernising commercial law across international trade law frameworks.

Over five days of deliberations in New York, Working Group II discussions provided an opportunity for delegates to forward their own ideas thereby inviting the group for an inclusive compromise discussion.  The elected chair guided discussions using highly skilled diplomacy. The end product is confirmed to be finalised in July 2018.

Some discussions were on the laws governing conciliation; Important issues pertaining to the mediator/conciliator’s signature; and the necessity to work on the issue of defences.  Compromise proposals were established upon agreement to change the current perception of mediation and create alternatives to practices currently employed. Of particular note was the significant resistance found by the group during “Article 5- Grounds for refusing to grant relief’ deliberations.

There were commendations shared among the group for each other’s constructive input and stellar unseen work from the Secretariat. The week of robust debate resulted in a workable document with wide applicability.

During concluding talks, there was an expression of hope for the continuation of an open debate in the tradition of the commission and also hope expressed for continued consensus on its work on mediation mirroring the phase of international commercial arbitration.  Other proposals were made with respect to expedited arbitration and adjudication work affecting investment dispute settlement as well as proposals to look into the scope of impact under the NYC and compare it to now.

Attending this meeting has fuelled my consideration of encountered difficulties for Australian exporters.  The lingering issue is enforcement; an arbitration award or settlement agreement; What is more, are matters of compliance with signatory obligations for UNCITRAL members in this region. Whether or not doing business in these countries is done at a risk or if in doing so, at what thresholds does it become necessary for increased charged premiums to offset it? Following on, having attended these meetings as an Australian law student I’m also enthusiastic about conducting research into whether or not enforcement is a significant problem for many of Australia’s trade partners in the Asia Pacific; Particularly the Indian sub-continent, China, Vietnam, and elsewhere in South East Asia.

 

 

 

 

[*] Victoria University Honours Law student in the final academic year with an interest in the specialist area of dispute settlement. Previously completed Bachelor of Science degree at VU and worked as a technical data specialist with the Australian Department of Defence working with major defence aerospace contractors throughout Australia. In the course of my law studies, I travelled to six countries, including when studying International Business Law in Germany in 2017. In recent months, having been granted Observer status and the United Nations; Attended United Nations international trade law meetings in both UN Headquarters in New York and in Vienna, Austria.

[1] 1958 Convention on the Recognition & Enforcement of Foreign Arbitral Awards, commonly referred to as the New York Convention.

[2] 68th Session, 4-9 February 2018, New York

[3] 67th session, 2-6 October 2017, Vienna

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