1 UNCITRAL UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE LAW A Guide to UNCITRAL Basic facts about the United Nations Commission on International Trade Law UNITED NATIONS
2 Further information may be obtained from: UNCITRAL secretariat, Vienna International Centre, P.O. Box 500, 1400 Vienna, Austria Telephone: (+43-1) Telefax: (+43-1) Internet:
3 UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE LAW A Guide to UNCITRAL Basic facts about the United Nations Commission on International Trade Law UNITED NATIONS Vienna, 2013
4 Note Symbols of United Nations documents are composed of capital letters with figures. Mention of such a symbol indicates a reference to a United Nations document. United Nations, January All rights reserved. The designations employed and the presentation of material in this publication do not imply the expression of any opinion whatsoever on the part of the Secretariat of the United Nations concerning the legal status of any country, territory, city or area, or of its authorities, or concerning the delimitation of its frontiers or boundaries. This publication has not been formally edited. Publishing production: English, Publishing and Library Section, United Nations Office at Vienna.
5 Contents Page I. Origin, mandate and membership of UNCITRAL... 1 A. Origin... 1 B. Mandate... 1 C. Membership... 2 II. General information on UNCITRAL... 3 A. UNCITRAL website... 3 B. Document numbering/symbols... 4 C. UNCITRAL Law Library... 5 III. Organization and methods of work... 5 A. UNCITRAL (the Commission)... 5 B. Working groups... 7 C. Participation at sessions of UNCITRAL and its working groups... 8 D. Secretariat Work programme Technical cooperation and assistance to law reform Other activities Interns and visiting scholars IV. Work of UNCITRAL A. Selection of the work programme B. Techniques of modernization and harmonization Legislative techniques (a) Conventions (b) Model laws (c) Legislative guides and recommendations (d) Model provisions (e) Finalization and adoption of legislative texts Contractual techniques Explanatory techniques (a) Legal guides (b) Practice and other information guides (c) Interpretative declarations C. Uniform interpretation of legislative texts: Case law on UNCITRAL texts D. Coordinating the work of other organizations E. UNCITRAL s position within the United Nations system F. Technical cooperation and assistance to law reform Technical cooperation and assistance activities Regional centres iii
6 Page G. Special events H. General Assembly resolutions relating to UNCITRAL Annexes I. General Assembly resolution 2205 (XXI) II. UNCITRAL member States III. Chairpersons of UNCITRAL IV. UNCITRAL working groups and chairpersons V. Secretaries of UNCITRAL and further information VI. UNCITRAL texts iv
7 I. Origin, mandate and membership of UNCITRAL A. Origin 1. In an increasingly economically interdependent world, the importance of an improved legal framework for the facilitation of international trade and investment is widely acknowledged. The United Nations Commission on International Trade Law (UNCITRAL), established by the United Nations General Assembly by resolution 2205 (XXI) of 17 December 1966 (see annex I), plays an important role in developing that framework in pursuance of its mandate to further the progressive harmonization and modernization of the law of international trade 1 by preparing and promoting the use and adoption of legislative and non- legislative instruments in a number of key areas of commercial law. Those areas include dispute resolution, international contract practices, transport, insolvency, electronic commerce, international payments, secured transactions, procurement and sale of goods. These instruments are negotiated through an international process involving a variety of participants, including member States of UNCITRAL, nonmember States, and invited intergovernmental and non-governmental organizations. As a result of this inclusive process, these texts are widely accepted as offering solutions appropriate to different legal traditions and to countries at different stages of economic development. In the years since its establishment, UNCITRAL has been recognized as the core legal body of the United Nations system in the field of international trade law. B. Mandate 2. UNCITRAL gives effect to its mandate by: (a) Coordinating the work of organizations active in this field and encouraging cooperation among them; 1 For details concerning the mandate for the progressive development of the law of international trade, see the report of the Secretary-General, Official Records of the General Assembly, Twenty-first Session, A/6396 (1966); the report of the Fifth Committee of the General Assembly at its twentyfirst session, Official Records of the General Assembly, Twenty-first Session, A/6594 (1966); and the relevant summary records of the proceedings of the Sixth Committee, which are contained in the Official Records of the General Assembly, Twenty-first Session, Sixth Committee, 947th-955th meetings (A/C.6/SR ). 1
8 2 A Guide to UNCITRAL (b) Promoting wider participation in existing international conventions and wider acceptance of existing model and uniform laws; (c) Preparing or promoting the adoption of new international conventions, model laws and uniform laws and promoting the codification and wider acceptance of international trade terms, provisions, customs and practices, in collaboration, where appropriate, with the organizations operating in this field; (d) Promoting ways and means of ensuring a uniform interpretation and application of international conventions and uniform laws in the field of the law of international trade; (e) Collecting and disseminating information on national legislation and modern legal developments, including case law, in the field of the law of international trade; (f) Establishing and maintaining a close collaboration with the United Nations Conference on Trade and Development; (g) Maintaining liaison with other United Nations organs and specialized agencies concerned with international trade; and (h) Taking any other action it may deem useful to fulfil its functions. 2 C. Membership 3. Members of UNCITRAL are selected from among States Members of the United Nations and represent different legal traditions and levels of economic development. The original membership comprised 29 States. 3 It was expanded by the United Nations General Assembly in to 36 States and again in to 60 States. The expansion reflected the broader participation and contribution by States beyond the then existing member States and stimulated interest in UNCITRAL s expanding work programme. For detailed information concerning the membership of UNCITRAL, see annex II. 4. Structured to ensure that the various geographic regions and the principal economic and legal systems of the world are represented, the 60 member States include 14 African States, 14 Asian States, 8 Eastern European States, 10 Latin American 2 General Assembly resolution 2205 (XXI), sect. II, para. 8, set forth in annex I to this publication. 3 Ibid., para See General Assembly resolution 3108 (XXVIII), para See General Assembly resolution 57/20, para. 2. The expansion was effective from the opening day of the thirty-seventh annual session of UNCITRAL, in 2004.
9 Basic facts about the United Nations Commission on International Trade Law 3 and Caribbean States and 14 Western European and other States. The General Assembly elects members for terms of six years; every three years the terms of half of the members expire. 6 As a general rule, elections are held towards the end of the year before the year in which membership expires. 7 The actual date of expiry is the day immediately before the day on which the Commission session to be held in that year commences. Membership is typically discussed before the election within the various regional groupings, each of which has the fixed number of seats in the Commission as noted above and Member States submit their candidatures through their Permanent Missions in association with the chairpersons of their respective regional groups. Membership does not entail any additional financial contribution, as UNCITRAL is a permanent commission of the General Assembly and its secretariat is part of the United Nations Secretariat. The UNCITRAL secretariat is not involved in the election of members of the Commission. II. General information on UNCITRAL A. UNCITRAL website: 5. UNCITRAL s website is available in all six of the official languages of the United Nations (Arabic, Chinese, English, French, Russian and Spanish). It is frequently updated and includes all recent UNCITRAL documents, including those prepared for sessions of working groups and the Commission; information relating to meetings and other activities of UNCITRAL, its working groups and the UNCITRAL secretariat; adopted UNCITRAL texts and the related explanatory notes; 8 a list indicating the current status of adoption and implementation of 6 See annex II to the present publication, endnotes a and c. 7 See annex II for the terms of members. Updated information is available from: uncitral.org/uncitral/en/about/origin.html 8 To date, explanatory notes have been prepared for the following texts: (a) United Nations Convention on the Carriage of Goods by Sea, (Hamburg, 1978) (A/CN.9/306); (b) United Nations Convention on Contracts for the International Sale of Goods (Vienna, 1980) (A/CN.9/307); (c) Convention on the Limitation Period in the International Sale of Goods (New York, 1974) (A/CN.9/308); (d) UNCITRAL Model Law on International Commercial Arbitration (1985) (A/CN.9/309); (e) United Nations Convention on International Bills of Exchange and International Promissory Notes (New York, 1988) (A/CN.9/386); (f) United Nations Convention on the Liability of Operators of Transport Terminals in International Trade (Vienna, 1991) (A/CN.9/385); (g) UNCITRAL Model Law on International Credit Transfers (1992) (A/CN.9/384); (h) United Nations Convention on Independent Guarantees and Stand-by Letters of Credit (New York, 1995) (A/CN.9/431); and (i) United Nations Convention on the Assignment of Receivables in International Trade (New York, 2001) (A/CN.9/557).
10 4 A Guide to UNCITRAL conventions and model laws; case abstracts and digests of case law from the Case Law on UNCITRAL Texts (CLOUT) system; General Assembly resolutions relating to the work of UNCITRAL; a bibliography of scholarly writings on UNCITRAL texts; UNCITRAL publications, including reports of special events (see paras below); information on official document numbering and symbols; press releases; and summary records of meetings of UNCITRAL. 9 Working Group and Commission documents are also available from the United Nations Official Document System (ODS) at 6. The Yearbook of the United Nations Commission on International Trade Law (the UNCITRAL Yearbook) is a compilation of all substantive documents issued by the Secretariat in relation to the work of the Commission and its working groups for a given year, as well as other information, including reports of the Sixth Committee of the General Assembly. 10 The UNCITRAL Yearbook is published in English, French, Russian and Spanish and is available in libraries around the world that function as United Nations depository libraries, as well as from the UNCITRAL website (see annex V for further information). B. Document numbering/symbols 7. Individual documents prepared for consideration by UNCITRAL and its working groups bear the symbol A/CN.9/ ). A indicates that the document is a General Assembly document and CN.9 indicates that the document is for UNCITRAL, as the ninth permanent commission to report to the General Assembly. On documents prepared for the annual session of the Commission, this symbol is followed by a consecutive number (e.g. A/CN.9/421). On working group documents, the symbol is followed by WG and the number assigned to the particular working group, 11 and then by WP (meaning working paper ) and the consecutive number assigned to the specific document (e.g. A/CN.9/ WG.II/WP.23). 9 The Secretary General provides summary records of those parts of the meetings of the Commission, including committees of the whole established by the Commission for the duration of its annual session, relating to the formulation of normative texts. These records are reproduced in the relevant UNCITRAL Yearbook. 10 The Sixth Committee is one of the main committees of the General Assembly and considers legal matters, including the annual report of UNCITRAL. 11 As of 2012, there are six working groups of the Commission which are numbered I to VI. The current task before each of the working groups is indicated in parentheses following the number of the working group (I Procurement; II Arbitration and Conciliation; III Online Dispute Resolution; IV Electronic Commerce; V Insolvency Law; VI Security Interests) see A/CN.9/638/Add.1, para. 28.
11 Basic facts about the United Nations Commission on International Trade Law 5 8. Since its third session in 1970, annual reports of UNCITRAL have been published as Supplement Number 17 to the Official Records of the General Assembly and bear the symbol A/[... ]/17 (the middle number indicating the number of the applicable annual session of the General Assembly). C. UNCITRAL Law Library 9. The UNCITRAL Law Library is the specialized trade law library of the United Nations. It was established in 1979 in Vienna as a reference and research library for the UNCITRAL secretariat and participants in intergovernmental meetings convened by UNCITRAL. Since its establishment, the Library has also supported the research needs of permanent missions, other Vienna-based international organizations, and legal scholars and practitioners. The Library prepares and publishes an annual bibliography of scholarly writings on UNCITRAL texts; the bibliographies prepared since 1968 have been compiled into a consolidated version, which is available on the UNCITRAL website, together with monthly bibliographic updates. III. Organization and methods of work UNCITRAL s work is organized and conducted at three levels. The first level is UNCITRAL itself, often referred to as the Commission, which works through an annual plenary session. The second level is the intergovernmental working groups, which to a large extent undertake the development of the topics on UNCITRAL s work programme, while the third is the secretariat, which assists the Commission and its working groups in the preparation and conduct of their work. A. UNCITRAL (the Commission) 11. UNCITRAL carries out its work at annual sessions held alternately in New York and Vienna. 13 The work at these sessions typically includes finaliza- 12 See 13 See the report of the Committee on Conferences (Official Records of the General Assembly, Thirty-fourth Session, Supplement No. 32 (A/34/32) (1979), para. 32 (e) (iii)). Prior to the relocation of the UNCITRAL secretariat from New York to Vienna, sessions of the Commission alternated between New York and Geneva (see General Assembly resolution 2205 (XXI), sect. II, para. 6; General Assembly resolution 31/140, sect. I, para. 4 (c); and General Assembly resolution 40/243, part one, para. 4 (c); see also General Assembly resolution 66/94, para. 20.
12 6 A Guide to UNCITRAL tion and adoption of draft texts referred to the Commission by the working groups; consideration of progress reports of the working groups on their respective projects; selection of topics for future work or further research; reporting on technical cooperation and assistance activities and coordination of work with other international organizations; monitoring of developments in the CLOUT system and the status and promotion of UNCITRAL legal texts; consideration of General Assembly resolutions on the work of UNCITRAL; and administrative matters. 12. Comprising a chairperson, three vice-chairpersons and a rapporteur, the bureau of the Commission is elected by the member States at the commencement of each annual session and serves until the commencement of the following annual session. The bureau represents each of the five regions from which the members of the Commission are drawn. 14 For a list of the chairpersons of UNCITRAL, see annex III. 13. In addition to States members of UNCITRAL, other United Nations Member States, as well as international and regional organizations (both intergovernmental and non-governmental) with expertise in the topics under discussion are invited to attend both UNCITRAL annual sessions and working group sessions as observers Decisions in the Commission are taken by member States of the Commission. The views of non-member States and observer organizations are for the benefit of member States, who may take such views into account in determining their positions on the issues to be decided upon. The long-standing practice in the Commission is to reach decisions by consensus. 16 In 2010, the Commission formalised this practice, resolving that decisions should be reached by consensus as far as possible; in the absence of consensus, decisions are to be taken by voting in accordance with the relevant rules of procedure of the General Assembly See para. 4 above and Official Records of the General Assembly, Twenty-third Session, Supplement No. 16 (A/7216) (1968), para For information on the participation of observers in UNCITRAL meetings, see Note by the Secretariat: UNCITRAL rules of procedure and methods of work (A/CN.9/638/Add.5), section IV. Status of observers; and Official Records of the General Assembly, Sixty-fifth session, Supplement No. 17 (A/65/17) (2010), Annex III: UNCITRAL Rules of procedure and methods of work. 16 Ibid; see also Note by the Secretariat: UNCITRAL rules of procedure and methods of work (A/CN.9/638/Add.4), section III, I.2 Decision-making in the Commission. 17 Official Records of the General Assembly, Sixty-fifth session, Supplement No. 17 (A/65/17) (2010), Annex III: UNCITRAL Rules of procedure and methods of work, Summary of conclusions, para. 2).
13 Basic facts about the United Nations Commission on International Trade Law A report of the proceedings at annual sessions is formally adopted by UNCITRAL for submission to the General Assembly. In accordance with the resolution establishing UNCITRAL, 18 the annual report is also provided to the United Nations Conference on Trade and Development (UNCTAD) for comment. B. Working groups 16. The substantive preparatory work on topics on UNCITRAL s work programme is usually assigned to working groups, 19 which generally hold one or two sessions per year and report on the progress of their work to the Commission. The membership of the working groups currently includes all member States of UNCITRAL. Once assigned a topic, a working group is generally left to complete its substantive task without intervention from the Commission, unless it asks for guidance or requests the Commission to make certain decisions with respect to its work, such as clarification of the Working Group s mandate on a particular topic or approval of the policy settings of a particular text. 20 At each working group session, member State delegations select a chairperson and rapporteur from among member State delegations. 21 For a list of the working groups and their chairpersons, see annex IV. 17. The secretariat of each working group comprises staff members of the UNCITRAL secretariat. The secretariat is responsible for preparing working papers for working group meetings, providing administrative services to that working group and reporting on working group sessions. Reports are considered and formally adopted at the end of each working group session for submission to the annual session of UNCITRAL. On several occasions, when the topics being 18 General Assembly resolution 2205 (XXI), para. 10 (see annex I to this publication). 19 See Official Records of the General Assembly, Thirty-third Session, Supplement No. 17 (A/33/17) (1978), para In 2002, for example, Working Group V requested the Commission to, inter alia, approve in principle the draft of the Legislative Guide on Insolvency Law (see Official Records of the General Assembly, Fifty-eighth Session, Supplement No. 17 (A/58/17) (2002), paras ). A similar approach was adopted in 2006 with respect to the recommendations of the Legislative Guide on Secured Transactions (see Official Records of the General Assembly, Sixty-first Session, Supplement No. 17 (A/61/17) (2006), para.13). 21 On a limited number of occasions, the chair of a working group has been appointed in a personal capacity on the basis of expertise and experience in the topic under consideration (see annex IV to the present publication).
14 8 A Guide to UNCITRAL considered by different working groups have intersected, joint sessions have been held to coordinate the work and ensure consistency. 22 C. Participation at sessions of UNCITRAL and its working groups 18. Documentation for annual UNCITRAL sessions and working group sessions is posted on the UNCITRAL website and is available in the six official languages of the United Nations. Sessions are facilitated by simultaneous interpretation in all six official languages. 19. Discussion takes place in a formal manner, with the chairperson of the meeting according delegations the opportunity to speak. 20. The size and composition of member and non-member State delegations to annual sessions and working groups is a matter for those States and may vary according to the subject matter under consideration. Member and non-member State delegations typically include Government officials, academics, experts or private sector lawyers. Delegations from invited intergovernmental organizations typically comprise staff members of those organizations. The delegations of invited non-governmental organizations are limited to five representatives and typically include academics, private sector lawyers or other experts. The membership of some delegations remains relatively constant throughout a single project, while others may change from meeting to meeting. 21. To facilitate the development of legislative texts, and in particular to identify and resolve issues of terminology and translation in order to achieve uniformity between the different language versions, drafting group meetings are often held in conjunction with the annual session of UNCITRAL and with working group sessions. Delegates and observers from the six official language groups are invited to participate in these meetings with relevant officers of the secretariat and the United Nations editors and translators responsible for the instrument under discussion. 22 Working Groups V (Insolvency Law) and VI (Security Interests) held joint sessions in 2003 and again in 2004 to coordinate insolvency aspects of the Legislative Guide on Secured Transactions (A/CN.9/535 and A/CN.9/550). In 2005, an informal joint meeting of experts from Working Group IV (Electronic Commerce) and Working Group III (Transport Law) took place in London to consider the provisions of the draft instrument on the carriage of goods [wholly or partly] [by sea] as they related to electronic commerce (A/CN.9/WG.III/WP.47).
15 Basic facts about the United Nations Commission on International Trade Law 9 D. Secretariat 1. Work programme 22. The International Trade Law Division of the Office of Legal Affairs of the United Nations Secretariat provides the secretariat for UNCITRAL. Originally located at United Nations Headquarters in New York, the Division was relocated to the United Nations Office at Vienna in September 1979, while formally remaining a part of the Office of Legal Affairs in New York. Professional staff members of the Division include a small number of qualified lawyers from different countries and legal traditions, 23 with the Director of the Division serving as the Secretary of UNCITRAL (see annex V). 23. To assist the work of UNCITRAL, the secretariat undertakes a variety of different tasks, which includes preparation of studies, reports and draft texts on topics that are being considered for possible future inclusion in the work programme; legal research; drafting and revision of working papers and legislative texts on topics already included in the work programme; reporting on Commission and working group meetings; and providing a range of administrative services to UNCITRAL and its working groups. In preparing its work, the secretariat may seek the assistance of outside experts from different legal traditions, conducting ad hoc consultations with individuals or convening meetings of groups of experts in a particular field, as required. Such groups have included academics, practising lawyers, judges, bankers, arbitrators and members of various international, regional and professional organizations. 24. On several occasions, substantive preparation of a text has not been undertaken by a Working Group, but by the secretariat in consultation with experts. For example, a preliminary draft of the 1976 arbitration rules, with commentaries, was prepared by the secretariat in consultation with experts in the field 24 and then presented to the Commission and subsequently revised by the secretariat in light of the Commission s deliberations. Draft chapters of the Legislative Guide on Privately Financed Infrastructure Projects were prepared by the secretariat and reviewed and adopted by the Commission. A similar approach was taken with the Practice Guide on Cross-Border Insolvency Cooperation (2009), The UNCITRAL Model Law on Cross-Border Insolvency: the judicial perspective 23 In December 2012, the UNCITRAL secretariat included 14 regular budget-funded posts for legal officers, including the Secretary of the Commission, recently supported by one extra-budgetary programme manager at the Regional Centre for Asia and the Pacific. 24 See Report of the Secretary-General: preliminary draft set of arbitration rules for optional use in ad hoc arbitration relating to international trade (UNCITRAL Arbitration Rules), A/CN.9/97 and Add.1-4.
16 10 A Guide to UNCITRAL (2011) and Promoting Confidence in Electronic Commerce: Legal Issues on International Use of Electronic Authentication and Signature Methods (2007). 2. Technical cooperation and assistance to law reform 25. The work of UNCITRAL does not end with the finalization and adoption of a text but, as noted above, includes promotion of the use and adoption of those legislative and non-legislative texts. This work is organized through the secretariat and is discussed in detail below (see paras ). 3. Other activities 26. The secretariat also assists the Commission in its functions of coordinating the work of other organizations; promoting the work of UNCITRAL within the broader United Nations agenda (see paras ); promoting the uniform interpretation of legal standards through the CLOUT system; and organizing special events. These functions are discussed in more detail in the following paragraphs. 4. Interns and visiting scholars 27. Each year a limited number of persons who have a first level university degree and are enrolled in a degree programme in a graduate school (working towards a second university degree or higher) at the time of application and throughout the internship, in commercial law, international trade law or private international law are given the opportunity to work as interns in the International Trade Law Division. 25 Interns are assigned specific tasks in connection with UNCITRAL s work programme and projects being undertaken by the secretariat. Individuals participating in this programme are able to familiarize themselves with the work of UNCITRAL and to increase their knowledge of specific areas of international trade law. Legal scholars may, by arrangement with the secretariat, use the UNCITRAL Law Library for private research on projects related to international trade law. 25
17 Basic facts about the United Nations Commission on International Trade Law 11 IV. Work of UNCITRAL A. Selection of the work programme 28. After considering a number of suggestions by member States, at its first session in 1968, the Commission adopted nine subject areas as the basis of its work programme: international sale of goods; international commercial arbitration; transportation; insurance; international payments; intellectual property; elimination of discrimination in laws affecting international trade; agency; and legalization of documents. 26 Some of these subjects have not been taken up by the Commission, for example, insurance, elimination of discrimination in laws affecting international trade, agency and legalization of documents. Priority status initially was accorded to international sale of goods, international commercial arbitration and international payments. Other topics, such as trade financing contracts, transport, electronic commerce, procurement, international commercial conciliation, insolvency, security interests, online dispute resolution and microfinance have subsequently been added. 29. On a number of occasions since that first session, the Commission has considered and revised its work programme on the basis of new developments in technology, changes in business practices, international trends and developments, economic and financial crises and other forces affecting and shaping international trade. Proposals for consideration of new topics can arise in a number of ways: they may be made directly to the Commission by Governments (for example the proposal for future work on insolvency law in 1999); 27 they may arise from consultation with various international organizations (for example with the International Maritime Committee on international carriage of goods (see para.76)); from special colloquiums and seminars (such as the 1992 Congress on International Trade Law (see para. 75), the 1994 Colloquium on Cross-Border Insolvency, 28 the 1998 New York Convention Day, 29 and various colloquiums on 26 Official Records of the General Assembly, Twenty-third Session, Supplement No. 16 (A/7216) (1968), paras. 40 and See document A/CN.9/462/Add.1; also Official Records of the General Assembly, Fifty-fourth Session, Supplement No. 17 (A/54/17) (1999), para See the report on the UNCITRAL-INSOL Colloquium on Cross-Border Insolvency (A/CN.9/398) and the Official Records of the General Assembly, Forty-ninth Session, Supplement No. 17 (A/49/17) (1994), paras For information on subsequent insolvency colloquiums, see 29 See Possible future work in the area of international commercial arbitration (A/CN.9/460). For the texts of the 1958 New York Convention Day speeches, see Enforcing Arbitration Awards under the New York Convention: Experience and Prospects, available from uncitral/publications/publications.html.
18 12 A Guide to UNCITRAL transport, privately financed infrastructure projects, international commercial fraud, secured transactions and online dispute resolution 30 ); or they may arise as topics that are related to subjects already under discussion in the working groups (for example, the need for a text on electronic signatures was identified during development of the Model Law on Electronic Commerce and the possibility of developing model provisions on privately financed infrastructure projects was identified during the development of the legislative guide on that topic). 30. Topics may also arise from experience gained in the implementation and application of an existing text, which may suggest the need for revision of that text 31 or further development of the explanatory material accompanying that text, such as a guide to enactment in the case of a model law. 32 In considering whether particular topics should be added to the programme, factors such as global significance, special interest to developing countries, developments in technology and changing trends in commercial practice are taken into account. 31. The Commission initially considered some of the topics currently on the programme as not likely to produce an agreed, harmonized legal text. However, developments in international trade law and practices, as well as the successful conclusion by UNCITRAL of work on related topics, have since created a demand for reconsideration of those topics and made the development of legal texts feasible (for example harmonization of national insolvency and secured transactions law). Aspects of other topics that generally fall within the mandate of specialized international organizations, such as intellectual property, have been the subject of coordinated work See paras below and generally colloquia. html. 31 For example, the decision in 2004, to revise the Model Law on the Procurement of Goods, Construction and Services (1994) to address issues arising from its implementation and the development of electronic procurement practice (see A/CN.9/WG.I/WP.34). In 2010, the Commission adopted revisions to the UNCITRAL Arbitration Rules, to conform them to current practices in international trade and to address developments in arbitral practice over the previous 30 years (Official Records of the General Assembly, Sixty-fifth Session, Supplement No. 17 (A/65/17) (2010), para Jurisprudence emerging from application and interpretation of the Model Law on Cross- Border Insolvency led to a proposal to address issues related to the concept of centre of main interests as used in the Model Law. At the date of this publication, the work is being implemented through revision of the Guide to Enactment of the Model Law (see Report of Working Group V on the work of its fortieth session, A/CN.9/738, para. 13). 33 The UNCITRAL Legislative Guide on Secured Transactions: Supplement on Security Rights in Intellectual Property (2010) was developed in cooperation with the World Intellectual Property Organization (WIPO) and other intellectual property organizations.
19 Basic facts about the United Nations Commission on International Trade Law 13 B. Techniques of modernization and harmonization 32. UNCITRAL has adopted a flexible and functional approach with respect to the techniques it uses to perform its mandate to modernize and harmonize the law of international trade. 34 These techniques fall into three broad categories, which operate at different levels and involve different types of compromise or acceptance of difference: legislative, contractual and explanatory (for a comprehensive list of UNCITRAL texts, see annex VI). To some extent, these techniques also show the process of modernization and harmonization occurring at different stages of business development. While the process typically works to bring longestablished practices closer together, there are cases that might be seen as examples of preventive harmonization establishing new principles and practices that will minimize divergence when national laws on new issues are developed. This has been typical in areas affected by new technology or new business practices, such as electronic commerce, arbitration and procurement. 1. Legislative techniques 33. UNCITRAL has produced several different types of legislative texts: conventions; model laws; legislative guides; and model provisions. (a) Conventions 34. A convention is designed to unify law by establishing binding legal obligations. To become a party to a convention, States are required formally to deposit a binding instrument of ratification or accession with the depositary (for conventions prepared by UNCITRAL, the Secretary-General of the United Nations). The entry into force of a convention is usually dependent upon the deposit of a minimum number of instruments of ratification In this connection, see also the report of the Secretary-General entitled Question of coordination: direction of the work of the Commission (A/CN.9/203, paras ); and the note by the Secretariat entitled Alternative methods for the final adoption of conventions emanating from the work of the Commission (A/CN.9/204). 35 These minimum numbers are specified in the following articles: United Nations Convention on Contracts for the International Sale of Goods (Vienna, 1980), art. 99, para. 1; the Hamburg Rules, art. 30, para. 1; United Nations Convention on Independent Guarantees and Stand-by Letters of Credit (New York, 1995), art. 28, para. 1; United Nations Convention on the Assignment of Receivables in International Trade (New York, 2001), art. 45, para. 1; United Nations Convention on the Use of Electronic Communications in International Trade (New York, 2005), art. 23, para. 1; and the Rotterdam Rules, art. 94, para. 1.
20 14 A Guide to UNCITRAL 35. A convention is often used where the objective is to achieve a high degree of harmonization of law in the participating States, reducing the need for a party to undertake research of the law of another State party. The international obligation assumed by that State on adoption of the convention is intended to provide an assurance that the law in that State is in line with the terms of that convention. 36 If a high degree of harmonization cannot be achieved or a greater degree of flexibility is desired and is appropriate to the subject matter under consideration, a different technique of harmonization, such as a model law or legislative guide, might be used. 36. Except to the extent that they permit reservations or declarations, conventions afford little flexibility to adopting States. The conventions negotiated by UNCITRAL generally do not allow reservations or declarations by States or allow them only to a very limited extent. 37 In some cases, the ability to make a reservation or declaration represents a compromise that will enable some States to become a party to the convention without being obliged to comply with the provision to which the reservation or declaration relates. (b) Model laws 37. A model law is a legislative text that is recommended to States for enactment as part of their national law. 38. A model law is an appropriate vehicle for modernization and harmonization of national laws when it is expected that States will wish or need to make adjustments to the text of the model to accommodate local requirements that vary from system to system, or where strict uniformity is not necessary or desirable. It is precisely this flexibility that makes a model law potentially easier to negotiate than a text containing obligations that cannot be altered, and can promote greater acceptance of a model law than of a convention dealing with the same 36 See, for example, the joint survey developed in cooperation with Committee D (now known as the Arbitration Committee) of the International Bar Association to monitor legislation giving effect to the New York Convention (Official Records of the General Assembly, Fiftieth Session, Supplement No. 17 (A/50/17) (1995), paras See, for example, the United Nations Convention on Contracts for the International Sale of Goods (Vienna, 1980) articles Although there may be limited provision for reservations or derogations by States, the legal regimes of UNCITRAL conventions may be subject to contractual derogation, for example, United Nations Convention on Contracts for the International Sale of Goods (Vienna, 1980), art. 6, United Nations Convention on the Use of Electronic Communications in International Trade (New York, 2005), art. 3, and United Nations Convention on the Assignment of Receivables in International Trade (New York, 2001), art. 6. For a list of States parties to these Conventions and relevant declarations and reservations, see uncitral_texts.html.
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