Multilateral Conventions Research Articles

UNCITRAL and the Enforceability of iMSAs: The Debate Heats up - Part 2

This is the second of four in a series of blog posts on the Kluwer Mediation Blog. They were published in conjunction with the 65th session of the UNCITRAL Working Group II on arbitration and conciliation. The Working Group has turned its attention to the settlement of commercial disputes and in particular on the preparation of an instrument on the enforcement of international commercial settlement agreements resulting from conciliation. (Note that in UNCITRAL speak, the term ‘conciliation’ is used interchangeably with ‘mediation’.) In terms of the type of instrument, the Working Group is considering the possibility of a convention, model provisions, or guidance text. Draft provisions have been prepared without prejudice to the form of the final instrument but on the assumption that the instrument would be a stand-alone legislative text. More than a decade ago, the Working Group in drafting the UNCITRAL Model Law on International Commercial Conciliation (2002) was not able to agree on a uniform way forward for the enforcement of iMSAs. This has been one of the main criticisms of the Model Law. So it is perhaps not surprising that the issue remains controversial. These four posts are written jointly with Nadja Alexander and Anna Howard to highlight the core concerns about the move towards a multilateral convention and the responses or counterarguments to those concerns. We focus on the legal form of a convention rather than a model law or guidance text as this focus allows us to be more specific in our comments. We have placed what seem to be the main concerns about the drive towards a convention into four categories, namely concerns relating to: 1.the legitimacy of such a convention; 2.the impact of such a convention on the objectives of, and values underpinning, the mediation process; 3. the justifications for such a convention; 4.the application of an arbitration enforcement framework to iMSAs particularly in light of recent trends in arbitration. This second post focuses on the impact of the convention on the objectives of mediation.

Political Trajectories of Ethiopia’s Post-1991 Agrarian Transformation Efforts

This article examines the major drivers that spurred the post-1991 agrarian transformation policies in Ethiopia. The political economy approach was used as the analytical tool in the course of identifying the incentives that led to embarking on agrarian transformation efforts. Data were elicited from different primary and secondary sources that included review and analysis of government policy documents, multilateral conventions, and pertinent literature; and key informant interviews with experts and practitioners dealing with agricultural development schemes. The study established that the post-1991 Ethiopian Government embarked on agrarian transformation by lending considerable support to smallholder producers as opposed to the military regime’s neglect of the sub-sector by according primacy to large-scale state farms and agricultural cooperatives. Based on the study findings, it can be concluded that the current Ethiopian Government’s support for smallholder farmers is driven not by its quest for bringing about fast economic growth alone but also by the urge to secure smallholders’ support for ensuring political legitimacy and regime survival. Moreover, the study uncovered that Ethiopia’s proactive unleashing of large-scale commercial farms and adoption of the donor-supported Comprehensive Africa Agricultural Development Programme (CAADP) at a later stage, is propelled by the need for attaining the aforementioned twin objectives.

UNCITRAL and the Enforceability of iMSAs: The Debate Heats Up

This is the first of four in a series of blog posts on the Kluwer Mediation Blog. They were published in conjunction with the 65th session of the UNCITRAL Working Group II on arbitration and conciliation. The Working Group has turned its attention to the settlement of commercial disputes and in particular on the preparation of an instrument on the enforcement of international commercial settlement agreements resulting from conciliation. (Note that in UNCITRAL speak, the term ‘conciliation’ is used interchangeably with ‘mediation’.) In terms of the type of instrument, the Working Group is considering the possibility of a convention, model provisions, or guidance text. Draft provisions have been prepared without prejudice to the form of the final instrument but on the assumption that the instrument would be a stand-alone legislative text. More than a decade ago, the Working Group in drafting the UNCITRAL Model Law on International Commercial Conciliation (2002) was not able to agree on a uniform way forward for the enforcement of iMSAs. This has been one of the main criticisms of the Model Law. So it is perhaps not surprising that the issue remains controversial. These four posts are written jointly with Nadja Alexander and Anna Howard to highlight the core concerns about the move towards a multilateral convention and the responses or counterarguments to those concerns. We focus on the legal form of a convention rather than a model law or guidance text as this focus allows us to be more specific in our comments. We have placed what seem to be the main concerns about the drive towards a convention into four categories, namely concerns relating to: 1. the legitimacy of such a convention; 2. the impact of such a convention on the objectives of, and values underpinning, the mediation process; 3. the justifications for such a convention; 4. the application of an arbitration enforcement framework to iMSAs particularly in light of recent trends in arbitration. This first post focuses on the legitimacy of a proposed multilateral convention on the recognition and enforceability of international mediated settlement agreements.

UNCITRAL and the Enforceability of iMSAs: The Debate Heats up - Part 4

This is the last of four in a series of blog posts on the Kluwer Mediation Blog. They were published in conjunction with the 65th session of the UNCITRAL Working Group II on arbitration and conciliation. The Working Group has turned its attention to the settlement of commercial disputes and in particular on the preparation of an instrument on the enforcement of international commercial settlement agreements resulting from conciliation. (Note that in UNCITRAL speak, the term ‘conciliation’ is used interchangeably with ‘mediation’.) In terms of the type of instrument, the Working Group is considering the possibility of a convention, model provisions, or guidance text. Draft provisions have been prepared without prejudice to the form of the final instrument but on the assumption that the instrument would be a stand-alone legislative text. More than a decade ago, the Working Group in drafting the UNCITRAL Model Law on International Commercial Conciliation (2002) was not able to agree on a uniform way forward for the enforcement of iMSAs. This has been one of the main criticisms of the Model Law. So it is perhaps not surprising that the issue remains controversial. These four posts are written jointly with Nadja Alexander and Anna Howard to highlight the core concerns about the move towards a multilateral convention and the responses or counterarguments to those concerns. We focus on the legal form of a convention rather than a model law or guidance text as this focus allows us to be more specific in our comments. We have placed what seem to be the main concerns about the drive towards a convention into four categories, namely concerns relating to: 1. the legitimacy of such a convention; 2. the impact of such a convention on the objectives of, and values underpinning, the mediation process; 3. the justifications for such a convention; 4. the application of an arbitration enforcement framework to iMSAs particularly in light of recent trends in arbitration. This final post focuses on the application of an arbitration framework to iMSAs.

Ttip, Investor–State Dispute Settlement and the Rule of Law

Many European citizens are concerned about the concept of investor–state dispute settlement, which is frequently portrayed as giving companies the right to sue governments for lost profits in secret international courts. Those who favour US–EU collaboration, including through the ambitious Transatlantic Trade and Investment Partnership agreement, can assuage these concerns by explaining how investment treaties strengthen international law. Governments created investor–state dispute settlement for their own purposes, anchoring it deeply in the UN system through numerous multilateral conventions–-the most recent of which was adopted by the UN General Assembly in December 2014. By straying from this UN-based approach in its own response to public concerns, the European Commission might unfortunately weaken investor protection and the enforcement of international law. Its proposals on such issues as the right to regulate and the ‘investment court system’ should be reviewed in light of their impact on 50 years of international law.

States Behaving Badly: Sovereign Veil Piercing in the Yukos Affair

In July 2014, former shareholders in the now-defunct Yukos oil company won a historic $50 billion arbitration award against Russia. So far Moscow has shown no desire to comply voluntarily. The widespread embrace of the restrictive view of sovereign immunity and multilateral conventions on enforcement of arbitral awards should, in theory, make it easier for the award winners to collect their spoils in domestic courts all over the globe. Despite that, recalcitrant sovereign debtors remain able to stymie efforts to execute against state assets, and thus leave some litigants with a right but not a remedy. This Article details the how the Yukos shareholders may try to pry precious assets away from the Russian government and ultimately concludes that they are unlikely to come close to satisfying their record arbitral award. Therefore, this Article suggests courts recognize sovereignty as the legal fiction it is, which, hopefully, will empower judges to “pierce the sovereignty veil” and hold states like Russia to account.

The Next Rising Tax Haven

The Next Rising Tax Haven

REDD+ as a Tool of Global Forest Governance

Given the lack of a multilateral convention on forests, global deforestation is being addressed through various initiatives, public and private, local and global. Since 2005, the creation of a mechanism for addressing deforestation (among other things) has been moving forward within the United Nations Framework Convention on Climate Change (UNFCCC) regime. Known as REDD+, it is meant to provide incentives to developing countries in return for forest conservation, with the goal of reducing greenhouse gas emissions. REDD+ could lead to lower levels of deforestation and forest degradation, and to the incorporation of customary governance arrangements in national policy instruments, albeit with some risk of centralisation of forest governance. It could also have a negative social and environmental impact if too much emphasis is put on carbon without adopting the proper social and environmental safeguards.

Global Leadership and International Regime: Empirical Testing of Cooperation without Hegemony Paradigm on the Basis of 120 Multilateral Conventions Data Deposited to the United Nations System

AbstractThis study is an attempt to construct a quantitative link for international regimes with global leadership. The country's willingness to lead in solving global issues as the first mover in the formation of an international regime is measured and characterized by analyzing their ratification behavior in multilateral conventions deposited to the United Nations which shape ‘the rules of the game’ of the global community. For this purpose, a set of quantitative indicators, the Index of Global Leadership Willingness and the Global Support Index, was defined and calculated for each country based on its actual ratification year data for 120 multilateral conventions covering global issues such as peace and security, environment, commerce, communication, intellectual property protection, human rights, and labor. By proposing a framework of global leadership analysis, the study seeks to provide an empirical testing of the transformation of global governance towards cooperation without hegemony paradigm. The paper analyses changes in the leadership willingness indices of selected country groups, such as the G3, G7/8, and G20, over the century and finds that the will to drive the international agenda of these groups of leaders is in decline. Moreover, our study provides evidence to argue that our current world is actually without consistent global leadership across domains of the world affairs. Although several countries still show visible leadership in specific policy domains, such as environment and intellectual property, neither the G7/8 nor the G20 was playing a comparable role to those performed by the G3 a hundred years ago.

The Politics of Multi-Stakeholder Initiatives: The Crisis of the Forest Stewardship Council

Multi-stakeholder initiatives (MSIs) have become a vital part of the organizational landscape for corporate social responsibility. Recent debates have explored whether these initiatives represent opportunities for the “democratization” of transnational corporations, facilitating civic participation in the extension of corporate responsibility, or whether they constitute new arenas for the expansion of corporate influence and the private capture of regulatory power. In this article, we explore the political dynamics of these new governance initiatives by presenting an in-depth case study of an organization often heralded as a model MSI: the Forest Stewardship Council (FSC). An effort to address global deforestation in the wake of failed efforts to agree a multilateral convention on forests at the Rio Summit (UNCED) in 1992, the FSC was launched in 1993 as a non-state regulatory experiment: a transnational MSI, administering a global eco-labeling scheme for timber and forest products. We trace the scheme’s evolution over the past two decades, showing that while the FSC has successfully facilitated multi-sectoral determination of new standards for forestry, it has nevertheless failed to transform commercial forestry practices or stem the tide of tropical deforestation. Applying a neo-Gramscian analysis to the organizational evolution of the FSC, we examine how broader market forces and resource imbalances between non-governmental and market actors can serve to limit the effectiveness of MSIs in the current neo-liberal environment. This presents dilemmas for NGOs which can lead to their defection, ultimately undermining the organizational legitimacy of MSIs.

The International Environmental Emergencies Response System: A Case Study of Supertyphoon Haiyan (Yolanda), The Philippines

Since 1994, the United Nations Office for the Coordination of Humanitarian Affairs and the United Nations Environment Programme have been working together to support countries affected by environmental emergencies. Over this period of 20 years, an international system has evolved and has provided humanitarian assistance to 84 countries in response to a range of environmental emergencies. Notably, the system utilizes the assets of Member States, and operates without a multilateral convention or a written agreement as its foundation. The international response to Super Typhoon Haiyan (locally known as Yolanda) in the Philippines is used herewith to explain and describe the tools and services available for the provision of international environmental emergency assistance. In the Philippines, the national and regional authorities, were supported by the United Nations Disaster Assessment and Coordination team (better known by its acronym UNDAC), in undertaking a rapid environmental assessments using the Flash Environmental Assessment Tool. As a result, specialized expertise was deployed to work with the regional environment authorities in managing the oil spill off the coast of the Western Visayas region that, at one point,had displaced more people into evacuation centers than the typhoon itself. Finally, an Environmental Field Advisor was deployed to provide technical advice to government and humanitarian partners as to the integration of environmental considerations into the humanitarian programmes. The main challenges associated with the environmental response, set against the disaster time line, are reviewed here, and the initial lessons learned are identified so as to provide recommendations for the improvement of the multilateral system.

Extradition Under International Law

Extradition is the formal process whereby a fugitive offender is surrendered to the State in which an offence was allegedly committed in order to stand trial to serve a sentence of imprisonment. Generally speaking extradition takes place in accordance with bilateral treaties or multilateral conventions entered into by Sovereign States. These treaties and conventions ordinarily impose an obligation on the requested country to surrender to a requesting country a person charged with or convicted of an offence of a certain specified gravity in that country, subject to conditions and exceptions. Extradition is based on the principle that it is in the interest of all civilized communities that offenders should not be allowed to escape justice by crossing national borders and that States should facilitate the punishment of criminal conduct. The process of extradition, which is founded on the concept of reciprocity, comity and respect for differences in other jurisdictions aims to further international co-operation in criminal justice matters and strengthens domestic law enforcement. The nature of research on extradition essentially requires one to examine in the light of the principles of public international law. The scope of research in the said topic entails a detailed study of the general norms underlying the concept of extradition and also the practice of the States. The nature and the scope of the research are further explained in the subsequent sections.

The OECD Initiative to Counter Tax Avoidance after the Global Financial Crisis

Since the global financial crisis in 2007, the international tax landscape has been transformed significantly under the initiative of the OECD/G20 to counter international tax avoidance. This change in the international tax regime can be explained in two aspects: first, Transparency and Exchange of Information in Tax Matters(EOI); second, Base Erosion and Profit Shifting(BEPS) project. The EOI in taxation has become a global standard since the reorganization of global forum in 2009 with more than 100 jurisdictions participating and being subject to peer review process on their EOI system and practices. A more notable development is a continued expansion of the membership in the Multilateral Convention on Mutual Administrative Assistance in Tax Matters which makes a wide range of tax cooperation including automatic EOI possible. If the current trend is any guide, the final and common mode of information exchange will be a multilateral and automatic EOI. Given the perception that both advanced and developing countries lose substantial tax revenue by the MNEs profit shifting practices for tax avoidance purposes, OECDs BEPS project has been launched under the support of the G20. The initial report of the OECD in early 2013 raises issues and indicates the problems to be addressed by the governments in a globally coordinated manner. Currently, the OECD is working on comprehensive and specific action plans to address key pressure areas such as cross-border mismatches, digital goods and services trade, transfer pricing and anti-avoidance measures, etc. When the action plans are reported to the G20 in the latter half of 2013, we will be able to estimate the potential relevance of the project to the current international tax regime. With these two developments in mind, one can cautiously conclude that a new multilateral international tax order in which developing countries are more actively engaged will emerge as a supplement to the current bilateralism in international taxation.

Towards a Truly International Court of Arbitration

The time has come for the current means of resolving international commercial disputes to be modernized and for an a-national approach, comparable to that of International Centre for Settlement of Investment Disputes (ICSID), to be adopted. This article proposes the creation of a truly international court of arbitration, established through a multilateral convention, to usher in a new age of international commercial dispute resolution.

Uniform Commercial Code v. The Vienna Convention on the International Sale of Goods - A Comparative Analysis

This paper provides a basic study as to the origins of the UCC and the CISG and a comprehensive enquiry as to how and why they differ in substance and operation. Both of these instruments have been drafted with the sole intention of uniformity in laws. However, the primary difference in the two can be seen at first glance in reference to their area of operation. The CISG is adhered to by countries constituting nearly two-thirds of world trade. That is a ‘success rate’ of 67% approximately. However this, as opposed to the area of operation of the UCC, which has been ratified in forty-nine out of fifty states in the US, give it a ‘success rate’ of 98%. The reason for this is evident in the manner in which multilateral conventions work. Such conventions are the result of negotiations between countries highly diverse in legal systems and beliefs. One major difference that usually arises in the drafting and negotiation stages of any international multilateral treaty is that of Common Law and Civil Law. In fact, as the CISG is based on the UCC, it has a civil law approach. This does not bode well for Common Law countries such as the United Kingdom and India, which are not signatories to the convention. Therefore, while the CISG may have a wider range in terms of geographical magnitude, the success rate of enactment is lower than that of the UCC due to cultural and financial diversity amongst nations, which is bound to be lower in case of states in a federal set-up, such as in the US. Therefore, there are bound to be certain differences, both fundamental and cosmetic in their processes. The instant paper seeks to provide an understanding as to what those differences are. The paper will be aimed at answering some of the basic and complex questions relating to the UCC and the CISG, which are as follows: •What are the origins of the UCC and the CISG? •What have been the issues and problems faced by the UCC and the CISG at the stages of conceptualization, drafting, negotiation and ratification? •How does the UCC differ from the CISG in substantive law, procedure and in operation? The arguments in favour of the UCC and the CISG are more or less the same - those relating to uniformity of laws leading to more stability and predictability in commerce. However, there remains the vital issue of ratification. There is a stark difference in the acceptance rates of the two, as will be evident in the paper. One of the main reasons given is the cultural and economic diversity that the CISG has to face. Therefore, it is hypothesised that such multilateral agreements would work best when agreed upon by smaller number of parties.

United States Supports New Multilateral Convention to Limit Mercury Discharges

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Multilateral Conventions in the 21th Century in the Light of Exchange of Information and Assistance in the Collection of Taxes

Multilateral Conventions in the 21th Century in the Light of Exchange of Information and Assistance in the Collection of Taxes

Enforcement of Foreign Arbitral Award in Pakistan

A foreign arbitral award may be enforced against whom the award has been made in any on the three ways. A foreign arbitral award may be enforced: first, by filing a suit on the foreign award in the country in which the party has obtained and obtain judgment thereafter to enforce the foreign judgment against the judgment debtor; secondly, it may be enforced at common law as done in England; thirdly, under the provisions of Multilateral Conventions or Trade Treaties or Arbitration Service Agreements. The enforcement of foreign arbitral awards poses several difficulties and it is the successful enforcement of a foreign arbitral award only which brings to fruition the endeavors of a party in regard to it. Therefore, a foreign arbitral award as a mean of settlement of commercial disputes through arbitration depends upon its successful enforcement. It is clear that local laws of different countries make adequate provisions regarding the enforcement of arbitral award made in pursuance of arbitration agreement which are rendered within the country. As commerce and trade developed after the First World War, there was growing need felt for settlement of international commercial disputes and the Geneva Protocol on Arbitral Clauses of 1923 and the Geneva Convention on the Execution of Foreign Arbitral Awards of 1927 were concluded under the auspices of the League of Nations. Protocol means only a memorandum signed by negotiating parties which ultimately assumes the form of a Convention. The Geneva Convention of 1927 dealt with two aspects of arbitration. The first is in regard to the Recognition of Arbitral Clauses and the second is in regard to the execution of Foreign Arbitral awards. India ratified the Geneva Convention of 1927 in the year 1937. In consequence, India enacted the Arbitration (Protocol and Convention) Act of 1937, which came into operation on the 4th day of March, 1937 and continued to be enforced in Pakistan till 2005. After the Geneva Convention of 1927, the major International Convention on Commercial Arbitration was adopted in June 10, 1958, at New York. It is a multilateral agreement on the Recognition and Enforcement of foreign arbitral awards. Pakistan being signatory to the New York Convention could not rectify it till 2005 when it brought in municipal legislation in the shape of Ordinance for the application of the Convention in the country under the concept of dualism. This Ordinance, which lapses after four months, is being re-promulgated till 2010.

Juveniles in criminal procedure

Taking into consideration the importance and role of children in modern society, as well as their position, this article has as its focus juveniles in criminal procedure. The existence of a separate juvenile justice system independent of the criminal law applicable to the adult offenders and general criminal procedure, as well as the periodic changes of the dominant approach in theory and practice reflects the ascendancy of different theoretical perspectives in the juvenile justice. In this paper, the authors scrutinize the models of responding to juvenile crime - justice and welfare model - as two models of the greatest importance in the present reaction of the society to the crimes conducted by the youngest delinquents at the beginning of the new century and millennium. Furthermore, the paper deals with a matter of international legal standards which, to a large extent, give shape to the legal framework for juvenile offenders and provide their rights and position in the criminal procedure. The authors refer to the internationally accepted documents on several levels. From the (almost) universally accepted multilateral conventions on human rights, through the field of recommendations, rules and guidelines which are obeyed and enforced in practice of the juvenile justice although they are of non-binding nature, via the regional European legislative to the national provisions in a particular number of countries. On all the levels mentioned above the rights of the juveniles are regulated having in mind their possible role in the criminal procedure as a perpetrator of a criminal act, as a victim or as a witness. This paper also analyzes the criminal procedure with respect to juvenile perpetrators of the criminal acts in the Republic of Serbia and compliance of the provisions currently in vigor with the international legal standards contained in the international conventions and other internationally accepted and recognized instruments.

EU Autonomy and Decisions of (Quasi-) Judicial Bodies: How Much Differentness is Needed?

Over many years the European Union (EU) has developed its own state-like foreign policy - newly labelled ‘external action’. One important dimension of this external action is participation in international legal regimes (membership in international organizations and signing of multilateral conventions). Because of the EU’s internal complexity participation in international legal regimes raises many issues of a constitutional nature. The Court of Justice has repeatedly been asked to scrutinize whether a particular case of participation is in compliance with EU law. In this regard, it is fair to say that the Court of Justice’s greatest concern has been the preservation of the EU’s autonomy vis-a-vis international (quasi-) judicial bodies. Indeed, it has not so far accepted to be submitted to the authority of any external (quasi-) judicial structure. The two most prominent examples of international (quasi-) judicial bodies that have had and will continue to have a normative impact on the EU are the dispute settlement mechanism of the World Trade Organization (WTO) and the European Court of Human Rights (ECtHR). As is well-known the EU is a member of the WTO, while negotiations for accession to the European Convention on Human Rights (ECHR) are on-going. Some of the questions addressed in this paper are: How does, will and should the Court of Justice deal with the decisions of these two (quasi-) judicial bodies? Why does the Court of Justice show so much concern for the autonomy of the European legal order? Indeed, should it be more concerned about the autonomy of the EU than constitutional courts are concerned about national autonomy?