UN Commission On International Trade Law Research Articles

The Quadrilemma: Appointing Adjudicators in Future Investor–State Dispute Settlement

ABSTRACT Concern with the selection and appointment of arbitrators has been central in the ‘legitimacy crisis’ surrounding investor–state dispute settlement (ISDS). The regime has been criticized for the outsized role of litigating parties in appointment, absence of transparency in the appointment procedure, potential for conflicts of interests, lack of diversity, and little emphasis on public international law competence. However, attempts to reform the selection and appointment of adjudicators involve confronting dilemmas, requiring trade-offs between different normative values. We therefore introduce a quadrilemma that captures the underlying values of independence, accountability, diversity, and procedural fairness that actors often seek to realize through adjudicatory design. We then set out seven idealized selection and appointment reform options under discussion in the ISDS reform process at UN Commission on International Trade Law (UNCITRAL) (from incremental reform through to new permanent mechanisms and removal of ISDS). The quadrilemma is employed to analyse their advantages and disadvantages of each model. In light of empirical and doctrinal evidence, it is clear that some reform options are more likely than others to optimize the quadrilemma. However, the effects are often conditional and sometimes there is a need for accompanying mechanisms.

Decartelization of the economy: working model, alternative and combined approaches

The article examines the concept, prehistory and modern practice of cartelization of the Russian economy. The key factors of the growth of cartelization are highlighted, the main approaches to modernization of the modern state policy on decartelization of the Russian economy are formulated. The intensive control over tenders by the antimonopoly bodies, Federal Treasury, Accounting Chamber and Government customers made it possible not only to reveal a large-scale practice of artificial bidding prices regulation using cartel schemes but also to reveal signs of a system of organized abuse in the field of public procurement, among which the cartel is not the most dangerous crime. Currently, the decisions on admissibility of business entities agreements in main areas of market relations should be taken in terms of facilitating the transition to an innovative digital economy, overcoming the general economic crisis, reinforced by the COVID-19 coronavirus pandemic, as well as of maintaining a balance between transnational economic relations and protectionism of national jurisdictions. The most promising direction for the formation of common approaches to countering cartelization of digital economy might be an initiation of the development within the framework of UNCITRAL (UN Commission on International Trade Law) of a model law of the appropriate content, which refers to the form of "soft law", as well as of similar EAEU model law.

THE PECULIARITIES OF OPENING THE REHABILITATION PROCESS IN THE CONTEXT OF GEORGIAN AND JAPANESE LAW

The article "Peculiarities of opening the Rehabilitation Process in the context of Georgian and Japanese Law" discusses the beginning of the rehabilitation process by a legal-comparative method, Georgian legislative novelty, and vague norms that need to be refined in the Georgian reality. Effective insolvency legislation is a key tool for maintaining economic stability, the government also has an important role and responsibility to create a legal framework that will help maintain the viability of the enterprise in times of financial difficulties. It is clear that during the elaboration of the new law of Georgia "On Rehabilitation and Collective Satisfaction of Creditors" (enacted on April 1, 2021), significant research was carried out by the group. “Legislative Guide to Insolvency Law" by the UN Commission on International Trade Law (UNCITRAL) was studied, as well as International Principles on “Effective Insolvency and Protection of Debtor and Creditor Rights” developed by the World Bank. The new law clearly outlined the role of rehabilitation as a target and named the debtor's rehabilitation as the country's priority. Moreover, its purpose is to encourage timely appeal to the court. The enactment of the law has eliminated the shortcomings that, in many cases, significantly delay the process. It should be noted that a lot of attention was paid to Japanese law during the drafting of the bill, as according to the World Bank, it is in the top three countries in Insolvency Law. Based on the court rulings, the article presents the obstacles to the rehabilitation process in theoretical and practical terms, discusses the vague norms of the new legislation of Georgia, and offers modern visions of regulation.

International Arbitration on Investment Disputes in Natural Wealth and Resources Sector in Tanzania

This article analyses rules relating to international arbitration in natural wealth and resources sector under the newly enacted Arbitration Act of 2020 of Tanzania. The Act is enacted to facilitate amicable settlement of disputes outside the court system as well as enforceability of arbitration agreements. In a broader framework, the Act responds to the challenges faced by Tanzania in managing and addressing many issues emerging in arbitration cases especially investor-state arbitration. Such reforms are not uniquely Tanzanian but form part of the larger emerging reforms in investment regime in key strategic economic sectors in most of the developing world. This is reflected within the ongoing UN Commission on International Trade Law (UNCITRAL) working group on reforming the investor-state dispute settlement system. Under the new law, all disputes involving natural resources can only be arbitrated in Tanzania, as a seat of arbitration, whether under the auspices of the bodies established in Tanzania or otherwise. Likewise, all disputes arising from extraction, exploitation or acquisition and use of natural wealth and resources can only be adjudicated in accordance with the laws of Tanzania. To this end, the Act complements similar relevant provisions under the Natural Wealth and Resources (Permanent Sovereignty) Act and the Natural Wealth and the Resources Contracts (Review and ReNegotiation of Unconscionable Terms) Act of 2017. The Arbitration Act 2020 is aimed at creating a viable regime which will encourage alternative dispute resolution and establish a conducive framework for the enforcement of arbitral award. This paper analyses the Arbitration Act 2020 whether it complies with the best international practices in arbitration regime. It also argues that limiting seat of arbitration and the governing law of international arbitrations on disputes in natural wealth and resources sector are significant reforms to the existing investments landscape in the sector in Tanzania. They form a part of the larger picture of emerging reforms in investment regime in key strategic economic sectors in most of the developing world. As a capital importing state, Tanzania, like other developing nations, seek to avoid the perceived frustrations of international arbitrations to obtain a fair deal on investment agreements on her natural resources through an effective arbitration regime and foreign investments. Indeed, these reforms are likely going to bring back many Tanzanian cases from abroad to Tanzania as a safe seat of arbitration. Keywords: International arbitration, seat of arbitration, governing laws, natural wealth and resources sector, Bilateral Investment Treaties (BITs).

Enforcement of Investment Court Decisions under the New York Convention: A Search for Defining Elements

This paper explores whether a decision rendered by an international investment court or similar body would be enforceable in the courts of third States as a ‘foreign arbitral award’, pursuant to the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. After asserting the premise that an investment court would be harmonious with States’ existing obligations under the 1965 Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention), this paper reviews salient aspects of the New York Convention’s travaux preparatoires, and its use to enforce the decisions of bodies that challenge assumptions concerning what features make an award ‘foreign’ and ‘arbitral’. The paper then charts a new path by gauging the meaning of ‘arbitration’ in international economic law, in light of its widely ratified usage decades later in the distinctive arbitral procedures of the World Trade Organization (WTO). Drawing from this variety of contexts, the paper concludes by linking the interim arbitration mechanism adopted by some WTO members in April 2020 to the institutional body that may yet emerge from UN Commission on International Trade Law (UNCITRAL) negotiations on the reform of investor-State dispute settlement (ISDS).

UNCITRAL, security rights and the globalisation of the US Article 9

This article provides a critical analysis of the UN Commission on International Trade Law (UNCITRAL) proposals for developing – through its Legislative Guide (the Guide) – a 'liberal' global secured credit law regime that opens up the range of assets that can be used for securing loans and that limits formal procedures required for taking security interests. The article argues that UNCITRAL’s reliance on Article 9 of the US Uniform Commercial Code is problematic for various reasons. First, it neglects reference to indigenous secured credit law norms that also reflect national social policy choices in a range of countries. Second, it questions the idea that global 'liberal' secured credit law of the kind articulated in the Guide helps to achieve 'economic efficiency', since it relies on a narrow conception of private property. Moreover, by relying on existing property rights distributions, a liberal secured credit law can further entrench existing socio-economic disparities in a society. The article therefore casts doubt on the idea that UNCITRAL’s Legislative Guide is an example of a successful 'harmonized, modernized and marketized' secured credit law, and instead – in Polanyian terms – draws attention to its potential to further disembed markets in credit out of social relationships.

The Singapore convention on enforcement of mediated settlement agreements (mediation): from dream to reality?

On 26th of June, 2018, at its 51th session, the UN Commission on International Trade Law (UNCITRAL) announced the completion of two important documents — a draft United Nations Convention on International Settlement Agreements Resulting from Mediation, as well as the draft amendments to the UNCITRAL Model L aw on International Commercial Conciliation (2002) that, to a large extent, repeats the provisions of the draft Convention. It is expected that after its approval by the UN General Assembly on August 1, 2019, the Convention will be open for signature and, if ratified by a significant number of States, will play an important role in increasing the attractiveness of this method of dispute settlement to the international business community, allowing it to compete with international commercial arbitration.In this regard, the article attempts to analyze the main provisions of this Convention and to assess the feasibility of accession to it of the Russian Federation, taking into account the fact that currently in Russia this method of settlement of cross-border commercial disputes is not widespread. According to the results of the analysis, the author comes to the conclusion that the adoption of this Convention will create a basis for the enforcement of international agreements reached as a result of mediation and acceptable for States with different legal, social and economic conditions, while maintaining the inherent flexibility of this method of dispute resolution. This, in turn, will reduce the likelihood of parties to cross-border commercial disputes going to court or international commercial arbitration after mediation and, accordingly, will increase the attractiveness of this method of dispute resolution for the parties.

The Singapore Convention on Mediation: A Framework for the Cross-Border Recognition and Enforcement of Mediated Settlements

This article attempts to provide a definitive overview of the text, structure, history, and purpose of the Singapore Convention on Mediation (also known as the United Nations Convention on International Settlement Agreements Resulting from Mediation), a new multilateral treaty developed by the U.N. Commission on International Trade Law (UNCITRAL). The Convention, scheduled to open for signature in August 2019, provides a uniform, efficient framework for the recognition and enforcement of mediated settlement agreements that resolve international, commercial disputes — akin to the framework that the 1958 New York Convention provides for arbitral awards. Unlike the other primary international organizations that develop commercial law treaties, UNCITRAL does not commission official commentaries or explanatory reports for the treaties it produces. This article aims to fill this gap based on the records of the negotiations and the firsthand experiences of the author in proposing and participating in the negotiations.

Who governs? Delegations and delegates in global trade lawmaking

AbstractWho governs in the international organizations (IOs) that promulgate global norms on trade and commercial law? Using a new analytic approach, this paper focuses on previously invisible attributes of a global legislature – the state and non‐state delegations and delegates that create universal norms for international trade and commercial law through the most prominent trade law legislature, the UN Commission on International Trade Law (UNCITRAL). Based on ten years of fieldwork, extensive interviews, and unique data on delegation and delegate attendance and participation in UNCITRAL's Working Group on Insolvency, we find that the inner core of global trade lawmakers at UNCITRAL represent 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, raises fundamental questions about legitimacy and efficacy of representation in global lawmaking.

5. North American Free Trade Agreement (NAFTA) Disputes

In 2010, an important case with environmental health elements was arbitrated under NAFTA Chapter 11. Other cases concerning environmental regulations are still pending and will be examined after their decision (for an early account, see NAFTA’s yearly report in last year’s volume). This review shall examine Chemtura Corporation v Canada and briefly mention other pending cases that have presented interesting developments in 2010. The Chemtura case concerned the question of whether the government of Canada should pay compensation to a United States agricultural pesticide manufacturer for its ban of an agro-chemical called lindane. Since Canada’s Pest Management Regulatory Agency (PMRA) banned lindane on the basis of the chemical’s health and environmental effects, Chemtura—formerly known as Crompton—initiated arbitral proceedings at the Permanent Court of Arbitration under the UN Commission on International Trade Law (UNCITRAL), requesting by way of restitution, the reinstatement of all registrations relating to...

1998 Amendments to Belgian Arbitration Law: An Overview

IN MANY countries the legislation on arbitration is regularly amended to conform to recent developments and to meet the needs of the business community. In France, the legislation on arbitration was amended in 1981. The Netherlands followed in 1986 and Switzerland in 1987. The Arbitration Act of Portugal dates from 1986 while the Spanish Act dates from 1988. The most recent statutes on arbitration are the English Arbitration Act of 1996 and, finally, the German Arbitration Act which came into force on 1 January 1998. To transform Belgium into a centre of transnational arbitration, the Act of 19 May 1998 ( Official Gazette , 7 August 1998) has two goals: 1. to improve the effectiveness of arbitration for conflict resolution, and 2. to adapt Belgian legislation to incorporate the most recent international developments.1 Twenty-five years after Part VI of the Judicial Code (JC) came into force, the government drew conclusions from Belgium's isolation in the group of countries that had adopted modern arbitration legislation. Belgian arbitration law was based on the 20 January 1966 Strasbourg European Treaty on a uniform arbitration law and it was the only country to have enacted national legislation on the basis of this treaty. More specifically, on 21 June 1985 the UN Commission on International Trade Law (UNCITRAL) adopted its Model Law. This Model Law is inspiring modern arbitration legislation such as the recent German Arbitration Act. The Belgian legislator opted to amend its existing arbitration law and did not introduce the UNCITRAL Model Law, not even in a slightly amended way such as Germany did.2 Unlike the French and Swiss legislation, the Belgian statute does not enact distinct rules for national and international arbitration. The flexibility which international arbitration tries to achieve also has clear advantages for national arbitration. However, the distinct rules on requests …

Introduction: Development of the UNCITRAL Arbitration Rules

The U.N. Commission on International Trade Law (UNCITRAL) from the outset manifested great interest in the subject of international commercial ,rbitration, and included this subject as a priority topic in the programme of work adopted in 1968 at its first session.1 At its second session (1969) UNCITRAL appointed Ion Nestor (Romania) as Special Rapporteur and invited him to examine the most important problems in the field of international commercial arbitration.2 Mr. Nestor's thorough report,3 presented to UNCITRAL at its fifth session (1972), included the recommendation that UNCITRAL consider up a model set of arbitration rules which arbitration centers could incorporate in their own rules of procedure.4 UNCITRAL decided that the proposals by the Special Rapporteur should be transmitted to the Member States for comments.5 Most of the replies agreed that UNCITRAL should consider up a model set of arbitration rules.6 The Secretary-General's report, summarizing these replies, added that UNCITRAL might wish to consider drawing up a set of arbitration rules for world-wide use in ad hoc arbitration.7 In response to these comments and suggestions UNCITRAL in 1973 requested the Secretary-General: (a) In consultation with regional economic commissions of the United Nations and centres of international commercial arbitration, giving due consideration to the Arbitration Rules of the United Nations Economic Commission for Europe and the ECAFE Rules for In-