United Nations Commission On International Trade Law Research Articles

Security rights in crypto-assets: an opportunity for uniform law?

Abstract As the market of crypto-assets grows, so does the demand for their use as collateral in cross-border lending transactions. Such a development, though, may pose significant challenges to the main pillars of security rights due to the distinctive features and the nature of crypto-assets. Accordingly, this article identifies and explores the core legal issues, offers guidance in the crypto-collateral area, and assesses the role of uniform law. In the absence of specific legislation, the analysis is conducted under the prism of the international secured transactions framework, as shaped by the International Institute for the Unification of Private Law (Unidroit) and the United Nations Commission on International Trade Law (UNCITRAL) legislative instruments. As such, the article examines whether the current framework suffices to address emerging challenges or contains gaps and limitations that require legislative intervention. The article argues that the increasing use of crypto-assets as collateral may constitute both an opportunity for uniform law to have a leading role in addressing the arising issues and shaping the field, and an opportunity to put new uniform rules in place. This would require both updating the existing legal instruments in line with new technological needs and creating new instruments where necessary. International fora like Unidroit and UNCITRAL would ideally offer the desirable degree of harmonization, or uniformization, in the area of security rights over crypto-assets. Rather than subjecting them to diverging legal rules, developing more uniform approaches would offer consistency, thus increasing legal certainty and supporting technological innovation.

News from the United Nations Commission on International Trade Law (UNCITRAL): the work of the fifty-sixth commission session

Abstract The United Nations Commission on International Trade Law (UNCITRAL) is the core legal body of the United Nations system in the field of international trade law. It has been carrying out its mandate to further the progressive harmonization and unification of international trade law since 1966. This article provides an overview of the fifty-sixth session of UNCITRAL and the activities of its working groups and Secretariat since its last session.

Methodology for Assessing Procurement Systems: the Case of Public Procurement Bid Disputes Management in KenyaP.

Purpose: This study sought to assess the efficacy of bid disputes management mechanism in Kenya.   Theoretical Framework: Transparency in public procurement proceedings is a concern for most stakeholders. Allowing aggrieved bidders to challenge decisions of procuring entities is considered a critical development in the space of public procurement. The effectiveness and efficiency of bid disputes management mechanism should therefore be a concern for procuring entities, bidders, and development partners especially. This aspect is yet to be explored extensively in Africa.   Design/Methodology/Approach: The Methodology for Assessing Procurement Systems (MAPS) as propagated by the Organisation for Economic Co-operation and Development (OECD) helps evaluate the quality of public procurement systems and subsequently strategize on necessary reforms. This study applied MAPS to assess the efficacy of the bid disputes management mechanism in Kenya.   Findings: It was established that overall, the public procurement bid dispute management mechanism in Kenya was effective and efficient. However, shortcomings were noted concerning resourcing of Public Procurement Administrative Review Board (PPARB), unaffordable filing fees and accessibility of comprehensive, simple, and clear information on filing procedures.   Research, Practical and Social Implications: The findings of this study offer policy recommendations that will help promote effective and efficient management of public procurement bid disputes.   Originality/Value: The results of this study contribute to theory, practice and literature in the field of public procurement which is less researched in the Eastern Africa Region. The findings of the study can be replicated in countries that have based their procurement reforms on the United Nations Commission on International Trade Law (UNCITRAL) Model Law on Public Procurement. It is to be appreciated that application of MAPS indicators allows for subjective judgments by the assessor.

Methodology for Assessing Procurement Systems: the Case of Public Procurement Bid Disputes Management in KenyaP.

Purpose: This study sought to assess the efficacy of bid disputes management mechanism in Kenya.   Theoretical Framework: Transparency in public procurement proceedings is a concern for most stakeholders. Allowing aggrieved bidders to challenge decisions of procuring entities is considered a critical development in the space of public procurement. The effectiveness and efficiency of bid disputes management mechanism should therefore be a concern for procuring entities, bidders, and development partners especially. This aspect is yet to be explored extensively in Africa.   Design/Methodology/Approach: The Methodology for Assessing Procurement Systems (MAPS) as propagated by the Organisation for Economic Co-operation and Development (OECD) helps evaluate the quality of public procurement systems and subsequently strategize on necessary reforms. This study applied MAPS to assess the efficacy of the bid disputes management mechanism in Kenya.   Findings: It was established that overall, the public procurement bid dispute management mechanism in Kenya was effective and efficient. However, shortcomings were noted concerning resourcing of Public Procurement Administrative Review Board (PPARB), unaffordable filing fees and accessibility of comprehensive, simple, and clear information on filing procedures.   Research, Practical and Social Implications: The findings of this study offer policy recommendations that will help promote effective and efficient management of public procurement bid disputes.   Originality/Value: The results of this study contribute to theory, practice and literature in the field of public procurement which is less researched in the Eastern Africa Region. The findings of the study can be replicated in countries that have based their procurement reforms on the United Nations Commission on International Trade Law (UNCITRAL) Model Law on Public Procurement. It is to be appreciated that application of MAPS indicators allows for subjective judgments by the assessor.

Chapter 16. The United Nations Commission on International Trade Law (UNCITRAL)

Chapter 16. The United Nations Commission on International Trade Law (UNCITRAL)

Facilitating Access to Investor-State Dispute Settlement for Small and Medium-Sized Enterprises: Tracing the Path Forward

The costs of accessing investor-state dispute settlement (ISDS) are notoriously high. International investment treaties and investment dispute settlement in particular have been primarily designed with large investors in mind – those with the means to access an international tribunal –, while small and medium-sized enterprises (SMEs) and individual or vulnerable investors can face significant barriers to accessing ISDS. This article is the first in legal scholarship to identify and evaluate the diverse opportunities that exist for the establishment and operation of mechanisms allowing SMEs better and easier access to ISDS. Drawing on the wealth of comparative experience from the functioning of existing dispute settlement assistance mechanisms in international courts and tribunals, the article argues that legal assistance is a more efficient and cost-effective tool than financial assistance and presents concrete proposals for the funding and operation of such a mechanism for SMEs. Finally, the article examines the political cost involved in facilitating SMEs’ access to ISDS, in light of the fact that some states have been increasingly wary of ISDS, but it weighs this challengeagainst the imperative of ensuring effective access to justice. Small and medium-sized enterprises (SMEs), investor-state dispute settlement (ISDS), United Nations Commission on International Trade Law (UNCITRAL), access to justice, international investment agreements (IIAs), advisory centre on international investment law, procedural costs, legal assistance funds, expedited proceedings, UNCItRAL Working Group III

Indicators and Manifestations of the Balancing between International Carriage Parties according to the Rotterdam Rules

The regulations and rules governing maritime transport were not uniform among countries. Such uniformity is due to a failure to accede to a single convention. Countries were either acceded to or withdrawn from the Brussels Convention, and acceded instead to the Hamburg Convention, and so on. As a consequence, international maritime transport provisions no longer have the status of legal unification, making international commercial transactions unstable, in addition to the development in international trade and maritime transport in particular, such as reliance on containerized transport, use of technology in Multimodal transportation and consideration of door-to-door transport as a phase of maritime transport. In response, the United Nations Commission on International Trade Law (UNCITRAL) undertook to prepare a new draft convention on contracts for the international carriage of goods wholly or partly by sea ("Rotterdam Rules"), which was adopted on 11 December 2008. The texts of that Convention are international substantive rules concluded within the framework of an international organization (United Nations), representing a binding and acceptable global regulation, which contain solutions compatible with the relevant international treaties and a balance of the responsibilities and obligations of all parties (carrier and shipper) engaged in the international carriage of goods and associated third parties, And this balance was brought by the rules with many indicators in their rulings that indicated it which govern all different modes of transport as one contract. This is what the study deals with by presentation and analysis, leading to the confirmed results.

The Role of China in Enhancing Global Supply Chains: Legal Obstacles and Solutions

Because of its low-cost, highly educated and abundant labour, improved infrastructure, and foreign direct investment, China, a developing nation, has played a crucial role in enhancing global supply chains (SCs) in recent decades. However, the implementation of domestic and global SCs needs to be improved with new measures in China’s legal system. The Chinese government should remove current barriers to improve the trading climate. Even though various analysts have identified the same issue, there needs to be a more focused examination of laws on environmental protection, customs, and tax. As a result, I aim to explain the legal options that may be used to overcome some of the current legal barriers, and the role that the United Nations Commission on International Trade Law (UNCITRAL) plays in creating favourable legal rulings for China’s global SCs. Nonetheless, more is needed, and further legislation is needed to address several legal deficiencies. The goal of this article is to support increasing the Chinese government’s concern over the issues so that it can improve domestic and global SCs. Global Supply Chains, Green Supply Chain, Sustainability, UNCITRAL, China

LEGITIMACY OF INTERNATIONAL COMMERCIAL LAW IN RESOLVING CONSUMER PROTECTION DISPUTES IN E-COMMERCE TRANSACTIONS

The Development and Progress of Technology in the Era of Globalization Drive Changes in Various Aspects of Life. The rapid advancement of technology provides convenience and flexibility to its users, one of which is in the field of commerce. Alongside the swift technological progress in the world of commerce, society is presented with various transaction systems, one of which is the e-Commerce transaction system. E-Commerce transactions enable the trade of goods/services across borders rapidly and effectively, without the need for direct presence during the transaction. However, in this context, e-Commerce trade transactions inherently possess a high vulnerability to fraudulent activities or actions that could harm consumers. The method employed by the author in this writing is the normative method. The discussion to be examined by the author is how consumer protection in e-Commerce trade transactions and dispute resolution are based on international commercial law. Based on further examination, the conclusion drawn from this writing is that the existence of e-Commerce transactions is regulated by the international trade institution, the United Nations Commission on International Trade Law (UNCITRAL), through the Model Law on Electronic Commerce 1996. Meanwhile, in the event of disputes among parties engaged in e-Commerce transactions across different countries, resolution can be achieved through mutual agreement by the parties, either through litigation or non-litigation methods.

A proposal for international arbitration law in Namibia based on the UNCITRAL Model Law on International Commercial Arbitration

International business arbitration is not covered by Namibia's present arbitration law, the Arbitration Act 42 of 1965 (the Act). There is no explicit language in the Act that addresses foreign arbitration as the Act, solely by default, covers national or domestic arbitration. When it comes to international arbitration, the Act has many flaws. Modern commercial arbitrations are increasingly being guided by the Model Law on International Commercial Arbitration (MLICA) of UNCITRAL (the United Nations Commission on International Trade Law) or by state legislation that has been influenced by it. It is undeniable that Namibia must embrace MLICA, including the majority of the 2006 revisions of the MLICA, in order to participate in the global economic village. Furthermore, Namibia has not yet ratified the 1958-adopted New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (CREFAA), which has been hailed as the most effective treaty governing global trade. This article suggests that Namibia should implement both the MLICA and the CREFAA. If this strategy is not adopted, businesses in Namibia will be hesitant to engage in international business transactions due to the lack of legal certainty that the New York Convention and contemporary domestic arbitration legislation bring.

Race & International Investment Law: On the Possibility of Reform and Non-retrenchment

The international investment regime is in flux. The mainstream practice of investment law and arbitration works on the basis of the regime's foundations in contract and property law. However, critical scholarship in the field has unearthed the coloniality of power that permeates both the practice of international investment law and the current reform exercise led by the United Nations Commission on International Trade Law (UNCITRAL) Working Group III. These critical scholars warn of the imminent reproduction and entrenchment of the systemic inequities, power asymmetries, and investment law's investor-state dispute settlement (ISDS) regime which is skewed against post-colonial host states. The two books1 under review offer a range of thought-provoking approaches for analyzing the past, present, and future of investment law. This Review Essay categorizes these books into two modes of critical scholarship on international investment law: moderate and radical.2 In Part II, I flesh out the conceptual categories of moderate and radical critique. In Part III, I analyze the books under review through the lens of these two conceptual frameworks. In Part IV, I turn to the question of race and investment law. This Review Essay suggests that race should not be neglected in our analysis of the past, present, and, most importantly, the future of investment law—a core theme that both books under review does not engage with. Part V briefly concludes.

ASEAN and The Reform of Investor-State Dispute Settlement: Global Challenges and Regional Options

As a 10-country bloc, the Association of Southeast Asian Nations (ASEAN) is poised to ascend to the fourth largest economy in the world by 2030.2 The ASEAN-centered framework premised on the ASEAN Economic Community and ‘ASEAN Plus Six’ free trade agreements (FTAs) has led to new Asian regionalism, which has galvanized paradigm shifts in the international order.3 This framework also culminated in the Regional Comprehensive Economic Partnership (RCEP), the world’s largest trade pact by economic scale. Given ASEAN’s pivotal role in regional trade and security, recent Indo-Pacific strategies of major powers reinforce the importance of ASEAN centrality and ASEAN-led mechanisms.4 The legalization of ASEAN’s internal and external trade and investment pacts has transformed the ASEAN way, which conventionally denotes the code of conduct and the decision-making process based on consultations and consensus. Distinct from the European Union (EU), ASEAN has developed the approach of pragmatic incrementalism to enable structural flexibilities for binding rules, thus balancing soft and hard law obligations. Along with trade law, investment law forms an integral part of ASEAN’s legal architecture and is paramount to the sustainable growth of ASEAN developing countries. One of the most challenging issues in investment law is investor-State dispute settlement (ISDS), which has encountered massive backlash.5 At the multilateral stage, the United Nations Commission on International Trade Law (UNCITRAL) entrusted Working Group III to discuss procedural reforms for ISDS under investment agreements.6 Asian States have yet to form a unified stance on reform proposals. However, in light of ongoing ISDS debates, ASEAN’s experience will provide valuable lessons for the Global South and enrich discussions about reforming investment legislation and treaties.

Conflicts in insolvency jurisdiction

The Hague Judgments Convention 2019 contains an insolvency exception. The paper suggests that the proposed Hague Jurisdiction Convention should contain an insolvency exception that mirrors that contained in the existing Hague Judgments Convention. It is also submitted that international instruments in the field of insolvency, and related matters, are best dealt with by the United Nations Commission on International Trade Law (UNCITRAL).

The Transformation of International Organizations—Specialization, New Initiatives, and Working Methods—Some Observations on the Work of UNCITRAL Working Group III

ABSTRACT International organizations are essential actors in the international legal system and play key roles in all aspects of international law, from its creation to its enforcement and implementation. As their work becomes progressively more significant and specialized, international organizations have also embarked on many new initiatives and have adopted new working methods. An interesting example of this development is the effort of United Nations Commission on International Trade Law (UNCITRAL) Working Group III (WGIII) to reform Investor–State Dispute Settlement (ISDS), a unique international dispute settlement mechanism that permits a foreign investor to bring a claim against a State on issues related to international investment law. At a time of declining international codification, UNCITRAL WGIII’s plan to reform ISDS stands out as remarkably ambitious. It is also responsive to identified vacuums and needs and is likely to lead, at least partially, to a degree of reform of ISDS. In this short contribution, I first introduce the codification of international economic law issues as distinct from other kinds of codification. I then introduce UNCITRAL and explore the work of UNCITRAL WGIII more specifically. In particular, I explain and assess the ISDS reform process as an example of an ongoing transformation of the work of international organizations and a new initiative on which they embarked using a specific methodology of selecting issues, developing draft texts, and serving as a place for drafting negotiations.

The role of the UNCITRAL rules on transparency in enforcing societal control over investment treaties

In order to improve the transparency principle in the arbitral process of the investment treaties, and to enable the public to know how the arbitration case proceeds, the United Nations Commission on International Trade Law (UNCITRAL), adopted, at its 46th session (8–26th of July 2013), the UNCITRAL Rules on Transparency in Treaty-Based Investor-State (UNCITRAL, 2014). This raises an important question about the extent to which these rules contribute to strengthening public oversight over arbitration processes. The study assesses these rules through the analytical method, by analyzing those rules, and clarifying the extent of their contribution to expanding the scope of public control over arbitration processes. The study shows that the basic principle in determining confidential or protected information that is withheld from the public and excluded from transparency is the consent of the treaty parties. Whenever the treaty parties agree to consider certain information as confidential, it is considered so and it may not be made available to the public. The study recommends expanding the scope of transparency by granting the arbitral tribunal the right to decide, after consulting with the arbitrating parties, that certain documents or information are confidential or protected.

Against Imperial Arbitrators: The Brilliance of Canada's New Model Investment Treaty

Investment treaty arbitration has become politically “toxic” even in states that pioneered the development of investment treaties. There is consensus on the need for reform. But there is a dearth of historical research on what went wrong with investment treaties, when it happened, or how to find the way forward in light of the past. As a result, reform efforts have a stumbling quality. One can see this in multilateral fora, such as the United Nations Commission on International Trade Law (UNCITRAL), where over four years of study and negotiations have produced little consensus. One can also see it in the investment treaty practice of individual states, such as Canada, which has recently lurched across the spectrum from investment treaty arbitration to a permanent international investment court, to the abandonment of investor-state dispute settlement (ISDS), and back to investment treaty arbitration. This article fills the gap in understanding by explaining what went wrong with investment treaty arbitration and when it happened. It demonstrates that the customary international law on state responsibility for injuries to aliens evolved during the 19th century to protect foreign investors against exceptional failures of the nightwatchman and rule-of-law states. As the consensus regarding customary international law standards of treatment unraveled during the 20th century due to the spread of communism, decolonization, and economic nationalism, capital-exporting states turned in bilateral investment treaties (BITs) to uphold traditional principles regarding the protection of foreign investment. Starting in the late 1990s, however, an unexpected surge of claims brought under NAFTA’s investment chapter fortuitously opened the door to the central problem of modern investment treaty practice: the rise of “imperial arbitrators” who do not merely police exceptional failures of the nightwatchman and rule-of-law states, but who choose to second-guess the normal operations of modern regulatory states without any meaningful checks or balances. Although the NAFTA Parties nipped that development in the bud, the rise of imperial arbitrators leapt to the broader universe of investment treaty arbitration, where it flourished until claims against developed states for measures such as the phaseout of nuclear power brought investment treaty arbitration to a crisis point. Seeking a way forward in light of the past, the article examines Canada’s recent experimentation with investment treaty reforms, including the development of a permanent international investment court in relations with the EU, the complete elimination of ISDS in relations with the United States, and a return to traditional investment

Peculiarities of legal regulation of electronic trade documents circulation

This article examines the peculiarities of legal egulation of electronic trade documents circulation in Ukraine and internationally (in particular, theUnited Kingdom of Great Britain and Northern Ireland (hereinafter – the UK)). It is assessed to what extent the national legislation on the relevant issues is suitable for the transfer of such documents by electronic means, and the aspects in which it does not meet the requirements. The authors prove the insufficiency of the norms of the national legislation regulating the circulation of trade documents (bills of lading, bills of exchange, etc.) and the basic laws that define the basic organizational and legal principles of electronic document management and the use of electronic documents (the Law of Ukraine «On Electronic Documents and Electronic Document Circulation»), organizational and legal principles of activities in the field of electronic commerce in Ukraine (the Law of Ukraine «On Electronic Commerce»), legal and organizational principles of electronic trust services (the Law of Ukraine «On Electronic Trust Services») for transition to electronic document circulation of trade documents. With this in mind, and taking into account the obligation of the G7+ countries to promote the use and recognition of electronic transferable records (model laws of the United Nations Commission on International Trade Law (UNCITRAL), in particular in developing countries, and the experience of the United Kingdom, the development and adoption of a separate law «On Electronic Trade Documents» (taking into account the norms of existing national legislation and national interests), which would contain a clear concept of trade documents and their classification is substantiated.
 The feasibility of developing and recognizing uniform standards at the international level for the transfer of electronic trade documents (in particular, the introduction of new systems and their integration with internal systems by all carriers, customs authorities, etc.), which will ensure such transfer, as well as uniform terms for their implementation, is being determined. It is proved that distributed ledger technologies, in particular blockchain, have significant potential for ensuring the circulation of electronic trade documents.

News from the United Nations Commission on International Trade Law (UNCITRAL): the work of the 55th Commission session

Abstract The United Nations Commission on International Trade Law (UNCITRAL) is the core legal body of the United Nations system in the field of international trade law. It has been carrying out its mandate to further the progressive harmonization and unification of international trade law since 1966.1 This article provides an overview of the 55th session of UNCITRAL and the activities of its working groups and Secretariat from mid-2021 to mid-2022. The annual UNCITRAL session (27 June to 15 July 2022, New York) was held fully in person for the first time since the start of the COVID-19 pandemic. Delegates and observers were also able to listen to the Commission session remotely via the UN webcast system but were not able to intervene using that format. Though the Commission session operated under normal conditions, the activities of the UNCITRAL working groups and the Secretariat during the year were still affected by the pandemic, with the meeting time with interpretation in all six UN languages reduced for hybrid meetings that were held both in-person and via Zoom.

International Commercial Law Emerging in Africa

This article provides an overview of the history of international commercial law in Africa with reference to instruments of the three sister organisations of private international law (in a wide sense): UNCITRAL (the United Nations Commission on International Trade Law), UNIDROIT (the International Institute for the Unification of Private Law) and the HCCH (the Hague Conference on Private International Law). The adoption of UNIDROIT's Cape Town Convention on International Interests in Mobile Equipment of 2001 is identified as a possible watershed moment in respect of the future development of international commercial law in Africa. Following the creation of an African Continental Free Trade Area by member countries of the African Union, it is suggested that participating states reconsider joining the United Nations Convention on the International Sale of Goods (1980) (CISG) and incorporating the UNCITRAL Model Law on International Commercial Arbitration (1985/2006), which are in a certain sense the two founding documents of the modern lex mercatoria. Another priority, the author suggests, is that Africa needs a supporting instrument on the private international law of contract. The first draft of the African Principles on the Law Applicable to International Commercial Contracts is then discussed with an emphasis on the role of substantive law instruments, in particular the CISG

Importance of Qualitative Addition to the New Arbitration Rules in Settling International Disputes - Experience of the Kingdom of Bahrain International

A complete set of procedural rules have been added in the United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules and the parties agree on the application of arbitration procedures developed from this commercial relationship. These laws are widely used in arbitrations conducted by the institutions along with the ad hoc arbitrations. All the aspects of arbitration processes are covered by these rules such as setting out rules of procedure for appointing arbitrators, conducting arbitration proceedings, and modelling arbitration clause. The arbitration process also comprises of rules associated with form, impact, and interpretation of arbitral award. This study aims to investigate the experience of the Kingdom of Bahrain related to the addition of new arbitration rules. A detailed analysis of the newly developed changes has been conducted to provide important propositions. Findings of the study indicate that despite the effectiveness of newly developed changes, a few further amendments are required to increase the flow of international investments in Bahrain by providing the investors with the security they need.