UNCITRAL-RCAP Working Paper Series 1 (WPS1): Connecting the UNCITRAL to Governance, the Rule of Law, and Access to Justice

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1 REGIONAL CENTRE FOR ASIA AND THE PACIFIC 3rd Floor, G-Tower, 24-4 Songdo-dong Yeonsu-gu, Incheon, Republic of Korea Telephone: Telefax: Internet: UNCITRAL-RCAP Working Paper Series 1 (WPS1): Connecting the UNCITRAL to Governance, the Rule of Law, and Access to Justice TABLE OF CONTENTS 1. Introduction Topics of WPS Governance Rule of Law Access to Justice Submission information Additional information

2 1. Introduction 1. The United Nations Commission on International Trade Law, Regional Centre for Asia and the Pacific (UNCITRAL-RCAP) is the first regional centre of UNCITRAL. It was established in 2012 with the following objectives: To enhance international trade and development in the Asia-Pacific region by promoting certainty in international commercial transactions through the dissemination of international trade norms and standards, in particular those elaborated by UNCITRAL; To provide bilateral and multilateral technical assistance to States with respect to the adoption and uniform interpretation of UNCITRAL texts through workshops and seminars; To engage in coordination activities with international and regional organizations active in trade law reform projects in the region; and To function as a channel of communication between States in the region and UNCITRAL. 2. The UNCITRAL-RCAP Working Paper Series (WPS) was created in order to stimulate interest, research, and study on the UNCITRAL and its texts. 3. WPS is managed and published online by the UNCITRAL-RCAP, where all submitted papers are archived and available to the public. They may also be used in the projects of the UNCITRAL-RCAP, such as in technical assistance or capacity building. 4. WPS1 seeks to explore three interrelated topics and their relation to the texts of the UNCITRAL. These topics are further explored in document: Governance The Rule of Law Access to Justice 5. By calling attention to these three topics, WPS1 invites papers that closely examine inter-linkages between the above topics and the texts of the UNCITRAL. The overarching question posed by WPS1 is, How do UNCITRAL texts, as a whole or through specific provisions, contribute to good governance, the rule of law, and/or access to justice? 6. The texts of the UNCITRAL are categorized under eight tracks. Authors are encouraged to refer to these tracks for specific information on UNCITRAL texts. The eight tracks and their respective texts are reproduced as follows: Track I: International Commercial Arbitration and Conciliation United Nations Convention on Transparency in Treaty-based Investor-State Arbitration Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958) (the "New York Convention") 2

3 UNCITRAL Model Law on International Commercial Arbitration (1985), with amendments as adopted in 2006 UNCITRAL Model Law on International Commercial Conciliation (2002) Track II: International Sale of Goods (CISG) and Related Transactions United Nations Convention on Contracts for the International Sale of Goods (Vienna, 1980) (CISG) Convention on the Limitation Period in the International Sale of Goods (New York, 1974) Track III: Security Interests United Nations Convention on the Assignment of Receivables in International Trade (New York, 2001) Track IV: Insolvency UNCITRAL Model Law on Cross-Border Insolvency (1997) and Guide to Enactment and Interpretation (2013) Track V: International Payments United Nations Convention on Independent Guarantees and Standby Letters of Credit (New York, 1995) United Nations Convention on International Bills of Exchange and International Promissory Notes (New York, 1988) UNCITRAL Model Law on International Credit Transfers (1992) Track VI: International Transport of Goods United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (New York, 2008) (the "Rotterdam Rules") United Nations Convention on the Liability of Operators of Transport Terminals in International Trade (Vienna, 1991) United Nations Convention on the Carriage of Goods by Sea (Hamburg, 1978) (the "Hamburg Rules") Track VII: Electronic Commerce United Nations Convention on the Use of Electronic Communications in International Contracts (New York, 2005) UNCITRAL Model Law on Electronic Signatures (2001) UNCITRAL Model Law on Electronic Commerce (1996) Track VIII: Procurement and Infrastructure Development UNCITRAL Model Law on Public Procurement (2011) UNCITRAL Model Law on Procurement of Goods, Construction and Services (1994) UNCITRAL Model Law on Procurement of Goods and Construction (1993) 3

4 7. In accordance with the mandate of the UNCITRAL-RCAP and its service to the region, all papers considered for WPS1 must be relevant to Asia and the Pacific. 8. Deadlines for WPS1 are as follows: Abstracts: 16 February 2015 Paper submissions: 13 April While the specific interpretation of the three topics are left open so as to encourage a larger variety of connections to be made with the texts of the UNCITRAL, authors are encouraged to take note of, and use as points of reference, recent developments within the UNCITRAL and the United Nations as a whole on these topics. The information provided in the following section, Section 2, provides some guidance on these topics, but are by no means exhaustive in their interpretation of the terms. 2. Topics of WPS1 10. This section seeks to introduce each of the three topics of WPS1 with a particular focus placed on the mandate of the UNCITRAL and those of regional organizations such as ASEAN, APEC, and the ADB. 2.1 Governance 11. Good governance is identified as one of the leading Principles of the ASEAN and its Member States in Article 2(h), but no clear definition of good governance is provided. 12. The ASEAN Political-Security Community Blueprint identified enhancing transparency, accountability, participation, and efficacy as the goals of promoting good governance within the ASEAN. Within this document, a strong connection between good governance and the rule of law is present, with the end goal of creating a Rules-based Community of shared values and norms. 13. The APEC defined good governance as having two main requirements: performance, which is the effective and efficient delivery of goods, services, or programmes, as well as conformance, which is the adherence to the law, regulations, published standards, and community expectations of probity, accountability, and openness. 14. Alternatively, in identifying the improvement of governance as one of its strategic priorities, the ADB defined poor governance as holding back and distorting the process of development with a disproportionate impact on the poorer and weaker sections of society. 15. Governance in relation to the texts of the UNCITRAL received and continues to receive diverse treatment, from application to transparency in public procurement and privately financed infrastructure projects to the Convention on Transparency in Treaty- 4

5 based Investor-State Dispute Resolution released in The United Nations believes that the harmonization and modernization of international trade law and practices is conducted in pursuance of greater goals, such as the promotion of the rule of law and access to justice, and ultimately of peace. The report on UNCITRAL s work at its 47th session, approved in October 2014 by the Sixth Committee of the General Assembly of the United Nations stated that the progressive modernization and harmonization of international trade law, in reducing or removing legal obstacles to the flow of international trade, especially those affecting developing countries, would contribute significantly to universal economic cooperation among all States on a basis of equality, equity, common interest and respect for the rule of law, to the elimination of discrimination in international trade and, thereby, to peace, stability and the wellbeing of all peoples. 16. Bringing together these different approaches to governance, a number of questions may help guide authors in defining their research interest and scope for WPS1 under this topic. 2.2 Rule of Law In what ways can implementing UNCITRAL texts help promote good governance in States, particularly those that may be suffering from poor governance? In such contexts, how does harmonizing international trade law contribute to the State s endeavour to fulfil its national development goals, particularly those related to the MDGs or the spirit of the Post-2015 Agenda? Which texts of the UNCITRAL are applicable and how? In what ways does promoting good governance through the UNCITRAL texts enhance governance on the community level? Building upon this, how does it enhance governance regionally, particularly within the way that governance has been framed by regional intergovernmental organizations like ASEAN, APEC, and the ADB? 17. Identified in the same clause as good governance, the ASEAN Charter identifies the Rule of Law as one of the leading principles of the ASEAN and its Member States. The Rule of Law is broadly defined in the ASEAN, embracing such core elements as the supremacy of the law and equality before the law. The ASEAN Political-Security Community Blueprint and the ASEAN Law Ministerial Meeting are key mechanisms in strengthening the rule of law in the region to match the rate at which the regional economy continues to expand. 18. The APEC has approached strengthening the rule of law in Asia and the Pacific by promoting participation in unified legal procedures to stimulate trade within and into the region. Notable examples include the Cross-Border Privacy Rules and efforts to reduce the administrative burden of customs within the APEC. 19. The Special Advisor on Post 2015 Development Planning, Ms. Amina Mohammed, had described the position of the rule of law in the post-2015 Agenda as creating an enabling environment for rule-based business, investment, and trade. 5

6 20. Rule of law has been receiving considerable attention within the United Nations system, as can be seen in, inter alia, the recent Guidance Note on rule of law and commercial relations released by the Rule of Law Coordination and Resource Group and the Rule of Law Unit of the Executive Office of the Secretary-General. 21. In an initiative that began with a High-level meeting held at the General Assembly in 2012, the rule of law was identified as being clearly linked with inclusive economic growth and sustainable development. This interconnectedness is being considered in the post-2015 development agenda. The 2012 Declaration emphasized the role of fair, stable, and predictable legal frameworks in achieving such goals. 22. The role of the UNCITRAL as the core legal body in the field of international commercial law was emphasized in promoting the rule of law in such ways as facilitating rule based commercial transactions, coordinating with other rule of law initiatives, and other forms of rule of law assistance. The General Assembly of the United Nations approved that the Rule of Law in commercial relations should be an integral part of the broader agenda of United Nations in the post-2015 development agenda, which was further elaborated on by the Open Working Group on Sustainable Development Goals. Moreover, it believes that the promotion of an open, rules-based, non-discriminatory, and equitable multilateral trading system as contributing to the pivotal role of trade in reducing poverty and promoting sustainable development. 23. Bringing together these different approaches to the rule of law, a number of questions may help guide authors in defining their research interest and scope for WPS1 under this topic. 2.3 Access to Justice How does the status, adherence, and practice of UNCITRAL texts like the New York Convention within the Asia-Pacific Region affect perceptions of investors about the rule of law as directly linked to equitable and sustainable development as well as inclusive economic growth? Has the implementation of UNCITRAL texts within the context of regional legal harmonization such as in the ASEAN proven to have enhanced the rule of law? In what ways, if any, did such implementation contribute to the national development goals of implementing countries, particularly in connection to the MDGs and the spirt of the Post-2015 Agenda? 24. The ASEAN Charter identifies the equitable access to [ ] justice as one of its guiding Principles. Within the ASEAN, this has meant the public provision of legal assistance as well as strengthening transparency in legislative processes. This has also had cross-border manifestation, with endeavours to improve the access to justice for refugees within the region. 6

7 25. The ADB has linked access to justice with community-based dispute resolution for the urban poor. According to the ADB, while 55% of the Asian population will be urban by 2030, development of urban living standards and public services has been falling behind. The provision of dispute settlement mechanisms used to bring claims against service providers has been identified as a way to resolve grievances within the community and thereby enhance the inclusiveness of urban economic growth. 26. Improving the access to justice for microbusinesses, small claims, and involving those with geographical constraints, low income and/or literacy levels has been a topic of recurring interest within the UNCITRAL. The use of electronic communications in promoting e-commerce is one often cited example, as has been the promotion of conciliation and alternative dispute resolution as a whole. 27. Another topic connecting access to justice and the works of the UNICTRAL that has been accumulating recent interest is the creation of an International Arbitration Tribunal for Business and Human Rights. This discussion has been examining the wider use of alternative dispute resolution involving private enterprises, ie., multinational corporations, on claims of human rights violations. The infrastructure and neutrality of arbitration centres can respond to the shortcomings of civil courts in certain judicial systems that are not prepared for processes involving extraterritorial jurisdiction. While this topic is still conceptual, it represents a new frontier in exploring the potential role of the UNCITRAL texts in expanding the access to justice. 28. Similar to the use of ADR in place of criminal proceedings in cases of the violation of human rights, the use of ADR as a result of a failure to observe basic principles of environmental stewardship has been present in academic literature. Investment or commercial transactions that may be contrary to national goals such as climate change adaptation or mitigation can result in duress for countries that can find redress through dispute settlement. 29. Bringing together these different approaches to the access to justice, a number of questions may help guide authors in defining their research interest and scope for WPS1 under this topic. Mechanisms in international economic law, such as alternative dispute resolution, has shown that variety of disciplines in the pathway to successful development can have direct relevance to the texts of the UNCITRAL. What are the prospects of applying tools typically reserved for commercial matters to a larger spectrum of topics? Considering that founding principles of the UNCITRAL include both the facilitation of trade as well as the expansion of the access to justice, in what ways has and can the UNCITRAL texts be implemented to meet the goal of expanding access to justice through the facilitation of trade? Using alternative dispute resolution as a specific example, how can UNCITRAL texts contribute to trade law harmonization and modernization in the different regions of Asia and the Pacific? 7

8 3. Submission information 30. There are no eligibility requirements for submissions from institutions that have been solicited by the UNCITRAL-RCAP via the present document. 31. Currently, no submissions are being accepted from potential authors who are not associated with an institution that has been solicited by the UNCITRAL-RCAP. 32. Potential authors from the solicited institutions must first submit an abstract that clearly indicates the UNCITRAL text and its connection to one of the three topics of WPS1. The submission of the abstract must also be accompanied with a CV. The UNCITRAL- RCAP will then send a confirmation to the potential author, upon which time they will have approximately least three months to prepare the final paper for submission. This deadline is subject to change, which will be communicated with all authors without delay. 33. Submissions for WPS1 will be limited to those of the length and depth of articles published in academic and professional journals. The average length of submitted articles are expected to be from 7,000 words. 34. Should the resultant paper significantly deviate from the abstract, then the UNCITRAL- RCAP maintains the authority to delay or deny further action in publishing the article. 35. All matters of style and formatting should follow the United Nations Editorial Manual, 1 which is currently employed for all documentation produced by the United Nations on such points as, inter alia, the employ of the Concise Oxford Dictionary (12 th ed.) as a spelling authority and a combination of reference guides prepared by the United Nations such as, inter alia, UNTERM UNCITRAL-RCAP is unable to provide editing services. As such, the author retains full responsibility over the paper s publishable quality, namely spelling, grammar, factuality, and so forth. The UNCITRAL-RCAP may request for, inter alia, edits and additions to be made to the article upon which further action is determined. 4. Additional information 37. All authored papers, articles and materials published in WPS1 are the sole responsibility of the authors. The content, factuality and views therein are purely the responsibility of the author, who gives consensus by submission that the document submitted does not infringe any copyright or matters of plagiarism and misrepresentation. They do not reflect the views or opinions of the United Nations, UNCITRAL, UNCITRAL-RCAP, and/or its staff members or donors

9 38. The author acknowledges that publications are not endorsed by the United Nations, UNCITRAL or UNCITRAL-RCAP, and that such communications shall not be considered to have been reviewed, screened or approved by the United Nations, UNCITRAL and the UNCITRAL-RCAP. The UNCITRAL-RCAP reserves the right to remove, for any reason and without notice, any content published WPS1 received from authors without limitation. 39. As a condition of being published in the WPS1, the author agrees to indemnify the United Nations, UNCITRAL, UNCITRAL-RCAP and its affiliates from and against any and all actions, claims, losses, damages, liabilities and expenses arising out of the author s interaction with the UNCITRAL-RCAP, including, without limitation, any claims alleging facts that if true would constitute a breach by the author of terms and conditions set forth in this document. 40. UNCITRAL-RCAP cannot be held responsible for the content of the sources to which articles may reference or for their availability in any form. The inclusion of such references does not imply any form of endorsement. 41. In the tradition of many United Nations entities with some form of written output, all papers released in the series can be licensed to UNCITRAL (or UNCITRAL-RCAP) under a Creative Commons Attribution-Noncommercial-Share-Alike 3.0 Unported license, 3 which allows redistribution without commercial intent and the ability to remix, transform, or build upon published materials so long as proper attributions are made