February 1, 2007
The United Nations Commission on International Trade Law (UNCITRAL) is currently in the process of revising its signature Arbitration Rules. UNCITRAL’s Working Group on Arbitration will consider the first draft of the revised Rules at its meeting in New York from 5-9 February 2007. UNCITRAL arbitration rules, which are used around the world, were developed thirty years ago primarily for traditional commercial arbitrations, i.e., arbitrations between private commercial entities regarding business disputes; but they are now used in arbitrations to which one or more States are a party and that raise important public policy issues that penetrate deeply into domestic decision-making.
Unfortunately, the existing UNCITRAL rules do not sufficiently allow either the transparency or opportunities for public participation that characterize modern democracies and are essential to sound and credible dispute settlement. Often, it is impossible to even know whether a procedure has been initiated or what the outcome is – even in cases involving large potential monetary liability for public treasuries.
CIEL, together with the International Institute for Development (IISD), has prepared a joint paper for the UNCITRAL Working Group [December 2007: an updated version can be found here] urging members to take into account the public interest characteristics of arbitrations with a State as a party. The paper provides specific textual suggestions how the rules could be improved to address the current shortcomings.
CIEL and IISD have applied to be accredited as observers at the New York meeting next week but have so far been refused accreditation, after having been refused such status at the first meeting of the Working Group in September 2006 as well. The organizations view the applied accreditation process as a breach of proper UN practice that potentially cements a serious
imbalance in observer representation at UNCITRAL, where some eighteen groups representing traditional international arbitration organizations dominate the roster of observers. To address this situation, CIEL andIISD have sent a letter of complaint to the UN Under Secretary for Legal Affairs.
For more information, please contact:
- Marcos Orellana, Director, Trade and Sustainable Development, (morellana@ciel.org, +1 202 785 8700)