Publish time: Thu Oct 19 18:00:25 CST 2017
Between October 2nd and 6th 2017, the 67th Session of Working Group II of the United Nations Commission on International Trade Law (the “UNCITRAL”) has been held at the Vienna International Center in Austria. As an observer, the Beijing Arbitration Commission (the “BAC”) dispatched a delegation consisted of Ms. Jiang Qiuju, Director of BAC Business Dept. II, Mr. Sun Wei, BAC arbitrator, Ms. Wang Ruihua and Mr. Xu Jie, BAC Senior Directors, attended this conference.
On the ground of the 66th Session of Working Group II held in February this year in the UN Headquarters in New York, the UNCITRAL Secretariat made amendment to the text on enforcement of international commercial settlement agreements resulting from conciliation (A/CN.9/WG.II/WP.202/Add.1) in the form of convention and model law, and prepared the draft instrument to be deliberated at this conference (A/CN.9/WG.II/WP.201-3). Based on the discussion of previous sessions, Working Group II elected Ms. Natalie Y. MORRIS SHARMA, Singaporean permanent representative to the UN, as the chairperson of this session. She continued to organize delegations of member states to deliberate and confirm the specific provisions of the instrument, and invited observer delegations to provide clarification or suggestions on relevant issues when necessary.
Deliberation between October 2 and the morning of October 3 mainly focused on the scope of application of the instrument and definitions. Since such issues have been fully discussed at the 66th Session, no delegation raised objection to the fundamental principle that the instrument “shall avoid possible gap or overlap with existing conventions, namely the Hague Convention on Choice of Court Agreements and the New York Convention”. Thus everything went smoothly with the deliberation on provisions in this part. Some delegations proposed to revise the wording of the preface, Article 1 and 2 that have synonyms logically, and suggested to rename part of the articles to highlight the intentions of the specific provisions. With regard to the definition of “international”, delegations of member states compromised to a certain extent in accordance with their respective domestic laws and practice.
Speech by Ms. Jiang Qiuju on behalf of BAC
Speech by Mr. Xu Jie on behalf of BAC
Deliberation between October 3 afternoon and October 4 morning were mainly on the application requirements for enforcement of settlement agreements, where the issue of “negation of application requirements” was addressed. In spite of the discussion in the 66th Session, delegations in this Session still conducted further discussion and deliberation on this issue. In particular, opinions once varied between different delegations on the means of setting forth application requirements for enforcement in Article 3.3 (b) of the instrument. Three approaches have been proposed including exhaustive enumeration, open-ended enumeration and non-enumeration. In view that the deliberation outcome of this issue will not only be related with the judicial discretion in the states where enforcement is sought, but also with the cost and efficiency of conciliation services, the BAC delegation offered opinions thereon, and introduced the various innovative practices and cost considerations of different sorts of conciliators with the background of the Chinese government’s vigorous advocation to diversified dispute resolution. It is the opinion of the BAC delegation that this issue should be left to courts of the state where enforcement is sought for identification, since improper enumeration or non-enumeration will easily lead to either rigidity or randomness, which will be adverse to the sustainable and diversified development of conciliation. So the BAC delegation proposed to adopt reasonable enumeration approach that will help provide guidance to courts in enforcement procedures. Meanwhile, with respect to the content of open-ended enumeration, the BAC delegation suggested to reserve the description of institutional conciliation, so as to assist with the application for enforcement in jurisdictions where institutional conciliation does not exist or rarely exists.
Deliberation between October 4 afternoon and October 5 afternoon was on “negation of application”. It is worth mentioning that the draft instrument prepared by the UNCITRAL Secretariat and undiscussed provisions fully reflected the compromises reached after discussion and deliberation in previous sessions of Working Group II. In the 66th Session, the report approved by Working Group II reveals that relevant content has already been deliberated. Thus in this Session, although some delegations proposed for “reopen” with a number of theoretical and practical grounds for its justification, Working Group II only conducted limited re-deliberation on this issue after the informal discussion of the majority of member states. In this regard, no change is to be made to the logical basis of the provisions in existence, and the only minor amendment is to the wording concerning the validity of conciliation agreements, with insertion of a separate article as the ground for deliberation in the next session. From this, the trade-off of the abidance by rules of UNCITRAL Working Groups and the rationality of issues proposed by a few members is evident. Pursuant to the rules, the only way for any member state to protect its vital interests is to make pertinent clarification of its position and interest, and to effectively make use of informal deliberation to enlarge the scope of support it may receive.
The deliberation on October 6 was conducted on the remaining undiscussed articles, with a deliberation on the term selection of “mediation” or “conciliation” in the instrument wording prior to the conference. The Working Group II’s existing motion was initially in English language, without much attention to different translations and meanings in practice of the two terms that have already been developed in different jurisdictions, so each delegation delivered opinions on this issue. The BAC delegation presented an introduction of the difference of the two terms in Chinese language, as well as the different use of the two English terms in frequently seen English translations of Chinese domestic statutes. In light of these, and in view of the logical basis of the deliberation of Working Group II that “parties attempt to reach an amicable settlement of their dispute with the assistance of a third person or persons (individual or institution)”, the BAC delegation is of the view that the term “mediation” shall be helpful for the adoption and promotion of the instrument in China.
BAC delegation exchanged presents with the Chairperson of Working Group II
This is the second time the BAC delegation as an observer works with the UNCITRAL Working Group II. With fundamental understanding of the relevant deliberation rules, the BAC delegation has well integrated into the detailed works through formal deliberations and informal deliberations, and has timely shared the BAC’s experience and observation. So far, the works of Working Group II are coming to an end. The instrument will, after further perfection and deliberation in the next session, be submitted to the UNCITRAL Congress for a vote in June 2018, and will finally become an international convention or new model law. It is reasonable to expect that the instrument will give a great push to the attraction and efficacy of professional commercial mediation in the future.
As a locally leading and internationally emerging diversified dispute resolution institution, the BAC launched its independent Mediation Rules in 2008, established its independent Mediation Center in 2011, and have accumulated certain experience in mediation’s professional and market-oriented development. The BAC will always bravely embrace the forthcoming challenges and opportunities.
The UNCITRAL Secretariat announced that Working Group III would have relevant deliberation on a new motion about international investment arbitration, and meanwhile conducted studies on Working Group II’s next motion. Apart from that, the BAC delegation also participated in networking event jointly organized by the VIAC and the UNCITRAL during its trip, and had further exchange with the VIAC for future cooperation.
(The BAC delegation’s official report shall be released when it is finalized, and colleagues from various circles are welcome to pay attention to and participate in subsequent colloquia and studies organized by the BAC.)