Fifty-seventh General Assembly

Sixth Committee

4^th & 5^th Meetings (AM & PM)

LEGAL COMMITTEE REVIEWS ROLE OF INTERNATIONAL TRADE COMMISSION,

ON PROPOSALS TO ENLARGE MEMBERSHIP, ENSURE EFFICIENCY

Debate Also Begins on Report on Protection of UN, Related Personnel

The composition of the membership of the United Nations Commission on International Trade Law (UNCITRAL) and the hampering effect of the limited resources of its secretariat were highlighted as the Sixth Committee (Legal) discussed the Commission’s annual report at two meetings today.  The Committee then began discussion of the report of the Ad Hoc Committee on the Scope of Legal Protection under the Convention on the Safety of United Nations and Associated Personnel, reviewing the merits of short- and long-term measures to strengthen its provisions.

The UNCITRAL, established by the General Assembly in 1966 to unify international trade law so as to encourage the globalization of international trade and the free flow of goods, has asked the Sixth Committee to decide whether its membership, currently 36 States, should be increased to 60 or to 72, and to decide how to apportion the new seats regionally.

Delegates offered differing views on an increase, with some advocating a modest increase to preserve the traditional efficiency of the Commission, while others supported as large an increase as practical, to allow the broadest participation and input from developing countries.

Pointing out advantages of a larger UNCITRAL membership, the representative of Canada said participation by more States would ensure that a wider range of perspectives was taken into account in the development of UNCITRAL instruments, which in turn could lead to easier and broader adoption of the texts.  Also, an increase in the number of seats would give the Commission greater visibility in the United Nations system and greater profile to its products.

The usefulness of UNCITRAL texts was stressed by the Chairman of UNCITRAL, Henry Smart, in his introductory remarks to the report, who lamented the lack of awareness of them.  As an example, he said African governments often hired, at great expense, sometimes with the assistance of multilateral financial institutions, overseas experts to devise laws in the area of trade and commerce. Characterizing those efforts as being akin to trying to reinvent the wheel, he said better knowledge of UNCITRAL texts would save governments time and money.

The speaker for Kenya, expressing appreciation for the superb work of the Commission in training and assistance despite the constraints in its resources, said UNCITRAL had enabled developing countries such as his, which did not have enough expertise in trade and commercial law, to utilize the drafting skills, the model laws and legislative guides to finalize their own national trade legislation.

All speakers called for the Commission’s secretariat to be strengthened by providing it with additional resources.  The representative of India echoed the sentiment of many when he said that given the increased demand for uniform trade law standards in a globalized economy, the option of reduction in the current programme of work of UNCITRAL was neither realistic nor practicable.  

The Commission's report notes that its workload had more than doubled in the year 2001 to eight major ongoing projects, yet its staff resources remained at the 1968 level.

As to possible future work by the Commission, the speaker for the United States supported the proposal to tackle the significant rise in fraudulent activity worldwide that could give rise to civil liabilities, including fraudulent use of commercial and trade documents.  Citing its potential strong negative effect on legitimate trade, he said the issue could well fit into a programme of commercial law reform.

The Chairman of the Sixth Committee, Arpad Chandler (Hungary) announced that informal consultations would be held on the enlargement of the membership of UNCITRAL. 

Speaking this morning in the debate on the UNCITRAL report were the representatives of Belarus, Austria, Iran, United Kingdom, Japan, Singapore, Sweden (on behalf of the Nordic countries), China, Uganda, Russia, Algeria, Canada, United States, Cyprus, Philippines, Republic of Korea and Australia.

Speaking this afternoon on the UNCITRAL report were the representatives of Morocco, Hungary, Nigeria, Kenya, India, Indonesia, France, Mexico, Venezuela, Fiji, Guatemala and Brazil.  The Under-Secretary-General for Legal Affairs and United Nations Legal Counsel also addressed the Committee. 

The report of the Ad Hoc Committee on the safety convention for United Nations and associated personnel was introduced by its Chairman, Zeid Ra’ad Zeid Al-Hussein (Jordan).

A number of representatives supported the short–term measures proposed by the Secretary-General to strengthen the 1994 Convention’s protective regime, pending the conclusion of a protocol to extend the scope of its application to United Nations operations and categories of personnel not currently covered.  Some also said, however, that efforts should not stop there, but should continue towards extending the application of the Convention to the full range of United Nations operations, and all other personnel that worked alongside United Nations in those operations.

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Speaking this afternoon on that issue were the representatives of New Zealand, Guyana, Cuba, Australia, United States, Argentina, Ukraine, Chile and Spain.

Discussion of the issue will continue when the Committee meets tomorrow, Tuesday 1 October, at 10 a.m.

Committee Work Programme

The Sixth Committee (Legal) met this morning to begin its consideration of the report of the United Nations Commission on International Trade Law (UNCITRAL) (A/57/17).  UNCITRAL was established by the General Assembly in 1966 to unify international trade law so as to encourage the globalization of international trade and the free flow of goods.

The report, which notes that the Commission's workload more than doubled in the year 2001 to eight major ongoing projects, describes in detail the impact of the Commission's limited resources on its work.  After pointing out that, with the exception of one additional professional post from 2001, staff resources have remained at the 1968 level, the report indicates that the only workable options are either to reduce drastically the current programme of work of UNCITRAL or to increase significantly the resources of the UNCITRAL secretariat.

Under the topic of Strengthening the UNCITRAL secretariat, the Commission recommends that the Secretary-General be requested to consider significantly strengthening the UNCITRAL secretariat within the bounds of the resources available in the Organization, if possible during the current biennium and in any case during the 2004-2005 biennium.  Otherwise, the Commission will have to defer or discontinue work on topics on its agenda and reduce the number of working groups.

The Commission draws a connection between its work and the goals of the Millennium Declaration.  UNCITRAL had made and continued to make a significant contribution to facilitating a number of economic activities that formed the basis of an orderly functioning of an open economy, thus helping developing countries to participate fully in the benefits of the global marketplace.  The report states that there is a clear demand from Member States for UNCITRAL to prepare legal standards for a globalized economy in areas where, until recently, the United Nations had not been active.  There was also an increased need for coordination among a growing number of international organizations that formulated rules and standards for international trade.  Finally, there was the increased need for technical assistance, particularly in developing countries, in implementation of international standards in domestic legislation. 

On other specific topics, during its annual session, held this year from 17 to 28 June in New York, the Commission finished its negotiations on the draft UNCITRAL Model Law on International Commercial Conciliation.  The report notes that the draft model law avoids over-regulation of conciliation proceedings and gives a high priority to party autonomy.  The draft model law is included in its entirety, with guiding comments for enactment, in the report.  In adopting the draft model law, the Commission recommended that all States give it due consideration in light of the desirability of uniformity of the law of dispute settlement procedures and the specific needs of international commercial conciliation or mediation practice.   

The report also addresses the deferment from last year by the Sixth Committee of a decision to increase the membership of UNCITRAL from the current 36 States to 72.  As divergent views were expressed concerning whether the increase should be to 60 or to 72, as well as how the new seats should be apportioned regionally, the Commission agreed that both matters should be left to the Sixth Committee.

The Commission also oversaw progress reports from several of its working groups on particular issues.

Concerning arbitration, the Commission commended the working group for the accomplishments so far on the issues of requirement of the written form for the arbitration agreement and that of interim measures of protection.

The working group on insolvency law is pursuing a legislative guide to contribute towards a strong insolvency, debtor-creditor regime, including consideration of out-of-court restructuring.  The Commission suggested that the working group try to be as specific as possible in developing its work.  Model legislative provisions, even if only addressing some of the issues covered in the guide, should be included to the extent possible.  The Commission also encouraged the continued coordination between the two working groups of insolvency law and of security interests, given their close links, and suggested organizing a joint session of the two groups in December 2002.

The Commission commended the working group on security interests for its preparation of a first draft of a legislative guide on secured transactions.

As to the work on electronic commerce, the Commission took note of the varying views expressed concerning the form and scope of an international instrument dealing with electronic contracting.  The Commission requested the working group to focus its efforts at this time on a substantive discussion of the legal barriers to electronic commerce.  Member and observer States and interested organizations were invited to submit written comments on the subject.

The Commission said the working group on transport law should proceed on the basis that the scope of the draft instrument on the topic should extend to "door-to-door" transport operations.

The working group on privately financed infrastructure projects was also commended for its progress in developing a set of draft model legislative provisions for the legislative guide.

The Commission noted that only 61 countries out of a total of 130 States parties to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958) had responded to the UNCITRAL questionnaire sent out with the aim of monitoring implementation.  The Commission decided to re-circulate the questionnaire to those who had not replied yet.  The report said non-compliance with arbitral awards was a serious matter that required immediate attention since it could undermine the efficiency of arbitration and the reliability of contracts, which could seriously disrupt international trade.  There was a need for increased efforts by the Commission in the field of training and assistance and for the holding of judicial colloquiums but, the report states, additional secretariat resources could be devoted only if the Commission’s secretariat were strengthened.

Concerning the collection and dissemination of case law on UNCITRAL texts (CLOUT), the Commission, noting that so far 36 issues of CLOUT had been published, dealing with 420 cases, expressed its appreciation to the national correspondents for their work in the collection of relevant decisions and arbitral awards and their preparation of case abstracts.  The Commission also expressed its appreciation for the compiling, editing, issuing and distributing of the case abstracts as well as for the preparation of the new web-enhanced Thesaurus on the Model Arbitration Law.  It was agreed that the scope of CLOUT should be extended to include cases and arbitral decisions interpreting other UNCITRAL texts as well.

On the matter of training and technical assistance, strong concern was again expressed that the Commission could not fully implement its mandate because of limited resources.  While the Commission appreciated the initial steps taken last year to increase substantially both the human and the financial resources available to its secretariat, those efforts had not been completed.  Moreover, two secretariat members who had left since the last session had not yet been replaced.

The report also provides a summary of the coordination and cooperation activities it has undertaken with other legal bodies and a recounting of the discussion on the possible study of commercial and financial fraud.

The Commission decided to hold its next session in Vienna from 30 June to 18 July 2003.

      Statement by UNCITRAL Chairman

HENRY SMART, Chairman of the Commission, in introducing the report, said the Commission’s last session was again a hard-working and fruitful one, both from a substantive point of view as well as an organizational one.  He referred to the relationship between the work of UNCITRAL and the quest of developing countries for sustainable development.  Instruments adopted by UNCITRAL had become important tools for the establishment of a sound environment for economic development.  Yet many lawyers around the world thought of trade law harmonization as a luxury that made sense only for wealthy countries and which could be afforded only by them.  He himself never shared that unfortunate misperception.  Rather, for lawyers in developing countries, UNCITRAL was an important source of inspiration and assistance, in efforts to fully participate in the benefits of the global marketplace.  It was important only because of the high quality of its work and the high level of expertise of the delegates and observers who participated in UNCITRAL meetings, but also because of the impartiality that came with the seal of the United Nations, and the fair opportunity given to developing countries to participate in its work.

The existence and availability of UNCITRAL texts were not as well as known as one would wish, he said.  That was true in Africa and, he suspected, other regions as well.  African governments often hired, at great expense, sometimes with the assistance of multilateral financial institutions, overseas experts to devise laws in the area of trade and commerce.  Characterizing those efforts as being akin to trying to reinvent the wheel, he said better knowledge of UNCITRAL texts would save governments time and money.  He expressed great concern about UNCITRAL’s inability to respond fully to the demand for training and technical assistance, due to the shortage of staff and funds.  UNCITRAL texts should be publicized not only to current administrators but also to lawyers in the making. He recommended that UNCITRAL texts be included, for example, in the curricula of Law Faculties at African universities.

He expressed the hope that the Sixth Committee would echo the concern of the UNCITRAL members that the restraints faced by the Commission in its work had reached an alarming level and that the Commission’s secretariat needed to be substantially strengthened.  He drew attention to the details of the recommendation in the report on strengthening the UNCITRAL secretariat, saying it had been the subject of extensive deliberations at the last session.     

ANDREI POPKOV (Belarus) commended the results of UNCITRAL’s work, noting that the Commission played a significant role in the harmonization of rules governing international trade.  The various legal instruments, including conventions, model laws and legislative guides elaborated by the Commission had been widely recognized and adopted by many States, including Belarus.  He supported the initiative to enhance the resources of the Commission’s secretariat.

He expressed his country’s satisfaction with the work of the Commission’s working groups, and hoped that they would successfully handle other issues the Commission was interested in.  On transport law, he hoped the working group would expand its work to cover problems of landlocked countries like Belarus.  The serious gaps in international transport law should be filled.  He said the enlargement of the Commission’s membership was justified, and that the interest of all regional groups would be borne in mind during consideration of the question.

ALEXANDER MARSCHIK (Austria) congratulated the Commission for completing its important work on Model Law on International Commercial Conciliation.  Irrespective of national legal systems, he said, it was in the interest of every State to avoid conflicts in the commercial field and ensure the harmonious conduct of international economic relations.  Austria was confident that the Model law and the Guide to Enactment and Use of the UNCITRAL Model Laws would have an important impact when States considered new legislation on the issue.

Regarding the Commission’s work undertaken within its Working Group on Privately Financed Infrastructure Projects, he reiterated Austria’s interest in the elaboration of a core Model Law.  Austria would support the initiative if the Model Law could further assist the attraction of private investment for infrastructure projects especially in the developing countries.  He urged the Commission to continue to ensure the coordination of the work of its various working groups.

He welcomed the notice taken of the appeals made by the Commission’s secretariat concerning its increased workload and the consequent strain on its resources.  He said Austria would continue to provide infrastructure such as the conference facilities and the highly specialized library for the secretariat and hoped that and other contributions of the general secretariat staff in Vienna could alleviate the burden on the secretariat.

He reiterated Austria’s support for the enlargement of UNCITRAL’s membership, and hoped agreement could be reached on the proposal.

SAEID MIRZAEE YENGEJEH (Iran), noting that the Committee had been seized of the matter of enlargement of the Commission for two years now, said it was time to make a decision.  Iran was flexible in terms of the increase.  A commission of 60 or 65 members could be a representative body while preserving its efficiency. Regional distribution of seats should respect the basic principle of equitable representation of regional groups.  The important role in international trade of the Asian Group, which now consisted of 54 members, was an undeniable factor and should be taken into consideration in the distribution of seats.  He hoped that enlargement of the Commission would also bring greater participation from developing countries.  Iran had raised concern last year about the Commission’s ability to provide services to six projects at the same time.  He therefore supported the Commission’s recommendation that efforts be intensified and expedited to strengthen its secretariat. 

ANDREW CANNON (United Kingdom) said he was pleased that the final outcome of the Model Law on commercial conciliation avoided over-regulation of that essentially informal process.  There was an advantage in a consistency of approach between the texts on insolvency and secured transactions.  However, he cautioned, the approach should not impede on progress on the insolvency guide.  The mandate of the working group on security interests should be interpreted widely and it should work towards a flexible legislative guide.  The United Kingdom believed that the Commission’s membership should be simply doubled while retaining its current geographic distribution.  Also, in light of the excellence and professionalism of the work done by UNCITRAL, as well as its increased workload, he supported in principle the proposals to strengthen its secretariat within the bounds of available resources.

SHUICHI AKAMATSU (Japan) said his country welcomed the adoption of UNCITRAL’s Model Law on International Commercial Conciliation and hoped it would have a genuine impact on the practice of conciliation and enhance stability in international transactions.  Japan was interested in the development of work on arbitration and was proceeding with domestic legislation on the subject along with UNCITRAL’s Model Law on the matter.  He also hoped that uniformity would be achieved on the work of transport law on which the Commission’s working group was engaged.

Japan had already enacted a special law on consumer contracts through electronic means, and would like to contribute to the Commission’s work on electronic commerce.  Japan was also working on domestic law on insolvency and would like to share its experience in the Commission’s work on the subject.  The Commission’s formulation of a legislative guide on secured interests was salient in the light of the promotion of economic growth and in international trade.  The working group on the subject should construct a harmonized legal regime based on careful consideration of diverse domestic laws.

He supported the enlargement of the Commission’s membership which would enhance its universality.     

       GABRIEL LIM (Singapore) said the adoption by the Commission of its Model Law on International Commercial Conciliation would further enhance the promotion of international trade by assisting States to establish a harmonized legal framework for the settlement of commercial disputes.  On the Commission’s training and technical assistance, he referred to Singapore’s contribution in a training programme which took place in Phnom Penh and Jakarta in November 2000.  The Singapore Academy of Law last July organized a conference on harmonization of international trade laws and UNCITRAL which was attended by participants from around the world.

He said UNCITRAL’s work had expanded and it must have the resources commensurate with that growth.  He reiterated his delegation’s support for the enlargement of UNCITRAL’s membership.

ELIN MILLER (Sweden), speaking for the Nordic countries, said UNCITRAL’s reported accomplishments must be seen as a considerable success.  She supported the Commission’s enlargement, saying the effectiveness and importance of its work would benefit from an expanded membership.  The Nordic countries preferred a moderate increase.  Doubling the membership might have undesired financial implications and also negative effects on efficiency.  However, the Nordic countries could accept a large increase if it enabled a consensus agreement.  She was convinced that the Committee would find agreement on the best distribution of the seats.

SU WEI (China) noted with satisfaction the rationalization of the Commission’s agenda that allowed many important items to be fully debated.  That was a major improvement over the past when only one major item enjoyed full consideration.  Also, the Commission convened all meetings on time, thus improving its efficiency and the use of resources at its disposal.  While being mindful of the different level of development and legislative work of countries, he suggested strengthening its work in technical assistance and training activities for developing countries.  In the drafting of conventions and model laws, UNCITRAL should do more to take account of the views of all sides, bearing in mind the actual conditions and needs of different countries.  In that way its work might be more widely accepted and it could further contribute to international trade development and cooperation, by pressing for harmonization among legal regimes.  He supported a substantial increase in the membership of the Commission.  In its current composition, he said, the number of seats occupied by certain regions was disproportionate to their representation in the United Nations.    

JULIET SEMAMBO KALEMA (Uganda) encouraged States to adopt the Commission’s Model Law on International Commercial Conciliation to ensure uniformity.  She commended the Commission on the progress achieved so far on arbitration as part of its future programme in the area of international commercial arbitration.  Her delegation looked forward to the final outcome of work on insolvency law.  She urged the Commission to continue its work on a draft legislative guide on secured transactions.

Uganda supported the enlargement of UNCITRAL which would benefit from an increased pool of experts from different legal and economic systems.  Uganda supported an increase in the membership to 60.  Her delegation also called for increased resources for the Commission’s secretariat to ensure the effective implementation of the Commission’s training and technical assistance programme.

D.A LOBACH (Russia) said the Commission had prepared a balanced text with the Model Law on commercial conciliation.  By doing so, the Commission had ensured that the Model Law would not undergo substantial change in use by countries. Russia was particularly interested in the topic of privately financed infrastructure projects and believed that the UNCITRAL documents would be very useful.  His Government also supported the Commission’s work on various other projects, including electronic contracts, arbitration, insolvency law, security interests and transport law.  In light of the recent increase in the workload of UNCITRAL, he supported the strengthening of the secretariat in terms of financing and staffing, within the available resources.  He also supported an increase in the membership of the Commission.

ALI HAFRAD (Algeria) welcomed the completion of work on the UNCITRAL Model Law and the progress made on arbitration, insolvency, security interest, electronic commerce and transport law.  He stressed the need for continued coordination of the work of the Commission’s working groups, particularly in the areas of common interest to them.  Algeria supported the enlargement of the Commission’s membership, representing all legal traditions.  He suggested an increase to 60 members as soon as possible.

He called for more resources for the Commission to enable it to carry out its activities, including training and technical assistance programmes which were particularly needed by developing countries and States in transition.

DEBORAH CHATSIS (Canada) said her country considered UNCITRAL’s work to be of great value, and she noted that the number of the Commission’s projects had significantly increased.  Since that might well impose greater demands on the resources of its secretariat, she invited States to support efforts to ensure that the secretariat was adequately resourced to respond to the programme set by Member States.  She also strongly supported an increase in the Commission’s membership, particularly in light of the increased importance of international trade law and the increased number of Member States of the United Nations itself.  It was difficult for some States to justify the expense of participation in UNCITRAL when they were not members.  Participation by more States would ensure that a broader range of perspectives was taken into account in the development of UNCITRAL instruments, which in turn could lead to easier and broader adoption of the texts. An increase in the number of seats would give the Commission greater visibility in the United Nations system and greater profile to its products.  It would also assist with respect to UNCITRAL’s coordinating function and the work of other bodies.

ERIC ROSAND (United States) encouraged States to adopt the provisions of the Model Law on commercial conciliation in their domestic systems.  The new Model Law completed the pantheon of UNCITRAL texts addressing international commercial arbitration and conciliation.  It would be of great practical importance, since it had been completed at a time when many States were looking for models in that area for their domestic legislation.  He also commended the Commission for the important progress it had made in its projects as well.

As a complement to the work done at the United Nations in Vienna to combat transnational crime, it was suggested that attention be paid within the United Nations system to the significant rise in fraudulent activity worldwide that would give rise to civil liabilities, including fraudulent use of commercial and trade documents.  While some felt the topic was outside the usual range of issues dealt with by the Commission, others believed the problem could have a strong negative effect on legitimate trade and could well fit into a programme of commercial law reform.  Noting that the Commission agreed that a study on the topic should not draw resources away from existing projects, he welcomed participation by other states and business and trade interests in any country to help support the preparation of such a study.

He said the United States supported any level of expansion of membership of the Commission, as long as it did not change the proportionate level for the regions involved.  He noted that while some United Nations bodies had had increases in resources, the Commission, despite its impressive track record, had not.  He suggested that the Secretary-General consider the allocation of additional resources to UNCITRAL, within existing resources, as he prepared his proposed budget for the next biennium. 

ANDREAS J. JACOVIDES (Cyprus) hoped the Model Law on International Commercial Conciliation would significantly assist the resolution of commercial disputes.  He noted the commendable progress by the Commission’s working group on arbitration, to which his country attached importance.  He shared the Commission’s view that non-compliance with arbitral awards was a serious matter.  Arbitration was becoming an increasingly important issue in the settlement of disputes, both nationally and internationally, and particular attention should be paid to the topic.

Cyprus supported the proposed enlargement of UNCITRAL.  It also supported an increase in the resources of its secretariat, to enable it to also discharge its important training and technical assistance programmes to which Cyprus had made a modest contribution.

   ANACLETO LACANILAO (Philippines) commended the achievements of the Commission, including the recent work of its various working groups.  He encouraged the Commission to further strengthen its training and technical assistance programmes.  He urged governments and relevant United Nations agencies to contribute to the voluntary trust funds under the Commission’s auspices to enable representatives of developing countries to participate in the Commission’s work.

He also expressed support for an increase in the Commission’s membership and noted the fact that the Asian group was now the largest in the United Nations.

HWANG CHEOL-KYU (Republic of Korea) welcomed the success of UNCITRAL in tackling substantial international business issues and providing a sound legal apparatus.  After stating that his country intended to support adoption of the Model Law on conciliation by the Assembly this session, he said the Commission should now try to reach a consensus as soon as possible on requirement of the written form for arbitration agreements and on the issue of interim measures of protection.  He hoped to see the different legal systems duly respected and reflected during that deliberation process.  Also, the Commission should be as specific as possible in developing its work on insolvency law to avoid being too general or abstract to provide the required guidance.

Describing enlargement of the Commission’s membership as one of the most important and urgent issues, he said the increase would make the Commission more representative and reflective of various legal traditions and economic systems.  It would help ensure that UNCITRAL texts would be acceptable to all States. Membership should be made available to those countries that regularly attended and contributed to the work of the Commission.  He supported an expansion to at least 60 States with the principle of equitable geographic representation respected in the distribution of additional seats.

MICHAEL BLISS (Australia) observed that the completion of the Model Law on International Conciliation was a major achievement, and said Australia also looked forward to the finalization of a guide to enactment and use of the Model Law, which would be published along with the Model Law.  Australia was pleased that the Working Group on Transport Law was making progress on a draft text on Draft Instrument on the Carriage of Goods by Sea.  It was pleased that the text was broad, covering such issues as electronic communication and obligations and liability of shippers.

He noted the progress made by the Working Group on the production of the new legislative guide on insolvency, and looked forward to the final text’s adoption by the Commission at its thirty-sixth or thirty-seventh session.  Australia was confident that the text would have widespread acceptance.  He said the working methods adopted at the Commission’s thirty-fourth annual session -- having week-long working group meetings -- were placing pressure upon UNCITRAL secretariat and raised real issues for countries such as Australia whose delegates must travel long distances for shorter meetings.  He said the new work methods should be kept under close review.  Australia supported the enlargement of UNCITRAL as greater participation would enrich its work. 

When the Sixth Committee met this afternoon to resume its consideration of the report of the United Nations Commission on International Trade Law (UNCITRAL), KARIM MEDREK (Morocco) said the Commission was one of the greatest successes of the United Nations.  The Model Law on International Commercial Conciliation and the draft guide to enactment and use of the Model Law would help States modernize their laws on the subject.  His delegation supported the Commission’s recommendation that the General Assembly adopt the Model Law.

He said the enlargement of UNCITRAL was inevitable and would help the Commission benefit from the various legal systems.  His delegation attached great importance to UNCITRAL’s technical assistance and training programmes.  African States needed UNCITRAL’s training programmes, and he pleaded for more resources for those programmes.

CSABA SIMON (Hungary) noted that his country had been elected one of the Commission’s Vice-chairmen.  He said the Model Law adopted at its session could be an effective tool for States, particularly developing countries and countries in transition, and could help in the settlement of commercial disputes.

His Government was preparing a new bill on the conciliation procedure that would take account of the provisions of the UNCITRAL Model Law and those of the draft guide to its enactment and use.  A new concept had been elaborated on Hungary’s Civil Code, namely the introduction of insolvency law, and legislation on security rights.  It was hoped the country would profit from UNCITRAL’s work on those topics.

He said Hungary accepted the principle of UNCITRAL’s enlargement and was ready to participate in further consultations on the issue.  He urged for more resources for UNCITRAL’s secretariat for its training and technical assistance programmes.

KENJIKA LINUS EKEDEDE (Nigeria) said the Commission played an important role in the promotion of a coherent and consistent approach to matters of international trade.  The Model Law on Commercial Conciliation would undoubtedly assist States in enhancing their legislation or formulating such legislation where none currently existed.  Stressing the particular importance of the Commission’s training and technical assistance to developing countries and countries with economies in transitions, he urged all States, international organizations and other interested entities to make contributions to the UNCITRAL Trust Fund.

He said, any enlargement of the Commission should ensure that it remains representative of all legal traditions and economic systems.  He supported the increase in membership since it had no financial implications for the United Nations.

BOB JALANG’O (Kenya), in welcoming the completion of the Model Law on commercial conciliation, agreed that it should be publicized and made widely available.  An increase in the membership of UNCITRAL should be in correlation with the wider membership of the United Nations.  It was critical that the attendance of the developing countries be guaranteed and that would be possible only if the Trust Fund for travel assistance were enhanced.  The increase in travel funds and the increase in membership would facilitate an inclusive discussion in Commission meetings between developed and developing countries.  The many suggestions to improve on the Trust Fund had not borne much fruit, and more needed to be done.

Kenya appreciated the superb work the Commission had done in the field of training and assistance despite the constraints in its resources.  Through its various technical assistance activities, the Commission had ably explained the salient features of UNCITRAL texts.  That enabled developing countries such as Kenya, which did not have enough expertise in trade and commercial law, to utilize the drafting skills, the model laws and legislative guides to finalize their own national trade legislation.  Moreover, with training and technical assistance, higher standards of living, social progress, sustainable economic development and promoting the rule of law were encouraged.  It was critical to increase the resources of the Commission’s secretariat to enable it to cope with its increased workload. 

M. GANDHI (India) welcomed the adoption of the Model Law on commercial conciliation, saying conciliation was increasingly being used in dispute settlement.  Referring to the work on insolvency law, he said India was considering a statutory regime relating to rehabilitation or winding-up of sick companies and to having a new institutional mechanism with consolidated jurisdiction put in place, instead of the multiple forums that earlier exercised jurisdiction.  UNCITRAL’s work was of crucial importance in providing States with comprehensive and consistent guidance in that area.

Given the increased demand for uniform trade law standards in a globalized economy, the option of reduction in the current programme of the work of UNCITRAL was neither realistic nor practicable.  He therefore supported the recommendation for a significant strengthening of the UNCITRAL secretariat.  As to an increase in the Commission’s membership, the representation of the Asian Group was inadequate and incommensurate with its 28.3 percent of the total membership of the United Nations today.  To be a truly representative body, the Commission had to have additional membership from the Asian region.    

FERRY ADAMHAR (Indonesia) said he supported UNCITRAL’s mandate, which took into consideration the needs of developing countries.  He commended the Commission on the progress of work undertaken at its session, and the technical assistance rendered to Member States.  He supported the Commission’s recommendation that the Secretary-General transmit to Governments the text of the Model Law and the Guide to Enactment and Use of the Model Law to be finalized by the Secretariat.  It should also be transmitted to dispute-settlement institutions and other interested bodies.

He said he also supported the Commission’s work on electronic commerce and  insolvency law.

JEAN-LUC FLORENT (France) commended the effectiveness of UNCITRAL, noting the conclusion of work on the Model Law on International Commercial Conciliation. He encouraged States to adopt the Model Law which was, he said, a solid text.  He welcomed the conclusion of work by the Commission’s working group on privately financed infrastructure projects.  On the question of increased resources for the Commission’s secretariat, he said the Commission might have to concentrate on fewer subjects with available resources.  On the proposed enlargement of UNCITRAL, he said an increase should not offset the current balance of the regional groups in the Organization. 

ALFONSO ASCENCIO (Mexico) described the Model Law on commercial conciliation as a balanced text that encouraged the speedy, efficient and amicable resolution of disputes.  The modernization and simplification of ways of doing business internationally was a challenge to traditional legal mechanisms.  There was for example a trend to do without the written form of contract agreements.  That absence, however, had created uncertainty.  Mexico therefore urged approval of an approach to the Commission’s treatment of the issue as soon as possible.  Adequate regulation of insolvency had a direct impact on costs and credits and the promotion of foreign investment, which produced a benefit to national economies. Therefore, the Commission’s work on insolvency law to standardize rules was being followed closely by developing countries.

Electronic trade contained enormous possibilities, he said, but its growth should go hand-in-hand with the adoption of rules to guide the parties.  Given the negative effects of non-compliance with arbitral awards, the Commission should continue to pursue its important work in that field.  Mexico firmly supported an increase in the membership of UNCITRAL.  However, any expansion should ensure protection of its efficiency.  Therefore the increase should not exceed 60 members.

ERNESTO KLEBER (Venezuela) said the Commission had made an invaluable contribution through its work on various topical issues to the goal of uniformity in the rules governing trade.  Venezuela hoped to become a member of the Commission in the near future.  The government had been working towards promoting and publicizing several UNCITRAL texts.  Stating that budgetary difficulties could hamper the Commission’s important work, he supported the call to strengthen its secretariat through additional resources.  The body of rules generated by UNCITRAL was of great usefulness in the harmonization of trade law as also was its training and assistance programmes.

ASENACA ULUIVITI (Fiji) said that for the Commission to continue to be effective, it needed institutional support as well as more resources for its secretariat to continue its magnificent work in servicing UNCITRAL.  The expansion of UNCITRAL membership needed to satisfy the need for equitable geographical distribution.  And in those groups consideration should be given to encouraging developing and least developed countries to be represented.  The likelihood of developing countries and least developed ones participating in the Commission’s work as observers was very low, hence the need for resources in the Trust funds to support them.

Efforts must be made to sustain at national and international levels the promotion of awareness of UNCITRAL model legislative texts and to foster their adoption.  UNCITRAL needed to spell out the potential full benefits of those texts presented to developing countries. 

ROBERTO LAVALLE-VALDES (Guatemala) pointed out that there was no relationship between the Model Law and the UNCITRAL Conciliation Rules which had been recommended by the General Assembly.  He noted that no reference had been made in the Model Law to the Conciliation Rules.  The two texts must complement each other, and the relationship between them clarified.  He hoped that would be done in the draft guide to the enactment and use of the UNCITRAL Model Law being prepared by the Secretariat.  He stressed that the working group had done an outstanding job.  He echoed the remarks of the representative of Morocco that the Commission was one of the greatest successes of the Organization.

SIDNEY ROMEIRO (Brazil) commended the completion and adoption of the Model Law on International Commercial Conciliation and expressed appreciation for the progress made in the working groups on arbitration, insolvency law, electronic commerce, privately financed infrastructure projects, security interests and transport law.  He endorsed the proposal to expand UNCITRAL’s membership.

      Statement by Legal Counsel

HANS CORELL, Under-Secretary-General for Legal Affairs and United Nations Legal Counsel, said that, during his tenure, he had tried to increase the number of staff in the UNCITRAL secretariat.  Although he had succeeded in adding only one post so far, he believed he was now in a much better position to pursue the matter in light of the conclusions reached in the report by the Office of Internal Oversight.  He assured delegates that he was following the issue closely and was currently consulting to see where the additional resources might come from.  He was prepared to take the necessary follow up actions within the United Nations Secretariat.

      Protection of UN Personnel

The Sixth Committee (Legal) then turned to the report (document A/57/52) of an ad hoc committee established by the General Assembly to examine the recommendations of the Secretary-General on measures to strengthen and enhance the protective legal regime for United Nations and associated personnel.

The Ad Hoc Committee on the Scope of Legal Protection under the 1994 Convention on the Safety of United Nations and Associated Personnel, established by General Assembly resolution 56/89 of 12 December 2001, first met at Headquarters from 1 to 5 April this year.

In a report to the General Assembly in 2000 (document A/55/637), the Secretary-General drew attention to the Convention’s limitations and its inadequate protective legal regime.  He also referred to the need -– expressed by Security Council members at the time -- to ensure the safety and security of humanitarian and local personnel operating in hostile and volatile environments, and to deal more effectively with their protection.

The Secretary-General recommended three measures to strengthen the Convention’s protective regime, pending the conclusion of a protocol extending the scope of its application to United Nations operations and categories of personnel not presently covered.

These are:

-- a procedure to initiate a “declaration” by the Security Council or the General Assembly concerning exceptional risks to the safety of United Nations and associated personnel where there are sufficient warnings of immediate attacks or escalation of a conflict;

-- designating the Secretary-General as “certifying authority” for purposes of attesting to the fact of a “declaration” or an “agreement”, and to the status of any of the United Nations and associated personnel;

-- incorporating the key provisions of the 1994 Convention in the status-of-forces or status-of-mission agreements concluded between the United Nations and States in whose territories peacekeeping operations are deployed.

The Convention, which entered into force on 15 January 1999 after its adoption by the General Assembly on 9 December 1994, was not applicable to United Nations operations that had not been declared by the Assembly or the Security Council to be exceptionally risky.  In practice, no such declaration had ever been made by either body, notwithstanding the actual need for it in many United Nations operations. 

The Ad Hoc Committee’s report noted that there was general support for the incorporation of the key provisions of the Convention into the status-of-forces or status-of-mission agreements as recommended by the Secretary-General.  There was general agreement that the Secretary-General already had the authority to initiate the adoption of a declaration by either the General Assembly or the Security Council and therefore there was no need for any formal action by the Ad Hoc Committee to that effect.

There was also general agreement that all efforts should be made to strengthen the protection of the United Nations and associated personnel involved in any United Nations operation.  A suggestion was made that even if the Ad Hoc Committee recommended the extension of the scope of the Convention by a protocol, such a protocol should be independent of the 1994 Convention.

It was also suggested that the Secretary-General should circulate to all States a questionnaire requesting information about their implementation of the Convention, and the reasons for their non-adherence to it, as well as their views on strengthening the Convention and on the status and content of a protocol.  The Secretary-General should prepare another report in two or three years evaluating the effectiveness of the Convention in the light of the implementation of short-term measures, it was suggested.

Some delegations proposed the elaboration of a model agreement between the United Nations and humanitarian non-governmental organizations for the purposes of the application of the Convention.

Statements

ZEID RA’AD ZEID AL-HUSSEIN (Jordan) Chairman of the Ad Hoc Committee on the Scope of Legal Protection under the Convention on the Safety of United Nations and Associated Personnel, introduced the Committee’s report.  He said the Committee completed its mandate and considered all the recommendations made by the Secretary-General in his report.

He drew the attention of the Sixth Committee to a section of the report reflecting the views of delegations as to the desirability of a General Assembly resolution confirming the Secretary-General’s authority in initiating the adoption of a declaration regarding exceptional risk to the safety of United Nations and associated personnel.  The Ad Hoc Committee’s general view was that the Secretary-General already had the authority to do so, and that no formal action by the Committee was needed to that effect.  The views of the delegations differed as to the need to amend the 1994 Convention.

He said the Ad Hoc Committee had very extensive discussion on the complex issues regarding the extension of the scope of the Convention to all United Nations operations by amending the Convention, and also to bring in all United Nations and associated personnel, including the personnel of humanitarian non-governmental organizations, dispensing with the requirement of a “contractual” link between their organizations and the United Nations.

ELANA GEDDIS (New Zealand) said the short-term measures proposed by the Secretary-General could provide an interim mechanism to strengthen the application of the Convention until such time as issues relating to the scope had been addressed.  Good progress had been made in the discussions and the Ad Hoc Committee meeting had provided an opportunity for delegations to begin an analysis of the complex issues.  The meeting had been useful in separating out the issues involved in the Secretary-General’s recommendations.  There was first the issue of application of the Convention to United Nations operations other than peacekeeping operations (the so-called “declaration of risk issue”), and second, the issue of the coverage to be afforded to personnel working alongside a United Nations operation.

She said she supported extending the scope to the full range of United Nations operations.  She was also interested in considering other ways in which it might be possible to improve the regime of legal protection for personnel working alongside a United Nations operation.

DONNETTE CHRISTINE CRITCHLOW (Guyana) emphasized the need for the fullest protection of United Nations staff and associated personnel and, by extension, the critical role of the Organization in ensuring that both an adequate framework was established and that principles and norms were adhered to in keeping with international law.

She said Guyana acknowledged that the progress of ratification of the 1994 Convention had been slow but steady and congratulated States which had deposited their instruments of ratification.  However, she said that since universal adherence to the Convention was desirable, her delegation supported the proposal that the Secretary-General should circulate to all States a questionnaire soliciting views on the Convention’s implementation, offering the reason for non-adherence as well as suggestions for its strengthening.

SORAYA ELENA ALVAREZ NUNEZ (Cuba) condemned attacks of any sort against United Nations and humanitarian personnel.  Those attacks were criminal offences that should be severely punishable under national legislations.  The 1994 Convention was an important instrument to strengthen the legal protection accorded to United Nations and associated personnel.  The achievement of an appropriate secure climate for those personnel also depended on their impartial conduct which should be in conformity with international law and the aims and principles of the Charter.  Cuba believed that the regime of the 1994 Convention could be strengthened by the adoption of short-term measures proposed by the Secretary-General.  There was no need to amend the Convention.  Rather any amending might be counter-productive and discourage further ratifications.

MICHAEL BLISS (Australia) said that writing into the status-of-forces and status-of-mission agreements the responsibilities contained in the Convention was a very practical and immediate way of enhancing the legal protection of personnel covered by those agreements.  He was pleased that the recommendation found broad support in the Committee.  A number of points should be addressed in an Assembly resolution:  that the Secretary-General has the authority to seek the incorporation of key provisions of the Convention already, and has been asked to do so in annual consensus resolutions over the last five years; that the “key provisions” should be identified, with Articles 6 and 8 as a minimum; the agreements should be concluded as soon as practicable; host countries should be encouraged to agree to the incorporation of the key provisions; and, the Secretary-General should be requested to report regularly on efforts to incorporate the key provisions into agreements.

Short-term measures alone however would not be sufficient.  Dispensing with the arbitrary requirement of a “declaration of risk” would ensure that the protective regime of the Convention applied to all United Nations and associated personnel.  The suggestions as to how that might be done should be further considered.  There was also the question of clarifying which individuals and organizations were covered by the term “associated personnel”.

MICHAEL J. MATTLER (United States) said his delegation believed that no action should be taken now on the question of initiation of a declaration by the Secretary-General on the existence of an exceptional risk to the safety of United Nations and associated personnel.  The general view was that the Secretary-General already had the authority to initiate the adoption of such a declaration by the General Assembly or the Security Council.  He believed that further discussion of the scope of the Convention was necessary.  He was concerned about the extension of its provisions.

RICARDO LUIS BOCALANDRO (Argentina) observed that several aspects of the question had been dealt with in depth and that support for short-term measures proposed by the Secretary-General had emerged.  There was also support for long-term solutions proposed in the Secretary-General’s report.  The Ad Hoc Committee must look into that.  He supported proposals by the representative of New Zealand that the Sixth Committee should advance work on the topic.  

OLEKSIY ILNYTSKYI (Ukraine) said that for his country, as a troop-contributor that had suffered the bitterness of human losses in peacekeeping missions, the issue was a top priority.  He welcomed the fact that the Secretary-General’s important recommendation of incorporating key provisions of the Convention into status-of-forces and status-of-mission agreements, received

general support from delegations.  Ukraine supported that practical and effective measure that would strengthen the legal regime of the 1994 Convention.  The Assembly should express its strong support for that recommendation.  He also supported automatic application of the Convention for the personnel of all United Nations operations. Pending the conclusion of a Protocol extending the scope of application, he supported the proposal that the Assembly or Security Council should make a formal declaration of the existence of an exceptional risk, so as to make the Convention applicable to United Nations operations which were not peacekeeping ones.

PEDRO ORTUZAR (Chile) said his country considered the issue a high priority for the Committee.  Chile firmly supported extending the scope of the Convention to cover all United Nations operations.  He agreed with previous speakers that Member States must do their utmost to ensure the safety and security of personnel participating in United Nations operations.

JORGE ROMEU (Spain) said he agreed with the statements of others to extend the application of the Convention to cover all United Nations operations.  While he supported the short-term measures proposed, discussions on the long-term measures must continue in the Ad Hoc Committee and the Sixth Committee working group.

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