ICCA at UNCITRAL transparency discussions

The 58th session of UNCITRAL Working Group II (Arbitration and Concilation) will be held next week in New York from 4 February. Reporting from the 57th session of UNCITRAL Working Group II (Arbitration and Concilation), former UNCITRAL Secretary and former ICCA President Gerold Herrmann, reports for ICCA on the transparency debate.

UNCITRAL Working Group II (Arbitration and Conciliation)
Report from the 57th Session, Vienna, 1-5 October 2012

In his report on the previous session (6 - 10 February 2012) Mr.Kavanagh has well described the mandate and working procedure of UNCITRAL's Arbitration Group. His impression that "things move slowly" is in my experience (of 26 years) due to the fact that it takes delegates (after all conservative lawyers) a very long time to fully comprehend that the laws of other countries are different from their own beloved law ("foreign" equals "strange") and that everyone has to make some concession if one wants to agree on a uniform rule.

Like the Commission session, Working Group sessions alternate between New York and Vienna. But while many visitors can be accommodated in New York, there is simply no room for them in Vienna.

The working process is of course the same. UNCITRAL traditionally works on the consensus principle: it uses the time to find a solution "with which everyone can live" rather than wasting time on explanations of vote before or after a formal vote is taken (as practiced at diplomatic conferences).

Nevertheless, not every issue lends itself to a consensus solution, and the recent session provided an extreme example thereof. There was a deep split between delegates of States with potent investors and those of recipient countries. The split could simply not be bridged and led the Chairman to seek advice from me (as former Secretary of UNCITRAL) , in particular as to whether the Group could seek guidance (i.a. a decision) from the Commission. ( My answer was simple: no hope since the composition of both organs is identical)

The obvious disparity of interests became also transparent in the discussion of the proposed rules which deal with the publication of documents and of arbitral awards, submissions by a third person or by a non-disputing Party to the treaty, hearings, exceptions to transparency and a repository of published information.

Anyone interested in the detailed discussions of those issues may read the official report of the session (document A/CN.9/760), available in all six official languages, i.e. Arabic, Chinese, English, French, Russian and Spanish, at the website UNCITRAL.org.