What Industry Says! Mr. João Ribeiro-Bidaoui, Head of the UNCITRAL Regional Centre for Asia and the Pacific

Mr. João Ribeiro-Bidaoui, Head of the UNCITRAL Regional Centre for Asia and the Pacific

 

Mr. João Ribeiro-Bidaoui is currently Head of the UNCITRAL Regional Centre for Asia and the Pacific, managing technical assistance and capacity building programming available to over 50 States in Asia and the Pacific, namely least developed, landlocked developing and small islands developing States.

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UNCITRAL has, for the past 5 decades, been serving as the core legal body of the UN system in the field of international trade law, focussing on the modernization and harmonization of rules on international business, so as to reduce and even remove disparities in national laws on international trade matters that may create obstacles to the flow of trade.

Our work is also relevant to the realization of the Sustainable Development Goals adopted by the UN General Assembly in 2015, including in the promotion of the rule of law at the national and international levels.

A major area of UNCITRAL’s work concerns the international sale of goods. A major result of the work of UNCITRAL in this field was the conclusion in 1980 of the United Nations Convention on Contracts for the International Sale of Goods (CISG). The Convention provides a modern uniform regime for the settlement of disputes related to the international sale of goods, introducing certainty in commercial exchanges. The CISG regime simplifies the search for and application of the law. More specifically, it avoids recourse to rules of private international law to determine the law applicable to the contract. It also offers a modern set of rules designed specifically to suit the needs of cross-border trade, including for the management of the contract for sale of goods, which is particularly relevant for the orderly functioning of global supply chains. The adoption of the CISG may also familiarize national legal actors with the currently prevailing approaches in contract law, thus providing inspiration for domestic law reform. From the economic perspective, the uniform contract law regime under the CISG would also reduce trade transaction cost, as a result of lower prices for both imported and exported goods, which is beneficial for consumers and business alike. It is worth noting that the CISG now has 89 State parties, representing all levels of economic development, and accounting for more than twothirds of global international trade, and various States in the Asia-Pacific region, including China, Singapore, Australia, New Zealand, the United States, Russia and so on, which are major traders in the region and beyond, are parties to the Convention.

Electronic commerce is another key and indeed growing area of UNCITRAL’s work. We have produced the UNCITRAL Model Law on Electronic Transferable Records in 2017 (or “MLETR”) and the Electronic Communications Convention (or “e-CC”) in 2005, which, building upon two earlier model laws, seeks to bringing ultimate legal certainty to cross-border trade conducted with electronic means. In providing for the most modern electronic commerce legislation in line with the rapid development in information and communication technologies worldwide, the MLETR and the e-CC seek to ensure the legal value of the use of electronic communications in cross-border trade with other States. In addition to major trading States such as Russia and Singapore, which are already Contracting States, others such as China, the United States, as well as Australia, are pursuing joining the e-CC. Awareness of the importance of the Convention has also increased in our region, as illustrated not only in the Framework Agreement on Facilitation of Cross-border Paperless Trade in Asia and the Pacific recently adopted by the United Nations Economic and Social Commission for Asia and the Pacific (“ESCAP”) in May 2016, which refers to “relevant international legal instruments concluded by United Nations bodies and other international organizations” in the field of electronic commerce, but also the CPTPP Agreement, which contains explicit references to the e-CC itself and requires its Contracting States to maintain legal frameworks consistent with the principles contained therein.

As the first ever UNCITRAL regional centre, the Regional Centre for Asia and the Pacific established in Incheon is now well into its 6th year of operation, with a clear mandate to promote UNCITRAL texts and to provide technical assistance and capacity building services to States in the region.

When we started this endeavour, back in 2012, only 16 out of 56 States in the region had arbitration legislation based on the UNCITRAL Model Law on International Commercial Arbitration. Today, we have 25 (a 56.3% increase), and we are currently assisting several jurisdictions to enact it during this year. The region now accounts for 47.3% of total States, and 58.06% of total jurisdictions, adopting the Model Law, with the amendments as adopted in 2006.

Also, since 2012, we had 4 new accessions to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958) (the “New York Convention”), doubling the pace of regional accessions of the previous 5 years – and assistance is currently being provided to several States in the south Pacific to accede to the Convention.

Over the past few years, the Regional Centre has structured the approach in which it delivers its objectives through regular and noteworthy flagship activities: the Trade Law Forum, the UNCITRAL Emergence Conference (three editions), the ADR Asia Pacific Conference (six editions), the UNCITRAL Asia Pacific Judicial Summit (two editions), the UNCITRAL Asia Pacific Day (four editions), the ADB Collaboration for arbitration law reforms in the South Pacific, the Lao PDR – United Nations Partnership Framework (UNPF) 2017-2021 and the Papua New Guinea United Nations Development Assistance Framework (UNDAF) 2018-2022.

The Regional Centre works closely with the UNCITRAL National Committee for India launched in October 2015 and have been actively engaged with the legal community in India on various fields of international trade law.

In 2016 we had the great honour of having the distinguished presence of His Excellency Tirath Singh Thakur, the former Chief Justice, and His Excellency Mukul Rohatgi, the Attorney General, at the Trade Law Forum that the Regional Centre hosted in Incheon in the Republic of Korea, where issues of modernization and harmonization of international trade law, including the CISG and electronic commerce, were discussed.

In conclusion, it is our firm belief that adopting UNCITRAL legislative standards offers key advantages for businesses that States cannot afford to ignore: (1) Provides predictability, which helps in efficient contract management, namely in the context of cross-border supply chains, introducing certainty in commercial exchanges and thus decreasing transactional costs; (2) Builds trust among commercial international partners; (3) Improves value for money in cross-border transactions, since risk incorporation in transaction’s price is lowered; (4) Levels the contractual bargaining position for SME’s from developing countries and reduces their entry cost in global markets; (5) Has a noticeable effect on redistribution of market wealth; (6) Offers a modern, uniform and fair legal regime for the settlement of disputes, (7) potentially reducing the risk of disputes.

We believe states in the region will have to progressively consider the lack of regional harmonization of business laws as a serious impediment to trade, if not a non-tariff barrier.

One must not forget that UNCITRAL law-making work takes place in the broader context of the United Nations.

We are not just simply concerned with the technicalities of commercial law.

As a political organization, the United Nations would have no interest in the harmonization and modernization of international trade law and practices, if it were not convinced that such technical work is conducted in pursuance of higher goals like rule-based trade, access to justice, and ultimately, peace.