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lAw Times • April 20, 2009 FOCUS Global framework moving forward BY DARYL-LYNN CARLSON For Law Times on International Trade Law, com- monly referred to as UNCITRAL, is updating its 1976 rules for arbi- tration, moving it forward into the electronic world. A working group comprised of leading representatives from signatory countries are making submissions and working with the organization to accommodate the evidentiary relevance of e-mail and other electronic documentation in a more substantive context. Th e organization is also includ- I ing revisions to facilitate multi- party disputes and address the sig- nifi cance of non-signatory parties to a contract. Although it may seem the organization is long overdue to incorporate such revisions, there has not necessarily been any urgency. "UNCITRAL tends to review its processes probably more than the Ontario legislature does," re- marks John Judge, senior litigation partner at Stikeman Elliott LLP. With the expedited emergence of globalization over the past de- cade, Judge acknowledges, "It's a fast-moving area. Th ey want to make sure the model serves as an effi cient, fair, and eff ective dis- pute resolution process." It's not like the organization hasn't been busy. It has 60 signa- tory states and facilitates inter- national rules, conventions, and liabilities for global trade ranging from the transport of goods to in- solvency to procurement and in- frastructure development. In June 2002, UNCITRAL adopted the Model Law on Inter- national Commercial Concilia- tion, which sets out a framework of standards that jurisdictions around the world can adopt to deliver a uniform means of resolving inter- national commercial disputes. It cites 14 articles of criteria, inclusive of confi dentiality pro- tection, provisions for disclosure and a basic code of conduct, and is accompanied by a Guide for Enactment and Use. In tandem with UNCITRAL's work, it also sponsors the annual Willem C. Vis International Com- mercial Arbitration Moot competi- tion for university law students. Teams from 230 law schools from 58 countries participated in the competition earlier this month — including teams from fi ve uni- versities in Canada — held in the UNCITRAL headquarter city Vi- enna, Austria. Judge, an arbitrator and a chairman on the substantial inter- national arbitrations through the International Chamber of Com- merce in Paris along with a recent appointment as a fellow of the Chartered Institute of Arbitrators, attended the competition this year. "Th is certainly refl ects the increase and growth of international arbi- tration around the world," he says of the growing participation in the moot competition. Besides, says Robert Wisner, a partner at McMillan LLP's litiga- tion and dispute resolution group, "Part of the thinking has been, 'If it ain't broke, don't fi x it.'" t's been 30 years since undergo- ing any revisions although the United Nations Commission He notes the UNCITRAL model is "probably the most widely used set of arbitration rules re- ferred to in international contracts around the world," although he adds, "Having said that, they can still be improved." He commends eff orts to update rules pertaining to electronic com- munications and documents along with better means of accommodat- ing multi-party proceedings, which he describes as "out of date." But he also observes that spe- cial provisions for disputes be- tween foreign investors and gov- ernments have been placed on a separate agenda and will take more time to amend. Wisner says that investor- state arbitration under inter- national investment treaties is a growing area of international arbitration. Non-governmental organizations have expressed concerns over the confi dential- ity of proceedings, the publica- tion of pleadings, orders, and awards, along with the partici- pation of third parties in claims involving state parties. "NGOs have been advocating for these confi dentiality protec- tions to be removed or at least watered down," Wisner says. "Sometimes investor-state dis- putes have included demands for monetary compensation for government regulatory action. When these arbitration proceed- ings are under the same UNCI- TRAL arbitration rules as com- mercial disputes, NGOs have complained about a lack of trans- parency. Th ese complaints have proven largely unfounded as arbi- tral tribunals have adopted liberal interpretations of the rules that allow governments to disclose the issues in dispute and give NGOs the right to make written third- party submissions." UNCITRAL's working group reviewing the rules has so far grant- ed observer status to two NGOs. In summarizing its review on its web site, the organization acknowl- edges it strives to identify "com- mon denominators" applicable to all types of arbitration rather than seek to deal with specifi cs, although it also notes that investment treaty challenges are indeed "a more re- cent development." Wisner affi rms it's a growing area. "Foreign investors are just discovering that they have pow- erful remedies under trade agree- ments such as NAFTA's Chapter 11 and more than 2500 bilateral investment treaties around the world," he points out. Coupled with updates to the UNCITRAL model law, the In- ternational Mediation Institute has launched an initiative to in- troduce uniformed certifi cation standards for mediators. Richard Weiler, a lawyer, me- diator, and arbitrator based in Ot- tawa, says the certifi cation will help grow ADR as a forum of choice to resolve international disputes. "Th e one barrier or element that has perhaps held clients and lawyers back is the lack of univer- sally accepted standards for media- tors themselves," says Weiler, who is the fi rst and only Canadian to be certifi ed as a commercial mediator under the IMI. "It's an important initiative. It serve[s] as sort of a 'good housekeeping seal of approval' to mediate these transnational commercial disputes." He says the IMI is grandfather- ing its certifi cation to profession- als who qualify until June 30; af- terwards, professionals will have to demonstrate their competency and pass a test either in their local jurisdiction or online. Many organizations such as Canada's ADR Chambers have established qualifi cations for professionals that comply with the IMI's standards through which practitioners can attain grandfathered IMI certifi cation. Ultimately the organization hopes to certify 1500 or more mediators worldwide. 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