PUBLIC AND PRIVATE JUSTICE- DISPUTE RESOLUTION IN MODERN SOCIETIES Establishing a Fair and Efficient Justice System
UNCITRAL has adopted a flexible approach with respect to the techniques it uses to perform its mandate. These techniques operate at different levels and involve different types of compromise or acceptance of difference. They fall into three broad categories: legislative (conventions, model laws and model legislative or treaty provisions), contractual (standard contract clauses and rules) and explanatory (legislative guides and legal guides for use in legal practice). To some extent, the techniques used by UNCITRAL also show the process of harmonization occurring at different stages of business development. While in most cases the process of harmonization works to bring long-established practices closer together, there are cases that might be seen as examples of “preventive” harmonization. This is involves establishing new principles and practices that minimize divergence when national laws on new issues are developed. This has been typical in areas of commerce affected by new technology or new business practices, such as electronic commerce.
A model law is a legislative text that is recommended to States for enactment as part of their national law. A model law is an appropriate vehicle for modernization and unification of national laws when it is expected that States will wish or need to make adjustments to the text of the model to accommodate local requirements that vary from system to system, or where strict uniformity is not necessary. It is precisely this flexibility which makes a model law potentially easier to negotiate than a text containing obligations that cannot be altered and promotes greater acceptance of a model law than of a convention dealing with the same subject matter.
Notwithstanding this flexibility, and in order to increase the likelihood of achieving a satisfactory degree of unification and to provide certainty about the extent of unification, States are encouraged (e.g. by a resolution of the General Assembly) to make as few changes as possible when incorporating a model law into their legal systems.
Model laws are generally finalized and adopted by UNCITRAL, as opposed to a convention which requires the convening of a diplomatic conference.
The UNCITRAL Model Law on International Commercial Arbitration (1985) was the first model law adopted by UNCITRAL and was followed by the UNCITRAL Model Law on International Credit Transfers (1992), the UNCITRAL Model Law on Procurement of Goods, Construction and Services, with Guide to Enactment (1994), the UNCITRAL Model Law on Electronic Commerce, with Guide to Enactment (1996), the UNCITRAL Model Law on Cross- Border Insolvency, with Guide to Enactment (1997), the UNCITRAL Model Law on Electronic Signatures, with Guide to Enactment (2001), and the UNCITRAL Model Law on International Commercial Conciliation, with Guide to Enactment (2002)
As indicated above, model laws are a relatively new addition to the traditional tools used in international legal harmonization. Nevertheless, nearly twenty years after the adoption of its first model law, it is possible to make an assessment of UNCITRAL’s experience with this technique.
UNCITRAL MODEL LAW ON INTERNATIONAL COMMERCIAL ARBITRATION
The UNCITRAL Model Law on International Commercial Arbitration (henceforth: the UNCITRAL Model Arbitration Law or the Model Law) has been a very successful example of international preparation of a legal text in the private law area. To date, 44 countries4 and non- sovereign jurisdictions5 have adopted the Model Law.
4 Australia (International Arbitration Amendment Act 1989); Azerbaijan (Law on International Arbitration 1999); Bahrain (Decree Law No. 9 of 1994 with Respect to Promulgation of International Commercial Arbitration); Bangladesh (Arbitration Act 2001); Belarus (International Arbitration Law – Law No. 279-3 of 9 July 1999); Bulgaria (Law Amending the Law on International Commercial Arbitration 1993); Canada