Sixth Committee
10 October 2006
Report of the UN Commission on International Trade Law
on the work of its 39th session
Statement by Ben Playle
First Secretary and Legal Adviser
of Australia to the United Nations
(Check against delivery)
Mr Chairman
As an active participant in the work of the United Nations Commission on International Trade Law (UNCITRAL), Australia is pleased to receive the report of the Commission on the work of its 39th session. Our involvement with UNCITRAL dates back to its inception in1966. We continue to support strongly the important role of the Commission in modernising and harmonising the rules of international trade.
As an elected member of the Commission, Australia offers the following comments in relation to various topics on the current work program of UNCITRAL.
Arbitration and conciliation
Australia welcomes the work being done on revising the UNCITRAL Arbitration Rules, which should result in improvements of considerable practical use. Australia will continue to support this important work.
But Australia, like other UNCITRAL members, is very concerned about the slow progress of Working Group II, which began work in 2000 on revisions to the UNCITRAL Model Law on International Commercial Arbitration. Its work on provisions relating to interim measures and preliminary orders has been particularly contentious. These provisions were finally presented to UNCITRAL during its 39th session, but Australia and others remain concerned about their text, and question whether they will lead to greater uniformity in the implementation of the Model Law.
Transport
Australia believes that the task of producing a new instrument on the Carriage of Goods ‘[wholly or partly] [by sea]’ remains important. The draft convention before UNCITRAL is lengthy and ambitious, but Australia believes that the aim of achieving new international law in this area is worthy. There are many technical issues in the draft to be resolved, but the Working Group has been making good progress.
A major issues for Australia is that of jurisdiction and arbitration. We see it as critical that a cargo claimant be able to litigate in its own jurisdiction. A related issue is the volume contract exemption, and the potentially wide scope for parties to derogate from the mandatory liability regime. Australia is concerned that allowing parties to derogate from the draft instrument will undermine uniform implementation, despite the Working Group having set down the creation of uniform international law as one of its main aims.
Australia and France have jointly proposed a narrowing of the volume contract exemption, which we hope will be considered favourably by the Working Group. Australia will, of course, continue to engage in the debates of the Working Group. We are optimistic that a workable and widely-supported modern international instrument on the carriage of goods by sea will be the end result.
Secured transactions
The Commission’s work on secured transaction law is timely for Australia, given law reform initiatives we are currently considering in this area.
Australia supports the Commission in its work on developing a Legislative Guide on Secured Transactions, and encourages the Commission to approve the Guide at its fortieth session next year.
Intellectual property rights are increasing in importance as a source of credit, and should not be excluded from a modern secured transactions law. Accordingly, Australia strongly commends the Commission for its proposal to explore the application of secured transactions law to intellectual property rights. But Australia does not consider this should delay approval of the Guide by the Commission next year. If necessary, work on intellectual property rights could be undertaken as a separate exercise, with a view to a later amendment of the Guide.
Conclusion
Australia commends UNCITRAL for coordinating and cooperating with other international organisations to further its aims. Australia welcomes, in particular, the Commission’s decision to consider the Principles of International Commercial Contracts adopted by the International Institute for the Unification of Private Law (UNIDROIT), with a view to possibly endorsing them next year.
Australia congratulates UNCITRAL and its staff for their work over the past year. We look forward to continuing our active participation in the work of the Commission in the year ahead.