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Report from WGII

Report to LawAsia about UNCITRAL WG II 65th Session, Vienna, 19-23 September 2016

It was a privilege to attend the UNCITRAL Working Group II 65th session in Vienna as part of the LawAsia delegation. This experience enriched my understanding of international multilateral negotiation and allowed me to network with lawyers of different backgrounds from all over the world in a wonderfully collegiate environment.

The detailed technical discussion about the draft instrument on the enforcement of international mediated commercial settlement agreements was exceptionally interesting. Overall, States’ delegations tried genuinely to bridge the divide between the requirements of common law and civil law legal systems in proposing and responding to new draft text for provisions. The spirit of compromise was strong to work to achieve an instrument that will be effective and broadly adopted.

One major issue that will need to be overcome in subsequent sessions is in relation to defences to enforcement. In this regard the dissimilarities between arbitral and mediation processes and the roles of arbitrator and mediator respectively were noted. Another prominent issue that is yet to be resolved is the simultaneous need to avoid ‘gaps,’ in coverage i.e. situations in which international mediated settlement agreements might not fall within the scope of the new instrument, while also avoiding overlap with the Hague Conference Judgments Convention that is currently being negotiated. What, for example, will be the status of a mediated settlement agreement that is subsequently entered as a judicial consent order?

Besides the formal session, there was much networking, which was a highlight for me. Networking happened during all of the consultation breaks throughout the day, as well as at a special side event held one evening at the Vienna International Arbitration Centre. It was a truly enjoyable experience to talk in depth with delegates from Israel, Canada, Switzerland and Spain and to have lunch with the delegates of Singapore and Sri Lanka.

Marina Kofman

5 October 2016

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