New Book by Shahla Ali: Forming Transnational Dispute Settlement Norms: Soft Law and the Role of UNCITRAL's Regional Centre for Asia and the Pacific (Edward Elgar Publishing)

Forming Transnational Dispute Settlement Norms:
Soft Law and the Role of UNCITRAL's Regional Centre for Asia and the Pacific

(Asian Commercial, Financial and Economic Law and Policy series)
Shahla Ali
Edward Elgar Publishing
Published on 25 May 2021
288 pp.

Description: This thought-provoking book examines whether regional centres associated with global legal institutions facilitate expanded citizen engagement in global soft law making. Through an analysis of empirical research into the role of decentralized soft law making in the East Asian region, it investigates the influence of such regional centres in overcoming representational deficits in the design of cross-border dispute settlement norms.

Review: 

'Shahla Ali provides a richly detailed case study that illuminates how soft law is actually created and becomes effective. In doing so, she also shows how transnational dispute resolution norms are developed and how they become a form of legal regulation even in the absence of coercive enforcement power. Thus, this book is a must for scholars of global legal pluralism, practitioners of transnational dispute resolution, and all those interested in understanding in granular detail how international law is created and develops power over time.'

– Paul Schiff Berman, The George Washington University, US

'Shahla Ali's excellent new book on the role of UNCITRAL's Regional Centre for Asia and the Pacific in soft law-making shows the importance of rigorous, in-depth empirical analysis to test and support theoretical arguments calling for direct citizen participation to confirm the legitimacy of global norms.'

- Steven Wheatley, Lancaster University Law School, UK

'International commercial arbitration has long been subject to criticism for unequal access to and participation in shaping the rules and practices of this transnational legal order. Professor Ali's book breaks new ground on this key issue for the legitimacy of commercial arbitration by persuasively documenting a success story in broadening and deepening Asian state participation. The book shows that the success of UNCITRAL's International Trade Law Regional Centre for Asia and the Pacific may provide a model for other regions.'

- Bryant Garth, UCI Law, US and author of Dealing in Virtue

'This book leverages original data and novel methods to show convincingly how a regional soft lawmaking institution can overcome deliberative deficits, asymmetries in lawmaking influence, and failures to appropriate national and local creativity in global trade lawmaking. By imaginatively ''mapping the middle,'' Shahla Ali persuasively demonstrates the integral ways that a regional body can consolidate responsive transnational legal orders (TLOs) by harnessing state and non-state innovation and adaptations to diverse economic and legal contexts. In so doing Ali discovers new variants of TLOs and opens up exciting frontiers for research and theory.'

- Terence Halliday, American Bar Foundation, and co-author of Global Lawmakers: International Organizations in the Crafting of World Markets

'This study of the growing role of Asia-Pacific countries in the governance of international dispute resolution combines sophisticated treatments of the relevant legal instruments and theoretical literature with rigorous empirical analyses. It is impossible to ignore this evidence of decentralized transnational legal ordering and how it might be fostered by regional institutions.'

- Kevin E. Davis, NYU School of Law, US

'It is rare to have 5 years of our work performance scrutinized academically, and peer-reviewed. I cannot escape a sense of relief after reading this remarkable work by Professor Shahla Ali. Her work shows the importance of having more Regional Offices, not only of UNCITRAL, but, I dare to say, also of the HCCH and UNIDROIT. This book demonstrates how they are key enablers of legal reforms and relevant platforms to ensure equal access to legal knowledge. One of the possible conclusions reading this book, is that such work reduces non-tariff (sometimes invisible) trade barriers, and has tremendous side effects like levelling the playing field for practitioners and legal educators from parts of the world often meriting less attention and resources. For example, without such work, we would have never seen DPR Korea or Laos adopting the CISG and its core value: party autonomy. This book is indispensable for any one engaged with legal reforms based on international cooperation.'

- João Ribeiro-Bidaoui, Permanent Bureau of the Hague Conference on Private International Law (HCCH) and UNCITRAL Regional Centre for Asia and the Pacific (2013-2018)

Giuliano Castellano Contributes to World Bank Group's Guidance Notes on Distributed Ledger Technology & Secured Transactions

Dr Giuliano G. Castellano's immense expertise on the use of digital assets as collateral has helped to shape and inform three substantial guidance notes published in May 2020 by the World Bank Group. The guidance notes are part of new series on Distributed Ledger Technology (DLT) & Secured Transactions: Legal, Regulatory and Technology Perspectives. A DLT system is defined as a "distributed computerized system that enables participants (nodes) to submit, validate, and store information into a database (distributed ledger) that is disseminated, synchronized, and maintained fully or partially across nodes, without the need for intermediaries". 

     The first note is titled "Collateral Registry, Secured Transactions Law and Practice". It "examines the potential of DLT within the context of the UNCITRAL Model Law on Secured Transactions" (p 7). The second note considers the regulatory implications of integrating digital assets and distributed ledgers in credit ecosystems. Dr Castellano developed the primary technical content for this note. The third note provides a "primer on [DLT] and highlights the junctures at which this new technology meaningfully impacts secured transactions frameworks" (p 7). DLT is described as a "new paradigm" with the following facets: a "novel database technology", a "novel form of pure intangibles" and "transactional automation" (p 10).
     Dr Castellano was recently appointed by UNIDROIT to be a member of its Working Group on the Model Law on Factoring. Factoring is an important type of financing that is increasinly being used around the world.  "In 2019, global factoring volume reached 2.9 trillion euros." (UNIDROIT website).  Dr Castellano will share his knowledge on teh regulatory aspects that might affect the development of this international instrument.    

New Book: UNCITRAL Model Law on International Commercial Arbitration - A Commentary (Shahla Ali et al)

UNCITRAL Model Law on International Commercial Arbitration - A Commentary

Ilias Bantekas, Pietro Ortolani, Shahla Ali, Manuel A. Gomez, Michael Polkinghorne

Cambridge University Press

February 2020, 1014 pp.

DOI: https://doi.org/10.1017/9781108633376

Description: This book provides a comprehensive commentary on the UNCITRAL Model Law on International Arbitration. Combining both theory and practice, it is written by leading academics and practitioners from Europe, Asia and the Americas to ensure the book has a balanced international coverage. The book not only provides an article-by-article critical analysis, but also incorporates information on the reality of legal practice in UNCITRAL jurisdictions, ensuring it is more than a recitation of case law and variations in legal text. This is not a handbook for practitioners needing a supportive citation, but rather a guide for practitioners, legislators and academics to the reasons the Model Law was structured as it was, and the reasons variations have been adopted.

Giuliano Castellano on UNCITRAL Secured Transactions (Podcast)

"UNCITRAL Podcast 3 Secured Transactions"

11 September 2019

Description: A panel of experts discusses the UNCITRAL Practice Guide to the Model Law on Secured Transactions adopted by the Commission in July 2019. The Practice Guide explains the key features and benefits of the Model Law and provides step-by-step explanations on how to use movable assets as security for financing purposes. Experts participating in the podcast are (in alphabetical order): Mr. Bruce Whittaker (University of Melbourne, Chair of Working Group VI that prepared the draft Practice Guide), Ms. Catherine Walsh (McGill University), Mr. Giuliano Castellano (University of Hong Kong), Mr. Marek Dubovec (Kozolchyk National Law Center) and Mr. Neil Cohen (Brooklyn Law School). Mr. Ryan Harrington (UNCITRAL) moderates the discussion.

Shahla Ali on Balancing Procedural and Substantive Arbitration Reforms: Advancing International Arbitration Practice in Hong Kong (new book chapter)

"Balancing Procedural and Substantive Arbitration Reforms: Advancing International Arbitration Practice in Hong Kong"

Shahla Ali

in Anselmo Reyes and Weixia Gu (eds), The Developing World of Arbitration - A Comparative Study of Arbitration Reform in the Asia Pacific (Hart Publishing, January 2018), pp. 39-65.

Introduction: This chapter examines how the UNCITRAL Model Law on International Arbitration (the Model Law) has affected arbitration practice in Hong Kong. It also examines measures taken in the region to promote the use of arbitration including training programmes and legislative reforms. It concludes by examining challenges in the implementation of the Model Law and efforts at reform...

Anna Koo on International Commercial Mediation in China and the UNCITRAL Model Law

"UNCITRAL and International Commercial Mediation in China"
Anna Koo
Comparative Law Journal of the Pacific
Special Issue, Vol XIX, 2015

In less than four years and after only four sessions, the Working Group on Arbitration and Conciliation came up with the UNCITRAL Model Law on International Commercial Conciliation of 2002 (the 'Model Law'), relying primarily on the Conciliation Rules of 1980 (the 'Conciliation Rules'). The Model Law is the first of its kind to encourage the use of conciliation as a dispute settlement method for cross-border commercial transactions. It provides uniform rules for some procedural aspects of conciliation, with a view to enhancing predictability and certainty in the use of the process. It applies to a wide range of international commercial disputes. Such disputes may arise from any legal relationships of a commercial nature, whether contractual or not. They satisfy the requirement of internationality if the parties of a conciliation agreement have their places of business in different States at the conclusion of that agreement. In addition, it happens when the State, in which either a substantial part of the obligations of the commercial relationship is to be performed, or with which the subject matter of the dispute is most closely connected differs from the State in which the parties have their places of business. Furthermore, 'conciliation' does not merely refer to a directive, advisory form of mediation. It is an umbrella term for all procedures in which a third party assists the parties to settle a dispute without imposing a binding decision, including mediation, neutral evaluation, mini-trial or similar proceedings.

      Rather surprisingly, the Model Law inspired only 14 countries to enact or amend domestic legislation on mediation over the past decade. Such responses were hardly comparable to those of the UNCITRAL Model Law on International Commercial Arbitration of 1985. Despite the fact that China, Fiji, India, Japan, Mexico, Singapore and Thailand participated in the drafting stage, none of the countries in the Asia-Pacific region have informed the UNCITRAL Secretariat of adopting statutes based on the principles of the Model Law thus far. On the other hand, both domestic and international mediation activities proliferated in this region. Disputants preferred modern sets of mediation rules developed by service providers or themselves instead of the Conciliation Rules. Governments endorsed the use of mediation as an adjunct to litigation and promulgated legislation specific to mediation without explicit reference to the Model Law. The key question, then, is whether the Conciliation Rules and the Model Law become obsolete or remain relevant in the Asia-Pacific context. This chapter identifies major challenges involved in international commercial mediation from the findings of three recent surveys. Focusing on mainland China and its two special administrative regions, it compares and explains the extent to which mediation rules and laws in these jurisdictions address the pressing issues of mediation. It argues that the policies underlying the UNCITRAL texts echo those of the Chinese regulatory and legal framework for international commercial mediation, but the Conciliation Rules and the Model Law face an urgent need for update if they intend to lead their harmonizing role in China... Click here to read the full article. 

Shahla Ali on Environmental Disaster-Related Disputes and the UNCITRAL Rules on Transparency

"Prospects of Utilizing Investor-State Mediation and UNCITRAL Rules on Transparency for Polycentric Environmental Disaster-Related Disputes: The Case of Vattenfall v Germany"

Shahla Ali
Comparative Law Journal of the Pacific
Special Issue, Vol. XIX, 2015

Under the backdrop of the Japanese Fukushima nuclear disaster, Chancellor Angela Merkel’s government decided to phase out rapidly nuclear energy in Germany with an amendment to the “Atomic Energy Act”.

     Previously, Merkel had decided to extend the usage of the nuclear reactors past their due phase-out date. Following Fukushima, such a decision was rendered politically unpalatable and untenable

      In 2009, Vattenfall arbitrated against the German government at the International Center for Settlement of Investment Disputes excessive imposition of water quality standards for a coal power plant, which rendered Vattenfall’s investment project “unviable”. The claim against Germany was about €1.4BN, but it was settled in 2011, with Germany agreeing to a more lenient water quality standard in favor of Vattenfall.

      In 2012, Vattenfall, a Swedish nuclear plant operator, sought compensation from the rapid exit from nuclear energy in Germany – “fair compensation” associated with the rapid phase-out of their two nuclear plants. Press reports in late 2011 put Vattenfall’s lost investments in nuclear power plants at €700MM. In 2012, the company estimated the damages from the nuclear phase-out actions at €1.18BN. However, the exact amount of Vattenfall’s compensation claim against Germany is unknown. 

      Vattenfall initiated arbitration proceedings by filing a Request for Arbitration at the International Center for Settlement of Investment Disputes in Washington D.C. Vattenfall was attempting to claim “compensation for the phasing out of nuclear energy” under the Energy Charter Treaty. The Energy Charter Treaty is a multilateral treaty that essentially protects foreign investors in the energy sector by allowing them to bypass the domestic courts of the host country and file a complaint to an ad hoc international tribunal to challenge proposed government regulations.

     Despite enormous public interest about the case, only minimal amounts of information have been made available to the public. The recent UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration might put pressure on the ICSID to be more transparent regarding the proceedings of the case... Click here to read the full article.