1. The strategic importance of the UNCITRAL Model Law
UNCITRAL (acronym in English for the United Nations Commission on International Trade Law) has prepared a Model law, which has become the international reference most important for international commercial mediation. Although it does not have binding legal force, it is a meeting point for international mediation standards. But, in addition, many States have incorporated the Model Law into their domestic legislation, either in its entirety or with the necessary adaptations.
In fact, the UNCITRAL Model Law has been incorporated into the regulation of Belgium, Croatia, Hungary, Slovenia and Luxembourg. Also in the modification that was made Albania on its previous regulation. UNCITRAL considers that the regulation of France, Switzerland and Montenegro has been influenced by the Model Law. In America, countries such as Honduras and Nicaragua. The situation of Canada and the United States It is peculiar because they are federal states, whose states or provinces have powers in the matter. This has given rise to a “squared harmonization” phenomenon. In United States and Canada Uniform laws have been approved so that the different states or provinces can harmonize their legislation at the federal level if they consider it appropriate. But, in turn, these US and Canadian uniform laws incorporate the UNCITRAL Model Law, so the different states and provinces that incorporate the aforementioned uniform standards are also contributing to international harmonization.
In Asia, the Model Law has been incorporated by Bhutan and Malaysia. In Africa, UNCITRAL considers that the legislation of Cameroon and Equatorial Guinea. But, without a doubt, as will be seen below, the main influence of the UNCITRAL model law has materialized in the OHADA (French acronym for the Organization for the Harmonization of Business Law in Africa). By grouping this organization to 17 African States, has had an expansive effect of the UNCITRAL Model Law. Neither New Zealand neither Australia appear as States that have followed in the wake of the UNCITRAL Model Law.
2. Regulatory development by UNCITRAL: the Rules, Notes and the Singapore Convention
Along with the Model Law, in 2021, UNCITRAL has published some Notes on mediation, whose purpose is “to help the parties better understand mediation.” They do not, therefore, impose any binding legal obligation nor lend themselves to being used as mediation regulations, nor do they promote a specific style, practice or method of mediation. However, apart from this pedagogical purpose, basically the Notes have a minimum harmonizing function, so that they can become an international minimum standard on the concept and operation of mediation.
In fact, UNCITRAL does want them to “be used in a general and universal manner,” so that the parties and the mediator can use them, “to the extent they deem appropriate.” This nature has a double consequence.
- Positive, the Notes can be used if it is deemed appropriate without the need to adopt any specific “element”, although it seems necessary that the parties not object.
- Negatives, if the parties and the mediator are not interested in them, they do not have to justify their omission. This approach justifies that UNCITRAL refers to “Notes” and not to “minimum principles”, which could have a greater burden for the mediator to take into consideration.
A step further is the possibility for the parties to submit to the UNCITRAL Mediation Rules which have been worked on since 2021 and which update the old Conciliation Rules that had been approved on July 23, 1980. This text already includes a model clause for submission to mediation and an article available to the parties and the mediator on the initiation, development and conclusion of the conciliation, as well as confidentiality rules.
Along with the path of soft law not directly binding, UNCITRAL has offered the international community a new path through the hard law, that is, through a binding legal instrument: the United Nations Convention on International Settlement Agreements Resulting from Mediation, approved on December 20, 2018 and opened for signature on August 7, 2019 in Singapore. Although it has many provisions in common with the Model Law, it is an international treaty in the strict sense that deals with the recognition and execution of agreements resulting from international mediation and, therefore, binds the States that have ratified it.
