By Dr Dalma Demeter, UNCCA Fellow, Assistant Professor of Law, University of Canberra
Commission deliberations on future work in dispute resolution for Working Group II and related Rule of Law Panel discussions in relation to dispute resolution.
In July 2016, I attended some of the meetings of the UNCITRAL Commission’s 49th Session meeting in New York, as part of my visiting researcher status at UNCITRAL.
The most notable discussions observed concerned the UNCITRAL Secretariat’s possible future works in dispute resolution, including a proposal made by the Swiss Arbitration Association on a project developing an online “Arbitration Toolbox” (full proposal is available in the Secretariat’s Note A/CN.9/893). The Commission has also heard proposals on future work on concurrent proceedings in international arbitration (A/CN.9/881), on ethics in international arbitration (A/CN.9/880), and on possible reforms in investor-state arbitration (A/CN.9/890, and a CIDS research paper, all available among the documents of the 49th session.
Unofficial remarks at these meetings were made by some delegates that – not unlike many other countries – Australia is not frequently enough represented at the Commission meetings. Low participation is, apparently, a common issue, likely caused by financial restrains combined with the procedural inefficiency of the Commission’s work. The latter was raised as a self-standing issue in this session, with concrete recommendations for improvement made by the Swiss delegate.
On July 13, I also participated in the Rule of Law panel discussions regarding practical measures to facilitate access to justice in the commercial law context, in particular by micro-, small- and medium-sized enterprises (MSMEs). I presented an initiative on improving access to justice through supporting personalized dispute resolution mechanisms, enabled by early dispute profiling. The presentation was focusing on how the differences in background and environment in which MSMEs operate, and accordingly the differences in the disputes they face, pose a challenge to finding a uniform solution, and the particular reasons why none of the existing dispute resolution avenues can function as a one-size-fits-all solution.
In my paper, I recommended an alternative solution incorporating, rather than disregarding differences, through developing a complex dispute profiling tool to assess each unique combination of characteristics, perceptions and expectations, and match them against available and accessible dispute resolution mechanisms in an individualized recommendation. Early case assessment is used in some disputes, but commonly limited to legal and commercial risk analysis; the new initiative having the novelty of expanding early assessment to include socio-cultural and, if relevant, even religious characteristics, that have significant impact on procedural efficiency in cross-cultural disputes.
The benefits of such complex dispute profiling tool would consist in reducing procedural and enforcement disputes, while promoting the benefit of choice and procedural flexibility, and reduce the tendency to overregulate ADR methods for the sake of security and predictability. For MSMEs in particular, the tool would be of assistance whenever there is an imbalance of power, or legal or cultural differences between the parties involved, enabling MSMEs to make an educated choice for a dispute resolution process that suits their situation better.
The proposal calling for collaboration in order to develop the tool through a multi-disciplinary large-scale project has been invited to be presented at the upcoming 2017 UNCITRAL Congress. In the interim, a short project proposal can be downloaded here. Any individual researcher, research or funding organization, or dispute resolution stakeholder entity interested in the project is welcome to contact me for more information at firstname.lastname@example.org