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ENQUIRE PROJECT DETAILS BY GENERAL PUBLIC |
| Project Details |
| Funding Scheme : | General Research Fund | ||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Project Number : | 17604318 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Project Title(English) : | Soft Law from the Ground Up: The Role of the UNCITRAL Regional Centre for Asia and the Pacific in the Formation of Transnational Dispute Settlement Norms | ||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Project Title(Chinese) : | 從零開始的軟性法律：貿易法委員會亞洲及太平洋區域中心在製定跨國爭端解決規範的角色 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Principal Investigator(English) : | Prof Ali, Shahla | ||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Principal Investigator(Chinese) : | |||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Department : | Faculty of Law | ||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Institution : | The University of Hong Kong | ||||||||||||||||||||||||||||||||||||||||||||||||||||||
| E-mail Address : | sali@hku.hk | ||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Tel : | 28592926 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Co - Investigator(s) : |
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| Panel : | Humanities, Social Sciences | ||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Subject Area : | Social and Behavioural Sciences | ||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Exercise Year : | 2018 / 19 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Fund Approved : | 688,080 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Project Status : | Completed | ||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Completion Date : | 31-8-2021 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Project Objectives : |
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| Abstract as per original application (English/Chinese): |
In recent years, a rich body of work examining how ‘legal norms are developed, conveyed and settled transnationally’ has emerged, ‘integrating both bottom-up and top-down analyses’ (Halliday & Shaffer, 2015). This growing body of work on ‘transnational legal ordering’ (Halliday, 2015) is significant given the increasing involvement of public and private actors in the creation of legal norms beyond the nation state (Twining, 2000; Zumbansen, 2010; Tamanaha, 2000; Halliday & Shaffer, 2015). At the same time, it has been recognised that participation in global norm-making has not, in many cases, been representative of the diversity of global actors, with historically limited representation by non-western states. The aim of the proposed research project is to address this gap by systematically analysing the role of the United Nations Commission on International Trade Law Regional Centre for Asia and the Pacific (UNCITRAL RCAP), established in 2012, in coordinating with private and public sector institutions in East Asia in the development, interpretation and application of global cross-border dispute settlement guidelines. Since the mid-1950s, UNCITRAL has engaged in a process of global model law drafting, including most recently its revised Model Law on International Commercial Arbitration and Rules on Transparency in Treaty-based Investor-State Arbitration. While such guidelines provide for regional adaptation, the extent to which they reflect expanded representation in global law-making at both the vertical (between global institutions and individual citizens) and horizontal (between states and international organisations) levels requires further examination. Drawing on a mixed empirical methodology, this study will seek to distil positive lessons from UNCITRAL RCAP's efforts at ‘decentralized transnational law engagement’, elucidate regional dynamics, and glean best practices in the form of law and policy recommendations. 近年出現了一系列豐富的研究，研究「如何跨國發展、傳達和建立法律規範」，並「整合自下而上和自上而下的分析」(Halliday & Shaffer, 2015)。由於公共和私人人士在製定跨越國家之法律規範中的參與日益增加(Twining, 2000; Zumbansen, 2010; Tamanaha, 2000; Halliday & Shaffer, 2015)，此類越來越多的「跨國法律秩序」 (Halliday, 2015)研究意義重大 。與此同時，我們意識到在許多情況下，制定全球準則的參與過程並不代表全球的多樣性，如歷年非西方國家的代表性有限。建議研究項目的目的是通過系統分析於2012年成立的聯合國國際貿易法委員會亞洲及太平洋區域中心(UNCITRAL RCAP)在協調東亞私營和公共部門機構製定、解釋和應用解決全球跨境爭端指南的角色。自20世紀50年代中期以來，貿易法委員會參與了全球法律範本的起草，其中包括最近修訂的“國際商事仲裁示範法”和“投資人與國家間基於條約仲裁透明度規則”。雖然這些指南容許區域適應微調，但越來越多的研究工作正在倡議在縱向（全球機構和個別公民之間）和橫向（國家和國際組織之間）兩個層面擴大全球立法的代表性（Alvarez，2007），以通過更有效的參與（Alvarez，2007）、外來保證（Halliday和Carruthers，2007）、區域適應微調（Ali，2010）和跨界別代表（Wheatley，2010）加強合法性。為了回應這種倡議，本研究將尋求從“分散的跨國法律參與”中汲取正面教訓，闡明區域動態，並以法律和政策建議的形式得出最佳做法。 |
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| Realisation of objectives: | Each of the research objectives of this project has been achieved. They will be discussed in detail below: I. First Objective: To analyze contributions from Asia Pacific members, alongside other members of the global community, in the development and refinement of UNCITRAL dispute settlement instruments including its Model Law on international arbitration and transparency rules based on regional case interpretation and practice insights. The chief culminating output of the project, Forming Transnational Dispute Settlement Norms: Soft Law and the Role of UNCITRAL's Regional Centre for Asia and the Pacific (Edward Elgar, 2021) provides in depth analysis, through survey data, case studies and UNCITRAL working group participation records, of the contributions of Asia Pacific states in the development and refinement of UNCITRAL dispute settlement instruments. According to one reviewer, Professor Kevin E. Davis of NYU School of Law, “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." In reference to the work, Professor Simon Chesterman of NUS Law notes that "International law poses a dilemma for emerging markets. Politically, former colonies rightly expect more of a say in its content; economically, stability and consistency may be more conducive to development. This illuminating new book describes decentralised transnational legal ordering as one outcome of this tension, tracking the activities of UNCITRAL’s Regional Centre for Asia and the Pacific and the manner in which it has enhanced the legitimacy — and, perhaps, the effectiveness — of global norm-making." Professor Hiroshi Fukurai observes that the research provides "vital alternatives to the hegemonic narrative of International arbitration and mediation. Not only a “must-read,” but of urgent relevance to democratic resolutions of disputes in Asia and across the globe." II. Second Objective: To examine whether, and if so how, decentralised engagement in soft law-making through UNCITRAL RCAP is helping to overcome the vertical and horizontal representational deficits in the global soft law-making process. The second objective is addressed in the Edward Elgar publication. According to another reviewer, Anselmo Reyes of the Singapore International Commercial Court, the book "considers the importance of soft law in developing transnational commercial legal norms... and examines how Asia Pacific states have shaped and are being shaped by those norms. The book achieves its objectives through empirical and theoretical analyses and concludes by reflecting on the balance to be struck between centralised and regional approaches to globalisation." III. Third Objective: To test the proposition that the presence of regional centres has the potential to expand participation in global soft law-making processes. The second and third part of the book respectively address whether and to what extent regional centres expand participation in global soft-law making. Part II of the book presents RCAP case studies by examining Asia Pacific state participation through tracking oral contributions made during UNCITRAL Working Group meetings focused on the development of the: Singapore Convention on International Settlement Agreements Resulting from Mediation (Ch. 5); UNCITRAL Working Group III deliberations on investor–state arbitration reform (Ch. 6); Transparency rules (Ch. 7); Online dispute resolution (Ch. 8); the UNCITRAL Model Law on International Commercial Arbitration (Ch. 9) and Conciliation Rules (Ch. 10). Part III of the book presents further empirical findings from survey data of Asia Pacific dispute resolution practitioners regarding the contribution of the RCAP in extending regional representation. João Ribeiro-Bidaoui, First Secretary at the Permanent Bureau of the Hague Conference on Private International Law (HCCH); Head of the UNCITRAL Regional Centre for Asia and the Pacific (2013-2018) notes that: “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.” Professor Kevin E. Davis of NYU Law adds that "it is impossible to ignore this evidence of decentralized transnational legal ordering and how it might be fostered by regional institutions.” IV. Fourth Objective: To suggest revisions to UNCITRAL’s assessment indicators measuring regional engagement to reflect emerging insights regarding best practices in decentralised engagement. The fourth chapter of the book considers "Indicators of representation in global governance: assessing regional engagement, representation and diversity through UNCITRAL RCAP" (Ch. 4) and suggests revisions and recommendations for the design of a new set of indicators to track regional participation. V. Fifth Objective: To contribute to the ongoing theoretical discussion on the role of regional actors, including courts and arbitral institutions, in transnational norm formation. The final two chapters, "Extending soft law representation through regional centres:empirical analysis (Ch. 11) and "Conclusions" (Ch. 12) address the role of regional actors including courts and arbitral institutions in transnational norm formation. International arbitration practitioners have noted the value of the work. Professor William W. Park of Boston University and a practicing international arbitrator notes that the study is an "impressive work on a vital subject," and Anselmo Reyes of the Singapore International Commercial Court notes that, "at a time when many Asia-Pacific jurisdictions are seeking to transform themselves into international commercial dispute resolution hubs for the post-COVID-19 era, [the book] deserves a wide readership." Scholarly contribution: The The project resulted in 1 book (ranked A by RQF), 1 edited volume, 7 journal articles/book chapters and 17 conference contributions. Under-Expenditure of Budget/COVID-19: Given the outbreak of COVID-19 two thirds of the way through the project time line, data collection, research and conference participation was conducted virtually, where possible, in order to achieve the research objectives in light of public health guidelines. This accounts for the overall project cost savings. | ||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Summary of objectives addressed: |
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| Research Outcome | |||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Major findings and research outcome: | The study’s key findings, drawing on in-depth case studies, a survey and quantitative analysis of UNCITRAL working group participation logs suggest that regional centers, such as the UNCITRAL Regional Centre for the Asia-Pacific while still in their infancy, have corresponded with the emergence of a new form of “decentralized transnational legal ordering” associated with growing regional engagement and participation in global soft law design. This is evidenced by a 63% increase in the frequency of Asia-Pacific regional input in WG II meetings, an 8% increase in official Asia-Pacific representation in the WG II, a 6.2% increase in the number of observers from the Asia-Pacific region, and an average increase of 32% in perceived levels of engagement and participation amongst regional stakeholders over a 7 year period. Specifically, survey respondents reported an increase of 34% in the ‘presence of mechanisms allowing a wide range of voices to be heard,’ an increase of 35% in ‘pro-active engagement with relevant stakeholders,’ an increase of 25% in perceived ‘participation of delegations in the sessions of Working Group II’, and a 34% increase in ‘understanding of UNCITRAL instruments amongst diverse stakeholders for enactment of legislation based on the Model Law’ since the establishment of the RCAP in 2012. For each of UNCITRAL’s dispute resolution instruments, following the opening of the Regional Centre, increased adoption trends in the Region are also evident. This has included an increase of 100% in adoption of the Conciliation Rules and an increase of 38% in adoption of the Model Law. To date, 21 regions in the Asia-Pacific are amongst a total of 53 states on a global level to have adopted the Singapore Convention on International Settlement Agreements Resulting from Mediation. The study finds that the direction of decentralized transnational engagement is mutual – it moves both from the global to the regional and vice versa. In addition to regional adaptation of UNCITRAL text, nearly a quarter of respondents, or 24% believed that unique approaches to the interpretation and implementation of the UNCITRAL model instruments in the Asia-Pacific have informed UNCITRAL developments in other regions and globally. | ||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Potential for further development of the research and the proposed course of action: |
There is a strong potential for further development of the research. In particular, much remains to be examined regarding prospects for the further development and expansion of regional centres and the nature and dynamics of 'decentralised transnational legal ordering.' Specifically, given the backdrop of historically uneven representation in global institutions, efforts to expand engagement and inclusivity in global law making aims to strengthen legitimacy through more inclusive representation and regional adaptation. The substantive findings of this book provide useful insights supporting the expansion of regional centres in areas with historically limited representation in global law making including from within Africa, the Middle East and South America. From a methodological perspective, the study contributes to the development of a new approach to tracking the frequency of participation in global soft law making bodies through coding Working Group participation records. Future studies by a growing number of researchers will no doubt advance insights into the application of this new set of indicators by tracking the dynamics of diversity, participation and voice in global governance institutions. | ||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Layman's Summary of Completion Report: | This study examines whether regional centres associated with global legal institutions facilitate expanded citizen engagement in global soft law making. It carries out a novel analysis of the influence of regional centres on overcoming representational deficits in the design of global cross-border dispute settlement norms. It does this by comparing the impact of two forms of engagement in the Asia-Pacific region, traditional ‘centralised’ engagement, and a ‘decentralised’ form, on the soft law-making process over a 10 year period. Through an analysis of empirical research into the role of decentralized soft law making in the East Asian region, the project investigates the influence of such regional centres in overcoming representational deficits. Analysis of survey data, case studies and UNCITRAL participation records, provide a comprehensive view of the contributions of Asia Pacific states in the development and refinement of UNCITRAL dispute settlement instruments. The formation of a regional centre of UNCITRAL in the Asia Pacific has corresponded with the emergence of a new form of decentralized transnational legal ordering, advancing representation and legal innovation at both regional and global levels. The study concludes that these findings support the expansion of regional centres in areas with historically limited representation in global law making. | ||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Research Output | |||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Peer-reviewed journal publication(s) arising directly from this research project : (* denotes the corresponding author) |
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| Recognized international conference(s) in which paper(s) related to this research project was/were delivered : |
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| Other impact (e.g. award of patents or prizes, collaboration with other research institutions, technology transfer, etc.): |
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| SCREEN ID: SCRRM00542 |