An Assignment on UNCITRAL, Optional Rules & degree of Persuasiveness


The United Nations is an international organization that was founded in 1945 after World War II with the goal or promoting world peace and helping to facilitate the implementation of international law and economic and social development. The United Nations has a number of committees and commissions within the organization that work on specialized issues, such as the United Nations Commission on International Trade Law, or UNCITRAL. Formed in 1996, the purpose of UNCITRAL is to “promote the progressive harmonization and unification of international trade law.”

With the rapid advancement in technology that followed the World War II, international trade began to increase and the need for an international body to help both promote and regulate it became apparent. As of 2002, UNCITRAL membership included representatives of 60 nations. Because nations around the world have varying levels of advancement as well as diverse legal systems and traditions, membership is intended to be a representative collection of nations. Representatives are elected to a six-year term, with terms staggered so that approximately half the memberships expire every three years.


United Nations Commission on International Trade Law. Also called UNCITRAL. An organization under the United Nations that was established to promote international trade by standardizing regulations to promote predictability in trade. Among other activities, UNCITRAL prepares model laws for member states to implement and coordinates with other bodies that work in the same field. It was established in 1966.

A commission established in 1966 that is sponsored by the United Nations. The commission is responsible for the 1985 Model Law on International Commercial Arbitration. Members meet in Austria and the United States and work to unite different nations by developing standards for international trade law.


Scholars Terry Halliday and Bruce Carruthers identify three organizational strategies used by UNCITRAL to formulate global insolvency law: micropolitical, procedural and formal strategies.

Micropolitical Strategie:

How is influence used within specific lawmaking forums? In UNCITRAL, no party was allowed to overtly “bully” other parties. Consensus was a key strategy to balance the interests of the various parties.

In the process of formulating its insolvency guide, UNCITRAL used the following micropolitical strategies:

  • While general objectives were reached by consensus, the guide incorporated alternatives for putting the objectives into practice
  • When the guide expressed preferences among alternatives, it did not tell which legal tradition served as the basis for that preference,
  • Actors from both public and private organizations were included in the consensus-building process,

Procedural Strategies:

The key procedural strategy was to make the guide creation process as fair. That is, all actors had a voice, clear rules governed proceedings and rules were fairly applied. Fairness was evident in the Working Group’s agenda-setting, participation and decision making.


Because the ability to determine the agenda is a prime source for exercising power within the negotiation session, UNCITRAL was careful to manage the agenda-setting process.[1] This meeting also recognized prior initiatives of parties and functioned to allow a range of parties to have input on what the content of the Working Group meetings would be.


UNCITRAL encouraged Work Groups to select chairs or “rapporteurs” from developing countries, which ensured a strong voice for weaker actors.

Work Group procedures were structured to promote neutrality and participation. For instance,

  • Any delegate or observer was free to speak in open session,
  • Delegates who raised a delegation flag were called upon to speak in the order in which they raised their flags,
  • All delegates with raised flags were heard from before the chairman called again on a delegate to speak a second or third time.

Making Decisions:

Decision-making rules can either undermine or reinforce the legitimacy of the process and the final product. UNCITRAL facilitated a fair decision-making process in several ways.

  • The Work Group adopted provisions by consensus rather than by formal vote. This prevented the image of dissension, which could weaken the final product.
  • Where disagreement occurred, debate continued. If full consensus was not reached, the chair, based on the discussion, declared a “prevailing view.” Since the chair was from a developing country or a country not aligned with any particular legal tradition, the identification of the prevailing view was not challenged.

Formal Strategies:

The process of consensus-building was also strengthened by using two formal strategies: manipulating the lawmaking technologies and creating a variety of resources to implement the guide.

Manipulating Legal Tools:

UNCITRAL was also able to avert threats of capture, stalemate and vacuous provisions by using a range of legal tools. The variation in these tools provided flexibility that enhanced harmonization.

Legal Tools:

Convention in the form of a multilateral treaty. This formal agreement prevented countries from altering the product to suit their own domestic situation. This tool applied only to conventions where agreement was possible across wide national variation.

Model laws provided more flexibility in application than conventions. Countries could modify or exclude certain provisions, but were encouraged to apply the model laws in their entirety. [2]

Different Types of Resources

The structure of the Legislative Guide on Insolvency Law provides an example of UNCTRAL’s ability to deal with substantive and institutional extremes[3].

Glossary. The glossary, located just after the Introduction in the Legislative Guide, minimizes disagreements over legal concepts and terms. [4] Commentary. The commentary identified the issue involved. It sometimes specified principles that justified other principles. It provided alternative ways for the countries to address the issue. It discusses both benefits and deficiencies of alternatives. It usually identified a preference among alternatives. All of these helped to increase the Guide’s legitimacy.

Recommendations: Recommendations are included at the end of each substantive section of the commentary and prefaced with a set of “purposes.”[5] Imperative recommendations. Specific types of action where content is expressly stated.

    1. Constraining recommendations. Often pointing in a direction and then offering choice (and so less constraining than imperative recommendations).
    2. Focusing recommendations. Recommend that there should be a rule on a topic without specifying its content, thereby focusing the law.
    3. Policy recommendations. Identify and affirm substantive commercial law norms.

UNCITRAL Model Law on Electronic Commerce

This Law** applies to any kind of information in the form of a data message used in the context*** of commercial**** activities.

* The Commission suggests the following text for States that might wish to limit the applicability of this Law to international data messages: This Law applies to a data message as defined in paragraph (1) of article 2 where the data message relates to international commerce.

** This Law does not override any rule of law intended for the protection of consumers.

*** The Commission suggests the following text for States that might wish to extend the applicability of this Law: This Law applies to any kind of information in the form of a data message, except in the following situations: […].

**** The term “commercial” should be given a wide interpretation so as to cover matters arising from all relationships of a commercial nature, whether contractual or not. Relationships of a commercial nature include, but are not limited to, the following transactions: any trade transaction for the supply or exchange of goods or services; distribution agreement; commercial representation or agency; factoring; leasing; construction of works; consulting; engineering; licensing; investment; financing; banking; insurance; exploitation agreement or concession;[6]

Article 2. Definitions

For the purposes of this Law:

(a) “Data message” means information generated, sent, received or stored by electronic, optical or similar means including, but not limited to, electronic data interchange (EDI), electronic mail, telegram, telex or telecopy;

(b) “Electronic data interchange (EDI)” means the electronic transfer from computer to computer of information using an agreed standard to structure the information;

c) “Originator” of a data message means a person by whom, or on whose behalf, the data message purports to have been sent or generated prior to storage, if any, but it does not include a person acting as an intermediary with respect to that data message;

Article 3. Interpretation

(1) In the interpretation of this Law, regard is to be had to its international origin and to the need to promote uniformity in its application and the observance of good faith.

(2) Questions concerning matters governed by this Law which are not expressly settled in it are to be settled in conformity with the general principles on which this Law is based.

Article 4. Variation by agreement

(1) As between parties involved in generating, sending, receiving, storing or otherwise processing data messages, and except as otherwise provided, the provisions of chapter III may be varied by agreement.

(2) Paragraph (1) does not affect any right that may exist to modify by agreement any rule of law referred to in chapter II.

Article 5. Legal recognition of data messages

Information shall not be denied legal effect, validity or enforceability solely on the grounds that it is in the form of a data message.

Article 6. Writing

(1) Where the law requires information to be in writing, that requirement is met by a data message if the information contained therein is accessible so as to be usable for subsequent reference.

(2) Paragraph (1) applies whether the requirement therein is in the form of an obligation or whether the law simply provides consequences for the information not being in writing.

(3) The provisions of this article do not apply to the following: […].

Article 7. Signature

(1) Where the law requires a signature of a person, that requirement is met in relation to a data message if:

(a) a method is used to identify that person and to indicate that person’s approval of the information contained in the data message; and

(b) that method is as reliable as was appropriate for the purpose for which the data message was generated or communicated, in the light of all the circumstances, including any relevant agreement.

(2) Paragraph (1) applies whether the requirement therein is in the form of an obligation or whether the law simply provides consequences for the absence of a signature.

(3) The provisions of this article do not apply to the following: […].

Article 8. Original

(1) Where the law requires information to be presented or retained in its original form, that requirement is met by a data message if:

(a) there exists a reliable assurance as to the integrity of the information from the time when it was first generated in its final form, as a data message or otherwise; and

(b) where it is required that information be presented, that information is capable of being displayed to the person to whom it is to be presented.

(2) Paragraph (1) applies whether the requirement therein is in the form of an obligation or whether the law simply provides consequences for the information not being presented or retained in its original form.

Article 9. Admissibility and evidential weight of data messages

(1) In any legal proceedings, nothing in the application of the rules of evidence shall apply so as to deny the admissibility of a data message in evidence:

(a) on the sole ground that it is a data message; or,

(b) if it is the best evidence that the person adducing it could reasonably be expected to obtain, on the grounds that it is not in its original form.

Article 10. Retention of data messages

(1) Where the law requires that certain documents, records or information be retained, that requirement is met by retaining data messages, provided that the following conditions are satisfied:

(a) the information contained therein is accessible so as to be usable for subsequent reference; and

(b) the data message is retained in the format in which it was generated, sent or received, or in a format which can be demonstrated to represent accurately the information generated, sent or received; and

(c) such information, if any, is retained as enables the identification of the origin and destination of a data message and the date and time when it was sent or received.

Article 11. Formation and validity of contracts (1) In the context of contract formation, unless otherwise agreed by the parties, an offer and the acceptance of an offer may be expressed by means of data messages. [7] (2) The provisions of this article do not apply.

Article 12. Recognition by parties of data messages

(1) As between the originator and the addressee of a data message, a declaration of will or other statement shall not be denied legal effect, validity or enforceability solely on the grounds that it is in the form of a data message.

(2) The provisions of this article do not apply to the following: […].

Article 13. Attribution of data messages

(1) A data message is that of the originator if it was sent by the originator itself.

(2) As between the originator and the addressee, a data message is deemed to be that of the originator if it was sent:

(a) by a person who had the authority to act on behalf of the originator in respect of that data message;

(3) As between the originator and the addressee, an addressee is entitled to regard a data message as being that of the originator, and to act on that assumption, if:

(a) in order to ascertain whether the data message was that of the originator, the addressee properly applied a procedure previously agreed to by the originator for that purpose; or

(b) the data message as received by the addressee resulted from the actions of a person whose relationship with the originator or with any agent of the originator enabled that person to gain access to a method used by the originator to identify data messages as its own.

Article 14. Acknowledgement of receipt

(1) Paragraphs (2) to (4) of this article apply where, on or before sending a data message, or by means of that data message, the originator has requested or has agreed with the addressee that receipt of the data message be acknowledged.

(2) Where the originator has not agreed with the addressee that the acknowledgement be given in a particular form or by a particular method, an acknowledgement may be given by

(a) any communication by the addressee, automated or otherwise, or

(b) any conduct of the addressee, sufficient to indicate to the originator that the data message has been received.

(3) Where the originator has stated that the data message is conditional on receipt of the acknowledgement, the data message is treated as though it has never been sent, until the acknowledgement is received.

Article 15. Time and place of dispatch and receipt of data messages

(1) Unless otherwise agreed between the originator and the addressee, the dispatch of a data message occurs when it enters an information system outside the control of the originator or of the person who sent the data message on behalf of the originator.

(2) Unless otherwise agreed between the originator and the addressee, the time of receipt of a data message is determined as follows:

(a) if the addressee has designated an information system for the purpose of receiving data messages, receipt occurs:

(i) at the time when the data message enters the designated information system; or

(ii) if the data message is sent to an information system of the addressee that is not the designated information system,[8];

(b) if the addressee has not designated an information system, receipt occurs when the data message enters an information system of the addressee.

Article 16. Actions related to contracts of carriage of goods

Without derogating from the provisions of part I of this Law, this chapter applies to any action in connection with, or in pursuance of, a contract of carriage of goods, including but not limited to:

(a) (i) furnishing the marks, number, quantity or weight of goods;

(ii) stating or declaring the nature or value of goods;

(iii)issuing a receipt for goods;

(iv) confirming that goods have been loaded;

(b) (i) notifying a person of terms and conditions of the contract;

(ii) giving instructions to a carrier;

Article 17. Transport documents

(1) Subject to paragraph (3), where the law requires that any action referred to in article 16 be carried out in writing or by using a paper document, that requirement is met if the action is carried out by using one or more data messages.

(2) Paragraph (1) applies whether the requirement therein is in the form of an obligation or whether the law simply provides consequences for failing either to carry out the action in writing or to use a paper document.

(3) If a right is to be granted to, or an obligation is to be acquired by, one person and no other person, and if the law requires that, in order to effect this, the right or obligation must be conveyed to that person by the transfer, or use of, a paper document, that requirement is met if the right or obligation is conveyed by using one or more data messages, provided that a reliable method is used to render such data message or messages unique.

(4) For the purposes of paragraph (3), the standard of reliability required shall be assessed in the light of the purpose for which the right or obligation was conveyed and in the light of all the circumstances, including any relevant agreement.


Optional Work Rules to Consider

While the rules that govern each employee’s conduct must reflect the kind of work your business does and the conditions under which it is performed, [9] You may choose to have a simple set of work rules made up of a list of generally accepted and prohibited conduct.

However, if you want a specific rule or more detailed work rules and policies, you can choose from the list of policies below:

House Rules:

The rules of any given tabletop game do not have to be limited to what is listed in the rulebook.

The rules of Monopoly are good and fun. But really, the auction rules are lame, Free Parking needs something to make it more exciting, and shouldn’t you be able to travel on railroads you own?

Welcome to House Rules. Any rule that players add to or change in a standardized game is a house rule, named after the varying rules used in casinos (where you bet against “the house”). House Rules are, in a way, the Fan Fiction of Board Games and Tabletop RPGs.

The Game Master can inflict his House Rules on the gaming group whether they want him to or not. This is, of course, a recipe for social disaster, as opposite as rules coming from consensus of the group. However, attempting to impose your rules on the rest of the world may get you labeled as a Scrub or as the Stop Having Fun Guy, depending on the tone you use.


understands that these “divergencies” constitute only one “obstacle to the development of world trade,” and perhaps a relatively unimportant obstacle at that.

By embracing “modernization,” UNCITRAL looks to tackle obstacles that go beyond divergencies among national laws. It has taken on the charge of law reform writ large.

In order to execute its expanded shift in mission, UNCITRAL found it necessary to invent new legal technologies. Table 1 demonstrates that UNCITRAL has employed, not only conventions, model laws and model legal provisions, but also recommendations, guides to enactment, legal guides and legislative guides. We have shown that the Legislative Guide on Insolvency[10] . skillfully crafted set of norms that enabled UNCITRAL concomitantly to push towards an overarching global norm—the value of corporate reorganization as a complement to corporate.

liquidation—while allowing significant flexibility for national lawmakers to modernize their own laws in ways appropriately adapted to variations in legal families, economic circumstances, and policy preferences, among others. As a result, this explicitly modernizing Legislative Guide also aspires to some measure of harmonization, thus, enabling UNCITRAL to lean towards the current primacy it accords modernization without losing touch with its original mandate.

Degree of persuasiveness

Since its inception in 1966 n1, the UNCITRAL was a code name for the unification ad harmonization of international trade law. This Vienna-based commission of the United Nations has swiftly developed into the core agency of the UN legal services. Some of the UNCITRAL projects have in the meantime became history:

 Other projects also had widespread success: the Hamburg Rules n3; a series of documents on bak guarantees, construction contracts, public procurement, electronic commerce, credit transfers and countertrade transactions as well as the recent initiatives on the unification of international bankruptcy rules may all be added to the actions that have raised the significant attention of the international legal and business community and have defined (or are just about to define) standard behavior in international trade.
However, if any of the many areas in which UNCITRAL was active may said to be characteristic and typical for this organization, it would with no doubt be arbitration. External spectators may legitimately have the impression that other initiatives come and go–only one is constant, and that is the lasting focus on the development of the arbitral mechanisms of settlement of international commercial dispute.
High Degree of Persuasiveness

Persuasion is needed more on the inside than the outside, because an external consultant is often already paid and has great leverage in threatening to walk away. But internal people can only walk to their offices, so persuasion is a better weapon than threat.

The key to consulting persuasiveness is to demonstrate that the changes you seek are in the other person’s self-interest. No stakeholder is going to be too keen on change unless you can show that he or she will be demonstrably better off. That ability—to persuade and not demand— is the difference between commitment and compliance.

The secret of persuasiveness: Think from the outside in and determine ahead of time what self-interests you can best appeal to in order to create behavior change. (Hint: Ego is very powerful, but on the other person’s part, not yours.)

When Decisions Are Persuasive

  A court’s decision can be used as persuasive authority in any state or federal courts that do not need to consider it mandatory. It is important to remember, however, that the degree of persuasiveness will vary, dependent on a wide range of considerations. For example, as a practical matter, the interpretations of federal laws by the federal courts of appeals and district courts might as well be mandatory on the state courts within the same jurisdictions, in situations where the state courts are interpreting federal law. That is, if a state court is hearing a case in which a federal claim is a part of a larger state claim, the state court will generally consider itself.


UNCITRAL’s adoption of the label may be viewed as the appropriation of claims made by powerful nations and institutions that they stand at the vanguard of development and, indeed, have the responsibility or even the right to make those claims pervasive throughout the “unmodern” world. This symbolic alignment of UNCITRAL with economic and political power thereby earns it an increased capacity to set global agendas and to earn the respect of global actors for the “modern” norms it produces.

The very ambiguity in the term “modern” may also serve a useful pragmatic function. We have argued that UNCITRAL has long recognized the improbability of far-reaching unification of laws, particularly in contentious policy areas. If widely relied upon, the Legislative Guide on Insolvency is also likely to be harmonizing at least in its convergence on reorganization as a policy goal. Beyond this, the vagueness of “modernization” as a goal allows global convergences around a set of variations on the global theme such that “modern” insolvency systems might variously approximate those of the United States, Great Britain, Australia, Germany, or France, among others—all nations indisputably modern by their own claims and yet with perceptibly different choices on the options presented by the Legislative Guide.

Bibliography (follow “2102 (XX)” hyperlink).

UNCITRAL, Security Interests, supra note 65, paras. 46-62. The “frequently asked questions” section of the website (follow “A/RES/58/75” hyperlink).

G.A. Res. 58/75, U.N. GAOR, 58th Sess., Supp. No. 17, U.N. Doc. A/RES/58/75 (Dec. 9, 2003), (

[1] the meetings of the Working Group, UNCITRAL held a feasibility meeting in which multiple parties provided input on what couldbe accomplished rather than what would be ideal. Intractable issues were excluded from the agenda.

1See, Jones, ‘The Governance and accountability of policing’ in T. Newburn, Handbook of Policing, P-210

[2]Recently, model laws have been accompanied by guides for enactment that provide help for national legislators to make informed decisions when applying the law.

See, Stenning, Accountability for Criminal Justice: Selected Essays, P-56

[3] Legislative Guide on Insolvency Law provides an example of UNCTRAL’s ability to deal with substantive and institutional extremes.

[4] The Work Group developed their own terms in order to avoid using the language of any particular legal tradition.

[5] These purposes vary in length and provide information on the intended reach of the recommendation. There are different types of recommendations.

See, Smith (2004) ‘Police Complaints and Criminal Prosecutions’, 64 Modern Law Review 3, P- 472.

[6] joint venture and other forms of industrial or business cooperation; carriage of goods or passengers by air, sea, rail or road.

[7] Where a data message is used in the formation of a contract, that contract shall not be denied validity or enforceability on the sole ground that a data message was used for that purpose.

19 See, Tetlock, ‘Accountability in Social Systems: A Psychological Perspective’ in P. Stenning (ed.) Accountability for Criminal Justice: Selected Essays, P-123

[8] At the time when the data message is retrieved by the addressee.

[9] there are some basic rules that you’ll see over and over again if you ask businesses about their work rules and policies.

[10] Law is a skillfully crafted set of norms that enabled UNCITRAL concomitantly to push towards an overarching global norm—the value of corporate reorganization as a complement to corporate.