Annex 4 Standard clauses for exploration contract

The written contract documents contained the clauses terms as per The European Contract for Spot Coffee (hereinafter ECC) and Arbitration Hamburg .

Article 17 If there are any exclusion clauses imposed by the insurer in the insurance contract, then the insurer shall give specific and clear explanations thereof to the applicant when concluding the insurance contract, otherwise such clauses shall not be enforceable.

It prescribes different procedures, offers procuring entities alternative techniques and sets recommended and mandatory contract clauses and attached forms.

The contrary view was expressed, that exclusive jurisdiction clauses should never apply to third parties, since they were not parties to the contract.

Article 30 If there is any dispute over the interpretation of clauses in an insurance contract between the insurer and the applicant, the insured or the beneficiary, then the People's Courts or arbitration organizations shall interpret such disputed clauses in favor of the insured and the beneficiary.

A smaller number of delegations expressed the strongly held view that the draft instrument should not allow parties to a contract of carriage to agree to exclusive jurisdiction clauses.

Nor did it substantially consider the publication of information on procurement contract awards (article 14 of the Model Law).

Final clauses

Safeguard clauses

Final clauses

The requirement on the publication of a notice on contract awards was included in the Model Law only in 1994.

Additional concerns were expressed regarding how a derogation that bound a third party to a volume contract might affect that party's rights with respect to choice of forum in jurisdiction or arbitration clauses.

Automatic termination clauses

Issue 4 Exclusive jurisdiction clauses

It would then be appropriate to use the Model Law's usual procedure in article 36 for dealing with cases in which the apparent winner does not conclude the contract that is, awarding the contract to the second best bidder.

As regards paragraph 2 (c), the identity of the winner of a contract will generally be made available under article 11 of the Model Law.

Should the FMCT contain verification clauses?

Under the 1993 Model Law on Procurement of Goods and Construction, the notice of contract awards is given only to suppliers and contractors (article 35 (6)).

Proposed additional text for the Guide to Enactment regarding article 36 of the Model Law, addressing the acceptance of tender and entry into force of procurement contract

The Working Group acknowledged the importance of appropriate procurement planning and contract administration for overall effective functioning of procurement and fulfilling the objectives of the Model Law.

Conditions for the validity of exclusive jurisdiction clauses

Consistent with its general stance on the inclusion of electronic commerce issues in the Model Law, the Working Group has decided that the ability to conclude a contract electronically, including to sign an electronic contract, is a matter that falls to be addressed in general laws governing electronic commerce and therefore that the Model Law should not make provision for the electronic conclusion of contracts (A CN.9 575, para 50).

Should the draft instrument allow for exclusive jurisdiction clauses?

Should exclusive jurisdiction clauses be enforceable against third parties?

Socio economic impact assessments should include gender assessment clauses.

The Working Group was reminded that it had briefly considered at its fourteenth session (see A CN.9 572, paras. 130 133) the issue of whether the draft instrument should allow for parties to agree in the contract of carriage to exclusive jurisdiction clauses.

For the purposes of this contract, the exploration area means that part of the Area allocated to the Contractor for exploration, defined by the coordinates listed in schedule 1 hereto, as reduced from time to time in accordance with the standard clauses and the Regulations.

In terms of another suggestion, both draft articles 17 and 18 could be drafted in the same way, either as without prejudice clauses or as exclusion clauses.

The Procurement Service has also been working with the Office of Legal Affairs to develop model lease and contract templates to facilitate the work of procurement officials in the peacekeeping missions.

Other delegations asked that the confidentiality clauses should be retained.

Conclusions reached by the Working Group regarding exclusive jurisdiction clauses

The Commission reviewed the draft regulations, which were based on the existing Polymetallic Nodule Regulations and the model clauses developed by the secretariat in 2001,20 together with the elements that had emerged from the discussions in the Commission during 2002 and 2003.

There was strong support for the suggestion that the draft instrument should indeed allow for exclusive jurisdiction clauses, particularly if the possibility for the abuse of such clauses was tempered by addition of certain conditions that would have to be fulfilled in order for such clauses to be valid.

In particular, three types of such clauses had typically been made.

Ethical responsibility and quality management measures should also be swiftly implemented, together with common procurement management systems, model lease and contract templates, performance rating and evaluation systems, and vendor registration and review measures.

In light of the thrust of the discussions in the Working Group with respect to jurisdiction and choice of court clauses under draft article 76, the view was expressed that exclusive arbitration clauses should be permissible and should be enforced on the same grounds as exclusive choice of court clauses.

(1) ter. The solution provided by the UNCITRAL electronic commerce texts, found in article 11 of the Model Law on Electronic Commerce, does not seek to interfere in the general rules of contract formation.

(1) bis. Articles 27 (y) and 38 (u) of the Model Law refer to a written procurement contract, and article 36 (2)(a) and (b) provide that the solicitation documents may require the supplier or contractor whose tender has been accepted to sign a written procurement contract , which may be signed in the traditional manner, or electronically .

In response to some of those concerns, it was noted that risks of contract non performance would be mitigated through the proper implementation of articles 6 (Qualifications of suppliers and contractors) and 32 (Tender securities) of the Model Law, which would enable the qualifications of the supplier and the resources available to undertake the contract to be assessed.

Contract award

Articles 36 (2)(a) and (b) of the Model Law provide that the solicitation documents may require the supplier or contractor whose tender has been accepted to sign a written procurement contract conforming to the tender.

As regards the acceptance of tenders and entry into force of a procurement contract, the Working Group concluded that no specific provision to enable these matters to be handled electronically was needed in the Model Law.

The original text of article 5 was broadly based on article VI (1) of the 1981 GATT Agreement of Government Procurement, except that the latter, apart from referring to laws, regulation and administrative ruling of general application, also referred to judicial decisions and any procedures (including standard contract clauses) regarding government procurement.

With respect to the anachronistic enemy State clauses, I am pleased to note that the leaders resolved in the outcome document (resolution 60 1) to delete these obsolete clauses from the Charter at the earliest opportunity.