2014 Laurence Boulle - Internationalising Mediation Managing Jurisdictional Diversity
-
Upload
national-mediation-conference -
Category
Presentations & Public Speaking
-
view
129 -
download
1
Transcript of 2014 Laurence Boulle - Internationalising Mediation Managing Jurisdictional Diversity
Outline
Need and demand in cross-border disputes
Dispute resolution in trade and investment disputes
Managing jurisdictions in commercial disputes
Existing enforcement systems
Towards a unified cross-border enforcement regime?
Conclusion
International commercial disputes
International relations and politics
International finance and competition law
International family and inter-personal issues
The new and virtual technologies
International trade and investment
Need and Demand in Cross- Border Disputes
Dispute management through the WTO
Dispute management by investment tribunals
Specialised dispute resolution systems
Dispute resolution systems in regional treaties
Extending IEL treaties to business disputes?
Managing Trade and Investment Disputes
The paradox of globalisation
Legal harmonisation and unification
Existing systems of cross-border enforceability
Domestic arrangements
International instruments
Soft law options
New regimes for enforcement of iMSAs
Cross-Border Commercial Disputes
Enforcement and Compliance
Contracts
Standard contract
Special contract
Ratified contract
Deeds of settlement
Notarial deed
Certification
Court orders
Consent orders
Court-based ADR
Court filing or registration
Arbitral awards
Final binding award
Existing Enforcement Arrangements
Different Directions in iMSA Enforcement
ArB
•Arbitration Agreement
•Arbitrator appointment
Med
•Mediation
•Resultant MSA
ArB
•Arbitral award
•Enforceable MSA?
Hybridisation
Option 1
½ Arb
•Arbitration agreement
•Mediation
Med
•Resultant MSA
•Arbitrator appointment
Arb
•Arbitral award
•Enforceable MSA?
Hybridisation
Option 2
Med
• Mediation
• Resultant MSA
• Arbitration agreement
• Arbitrator appointment
Arb
• Arbitral award
• Enforceable MSA?
Hybridisation
Option 3
New York Convention
Incapacity, or agreement invalid under law to which parties have subjected it…
No proper notice of appointment of arbitrator or proceedings, or un able to present case
Award deals with difference not within terms of arbitration, or decision is beyond scope
Composition of arbitral authority or procedure not in accord with parties’ agreement or law of arbitration state
Award not yet binding, or has been set aside
Recognition and enforcement may be refused if
Subject of difference not capable of settlement by arbitration or under law of that country
Against public policy
Art 5
Recognition and enforcement of the award may be refused, at request of party against whom it is invoked, only if that party furnishes to the competent authority where recognition and enforcement is sought, proof that;
Stockholm Chamber of Commerce If the parties reach a
settlement before the final award is made, the Arbitral Tribunal may, upon the request of both parties, record the settlement in the form of a consent award.
Arbitration Rules
Article 39
Settlement or other grounds for termination of the arbitration
If the parties reach a settlement after the file has been transmitted to the arbitral tribunal … the settlement shall be recorded in the form of an award made by consent of the parties is so requested by the parties and if the arbitral tribunal agrees to do so..
ICC Arbitration Rules 2012
Art 32
Australian Centre for International Arbitration
If, before the award is made, the parties agree on a settlement of the dispute, the Arbitral Tribunal shall either issue an order for the termination of the arbitral proceedings or, if requested by both parties and accepted by the Tribunal, record the settlement in the form of an arbitral award on agreed terms. The Arbitral Tribunal is not obliged to give reasons for such an award.
Arbitration Rules
Art 35.1
Art 14: Enforceability of settlement agreement
If parties conclude an agreement settling a dispute, that settlement agreement is binding and enforceable…[enacting State may insert a description of the method of enforcing settlement agreements or refer to provisions governing such enforcement]
Footnote 5: When implementing procedure for enforcement of settlement agreements, enacting State may consider possibility of such procedure being mandatory
UNCITRAL Model Law on International Commercial Mediation
1. Member states shall ensure that it is possible for parties, or one of them with the explicit consent of others, to require that the content of written agreements resulting from mediation be made enforceable… unless either the content of that agreement is contrary to law of Member States where request is made or law of the Member State does not provide for its enforceability
2. The content of the agreement may be made enforceable by a court or other competent authority in judgment or decision or in an authentic instrument in accordance with law of Member State where request is made.
EU Directive
2008/52/EC
Art 6 Enforceability of agreements resulting from mediation
Future Enforcement Options
Definitional issues
Mediation within hybrid DR systems
Scope and exclusions
Ad hoc and institutional mediation
Legitimacy and approval
Policy considerations
Convention for Cross-Border Enforcement of iMSAs?
Regulatory reluctance
Challenges of definition and legal culture
Restrictions on settlement outcomes
Confidentiality implications
Why should mediation be privileged?
Policy Relating to iMSA enforce-ment
Conclusion The promotion and
encouragement of international commercial mediation requires systems to support the enforceability of iMSAs.
The limits of evidence-based support
The limits of needs-based support