A Directive on certain aspects of mediation in civil and commercial matters was adopted today 23 April 2008. The purpose of the Directive is to facilitate access to cross-border dispute resolution and to promote the amicable settlement of disputes by encouraging the use of mediation and by ensuring a sound relationship between mediation and judicial proceedings. The Directive is one of the follow-up actions to the Green Paper on alternative dispute resolution presented by the Commission in 2002, the other being the European Code of Conduct for Mediators established by a group of stakeholders with the assistance of the Commission and launched in July 2004.

Welcoming the adoption of this Directive, Vice-President Jacques Barrot said: “This Directive fulfils the political objective established in October 1999 by the European Council of Tampere, which – in the context of encouraging better access to justice in Europe – called for the creation of alternative, extrajudicial procedures for dispute resolution in the Member States. Mediation can provide cost-effective and quick extrajudicial resolution of disputes in civil and commercial matters through processes tailored to the needs of the parties. Agreements resulting from mediation are more likely to be complied with voluntarily and help preserve an amicable and sustainable relationship between the parties.

The Commission proposed the Directive in October 2004 (IP/04/1288). The Directive facilitates recourse to mediation by strengthening the legal guarantees accompanying it, thus giving real added value to citizens and businesses in the European Union. The key components of the Directive are as follows:

The Directive obliges Member States to encourage the training of mediators and the development of, and adherence to, voluntary codes of conduct and other effective quality control mechanisms concerning the provision of mediation services.

The Directive gives every Judge in the Community, at any stage of the proceedings, the right to suggest that the parties attend an information meeting on mediation and, if the Judge deems it appropriate, to invite the parties to have recourse to mediation.

The Directive enables parties to give an agreement concluded following mediation a status similar to that of a Court judgment by rendering it enforceable. This can be achieved, for example, by way of judicial approval or notarial certification, thereby allowing such agreements to be enforceable in the Member States under existing Community rules.

The Directive ensures that mediation takes place in an atmosphere of confidentiality and that information given or submissions made by any party during mediation cannot be used against that party in subsequent judicial proceedings if the mediation fails. This provision is essential to give parties confidence in, and to encourage them to make use of, mediation.

To this end, the Directive provides that the mediator cannot be compelled to give evidence about what took place during mediation in subsequent judicial proceedings between the parties.

The provision of the Directive on periods of limitation and prescription will ensure that parties that have recourse to mediation will not be prevented from going to court as a result of the time spent on mediation. The Directive thus preserves the parties’ access to justice should mediation not succeed.

Source: A boost for mediation in civil and commercial matters: European Parliament endorses new rules

“This Act enables Canada to ratify a convention that has already been ratified by 143 countries, and that will provide Canadian investors with another internationally recognized instrument for protecting their assets abroad,” said Minister Bernier.

“This is welcome news for Canadian business,” said the Honourable David Emerson, Minister of International Trade. “Entrenching international standards will both promote and protect two-way investment between Canada and its trading partners around the world. These are key objectives of the Global Commerce Strategy.”

The ICSID Convention is a World Bank-sponsored instrument aimed at facilitating the free flow of international investment. It does this by providing foreign investors and host states with tools that enable dispute resolution through conciliation and arbitration, and it has become an internationally recognized, efficient and reliable mechanism for settling investment disputes. The ICSID arbitration rules were modified in 2006 to facilitate open hearings and the filing of amicus briefs. Canada’s ratification of the Convention not only provides additional protection to Canadian investors but also reinforces Canada’s investment-friendly image among foreign states.

The Convention can also be used by provinces and territories that pass implementing legislation. In recent years, four provinces—British Columbia, Newfoundland and Labrador, Ontario and Saskatchewan—have adopted legislation implementing the Convention in their jurisdictions. Nunavut has also legislated to that effect. The Government of Canada welcomes provincial and territorial support for the Convention and invites all provinces and territories that wish to use ICSID arbitration to pass implementing legislation.

Source:
Foreign Affairs Media Relations Office
Foreign Affairs and International Trade Canada
613-995-1874
www.international.gc.ca/index.aspx

The swift growth of e-commerce and web site contracts has increased the potential for conflicts over contracts which have been entered into online. This has necessitated a solution that is compatible with online matters and is netizens centric. This challenging task can be achieved by the use of ODRM in India. The use of ODRM to resolve such e-commerce and web site contracts disputes are crucial for building consumer confidence and permitting access to justice in an online business environment. These ODRM are not part and parcel of the traditional dispute resolution machinery popularly known as judiciary but is an alternative and efficacious institution known as ADRM. Thus, ADR techniques are extra-judicial in character. They can be used in almost all contentious matters, which are capable of being resolved, under law, by agreement between the parties. They have been employed with very encouraging results in several categories of disputes, especially civil, commercial, industrial and family disputes. These techniques have been shown to work across the full range of business disputes like banking, contract performance, construction contracts, intellectual property rights, insurance, joint ventures, partnership differences etc. ADR offers the best solution in respect of commercial disputes. However, ADR is not intended to supplant altogether the traditional means of resolving disputes by means of litigation. It only offers alternatives to litigation. There are a large number of areas like constitutional law and criminal law where ADR cannot substitute courts. In those situations one has to take recourse of the existing traditional modes of dispute resolution.

II. THE PREMIER MODE OF ADR

Arbitration is the supreme method for resolving and adjudicating commercial disputes . It is a procedure in which the dispute is submitted to one or more arbitrators, for adjudication, who resolve the dispute. The decision is given in the form of an award. The main objects of arbitration are speed, economy, convenience and simplicity of procedures. It encourages healthy relationship between the parties. The Arbitration and Conciliation Act, 1996 governs the ?arbitration procedures? in India. Section 5 of the Act provides that notwithstanding anything contained in any other law for the time being in force, in matters governed by Part I (Sections 2 to 43), no judicial authority shall intervene except where so provided in the said part. This clearly indicates the legislative intent to minimise supervisory role of courts to ensure that the intervention of the court is minimal. Section 4 is a deeming provision, which lays down that where a party proceeds with the arbitration without stating his objection to non-compliance of any provision of Part I from which the parties may derogate or any requirement under arbitration agreement, it shall be deemed that he has waived his right to so object. Section 7 provides that the arbitration agreement shall be in writing and such an agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement. Sub-section (4) of Section 7 provides the conditions under which a document or exchange of letter or exchange of statement of claim and defence may amount to an arbitration agreement. Section 11 of the Act provides for appointment of arbitrators and sub-section (6) thereof empowers the Chief Justice of the High Court or any person or institution designated by him to make such an appointment on the happening of certain conditions enumerated in clauses (a), (b) or (c). Section 16 of the Act is important and it provides that the arbitral tribunal may rule on its own jurisdiction, including ruling on any objections with respect to the existence or authority of the arbitration agreement . Thus, the base provided by the Act is sufficient to accommodate the mandates of ODRM. It must be noted that a court of law cannot render justice unless the ultimate decision is based on the contemporary law as prevailing in the society. A decision based on an old law, which does not satisfy the requirements of the present situation, and environment should be avoided. In such a situation the efforts of the courts should be to give the law a “purposive, updating and an ongoing interpretation”. This position makes the interface of justice delivery system with the information technology inevitable and unavoidable. We cannot allow the dead hand of the past to stifle the growth of the living present. Law cannot stand still; it must change with the changing social concepts and values. If the bark that protects the tree fails to grow and expand along with the tree, it will either choke the tree or if it is a living tree, it will shed that bark and grow a new living bark for itself. Similarly, if the law fails to respond to the needs of changing society, then either it will stifle the growth of the society and choke its progress or if the society is vigorous enough, it will cast away the law, which stands in the way of its growth. Law must therefore constantly keep on adapting itself to the fast changing society and not lag behind . Justice is supreme and justice ought to be beneficial for the society so that the society is placed in a better-off situation. Law courts exist for the society and ought to rise up to the occasion to do the needful in the matter, and as such ought to act in a manner so as to sub serve the basic requirement of the society. It is a requirement of the society and the law must respond to its need. The greatest virtue of the law is its flexibility and its adaptability; it must change from time to time so that it answers the cry of the people, the need of the hour and the order of the day. Thus, the justice delivery system cannot afford to take the information technology revolution lightly . The judiciary in India has not only recognised this need but has also utilised the information technology to do complete justice. The Supreme Court has on various occasions encouraged the use of information technology for meeting the ends of justice and to do complete justice. There is nothing that shows that the courts in India will not encourage the concept of ODRM in India. The Supreme Court has encouraged the use of ADR techniques in India and very soon the same will be extended to ODRM as well.

III. E-JUSTICE SYSTEM IN INDIA

The judicial response vis-?-vis information technology is positive and technology friendly.

In M/S SIL Import, USA v M/S Exim Aides Silk Exporters the words “notice in writing”, in Section 138 of the Negotiable Instruments Act, were construed to include a notice by fax. The Supreme Court observed: “A notice envisaged u/s 138 can be sent by fax. Nowhere is it said that such notice must be sent by registered post or that it should be dispatched through a messenger. Chapter XVII of the Act, containing sections 138 to 142 was inserted in the Act as per Banking Public Financial Institution and Negotiable Instruments Laws (Amendment) Act, 1988.Technologiacl advancements like Fax, Internet, E-mail, etc were on swift progress even before the Bill for the Amendment Act was discussed by the Parliament. When the legislature contemplated that notice in writing should be given to the drawer of the cheque, the legislature must be presumed to have been aware of the modern devices and equipments already in vogue and also in store for future. If the court were to interpret the words “giving notice in writing” in the section as restricted to the customary mode of sending notice through postal service or even by personal delivery, the interpretative process will fail to cope up with the change of time. So if the notice envisaged in clause (b) of the proviso to section 138 was transmitted by Fax, it would be compliance with the legal requirement”.

Thus the requirement of a written notice will be satisfied if the same is given in the form of a fax, e-mail etc, using the information technology. It must be noted that a notice by e-mail can be send instantaneously and its delivery is assured and acknowledged by a report showing the due delivery of the same to the recipient. This method is more safe, accurate, economical and lesser time consuming as compared to its traditional counterpart, popularly known as “Registered A.D”.

In Basavaraj R. Patil v State of Karnataka the question was whether an accused need to be physically present in court to answer the questions put to him by the court whilst recording his statement under section 313. The majority held that the section had to be considered in the light of the revolutionary changes in technology of communication and transmission and the marked improvement in the facilities of legal aid in the country. It was held that it was not necessary that in all cases the accused must answer by personally remaining present in the court. Once again, the importance of information technology is apparent. If a person residing in a remote area of South India is required to appear in the court for giving evidence, then he should not be called from that place, instead the medium of “video conferencing” should be used. In that case the requirements of justice are practically harmonised with the ease and comfort of the witnesses, which can drastically improve the justice delivery system.

In State of Maharashtra v Dr.Praful.B.Desai the Supreme Court observed: “The evidence can be both oral and documentary and electronic records can be produced as evidence. This means that evidence, even in criminal matters, can also be by way of electronic records. This would include video conferencing. Video conferencing is an advancement in science and technology which permits one to see, hear and talk with someone far away, with the same facility and ease as if he is present before you i.e. in your presence. Thus, it is clear that so long as the accused and/or his pleader are present when evidence is recorded by video conferencing that evidence is recorded in the “presence” of the accused and would thus fully meet the requirements of section 273, Criminal Procedure Code. Recording of such evidence would be as per “procedure established by law”. The advancement of science and technology is such that now it is possible to set up video conferencing equipments in the court itself. In that case evidence would be recorded by the magistrate or under his dictation in the open court. To this method there is however a drawback. As the witness is not in the court there may be difficulties if commits contempt of court or perjures himself. Therefore as a matter of prudence evidence by video conferencing in open court should be only if the witness is in a country which has an extradition treaty with India and under whose laws contempt of court and perjury are also punishable”.

This judgment of the Supreme Court is a landmark judgment as it has the potential to seek help of those witnesses who are crucial for rendering the complete justice but who cannot come due to “territorial distances” or even due to fear, expenses, old age, etc. The Courts in India have the power to maintain anonymity of the witnesses to protect them from threats and harm and the use of information technology is the safest bet for the same. The testimony of a witness can be recorded electronically the access to which can be legitimately and lawfully denied by the Courts to meet the ends of justice.

The above discussion shows that the judiciary in India is not only aware of the advantages of information technology but is actively and positively using it in the administration of justice, particularly the criminal justice. Thus, it can be safely concluded that the “E-justice system” has found its existence in India. It is not at all absurd to suggest that ODRM will also fine its place in the Indian legal system very soon.

IV. ONLINE DISPUTE RESOLUTION

The ADR mechanism can be effectively used to settle online disputes by modifying it as per the need. It is time effective and cost efficient. It can also overcome the geographical hurdles. However, there are certain issues revolving around ADR mechanism like need for personnel with knowledge of IT, ADR and law; technical concerns; legal sanctity of proceedings; industry support etc. But these hurdles are just a passing phase. The use of ADR mechanisms for resolving online disputes is increasing day by day. A number of web-sites provide for some type of online dispute resolution method like arbitration, negotiation, mediation etc. and also certain conflict management services. These services fall into the general categories of complaint handling, negotiation, mediation and arbitration. These services will be in great demand in the future since the 1996 Act has given paramount importance to ?party autonomy? by accepting the intention of parties as a platform for dispute resolution. Thus, what law will be applicable will depend on the intention of parties. If the parties have adopted the mechanism of ODRM then it will definitely apply with necessary minor modifications. The language used in various sections of the Arbitration Act give options to the parties to opt for the procedure as per their agreement during the arbitral proceedings before the arbitrator. So if there is an agreement between the parties with regard to the procedure to be followed by the arbitrator, the arbitrator is required to follow the said procedure. However, this would not mean that in appeal parties can contend that the appellate procedure should be as per their agreement. The appellate procedure would be governed as per the statutory provisions and parties have no right to change the same . It must be noted that party autonomy presupposes the existence of an arbitration agreement. There may be a situation where the parties had not entered into an arbitration agreement. To meet such situations Sec.89 of CPC can be invoked. The reason for inserting Sec.89 has been to try and see that all the cases which are filed in the court need not necessarily be decided by the court itself. Keeping in mind the law delays and the limited number of judges, which are available, it has now become imperative to resort to ADR Mechanism as contemplated by Sec.89. There is a requirement that the parties to the suit must indicate the form of ADR, which they would like to resort to during the pendency of the trial of the suit. If the parties agree to arbitration, then the provisions of the Arbitration and Conciliation Act 1996 will apply and that will go outside the stream of the court .

V CONCLUSION

The need and necessity of ODRM is going to be felt very soon and we must be prepared for the same. A sound techno-legal base must be established in advance. There is a possibility that we may get BPO services in arbitration matters in the distant future. In any case it is also a mandate of Article 21 of the Constitution of India. Art.21 confers a Fundamental Right on every person not to be deprived of his life or liberty, except according to procedure established by law. Such procedure is not some semblance of a procedure but the procedure should be ?reasonable, fair and just?, and therefrom flows the right to speedy trial . It cannot be doubted that if the State is encouraging ODRM it is thereby assisting in the attainment of a speedier, economical and convenient justice system. Thus, the sooner ODRM is adopted the better it will be for the nation in general and the justice seeker in particular.

Praveen Dalal
Arbitrator, consultant and attorney
Delhi High Court, India.

E-mail:pd37(at)rediffmail.com
Contact at: +91 9899169611

As a follow-up to the eEurope 2005 Action Plan and the conclusions of the European Council of 20/21 March 2003 stressing the need for exchanging experience in the field of e-business, the European Commission, Directorate General Enterprise, would be interested in your experience as an enterprise doing e-business. The objective is to collect feedback and practical experiences from the market and to identify still existing practical barriers or new legal problems encountered while conducting business electronically.

The consultation will remain open for responses until 7 November 2003. And..

Members of E-Arbitration-T Portal and related stakeholders are invited to consult the – following questionnaire -
The services of the Commission will analyse the results of the open consultation and discuss them with all relevant stakeholders at a High-level Conference, to be organised in March/April 2004. The conclusions will help to reach the EU’s ambitious Lisbon target of becoming the world’s most competitive and dynamic knowledge-based economy.

We appreciate your contributions and thank you in advance!

Definition of e-business:
For the purpose of the present questionnaire, “e-business” is defined in a broad sense as the use of electronic telecommunications for business purposes, including:

Online buying
Online selling
Provision of other online services (including marketing and advertising)
Online collaboration with business partners
Online internal business activities: accounting, management

Year 2003

Many organisations expressed they interest in this Green Paper. Most of they have directly participated in the debate launched by the Green Paper, by submitting comments on it. The European Commission would like to thank them for they contribution.

In the context of the consultation exercise launched by the Green Paper, a public hearing will be held on this subject in Brussels on Friday 21 February 2003.

Further detailed information on this event will be posted on this webpage in the next few days, together with a summary of the comments to the Green Paper received by the Commission:
http://europa.eu.int/comm/justice_home/news/consulting_public/news_consulting_public_en.htm”

Year 2003

This paper aims to be a basic overview of the issues that Online Arbitration raises when dealing with B2B transactions.

Summary of Questions Submitted for Discussion:

Question 1: What is your opinion on the general approach that the EU institutions should follow on ODR and Online Arbitration of B2B transactions? Should the initia-tives be limited to B2B transactions?

Question 2: Do you think that a directive is the most appropriate regulatory instrument to deal with e-commerce issues? And to deal with ODR methods? Do you think that the European Primary Law provides the EU with a legal basis to adopt a directive on ODR methods?

Question 3. Could or should the principles set out in the two recommendations apply indiscriminately to fields other than consumer protection? Of the principles enshrined in the Recommendations, which in your view could be incorporated in the legislation of Member States?

Question 4: Do you think that the EU should follow the Uncitral Model Laws, or should it leave the regulation of Online Arbitration disputes to national laws?

Question 5: What is your opinion on the controversial issues highlighted in section 7? Are they controversial at all? Is this a fictitious debate? What option would you adopt, if any, to solve the inconsistencies? What other alternatives would you propose?

Question 6: Do you think that this is an appropriate time to pass a directive on ODR methods? Would you be in favour of a directive on ODR methods? What are, in your opinion, the legal bases, if any, for a directive on ODR methods?

Question 7: Do you think that the adoption of European standards for Online Arbitration technologies is necessary? Do you think that the EU has the human and technical resources to dictate European Standards without public discussion? Would it be wise to create an interdisciplinary group capable of negotiating standards with other geo-graphic regions?

Question 8: Should there be a register of ODR providers or any other administrative control that ensures the respect of due process rights? Would the intervention of ad-ministrative entities impair the development of ODR bodies?

Question 9: What is your experience in negotiation and enforcement of private mecha-nisms? Should electronic awards be dealt with in an EU directive?

Question 10: Would you eliminate the formal requirements of deposit and notarisation at all? Would you empower notaries and other public authorities to deposit, authenticate and notify the award to the parties?

In your opinion, what are the inconveniences of harmonising the formal requirements of deposit and notarisation and attributing more essential faculties to public authorities?.

Year 2002

Mr Robert Verrue, Director-General of the ECs DG INFSO, referred to eLexPortal during the SME Union Workshop held in the European Parliament on 18th February, as a European Commission action to enhance trust and confidence of EU entrepreneurs and citizen about e-Commerce.

eLexPortal.com offers a single entry point for visitors giving data on policy and regulation in all the EU member states, a Directory service, sources of information and links to relevant WebSites. National legislation and regulations are collected by experts in each EU Member State. The result is legal information available and tailored by means of a Regulatory Engine which gives clear explanations on e-Commerce regulatory issues for the business entrepreneur, with specific relevance to particular business activities and processes.

With the implementation of national legislation on e-Commerce we are now able to offer free of charge complete information covering the 15 EU member countries says Geoffrey Thompson, Managing Director of ERIN and Project Director of eLexPortal. Besides the cross-border aspects of e-Commerce, which are often pre-eminent due to its transnational nature, eLexPortal can be an effective support tool for e-entrepreneurs in their home market. Jan H. Guettler, a Director of Cullen International, stated that: Identifying and selecting the relevant legislation for each European regulatory context entailed a grate deal of effort by our EU-wide network of national experts, but we are now there. According to Mike Dickinson, the eLexPortal Project Manager: we are carrying out awareness-raising actions to enhance the prominence of this effective tool. As far as we know in Europe there is no analogous service for small and medium enterprises, for free.

Project summary

The project supporting eLexPortal.com is funded as an Accompanying Measure of the Information Society Technologies (IST) Programme which is a single, integrated research programme managed by the Information Society Directorate General of the European Commission, building on the convergence of information processing, communications and media technologies. The European Commission has committed ERIN S.A. to manage the initiative. ERIN S.A. is an Internet technology company specialising in complex information management and dissemination projects in multicultural environments and in producing multi-lingual publishing solutions based on Internet technologies, interactive on-line communities, and traditional publishing techniques.

On the contents side, the eLexPortal.com is powered by Cullen International S.A., a specialist in regulations and regulatory information systems covering electronic commerce and multimedia as well as telecommunications regulations within the Europe and the United States.

Additional support activities will soon be implemented including a HelpDesk, the collection and publication of best practice by way of case studies, providing links and interfaces to existing on-line sources of information, as well as generating on-line tutorials for users of the eLexPortal.com regulatory engine.

URL: www. eLexPortal.com

For further information, please contact:
Carlo Ennio Stasi
eLexPortal PR/Communication
ERIN S.A.
2 Place Virchow
L-2671 Luxembourg
e-mail: carlo@erin.lu
Tel. +352-26 48 50-25
Fax +352-26 48 50-26