Mediation in civil and commercial matters: European Parliament endorses new rules

Mediation in civil and commercial matters European Parliament endorses new rules

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. Continue reading Mediation in civil and commercial matters: European Parliament endorses new rules

Canada and the International Convention on Investment Dispute Resolution

Canada has completed the enactment of Bill C-9, An Act to Implement the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention). The bill has been passed by both the House and the Senate and has received Royal Assent.

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.” Continue reading Canada and the International Convention on Investment Dispute Resolution

Online Dispute Resolution in India

The aim of this article is to analyse the prospective use of online dispute resolution mechanism (ODRM) in India. The necessity of the same has arisen due to the growing use of alternative dispute resolving mechanism (ADRM) in India to reduce the burdening of the already overburdened courts in India. The popularity and use of ADRM is increasing but it can achieve its best only if the same is integrated with the information technology.

I. INTRODUCTION

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. Continue reading Online Dispute Resolution in India

European Commission Consultation on Legal Problems in e-Business

The e-Economy has become a wide-ranging phenomenon, cutting across geographical boundaries and industry sectors with the potential to further boost the Internal Market in the form of economic growth, investment, innovation and job creation.

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. Continue reading European Commission Consultation on Legal Problems in e-Business

European Commission Public Hearing on ADR – Brussels, 21 February 2003 –

The European Commission presented on 19 April 2002 a Green Paper on Alternative Dispute Resolution in civil and commercial law.

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. Continue reading European Commission Public Hearing on ADR – Brussels, 21 February 2003 –

Basis for the Harmonisation of Online Arbitration

Online Dispute Resolution News ODR_Moderator writes “E-Arbitration-T ? have issued a proposal for the Harmonisation of Online Arbitration

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?
Continue reading Basis for the Harmonisation of Online Arbitration

eLexPortal – National legislation on e-Commerce, the easy way

Year 2002 – eLexPortal provides users with tailored answers about national e-Commerce regulation throughout the EU. LUXEMBOURG eLexPortal.com, the e-Commerce Legislation and Regulatory Policy Portal run in partnership by two European specialist firms, ERIN S.A. and Cullen International S.A. with the support of the European Commission, is now live with full coverage of national legislation on e-Commerce. This Portal provides non-specialist entrepreneurs and business people with information about variations in the legislative and regulatory aspects relating to eCommerce across the EU in a user-friendly manner. Continue reading eLexPortal – National legislation on e-Commerce, the easy way