THE UNCITRAL DRAFT CONVENTION ON THE ENFORCEMENT OF MEDIATED SETTLEMENT AGREEMENTS THE DAWN OF CROSS- BORDER MEDIATION?

Transcription

1 Dr. Martin Svatos, Ph.D. THE UNCITRAL DRAFT CONVENTION ON THE ENFORCEMENT OF MEDIATED SETTLEMENT AGREEMENTS THE DAWN OF CROSS- BORDER MEDIATION?

2 CONTINUUM OF CONFLICT MANAGEMENT AND RESOLUTION APPROACHES Control of Outcome Negotiation Mediation MED-ARB Arbitration Litigation Intervention of Third Party

3 SATISFACTION WITH RESPECTIVE ADR Association of Researchers in Construction Management

4 ARBITRATION AND MEDIATION Mediation Arbitration Private/Public DR Third Party Intervention Confidentiality Characteristics Private YES YES Less formal, flexible, party autonomy Alternative/Standard ADR ADR (?) Who decides? Parties Arbitrator Free to leave YES No DR Approach Collaborative Adversarial Focussing on Economic interests Legal questions

5 PRINCIPLES OF MEDIATION Consensus and Control of Outcome Free will and Voluntary Participation Private and Confidential Neutral and Professional Third Party

6 NEW YORK CONVENTION II? Initiative of the UNCITRAL (WG II) One obstacle to greater use of conciliation, however, is that settlement agreements reached through conciliation may be more difficult to enforce than arbitral awards, if a party that agrees to a settlement later fails to comply.

7 ENFORCEMENT The act or process of compelling compliance with a law, mandate, command, decree, or agreement. (Black's Law Dictionary)

8 STAGES OF MEDIATION I. Pre mediation stage Agreement to Mediate (NO) II. Mediation stage III. Post mediation stage Mediated Settlement Agreement (YES)

9 AGREEMENT TO MEDIATE VS. MEDIATED SETTLEMENT AGREEMENT Article II of the NY Convention: ( ) 3. The court of a Contracting State, when seized of an action in a matter in respect of which the parties have made an agreement within the meaning of this article, shall, at the request of one of the parties, refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of being performed.

10 POSSIBLE OUTCOMES OF MEDIATION MSA PROCEDURAL AGREEMENT MEDIATION PERFORMANCE AGREEMENT NOT TO AGREE

11 SETTLEMENT AT ANY COST? reasonably expected outcome from litigation or arbitration all associated costs proposed settlement - - likely impact on business

12 PRESENT POSSIBILITIES National legislation MSA Approved by Court Brussels Regulation (EU Law) Convention on Choice of Court Agreements (2005) 2016 preliminary draft convention on judgments, under preparation by the Hague Conference on Private International Law. Arbitral Award New York Convention

13 ENFORCEMENT UNDER CONTRACT LAW burdensome and time-consuming Mediation paradox greater certainty that, if they do reach a settlement, enforcement will be effective and not costly. initial consultations with the private sector have indicated strong support for further efforts by UNCITRAL to facilitate the enforceability of conciliated settlement agreements

14 FORM OF THE INSTRUMENT Convention Model Law À la carte menu

15 UNCITRAL MODEL LAWS AND CONVENTION UNCITRAL Model Law on International Commercial Conciliation UNCITRAL Model Law on International Commercial Arbitration Convention on the Recognition and Enforcement of Foreign Arbitral Awards 14 (+ 14) 72 (+33) 157

16 COMMERCIAL SETTLEMENT AGREEMENT RESULTING FROM INTERNATIONAL CONCILIATION Commercial Mediation x Conciliation

17 This [instrument] applies to the legal effect between the parties, and to the enforcement, of international agreements resulting from conciliation and concluded in writing by parties to resolve a commercial dispute ( settlement agreement(s) ). Draft provision 1 (Scope of application)

18 Conciliation means a process, regardless of the expression used and irrespective of the basis upon which the conciliation is carried out, whereby parties attempt to reach an amicable settlement of their dispute with the assistance of a third person or persons ( the conciliator ) lacking the authority to impose a solution upon the parties to the dispute. Draft provision 2 (Definitions)

19 INTERNATIONAL VS. FOREIGN International x Foreign Article I NYC: This Convention shall apply to the recognition and enforcement of arbitral awards made in the territory of a State other than the State where the recognition and enforcement of such awards are sought, and arising out of differences between persons, whether physical or legal. It shall also apply to arbitral awards not considered as domestic awards in the State where their recognition and enforcement are sought.

20 1. A settlement agreement is international if: (a) At least two parties to the settlement agreement have, at the time of the conclusion of that agreement, their places of business in different States; Internationality of MSA Draft provision 1

21 (b) The State in which the parties to the settlement agreement have their places of business is different from either: (i) The State in which a substantial part of the obligations under the settlement agreement is to be performed; or (ii) The State with which the subject matter of the settlement agreement is most closely connected. Internationality of MSA II Draft provision 1

22 LEGAL EFFECT OF SETTLEMENT AGREEMENTS Recognition and res-iudicata effect In case of a dispute concerning a matter which a party claims to have already been settled by a settlement agreement, that party may invoke the existence of the settlement agreement in the State where the settlement agreement is sought to be relied upon in accordance with the law of that State and under the conditions laid down in this instrument to prove that the dispute has been settled.

23 OPT-IN VS. OPT OUT MECHANISM Application

24 REMEDIES conciliation process, and conduct of conciliators

25 THANK YOU FOR YOUR ATTENTION JUDr. Martin Svatoš, Ph.D. mediator and arbitrator Vyšehradská 49 Prague Czech Republic