AC Dispute Settlement Introduction to the course Three professors: Stefan Rutten, Beatrk Vanlerberghe, Marta Pertegas. So, there are three different parts (Online Dispute Resolution and Alternative Dispute Resolution, Arbitration, Private International Law). Evaluation form There is no exam for this course. The course is of a total of 60 points. * Permanent evaluation (10): mandatory parlicipation, any absence of class must be certified, it includes preparation of case studies. * Three smaller assignments (15): ane assignment for each part of the course ~ Assignment 1: analysis of the procedural rules of an ODR provider (5) You will have a closer look at those different rules and assess them with regards to the Directive 2013/11/EU on ADR (ie. with regard to standards set by the EU). We will discuss the results on February 24. |! should be printed for class * sent by e-mail. For the purpose of the first assignment, ombudsman and other hybrids are considered as separate categories. ~ Assignment 2: analysis of national arbitration law and application to a case (5) Group work an ane case: look al the case and answer how you would deal with it; would arbitration be a good choice? Which kind of arbitration? Apply aver to this case ules seen in class. Each country has its proper arbitration law —> analyze thoroughly your home country arbitration laws, compare them, and assess which one would be the most relevant/suitable for the case. You will have to find literature by yourself, the course is nat enough. Te submit by e-mail by March 23 + peer assessment by March 24. —> ease 2: Viadislay, Juliette Detriche, Ana Martinez, Semanta Holi ~ Assignment (5): analysis of a national case + 2019 HOCH Convention. * Oral presentation preliminary findings paper (15) ‘You will present the findings of your paper during the last two classes of the semester, ie. May 11 or May 18 —> itis a feedback to help you for the writlen assignment Each student presents a summary of the most interesting preliminary findings of the research paper in a 10 minutes presentation to the class. Reading a prepared speech is not giving a presentation. The presentation must cover the three different angles of the course (private international law, arbitration and ADR/ODA).You can use PowerPoint. Each student submits his PowerPoint presentation by e-mail to the three professors and his two fellow students who will act as commentators ultimately on Friday 8 May 2020 12 p.m. (naan), * Written assignment (20) Selection ofa dispute You must choose & recent (as from October 2019) article in a newspaper or a journal about 8 dispute. You also may use a recent published judicial or arbitral award or cour! decisions. You will have to understand the dispute from different angles. It has to be an international dispute involving contractual lability or a liability in tort (no investment arbitration cases). The more information you can find about the dispute, the better it is (e.g. general torms and conditions applicable to the contractual relationships of the parties, applicable national law ete), Content The paper must cover the three aspects of the course —> analyse the dispute from three different angles: * PIL aspects (juris ion, applicable law, recognition of judgments, exec abroad) * ADR perspective (which form of ADR might be suited the best to settle the dispute, is mediation an option, enforcement of the settlement). ADR clauses must be analyzed in general conditions, the actual contract can be of inspiration * Arbitrabllity of the dispute; choice of arbitration institute, applicable arbitration rules {short analysis), recognition and enforcement of the arbitrational award Not all aspects will be covered in your original dispute, in that case you will have to work with hypetheses (what if the parties choose ADR, arbitration, etc). Source material Class material is only a start, but insufficient You need to use additional sources: (jurisprudence, case law, arbitral tribunal, national courts) —> you need to find additional in depth information: 1) general remarks of your topic + 2) in depth analysis of your topic. Make use of the library, not only of online sources. Underpin your paper with footnotes, which show the additional sources consulted. Include a bibliography (logislation, casa law, doctrine), E.g.: which mediation style is the most appropriate for your dispute; comparison of Russian and European meditation as regards the dispute chosen. Practical issues Submission deadiine of the final version: it must be submitted by Monday June 1. Size: min, 15.000 - max. 20,000 characters (fooinoles and bibliography excluded). Mention the numberof characters on your title pageSubmit it electronically on Blackboard: bring a hard copy for each lecturer (in the letter box with the article ar judicial decision in anne»); save the planet and da no! make use of any plastic copy. Exercise: the case of Ryanair European low-cost airline company. Ryanair considered continuing flights to sunny destinations, outside the holiday seasons. A lot of people booked their flights, including two of them who wanted to marry in December in a sunny destination. Ryanair however decided to cance! 18.000 reservations, including the one of the couple who were Belgian residents. There is a EU law regarding what happens when airine company cancels its flights. Yet, the couple booked not only the flight but also the hotels, the tickets for their family, etc. Ryanair proposed to put those persons into buses as it offers comparable transport to limit €1 billion compensation bil Haw to deal with that dispute? Article 2 of the Ryanair Convention provides that the law applicable is the one of Ireland. So, in principle, Irish courts are competent and Irish law applicable. As regards jurisdiction Yet, Brussels Ibis Regulation (on the jurisdiction) provides in Article 18 that consumers may bring the proceedings before the courts of the MS in which they are domiciled, i.e in this case Belgium. You may interpret Article 19.2 as an additional venue for consumers, which would refer to Article 18 and thus to Belgian courts. So, in any case, by applying Article 18 or Aticle 19 Brussels Ibis Regulation, the consumers have the right to bring the case before the Belgian courts As regards the applcable law: Yel, Rome | Regulation provides in its Aricle 61 a referral to Artic 5 (contrats of carriage) —> accarding to Article 5) 2) b) the Lish law is applicable The terms and conditions of Ryanair provides that the solution must first be found by the parties themselves. ‘You could have lacked al consumers arbitration. Yet, in some countries it is forbidden to force consumers to setile the dispputes via arbitration. In Shanghai, one af the arbitration institutes recently found the Shanghai International Aviation Court of ArbitrationPart I: Dispute Resolution 1. Introduction Overview of forms of (alternative) dispute resolution and their characteristics =a s = - = ypu yeaa ypu yuan) By edges eyepas r =o i 3 ! i i yobs, owe, ey, ty tite cna le 5 me ony Art ec cet i ped moe esas Hie to te octet om Tce tom Nile Chonan rect Pewee [ewes ol) jes seewaceny [rd ‘ = “ = = ‘oats Tre cape eae Sie edad epi a oa ee ee emanate ‘rng tent 8 cone entation Sco apn tani My weipems oak gegen bet aes ees oe Ccaenareaene rete her Dee pn hn et 6S hp en ppl a cee ems ewan rad ererpm hoe trae te pr net ine mata Bente ae peer poser pom eshetabenen rereiore ie er manir enn = ne Grtiictctemneenet it Ae apant teenth a ad a tee = {een tn ne eae A tate ten ek fos a sah even ape he rane enka corer Lk es pt ines — este enon toes pot yer te ratan# oct 4s ake Gragg pmo eb tnt ot tat a —> negotiations (incliding collaborative law}; mediation; early neutral evaluation = dispute resolved by the parties through —> conciliation = dispute resolved by the parlies though a settlement + by a third party through &. adjudication (third party binding advice, eg. expert determination); arbitration; litigation = dispute resolved by a third party through a binding decision1. Negotiation The most common form of dispute resolution, which involves a relatively informal process where parties discuss issues amongst themselves with a view to resolving them by agreement. There is no set procedure and negotiations can vary from simple exchanges between the parties to structured settlement meetings. —> universal application. There is a negotiation between parties themselves with the aim to reach a settlement. It emerged in the USA and Is also used today in Belgium (cll. code de procédures civiles) ADVANTAGES DISADVANTAGES Reduction of costs, more time efficient Depends on the parties’ ability to negotiate Mutual agreement can lead to better solutions | Success depends on how well the case has been researched Vory flexible, conducted by the parties | Can lead to poor outcomes for some parties ft they are unable to put forward the strength of their case Parties retain control of outcome Can involve confusion over process due 10 infommality of negotiation Party autonomy: highest level Can fail if parties have unrealistic expactations or entrenched views 2. Collaborative law Collaborative law is a method of practicing law in which attorneys assist their clients in resolving conflict and making agreements using gaoperalive strategies rather than litigation, The voluntary process is initiated when the parlies sign a contract (a ‘participation agreement’) in writing which includes a promise to negoliale in good faith and to engage in the exchange af private and confidential information an a without prejudice basis. Assistance of other independent professionals (e.g. financial advisor, a family consultant, a child specialist or an accountant) is possible. When parties cannot find a solution themselves, they can rely on collabarative law. Why should it be confidential and without prejudice? Because ff this does not work and that you decide to go to courts, you cannot use the information shared at the collaborative law stage before courts, it should be confidential Each patty are represented by an attorney of their choice. Collaborative law clients may elect ta disqualify their collaborative attorney from participating in any ensuing adversarial proceedings. ILis often used in family issues (but is not limited to) 3. Mediation When parties cannot find a solution themselves, they can rely on mediation. It involves the use of a neutral third party who facilitates a negotiation to resolve a dispute. Details of the process to be followed are usually set oul in an agreement to mediate which isagreed to by the parties beforehand. it consists of face to face or online meetings. The meditation process tends to invalve both some limited separate meetings between the mediator and the parties (caucus) and joint meetings where all are present. Meditation can be voluntary, butt is also mandatory in several cases (0.9. Italy Brazil In meditation, parties have more autonomy. But the main point is that mediation starts with the real needs of both parties, we are not discussing about legal rights of each party. Thus, seems al first sight incompatible may end up with a solution that satisfies both parties = legal system E.g.: dispute between two sisters about an orange. From a legal point of view, the orange would be cut in two. From a mediation point of view, both will get some satisfaction, tha older ane will get the juice and the younger ene will get the peal. It is often use in family law disputes but not only: it.can be applied in almost every contractdispute. ADVANTAGES, DISADVANTAGES ‘Takes info account the needs of both parties: | Some disputes may not be suitable for ‘concessions look more acceptable madiation ‘Can help the parties to see the strengths and | Can be difficult if parties are not represented ‘weaknesses of theircases more clearly by lawyers (ie. they may not know what to expect) or otherwise prepared in advance Mediator is an impartial third party Depends on the abilities of the mediator ‘Good success rates and party satistaction Can increase costs if mediation fails Can help parties overcome adversarial and | Needs skille dmecitact to avoid leading to entrenched pesitions unjust outcomes Privacy and confidentiality | May not work it parties are very antagonistic ‘Can suggest outcomes even in intractable Can be difficult if parties are not represented disputes by lawyers (ie. they may nat know what to expect) or otherwise prepared in advance 4. Early Neutral Evaluation A person wery experienced will have a look al the dispute. The neutral evaluator will provide an opinion at a very early stage on the likely oulcame of a case if it were to be litigated. In a certain sense, parties have a real teacher. The evaluator seeks to bring the parties together and assist them in finding an agreement by common consent. This provides more insight into the strengths and weaknesses of the dispute and helps the parties to identify areas of agreement and focus the issues that remain for resolution It can provide a « healthy check » for the parties and lead to more focused and less costly dispute resolution. It provides an early advice on the legal issues. E.g.: in the USA it really exists as a separate form of ADR. The ombudsman (at the 1st phase) is going to cost each party $660. This price includes a preliminary conference and a 3- hour evaluation section. This amount is refundable if either party withdraws before the pre- conference. These sessions are able to be extended, yet with additional costs at an hourly rats,ADVANTAGES DISADVANTAGES Reduced costs: This is a relatively inexpensive process compared to othar forms of alternative dispute resolution and court-adjudicated processes. Narrowing the ambit and clarifying the issues Great way for parties to reduce the ambit of a dispute where the parties hold completely unrealistic positions and views. This process can be very effective at providing an ‘objective and realistic assessment of the rights and positions of the parties, This alternative perspective can assist disputants rationalise different points of view and maka an educated assessment of the prospects of ‘success of their case in a litigious setting Privacy and confidentiality Ensured through the execution of the mandatory agreement at the commencement ‘of this process Low risk The confidentiality, low cast, speed, efficiency, non-binding nature and expert evaluation make this process a low risk alternative dispute rasolution process. There are very little obligations imposed on the parties and either party is free to wak away from the process if they are not satisfied with ‘the outcome. 5. Conciliation Right-based focus (and not interest-based) The process focuses on the relative legal positions of the parties and their rights in relation to the dispute. Early Neutral Evaluation leaves little room tor exploration ot interest-based outcomes or creative remedies. because the process is confidential and private, and no determination is made that is binding on the parties, very litle legal benefit is gained from the process. No judicial precedent Because the process is confidential and private, and no determination is made that is binding on the parties, very little legal benefit is gained from the process Additional coast to legal costs The disputant’s lawyers should be able to advise the respective parties.on the legal rights and prospects of success at trial and ‘there should be no need to undertake an ENE to contin or falsify these prospects. It could be said that this process Public interest EEN's sprevent matiers of public interest being heard in an open and transparent torum. This means that some issues which should be publicly addressed, if not to only act.as an exemplar for deterrence, would go unheard and therefore no public utiity can be gained from the process. When the neutral third party takes 4 more active role, we refer to conciliation. This is generally accepted to invalve @ neutral third party taking an active role in putting forward suggestions for settlement. The conciliator might facilitate a negotiationbetween parties where possible on their own terms or suggest a potential resolution if the parties cannot agree. This proposal may be in writing. It gives direction to parties. E.g.: ombudsman (in the 2nd phase); judge, ADVANTAGES DISADVANTAGES Usually free Similar to mediation in most respect Similar to mediation inmost aspects Both parties may be asked to explain the dispute in writing Experienced concillator proposes a flexible | May not provide evidence that would become solution available with investigation Neutral third party can provide-an opinion | Concerns about impartiality: judges can act as mediators because afterwards when the: conciliation fails they will have to adjudicate the issue Informal and can be achieved in a short time What about lack of confidentiality? If the parties accept the recommendations, thay become binding 6. Adjudication It involves an independent third party with specialist knowedge (the adjudicator) reaching an independent decision on a dispute. Although similar to arbitration, adjudication processes can be simpler there are less strict procedural rules, the adjudicator is not obliged to apply the law. They can be more flexible and adjustable to meet specific commercial or ather needs. In a B2C (business to consumer) dispute adjudication usually produces decisions that are binding on the company but not on the consumer. E.g.: a clause in a option contract (call or put option) regarding the price; clause in construction constructs (Dispute Resolution Boards): often, the construction contract is. with clauses; 2nd phase of B2C ombudsman ADVANTAGES: DISADVANTAGES Judgment in equity {in principle): there isno | Not necessarily low cost if experts are in application of legal mules and principles dispute Can be carefully adjusted to meet commercial] Decisions may not be binding (further needs litigation or arbitration may be needed) More tlexible and cost effective than arbitration 7. Expert determination This involves the use of an independent expert to resolve a dispute. There are several forms of expert determination: an independent expert can be appainied to reach a binding decision; an independent expert can be appointed to provide expert advice toan adjudicator wha is charged with reaching a decision on the dispute; or the parties may each commission independent expert reporls to provide to the adjudication. It can be used as a independent ADR or in addition with ather methods. E.g.: often used in insurance disputes {insurance company appoints medical dostor to examine the victim of the accident) ADVANTAGES DISADVANTAGES ‘Can save cost and time if the dispute would nomally require expert witnesses in litigation Flexibility: the terms of the expert determination can be agreed in advance 8. Arbitration Although it should cost less than litigation, it can be costly to appoint an expert to determine a cispute The termination is normally binding even if flawed (6.0. by a mistake or fact): when the outcome is flawed, itis quite hard te get the annulment of the decision Its very comparable to national courts, even though arbitrators are nat judges. It involves an independent third party (the arbitrator) reaching an independent decision on a dispute. The process of arbitration can vary depending on circumstances, but must agreed in advance in an arbitration agreement. Some arbitrations may involve hearings similar to those used in a court trial, while others will involve only written submissions. In most cases the arbitrator's decision is legally binding on bath sides. In many Countries the use af arbitration is formally regulated by the law. There are in principle 3 arbitrators: each party finds an arbitrator and the other arbitrator is elected and acts as the presidential arbitrator. It emerged in the 15th century because in international trade people were not certain enough of the independence af national courts. This is the reason why in Europe companies created these independent arbitrators. Itis often used in commercial disputes, or in investment disputes. E.g.: ICC (international), Cepani (national) ADVANTAGES: DISADVANTAGES Parties can select arbitrator with an appropriate expertise and experience Process is private | confidential ‘Aspects of the process can be tailored to dispute: there is no right of appeal Process can every structured and formal i parties want it 1o be It does not save costs if a formal trial like process is used Parties have no control over the outcome Arbitrators do not have the power of judges if @ party fails to cooperate (homologation required) Arbitrators need to be carefully selecied to ensure the confidence of both partiesADVANTAGES DISADVANTAGES Can be simple and cost affective if decision is | Judgement based on the applicable legal ‘on written submissions only rules (in principle) Awards can be challenged before national courts 9. Hybrids Often, many of these methods will be combined. There are +/- 20 different forms of combination of ADR methods. The main advantage of the hybrids if the absolute guarantee that after six months the dispute will be solved by ane way or the ather. * Med-Arb: if the meditation fails, the mediator will act as an arbitrator and will write down his decision. * Arb-Med: if the arbitration fails, the arbitrator will act as a mediator. * Ombudsman: a designated neutral who is appointed or employed by an organization to facilitate the informal resolution of concerns of employees, managers, students and, sometimes, external clients of the organization (often used when there is a power imbalance; combination of ENE, consecutively followed by conciliation or adjudication You can consider an ombudsman as @ separate ADR or as an hybrid method, used in balance with other methods. Yel, for the first assignment, consider ombudsman and other hybrids as separate categories. 10. Litigation The last resort is to go to courts. Litigation is the process of taking a case to a court of law so thal a judgment ean be made. ADVANTAGES: DISADVANTAGES Formal: less opportunity for abuse of process Time consuming Parties are compellad to attend Parties are not in control of the process or decision (outcome uncertain) Institutioalized process allows safeguards Public process Final decision is binding | ‘Onerous evidentiary burden Legal precedent may be established Available remedies limited Expensive process —> these definitions may vary among scholars, but to Professor It is important to have a glabal view of these different types of ADR, which may be used separately or in combination.Think about @ conflict in which you were involved yourself and try to figure out making use of Glasl's model of conflict escalation i.¢. in which stage the conflict was, and which form of ADR might have been the mast appropriate? il] ———-—— | =}===r-|———— | 0 | To achieve de-escalation (i.e. conflict resolution) Glas! assigns the following strategic models to the different stages of escalation Stage 1-3: mediation Stage 3-5: process guidance Stage 4-6; socio-therapeutic process guidance Stage 5-7: intercession, intermediation Stage 6-8: arbitration, court action Stage 7-9: forcible intervention." Sanger he sarnep Sete eet emer ae pi i Sueno cuaiane ‘al prs pacar ‘ecto cat — Ett hats cain Searle thts peo. ‘seduce saan fa et Foie terme Miytesearch: | was in a restaurant in Milan, ltaly with my boyfriend; | was served lunch and my boyfriend had to wait 30 minutes before being served. In lialy, you must pay 2/3€ by person for the service. So, first | asked two limes the waiters where was the lunch of my boytriend, they apologized, bul still we did not eat tagether. So, after that | said we won't pay the service thal it is nat a service when we do nol eat together. At first, they refused then | spoke up and said that was not normal, ete. Eventually, we did not pay the service and we, as clients, were satisfied. But the owner and waiters were probably not satisfied, —> we were al the stage 3 because | clearly wanted to win, | wasnt asking for something else than not paying the service fees; | did not use any threat, | just insisted that I wouldn't pay the service as we weren't served lagether —> actions but no words —> we then entered into process guidance: they had to make concessions. —> as regards ADR, It was all about negotiation; no need of a third party. —> I won, and they did not lose because at the end, it could have been wars! for them (e.g, threats to write bad comments on websites etc)12 2. Mediation and conciliation The UNCITRAL Model Law on International Commercial Conciliation dates back from 2002. Yel, the preparatory works starled much more earlier, and the term mediation was not common at the time. 1, Definition.ad regulatory framework * Mediation is one of a variely of procedures to solve a conflict: it is base on the voluntary participation of the pariies (party aulanomy). It is @ procedure, in which an intermediary without adjuratory powers (ihe medialor) systematically facililales communication between the parties with the aim of enabling the parties themselves to take responsibility (selfempowerment of the parties) for resolving their dispute. Conidentiality of the procedure and neutrality of the mediator are core characteristics. * Mechation is a voluntary process in which the parties make decisions together based on their understanding of their own views, each other's, and the reality they face. The medielor works as 4 non-coercive neutral fo help the parties negotiate an agreement that serves them beller than their aiternatives. —> describes the essence of the mediation technique —> shifting fram parties’ pasitions towards interest-based negotiations —> added value of mediation * UNCITRAL Model Law: « concifaiion » means @ process, wheiher referred to by the expression conciliation, meditation or an expression of similar import, whereby parties request a third person or persons (« the conciliator ») Io assist them in their allempt fo reach an amicable settlement of their dispule arising out of or relating to a contactual or other Jegal relationship. The conciliator does not have the authority to impose upon the parties a solution ta the dispute. —> today, we usually talk about mediation. even though this UNCITRAL definition is the broadest definition —> ultimate limit: authority ta impose upon the parties a solution to the dispute —> possible exclusion: « cases where a judge or an arbitrator, in the course of judicial or arbitral proceedings, attempts to facilitate a settlement »; each judge wha has jurisdiction has the power to first try to coneiliate the parties. If the conciliation fails, the same judige will decide upon the merits of the case through adjudication. UNCITRAL is a body of the UN which mainly produces non-binding instruments aiming at providing common rules —> soft law UNCITRAL Model Law on Mediation/ Conciliation is not that successful but it has nevertheless influences national laws. * Art. 3{a) of EU Directive 2008/S2/EC: ‘Mediation’ means a structured process, however named or referred to, whereby two or more parties to a dispute attempt by themselves, on @ voluntary basis, 10 reach an agreement on the settlement of their dispute with the assistance of a mediator. This process may be initialed by the parties or suggested or ordered by a court or prescribed by the law of a Member Stale. It includes mediation conducted by @ judge who is not responsible for any judicial proceedings concerning the aispuie in question. It excludes aliempls made by the13 court or the judge seised 10 settle @ dispute in the course of judicial proceedings concerning the dispute in question. Types_of mediation * Private mediation: completely independent from judiclal proceedings and often takes place without any subsequent court proceeding, —> it normally takes place before the proceedings; it may also take place during the proceedings; it may also take place after the proceedings (e.9. if parties disagree with the outcome of the decision, they may refer to mediation) * Court-annexed mediation: initiated by the court, bul then takes place without any further involvement of the court liselt * Judicial mediation: mare intensely connected with the court as.an institution in terms ‘of venue and personnel. However, even judicial mediation is not performed by a judge with adjudicatory competence in the specific case. * Excluded mediation: either a judge or an arbitrator, In the course of adjudicating a dispute, underlakes a conciliatory process. Mandatory mediation prescribed by the law Is mandatory mediation preseribed by law around the world? E.g.: in Brazil, preliminary mediation is mandatory: there is a mandatory meeting with a mediator bafore going betore the judge. If both parties do not want mediation, they can refuse. > voluntary E.9.: in Austria, for family issues, it is voluntary; for cross-border relations, international law will apply but it still voluntary, E.g. in Russia,the parties must make agreements to go on mediation. E.g.: in Zimbabwe, itis compulsory so parties go before a first judge for mediation (pre- trial canfarence) andi it there is no agreement, a second judge will adjudicate the issue. E.g.: in Ireland, it is actively promoted. E.g.: in Belgium, it is not compulsory but the judge may, at certain siages of the proceedings when heishe thinks that settlements are possible, order mediation # at least one of ihe panties agrees, E.g.t in Italy, mediation is compulsory (e.g. medical negligance, economic issues), There is some case law of the CJEU on italian laws and on whether they were in compliance with the EU Directive. This case law clarifies certain issues. One of the several cases thal was brought before the CJEU is: ECJ 14 June 2017, Menini & Rampanelli v Banco Popolare Societa Cooperative Directive 2013/1 1/EU of the European Parlament and of the Council of 21 May 2013 0n allemative dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC (Directive on consumer ADR). * It must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, which prescribes recourse to a mediation procedure, in disputes relerred to in Article 2(1) of that directive, as a condition for the admissibility of legal14 proceedings relating to those disputes, to the extent that such a requirement does not prevent the parties from exercising their right of access to the judicial system * On the other hand, that directive must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which provides that, in the context af such mediation, consumers fret be essiton by-o tawyet and they fay within pieuialion ps fol basen aie ie Yet, when mediation laws are enacted there is a lot of resistance from parties autonomy. The voluntary character of mediation is important to stress. For example, the Belgian Constitutional Gaurt considered that a law providing that anly lawyers can act as mediators was not fair, or in other words was discriminatory. E : : i * Facilitative mediation: the mediator restricts him or herself ta promoting the communication between the parties —> problem-centered, i.e. mediation as a tool to resolve a certain dispute. * Evaluative mediation: beyond facilitating communication, the mediator will propose concrete solutions and sometimes even giving legal advice —> prablem-cantered * Transformative mediation: it aims at empowerment and recognition of the parties —: relationship-centered, Empowerment: « the restoration to individuals of a sense of their own value and strength and their own capacity to handle life's problems ~. Through empowerment, disputants gain « greater clarity about their goals, resources, options and preferences ~ and they use this information to make their own « clearand deliberate decisions » Becognition considering the perspective, views and experiences of the other. —> we dont look at the conflict that initiated mediation, we tried to see at what settlement is possible on the basis of parties’ wishes and needs. With transformative mediation, parties are empowered >< critic that mediation just makes the parties dependent on practitioners. * Ad-hoc as well as institutional mediations: the process would normally be gaverned by the rules of a specific institution (e.g. Cepina, Netherlands Mediation Institute, ICC mediation Rules) All mediation organizations have established rules on mediation. * Minitrial: mediators are agents and advocates for the parties, and they, rather than the parties, work out settlement after hearing opposing sides to the controversy. So, there is more than one mediator, usually there are three (each party choses one mediator, the institution appoints the third one who will act as the president). * Arb-med * Facilitation: shuttle diplomacy15 Mediation, in principle, should always be conducted in presence of the parties. Yet, the mediation process also involves some limited separate meetings between the mediator and some of the parties (gaucus). Need fora regulatory framework? NO: party autonomy should prevail regarding the process, the chaice of the mediator, being and end of the mediation process, etc YES: the legislator should only facilitate mediation (in the broadest sense) by regulating: * influence of mediation running prescription (does mediation interrupts or renews prescription?) * interference of the mediation with regard to ongeing proceedings * confidentiality of the mediation (in some jurisdictions, confidential provisions will be purely a matter of contract) * enforceability of the mediation agreement. Begulations * UNCITRAL Model Law on International Commercial Conciliation (2002) Scope: international commercial conciliation * EU Directive 2008/52/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL ‘of 21 May 2008 on certain aspects of mediation in civil and commercial matters Scope: cross-border disputes, ta civil and commercial matters except as regards rights and obligations which are not at the patties’ disposal under the relevant applicable law. It shall not extend, in particular, to revenue, customs or administrative matters or to the liability of the State for acts and omissions in the exercise of State authority (acta jure imperi. Not considered: mediation in criminal cases; in schools; with government. 2.Commencement of mediation proceedings * Mediation clauses E.g. « In the event of any dispute arising out of or in. connection with the present contract, the parties agree in the first instance to diseuss and consider relerring the dispute to the IOC Mediation Rules. » (ICC) E.g.: Standard mediation clause Cepani: « The parties hereby undertake to apply the CEPANI Mediation Rules to all disputes arising out of or in connection with this Agreement, The following provisions may be added to this clause’ * “The place of the mediation shall be..." * “The proceedings shall be conducted in the (...) language." * “Should the mediation fail, the dispute shall be finally settled under the CEPANI Rules ‘of Arbitration by one or more arbitrators appainted in accordance with the said Rules.16 The place of the arbitration shall be (town or city), the arbitration shall be conducted inthe (...) language." One of the main challenges about mediation clauses is whether it is not a cantradiatio in terminis (i.e. combination of words whose meanings are in conflict with one another)? An obligation to commence and participate in good faith in mediation proceedings whenever a dispute arises. There is a least the commitment to be present on the content dispute mediation meeting, then parties remain completely free to slop the mediation process at any time. * Without mediation clauses: It is possible that there is no mediation clause, thus the commencement of the mediation proceedings will be launched by invitation, acceptance or (farmal?) agreement 1o engage in a mediation procedure Art. 8.1. EU Directive: « Member States shall ensure thal parties who choose mediation in an attempt to settle a dispute are not subsequently prevented from intiating judicial proceedings or arbitration in relation to that dispute by the expiry of limitation or prescription periods during the mediation process » —> it stops the prescription, until the mediation attempts ta be ended «Where the parties have agreed to conciliate and have expressly undertaken not to initiate during a specified period of time or until a specified event has occurred arbitral or judicial proceedings with respect to an existing or future dispute, such an undertaking shall _be given effect by the arbitral tribunal or the court until the terms of the undertaking have been complied with’ (art, 13 Model Law) —> temporary suspension of the caurt - or arbitral proceedings until parties have complied with mediation clause. 3.Who can act as a mediator? * Ad hoe mediation: anyone, unless specific legal requirements (e.g. no minor's. * Institutional mediation: institution recommends suitable persons to act as mediator ‘or parties agree thal the appointment of one or more mediators be made directly by such an institution. Ensuring the quality of mediation: by the Stale or the market? * In some countries, there is national laws on the quality of the mediator, in others it will not be regulated and thus let to the market sector. ~ in some countries, the mediator is a profession (occupation, practice or vacation requiring mastery of a complex set of knowledge and skills though formal education and/or practical experience), > every organized profession (accounting, law, medicine, etc) s governed by its respective professional body or partially State regulated. Number and appointment of mediators * Party autonomy: 1. 2 or more mediators7 * Usually 1 mediator * Exception: mini-trial where at least 3 mediators must be present (president and two party representatives) 4. Conduct of mediation. Participatory autonomy and minimal requirements Art. 3a) Mediation Directive: “a structured process". Art. 6.1 Model Law: “parlies are free 10 agree, by reference ta a set of rules or otherwise, on the manner in whieh the conciliation is to be conducted » * Party autonomy There are certain advantages to require that parties should participate in the mediation proceedings. * Minimal requirement: 2 mediation agreement + {air treatment af the parties (parties must be treated equally) * Not required: a process consisting ol “the 5 stages” 1. Introduction and commencement: information of the parties, clarification of the procedure and the roles of the participants, determination of the mediator remuneration and particular issues. (confidentiality, etc); 2, Gathering information: investigation and clarlication of the negotiation subject matter, the issues and the conflict; 3. Clarifying interests: investigation of the interests the participants have in connection with the dispute and its solution; 4, Developing solutions: solution attempts by the parties, the mediator may help by facililating the discussions or even giving evaluative feedback, 5. Conclusion by settlement: seltlement agreement is recorded and legally implemented (= mediation agreement) Are parties’ attorneys involved? In European legal systems, we are struggling with the role of parties’ attorneys. Often, European mediators are reluctant. In common law jurisdictions, attorneys are usually actively involved. What could / should be the role of attorneys? * “openness” to mediation: considering whether mediation is an option * elient education: informing the client about the mediation process, its advantages and disadvantages * preparation: thorough file review, ensure the necessary information and documentation is available and client has a good understanding of the legal evidence and legal issues, as well. as a clear understanding of what is negotiable; assessment18 of interests; defining BATNA (best alternative to negotiated agreement) and WATNA (worst alternative to negotiated agreement) BATNA and WATNA design the borders ta which we can find a win-win situation. * collaborative role: although the goal is still to best represent the client, the tone and altitude involves a more conciliatory representation using a collaborative approach to problem-solving. Normally, the mediator will give advice to the parties. The attorney can for his/her part try to always come up with a collaborative approach ta find a solution * communication: essential to speak effectively, use body language effectively, listen effectively and process body language effectively * shift of control: from lawyer-centered to client-centered * use “creative” problem-soWing abilities. 5.-Confidentiality uty of confidentiality of the parties *« Unless otherwise agreed by the parties, all information relating to the conciliation proceedings shall be kept confidential, except where disclosure is required under the law ar far the purposes of implementation or enforcement of a settlement agreement. » (Ark 9 Made! Law} * In some jurisdictions, there is a law —> legal confidentiality clauses; in other Jurisdictions, itis a mere contractual obligation. Duty-of confidentiality of the mediator Art. ? Mediation Directive. « 1. Given that mediation is intended to take place in a manner which respects confidentialty, Member States shall ensure that, unless the Parties agree otherwise, neither mediators nor those involved in the administration of fhe mediatian process shall be compelled te give evidence in civil and commercial judicial proceedings or arbitration regarding infarmation arising out of or in connection with a mediation process, except (a) where this is necessary far overriding considerations of public policy of the Member Stale concemed, in particular when required to ensure the protection of the (0) where disclosure of the content of the agreement resulting from meaiation ts necessary in order to implement or enfarce that agreement” In some jurisdictions, the mediator is bound by Legal Professional Privilege; in other jurisdictions, he/she has a mere contractual obligation. ' i Art. 10 Madel Law. « 1. party to the conciliation proceedings, the conelator and any third person, including those involved in the administration of the conciliation19 proceedings, shall_not in arbitral, judicial or similar proceedings rely on, introduce as evidence or give tastimany or evidence regarding any of the folowing: (2) An invitation by @ party to engage in conciliation proceedings or the fact that a party was willing to participate in conciliation proceedings; (8) Views expressed ar suggestions made by 4 party in the conoifation in respect of a possible settlement of the dispute - (c) Stwements or admissions made by a party in the course of the conaihation proceedings; (d) Proposals made by the coneiliator: (e) The fact that a party had indicated its willingness lo accept a proposal for settlement made by the concilator; (f) A document prepared solely for purposes of the coneiliation proceedings.” * Scope: evidence obtained in preparation of or during mediation; but nat the already existing evidence (no immunization of evidence). You want to avoid that parties could immunize certain evidence. * Sanction: inadmissibility of the evidence. * In some jurisdictions, there is a statutory provision (Model Law, Belgium); in other jurisdictions, itis dane through an agreement by the parties. 6. Enforceability of settlement agreement iation Di It is about the result of a mediation is a settlement. EU member States must guarantee the enforceability (when the content af the agreement is nol cantrary to the law): —> choice of the competent institution (court or other competent authority) and form (judgement, decision ar authentic instrument) ta the Member States. —> additionally, the general rules on cross-border and national enforcement apply (Brussels Ibis Regulation)! * Art, 58: an authentic instrument which is enforceable in the Member Stale of origin shall be enforceable in the other Member States without any declaration of enforceability being required. Enforcement of the authentic instrument may be refused only if such enforcement is manifestly contrary to public poliey (ordre public) in the Member State addressed. * Art, 59: a court settlement which is enforceable in the Member State of arigin shall be enforced in the other Member States under the same conditions as authentic instruments.AACE RSW TN ATM TS BARI A RW , Singapore Canvention does the same, as regards mediation agreements. 20 —> UNCITRAL Convention on international Settlement Agreements Resulting from Mediation (Singapore Convention}. improving the enforcement of mediated settlements reached in cross-border ‘commercial mediation ‘counterpart of the New York Convention on Arbitration ‘currently 51 Parties shared views on the Singapore Convention: good thing >< nat necessary Article 1 (scope): international settlement agreements resulting from mediation, concluded in writing by parties to resolve a commercial dispute * Excluded from scape: 8) settlement agreements concluded by a consumer for personal, family or household purposes, or relating to family, inheritance or employment law. b) settlement agreement that is enforceable as a judgment or as an arbitral award. * Article 3: key obligations of the Parties te the Convention: - enforcement of selllement agreements and the right of a disputing party to invoke a settlement agreement covered by the Convention, in order to prove that the matter has already been resolved. * Article 4 formalities for relying on a settlement agreement: the disputing party shall supply to the competent authority the settiement agreement signed by them: both parties must sign and also the mediator. and evidence that the settlement agreement results from mediation (e.g. signature of the mediator, attestation by the institution that administered the mediation) the competent authority may require any necessary document in order to verity that the requirements of the Convention are complied with. * Article 5: grounds upon which a court may refuse to grant relief at the request of the disputing party against whom itis invoked. 3 main categories: grounds in relation to the disputing parties (incapacity), the seitiement agreement (null and void, incomprehensible) and the mediation procedure (non disclosure of conflict of interest by the mediator, general standards of mediation were not met) ~ 2 additional grounds upon which the court may, an its own motion, refuse to grant relief: public policy and the fact that the subject matter of the dispute canno! be settled By mediation. 7. Besort to arbitral or judicial proceedings When no selllement is reached, parties can end a mediation anytime When no settlement or only partial settlement is reached, parties can opt for adjudication of their dispute by the courts or an arbitral tribunal24 3. Ombudsman, Online Dispute Resolution and Dispute System Design 1. Ombudsman Definition Ombudsman, ombudsperson, ombuds. Swedish for « representative » * the organizational ombudsman: « a designated neutral wha is appointed or employed by an organization to facilitate the informal resolution of concems of employees, managers, students and, sometimes, external clients of the organization ». * the classical ombudsman: « is typically appointed by a legislative body to represent the public with cancers of the public with regards to the conduct of governmental agencies; they conduc! formal investigations. » A public body which is supposed to represent the public in the conduct of governmental agencies 1OA Standards There Is an international organization an ombudsman: the International Ombudsman Association. The Ombudsman Office and the Ombudsman are independent from ather organisational entities (government, legislative badies, etc). The Ombudsman holds no other position within the organisation which might compromise independence The Ombudsman is neutral and impartial. Confidentiality of all communications with those seeking assislance in strict confidence; the Ombudsman does not reveal the identity of any individual contacting the Ombudsman, nor does the Ombudsman reveal information provided in confidence that could lead to the identification of any individual contacting the Ombudsman, without that individuals express permission. The Ombudsman maintains information (e.g., notes, phone messages, appointment calendars} in 4 secure location and manner, protected from inspection by others. Principle features of an ombudsman scheme Omibudsman's main task is to revolve complaints. a) Ombudsman schemes resolve Complaints. They are not regulators, though some of their decisions may be seen as precedents and have wider effect b) The ombudsman model is used to resowe complaints made by someone ‘ema’ (cilizen/consumer) against something ‘big’ (public body or commercial business) c) Ombudsman scheme procedures are designed io redress the difference between Ihe resources and expertise available to the cilizen/congumer and those available to the body/business d) Access ta ombudsman schemes is usually free for citizensiconsumers, and they are nat at rick af an errer far enata Cimbidaman echemes handle enewiiries ae wall ascomplaints by Informing the party who has a potential complaint, because dealing with an enquiry may head off a complaint (for example, by resolving a misunderstanding) 22 Sometimes, enquiries. and information to the party who has a potential complaint will suffice to solve the potential dispute. 8) The citizen/consumer first complains to the body/business, accessing the ambudsman scheme only if dissatisfied with the body/business's response (ar if it does not respond within a reasonable time) f) When dealing with complaints, ombudsman schemes seek to achieve a fair resolution athe earliest possible stage ~ rather than working towards an assumed future hearing g) Ombudsman schemes use flexible and informal procedures — resolving cases by mediation, recommendation or decision as appropriate There is no formal requirements to submit a complaint. h) Ombudsman schemes do not just rely on the evidence the parties volunteer. They often actively investigale cases (using their specialist expertise) - calling for the information they require i) So the outcome is not affected by haw well either of the parties presents his/herfits case, and representation by lawyers (or others) is nol necessary —> access is easy. i) Ombudsman scheme recommendations/decisions are based on what is fair in the circumstances, taking account of good practice as well as law k) Ombudsman schemes publicly annul feed back the general lessons {ram cases they have handled, so stakeholders (including government/reguiators) can take steps to improve things for the fulure Ombudsman publishes annual reports to improve the situations of conflict between citizens and the government, or between consumers and large businesses. |) Because there isa flexible and informal process, and representation is not necessary, the costs of an average ombudsman case are significantly less than an equivalent case in@-court or tribunal. Ombudsman in contractual and tort disputes: * Financial Services, Insurance, Travel, Furniture, Ombudsman Service for Consumers Disputes Relating to the Legal Profession, ele —> different types of Ombudsman * The EU Consumer ADR Directive (Directive 201.3/11/EU of 21 May 2013 on alternative dispute resolution for consumer disputes): CDR schemes across Europe, comprising public or private bodies or ombudsmen (e.g. Belgium), which are based on the classic ADR techniques of mediation/conciliation, non-binding recommendations, arbitration, mediation-arbitration, or binding adjudication. ‘The EU Consumer ADR Directive provides that consumes always have lo access an ombudsman when they have any type of complaint * There is na single model for CDR bodies in Europe, but a range of bodies. * Ombudsman can be seen as.a separale category or as an hybrid form of ADR.23 2. Online Dispute Resolution (ODR) ODR is a mechanism for resolving disputes through the use of electronic communications and other information and communication technology. Subjected to the same confidentiality and due process standards thal apply to dispute resolution proceedings in an alffline cantext, in particular independence, neutrality and impartiality. —> UNCITRAL Technical Notes on Online Dispute Resolution (2016): it is not a model law, itis even softer but it is just about recommendations on ODR There is a lot of literature on online arbitration. An QDR process may be particularly useful for disputes arising out of cross-border, low- value €-commerce transactions. Can be applied in B2B and B2C. The GDR process is based on the explicit and informed consent of the parties (party autonomy). E.g.: in the Netherlands, the Rechtwijzer 2.0 is an ODR mechanism for divorces. It includes all the elements of a divorce which will be divdd automatically by the online mechanism, It also helps people to calculate allowances that will be due from the father to the mother based on thair respective revenues. If the parties have some issues that cannot be sottled, they can rely on an eniine meditator to find a solution. If there is still no agreement between the parties, they can rely on an offline mediator and organize meetings. Different actors * claimant: party initiating ODR proceedings (electronic address). * respondent: party to whom the claimant's notice is directed (electronic address). *ODR platform: system for generating, sending, receiving, storing, exchanging or otherwise processing communications in a manner that ensures data security * ODR administrator: entity that carries out administration and coordination of the platform (electronic address). * neutral: mediator / conciliator / adjudicator involved in the later stages of the ODR process, At some stages, you can get hemp of mediator, conciliator or adjudicator. Commencement of the ODR proceeding Claimant provides to the ODR ad information: istralor & notice containing the ‘following a) the name and electronic address of the claimant and of the claimant's representative (i ary) authorized to act forthe claimant in the GDR proceeoye name ang eecyonic agaress OF ine respong@ent angar ine responcens: representative (if any) known to the claimant; c¢}the grounds on which the claim is made; 24 d)any solutions proposed to resolve the dispute: e)the claimant's preferred language of proceedings; and 1) the signature or other means of identification and authentication of the claimant andjor the claimant's representative. Response of the respondent includes: a} the confirmation of the name and electronic address of the respondent and the respondent's representative (if any) authorized to act for the respondent in the GDR proceedings; b)a response fo the grounds en which the claim is made; c}any solutions proposed to resolve the dispute; d) the signature or other means of identification and authentication of the respondent and/or the respondent's representative; and 2) nolice of any counterclaim containing the grounds on which the counterclaim is made. There is no so much differences with the off-line procedure, Different stages of an ODR proceeding It is perfectly fine if only one or two stages is complied with. 1° negotiation: a technology-enabled (artificial intelligence) negotiation cammences, in which the claimant and respondent negotiate directly with one another thraugh the ODA platform. 2° facilitated settlement: if the negotiation fails, the ODR administrator appoints a neutral, and notifies the parties of that appointment, and provides certain details about the identity of the neutral. The neutral communicates and interacts with the parties to try to achieve a settlement 3* and a third (final) stage: parties can refer to adjudication, arbitration, or even a recommendation (binding for the business but usually not for the consumers). The eBay example eBay has a specific ODA mechanism for all buyers and sellers using eBay; it handles more than 60 million disputes each year, itis funded by eBay, itis a voluntary business scheme. The processes are: 1) ODF; 2) assisted negotiation; 3) mediation All the necessary information must be submitted on the platform, then reference can be make lo the transaction at stake. Firstly, the mechanism tries to have @ mare objective view about the dispute (by furning emotions into facts) —> there are some boxes to answer. The issue can be related to payments or other issues.Secondly, according ta the issue al stake, the computer (artificial intelligence) will come with proposed solutions —> solution suggestions are data-base and precedent driven. The facus is.on fairness and compromises. 25 Thirdly, they help articulate the issues; focus on fairness and compromise; at the third step, you can come come up with additional infarmation, IMhis fails, there are two options: mediation or continue negotiation by yaursell QDR administrator a) Acknowledges receipt of any communication by the ODA platform: b) Notifies parties of the availability of any communicalion ceived by the ODR platform; and c) Keeps the parties informed of the commencement and conclusion of different stages of the proceedings. Neutral (it can be a mediator, conciliator or other forms) a) The neutrals acceptance af his or her appointment operates to confirm that he ar she has the time necessary to devote to the process; b) The neutral be required to declare his or her impartiality and independence and disclose at any time any facts or circumstances that might give rise to likely doubts as to his or her impartiality or independence: ¢) The ODR system provides patties wilh a method for abjecting ta the appointment of a neutral, d) If the parties object to an appointment of a neutral, the ODR administrator be required to make a determination as to whether the neutral shall be replaced: e) There be only one neutral per dispute appointed at any time for reasons of cost efficiency: 1) A party be entitled to abject to the neutral receiving information generated during the negotiation period; and g) If the neutral resigns or has to be replaced during the course of the ODR proceedings, the ODR administrator be required to appoint 4 replacement, subject to the same safeguards as set out during the appointment of the initial neutral Language Technology tools available in ODR ean offer a great deal of flexibility regarding the language used for the proceeding —> language is the main challenge but if there are language barriers, they ean be dealt with technology (e.g. Google Translate), E.9.: bitovisccuopa.cwodr (available in the 23 official languages of the EU) — Regulation §24/2013 of 21 May 2013 on online dispute resolution for consumer disputes, which allows the parties to submit disputes in their own languages. The power of assessing which entity can be recognized as an ADA entity relies on theMS —> disparities among thé UUH mechanisms in EU Member dtates. 26 3. Dispute System Design (DSD) There is increasing literature on DSD. How should you write dispute clauses or implement some forms of ADR into some types of organizations? DED is analyzed from a policy perspective Definition Dispute System Design (DSD) is a method for resolving intractable or frequent conflicts in troubled organisations, businesses, or entire industries. It is the process of identitying, designing, employing, and evaluating an effective means of resolving conflicts within an organisation. In order ta be effective, dispute systems must be thoroughly thought out and carefully constructed, It includes but is much broader than drafting dispute resolution clauses. —> William Ly, Jeanne Brett, and Stephen Goldberg, Getting Disputes Resolved: Designing Systems to Cut the Costs of Conflict (1988). Work was dane at the Caney Creek Coal Mine, a mine that had been plagued by strikes in the 1970s, Conflicts between miners and their employers. The authors came to the conclusion thal they had a complete opposite triangle of dispute resolution: power (miners went on strkesiemployers stop paying); rights (recourse to courts); reciprocal interests of the parties. The authors managed to implement a system in which minors and employers resolved in settling their main problems: from taking into account reciprocal interests to go to courts, with a limited passibility to rely on power issues —> effective system, an Effective stem JA mm / ~ \ Distressed System Effective System\deally, disputes should be resolved at the lowest level, through negotiating interests. oF Claims of interest focus on the desires of the actors in any given dispute, Rather than , actors should focus on whal they ‘would Ike fo clo based on thelr own Interests, Interest-hased clalms are more negotiable, and hence less likely lo become intractable, Only if interest negotiation doesn't work, should the parties try a fights-based approach (¢.g. a legal suit). And power-based approaches, such as strikes, should be reserved for those few conflicts that cannot be resolved either through interest or rights-based approaches. Advantages of interest-based negotiations * Negoliating interests is less expensive than adjudicating rights or pursuing power ‘options * Negoliating interests results in mutually satisfactory salulions, while the other two approaches are winlose, meaning one side wins and the ather side loses. * When power-based approaches are tried, the losing side often is angry, and may try to ‘get-back! at the other side whenever they get the chance * Interesi-based negoliation is usually less lime consuming than the other approaches. ADR design toolkitin 10 steps 1. Funding: public or private? |s there a justification for public funding of the scheme (e.g. if government activity is overseen]? Should funding come from general levies on a sector (or the scheme's membership) or case fees or both? Ht ascheme uses both levies and case fees, what proportion of funding should come trom each stream? To what extent will the funding mechanism be used in support of broader dispute resolution goals? Will case fees be differentiated depending on the stage at which a dispute is settled within the ADR process? 2, Jurisdiction: compulsory or voluntary? Weaker party (e.g. consumer) detriment in a particular sector, indicating a need for compulsory ADR? Is selt-regulation and voluntary membership likely to be sufficient? How effective and accessible are existing methods of dispute resolution in a given sector or industry? Where thee is competition between schemes in a sector, how will quality and standards remain consistent between schemes? Ht a statutory requirement is imposed on businesses in a sector to become members of a scheme, how will schemes be approved and regulated? le frame reverie Gow sedeerdere eee pereveredenase lowterelinierur fix foes rrvenhdrurd Ines then eworses dDHe ELE TR EL ee YS CE y pee CaSO wy Beer Laren OES ay Ue emcees ee body and, if so, what are the risks associated with this? 3. Goals: redress ar prevention? Is the goal of the scheme to act as a straightforward alternative to court processes? 28 ls the scheme operating in a sector which is regulated and where a regulator might be expected to undertake systemic improvement activities? Doas the scheme operate in an area where there is existing consumer advice and education provided? Does the political, cultural or business environment the scheme operates in / allow forthe pursuit of preventative approaches? How will the cost of pursuing preventative approaches be met and what measures need to be taken to justify that cost? Can some preventative approaches (such as training and providing feedback! consultancy! advice) generate an income stream for the ADR body? 4, Emphasis: on public interest or party interests? What levels of consumer detriment exist in the particular sector or industry in which a scheme operate? Do a range of social actors have an interest in the operation of an ADR scheme in a particular area? Where public interest in the efficient operation of a scheme is high, how will the scheme ensure it operates transparently (e.g. through the public reporting of casework and perlormance datay? Where dispute resolution is considered to be a largely private matter between parties, how can a scheme be adapted to meet their particular needs? Where public interest is lower, how can a scheme ensure that it is not dominated by the interests of industry at the expense of consumers? 5. Structure: single stage or multi-stage? What is the value of the disputes being considered by the scheme and, if high value, does this indicate a need for formal appeal stages within a scheme’s process? Is participation in a scheme voluntary or in an environment where schemes compete and, if s0, does this indicate the use of single stage, cheapar processes? Ht several stages are used, are they used as a procedural saleguard/ right of appeal to be invoked by the parties, or are different procedures available at the discretion of the ADR body? Are ongoing relationships between consumers and businesses a feature of the industry covered by the ADR body? If so, what potential is there to use more consensual methods? 6. Process: inquisitorial or adversarial? The Ombudsman is an example of an inquisitarial process. Will the process be primarily inquisitorial or adversarial? To what extent is there an imbalance of power between consumers and organisations in the area overseen by the ADR body? To what extent is the participation of the parties in the processof dispute resolution perceived to be beneficial in the area overseen by the ADR body?Will reversing the burden of proof be feasible/ acceptable to organisations being covered by the ADR body? 7. Decision maker(s): neutral individual or a panel? 29 For cost efficiency reasons, it may be better to rely on a neutral individual. It is quite rare to have a panel in ODR ls acceptance of an ADR scheme by industry or by consumers likely to be particularly challenging? Is industry likely to prefer a low cost model (which would argue for a single decision maker) or one whieh emphasises industy participation and contral (panel? Will there be a role for panels in a small number of escalated cases? Will the complaint involve difficult questions of fact which require expert determination? 8. Technology: high tech (2.9. emails, video confarencing) ar low tech? High technology may be needed in cross-border disputes or for small claims (cost- efliciency reasons). Will all or part of the service make use of an enline dispute resolution platform? Are there particular accessibility issues (in terms of access to the internet and IT literacy) which particulary effect the area in which the ADR body will operate? (6.9. Rechtwizer) Whal altomative measures may be required to ensure accessibility af the ADR body? What volume of cases will the ADR body deal with and is investment in online dispute resolution platforms likely to be cost effective if volumes are low? Are the disputes of a type, value and level of complexity such that assisted settlements using automated systems are likely? (8.9. eBay) Will the scheme make use of other technologies such as the telephone/ mabile/ Skypey Adobe connect to bring parties together and to personalise the dispute resolution process? Are simple improvements to the speed and accessibility of communications (6.9. template text messages) available? 9. Settlement type: impased decision or party agreement? How cooperative (party agreement) is the particular industry or sector covered by the ADR body? Are consumers ina specific sector particularly vulnerable and likely to settle for less than they are due if facilitative techniques are used? {imposed decision) |s the industry or sector likely to favour formal, predictable decision making? Are there ongoing relationships which may be important to maintain? (party agreement} H amult-process structure is created, are there particular types of cases that might be suitable for facilitated outcomes? Would this involve either large volumes of ow value claims or low volumes of high walue claims, depending on the process used? 10. Outcome: binding or not binding? Mast of the time, it will be binding but there are examples in which the outcome will be narhindinala a CmbwdemantVIN RE INR TAS ey + eH MPL DONE | Are there particular concems around compliance with decisions, such that decisions require to be legally binding and enforceable? it decisions are binding, will the ADR body or the consumer be responsible for enforcement action where a body refuses to comply? 30 Might the benefits of binding decisions be outweighed by the relationship between the ADR body and industry becoming more confrontational and jess cooperative? Ht decisions are to be binding, will they bind the business only or both the business and the consumer? Where ADR bodies bind both parties will there be a right of appeal to a judicial body?a1 Part Il: Arbitration 1. Introduction on arbitration Introduction Arbitration is in fact very close to court proceedings, an arbitrator Is gaing to decide the case for the parties. It could be considered as ADR compared to court proceedings, bul generally speaking arbitration is not really ADR. Definition Settlement af @ dispute (whether of faci, law, or procedure) between parties (to a contract) by a neutral third party (the arbitrator) without resorting to court action. Arbitration is usually voluntary But sometimes it is required by law. Mostly the arbitralor's decision (the ‘award’) is a binding decision. The exact procedure io be followed (if not included in the coniract under dispute) is governed by a county's arbilralion laws, by the rules chosen by the parties or by the arbitration rules prescribed by an arbitration institute. Arbitrators will not only decide on legal matters but also on the facts of the case. You can have arbitration on contractual issues (parties will agree on arbitration before the dispute), but also on tort issues (arbitralion agreement can anly rise when the dispute arises - submission agreement). The neutrality of the third party is essential Arbitration is generally voluntary but in some jurisdictions it is required by law —: statutory arbitration (@.g. in the UK on electricity matters). The arbitral awardthe decision of the arbitrators is binding, because parties have agreed to submit their disputes to arbitration (#a court decision is binding because the law says ttis binding} Similarities with court adjudication * Settlement of a dispute * Usually, arbitration will be decided according to legal rules (.e. laws chasen by the parties and applied by the arbitrators) * By a neutral third party (the judge = arbitrator) * In order ta obtain a binding decision Differences. * Authority of the third person to decide is derived from the law (court proceedings) = {rom an agreement belween the parties (arbitration) It is internationally accepted to be the most important way of dispute settlement in international dieniites In internatinnal dieniites eaurt adiudination may be used but themost frequently used dispute seillement system is arbitration * Parties have more autonomy in arbitrators (choice of arbitrators, choice of procedure) Parties have a very large autonomy In arbitration, which is thus very different from ordinary courl proceedings. 32 Basis of arbitration is the agreementto arbitrate * The contract concluded between the parties might contain an arbitration clause * Ifnat, parties might agree on a submi agreement after the dispute has arisen * Agreement to arbitrate: investment disputes (agreement between states, investor is nat a party) In inwestment cases, we do not talk about 4 submission agreement but about an agreement to arbitrate Evolution of arbitration Arbitration started in 1920s; at that time, arbitration was not formal. The lex mercatoria was used by a « amiable compositeur ». Proceedings were not adversarial There has been an explosive increase since the 1980s. Now, decisions are taken on de basis of the lav; arbitrators act as judges; and it is highly adversarial Arbitration has become an autonomous legal system for the resolution of transnational disputes, Emphasis on the coherence and authority of the arbitral order Less influence of the parties on nomination of arbitrators and on the procedure Kinds of arbitration D i itration the seat of arbitration is usually neutral The place where you have your seat of arbitration is crucial: the national arbitration law/ the seat of arbitration will apply to the arbitration procedure. Each national arbitration law has some mandatary provisions. When you decide the seat of arbitration, you will have to consider that you will have to apply the mandatory provisions af that country. * In national arbitration, you In general, arbitration is not possible in consumer cases, but there are exceptions. * In international art very often have specific consumer prote n provisions * Arbitration is usually cosily (fees of arbitrators, lawyers, hearings of witnesses, appointment of experts) Everything has to be pald by the parties. In Intemational arbitration, the amounts at stake are higher than in national disputes. * Applicable law will differ * Some states make a difference between national and international arbitration,* Some states. may only enter in international arbitrations. but nat in national arbitration You always have to choose the right arbitration law: ig it the one the parties choose to apply or is it the law af the proper State? 33 When is an arbitration domestic and when international? * Objective test: takes into account the nature of the dispute and the international or national character of the underlying transactions E.g.: Article 1504 French GCP : “An international arbitration is one that involves the interests of international trade" * Subjective test: takes into account the nationality or the domicile of the parties Without looking at the nature of the dispute lise or the underlying transaction, the dispute will be national if both parties are nationals of or domiciled in the country. E.g.: Aricle 176 Swiss Private International Law Act : ‘The provisions of this chapter shall apply to arbitral tribunals that have their seat in Switzerland, provided that, at the time of the conclusion of the arbitration agreement, at least one of the parties had neither its domicile nor its habitual residence in Switzerland” * UNCITRAL Model Law UNCITRAL produced that law as model for States. It can be used by all legislators when drafting their arbitration law —> it is applicable to all national systems. Many countries have already adopted the Model Law. The basic rules would be the same because there are based on that Model Law, bul not necessarily because some countries did not amend their national laws. It is not-binding. Article 1(3) UNCITRAL Model law An arbitration is international it: (a) the parties to an arbitration agreement have, at the time of the conclusion of that agreement, their places of business in different States; or (b) one of the following places is situated outside the State in which the parties have their places of business: ()) the place of arbitration if determined in, or pursuant to, the arbitration agreement: (i) any place where a substantial part of the obligations of the commercial retationship is to be performed or the place with which the subject-matter of the dispute is most closely connected; ar (0) the partios have expressly agreed that the subject matter of the arbitration agreement relates fo more than one country. —> bath the objective (c) and subjective (a) tests are reproduced in this provision Ad hoe v. Institutional arbitration | * Ad hoc arbitration: arbitration agreed to and arranged by the parties themselves ‘without recourse to any institutionIt may be cheaper because there are not the costs of the institution; but the parties must agree on everything that is going to be decided in the proceedings, which is therefore a disadvantage. = Contractual model ~ Large party autonomy 34 - Bul parties are bound by mandatory provisions of the law of the seat af arbitration The mandatory provisions of the seat of arbitration will always be applicable to arbitration, even though parties have opted for ad hoc arbitration. - No institution will aciminister the arbitration proceedings = In practice, if parties have not agreed or decided on elements before: arbitrators can refer to the UNCITRAL arbitration rules - Parties are free to adapt these rules to their needs. = Advantage: more flexibility - However there must exist a basic understanding between the parties /!f If parties do not agree on anything, it would be impassible to have an ad hoc arbitration coming to an end. It is not a good idea when parties do not have that basic understanding. * Institutional arbitration: arbitration conducted under the rules laid down by an established arbitration organisation, meant to supplement provisions of an arbitration agreement in matters of procedure and other details the agreement permits. There are 207 established centres, there are 3 global houses (ICC in Paris; the AAA- ICDR in the USA; the LCIA in Londen}; there are ather major centres (the SIAC in Singapore; the Stockholm Chamber of Cammerce - SCC; the Hong Kong International arbitration centre - HKIAC). They give a whole framework that parties can use, they assist parties in organizing the arbitration (administrative support, help in nominating arbitrators) tis an organization organizing all arbitration proceedings. ~ They act as a legislator. They have codified rules, supplemented by soft law called, ‘that govern the procedural law of arbitration and revise them regularly = respect the freedom of the contracting parties to determine how cases will proceed, while offering adaptable rules and in-house appointment of arbitrators when desired, = provide neutral, expert, flexible, efficient and predictable administration of cases, including complex disputes involving three or more parties, ~ maintain a roster of highly competent, impartial arbitrators, ~ (10 some extent) guarantee the confidentiality of awards, subject to waiver by the parties,T VUTIST AEOLICREST TL ALA RS, SILAS WE SULAIMAN, CCS technology, near comfortable hotels and world-class restaurants, = offer less costly substitutes to arbitration in the form of mediation and simplified FastTrack procedures, ~ produce final, binding awards that will be enforceable in state courts, with little or no judicial review on the merits. 35 it is mainly used in commercial arbitration but it can also be used in many ather issues (e.g. employmant issues). It depends on national law. c : secon * Commercial arbitration : arbitration between several companies having a commercial anda more private nature Commercial disputes are widely interpreted: it is often of contractual nature, but not necessarily (e.g. submission agreement); it is of private nature. The New-York Convention is normally applicable to all types of arbitration. Yet, some MS have specified thal they only adopt the NY Convention for commercial arbitration This is important: the rules of the NYC with regard to enforcement of arbitral award will not be applicable if a MS opted out for the NYC outside commercial disputes. * Investment arbitration: arbitration that opposes an investor national of one stale, to angther state where that investor had invested (¢.g.: Goldmine project). It concerns a dispute between an investor, which is national of one State, and another State in which the investor invested. The Slate made it difficult for the investor to invest —> investment dispute = foreign investors of one State against another State. Mast of the time, there are bilateral or international treaties concluded between these two countries to make sure that investments are conducted in a good way to make sure that foreign investors are treated the same was a national investors. Yel, the NYC is not applicable in investment arbitration, which is regulated by separate rules. and conventions. - Treaty based: bilateral treaties, multilateral investment and trade agreements (NAFTA, CETA) But also : the hast State's national investment law, which offen pravides for protection of foreign investors in certain circumstances, an investment agreement ~ Public nature ~ Most important investment arbitration centre: Internatianal Centre for settlement of investment disputes - Guarantees offered by BITS: protection from expropriation; discrimination (the host ‘State must teat foreign investments no less favourably than the investments of its own nationals and companies), fair and equitable treatment; full protection and security (ensure that a host Stale takes active measures to protect a foreign investment from adverse ‘effects of actions of (a) the hast State, (b) its organs or even (C) third parties).Contractual v. Statutory arbitration * Contractual arbitration is arbitration agreed upon by the parties. * Exceptionally a slatule ora regutation may provide that the dispute should be settled by arbitration 36 Goline arbitration The court, the experts, the witnesses, the lawyers, the parties, should all use online communication tools, filing, document presentation etc and must do so in a technological environment which is fully protected Example: 1) Arbitration Court attached to the Czech Chamber of Commerce and the Agricultural Chamber of the Czech Republic. ~All disputes arising from the present contract and in connection with it shall be finally decided with the Arbitration Court attached to the Czech Chamber of Commeree and the Agricultural Chamber of the Czech Republic by one arbitrator appointed by the President ‘of the Arbitration Court in aecordance with the On-line Rules of the Arbitration Court. ~ ‘The parties select the following e-mail addresses for the conduct of the on-line arbitral proceedings. 2) Additional procedures for on-line arbitration {on-line Rules) Sectorspecific arbitration Many sectors. have specialised arbitration centres. This is the case for maritime cases, sports, energy, intellectual property, construction, transport, ete.a7 Characteristics of international arbitration Infamational Arbitration Survey conducted by W&C and OMU af London - Survey answers 2018 Enlorceabiliy of awards The foreign enforcement of arbitration award (.@. the enforcement in state B of an arbitration award given by arbitrators in Slate A is easy as a Consequence of the NYC) = judgements are not easy to enforce all over the world, yet il is easy in Europe given Brussels Regulations. Most of the countries in the world are members of the NYC, but some are not (e.g. Somalia) —> what would be the consequences? There is a new Hague Convention on enforcement of arbitration awards, but it is nat yet enforced in MS. In arbitration, parties can choose a neutral country where the system for both parties and thus they can chaose arbitration rules ag they wish Table 2: Top three benefits of erbitration invalving technology companies 1. Specialized / Exper decision-making: 2. Time toresclution|S Flexible procedures / Party autonomy ' + rene wtromete = an i loom LLL 38 Eloxibilit Hi : Parties can decide on all the elements of arbitration. * Within the arbitration process itself: change procedural calendar, organise hearings when necessary; availability in case of urgency. * When combined with other dispute settlement mechanisms Exeeciom to select arbitrators Parties can also select the arbitrators. + Expertise (Silicon Valley Center Survey) + Experience * Language * Availability * Support * Familiarity with a cenain legal culture. Neutrality * Arbitrators act as a part of a neutral forum * Arbitrators are not judicial organs of a particular stale * Nationality of arbitrators Party aulonomy * Arbitration rules (ad hoe vs institutional) * Law governing the contract * Law governing the arbitration process. * Trade usages and ex aequo et bono * Language of arbitration * Venue of arbitration * Procedure fo be adopted Einality Arbitration awards can normally not be subject ta appeal. Arbitration award is final.Speed Yet, nowadays court proceedings and arbitration are usually both quite long. Time and costs * No second instance (appeal) phase * Setting aside proceedings 3g * Expedited arbitration proceedings: faster procedure for disputes of a simpler nature (e.g. SCC, ICC - as of 1 March 2017) * LCIA: average 16 months * Procedural cost: fees and expenses of the arbitrators: administrative costs (institution); experts appointed by the arbitral tribunal * Parties’ legal costs: external counsel andlor technical experts; logistical costs (translation, interpreter, rental fees venue, travelling); internal casts * Hidden costs: pathological clauses; venue; non consolidation. * Online cost calculator (ICC) * LCI: average 97,000 dollars * Legal aid? Generally no legal aid is provided E.g. access to ‘court? Cir article 6 ECHR: Article 6 isnot opposed to arbitration (Parties, can waive their right of access to court), ECHR Suda v Czech Republic, 28 October 2010) Does article 6 guarantee a right of access to arbitration? * Right of access to court must be effective (Airey v. Ireland) * Legal representation is not always necessary (the possibility of appearing before a court in person, even without a lawyer's assistance, will meat the requirements of Article 6, §1) * Legal aid is not always necessary, bul might be necessary in the specific circumstances af the case Confidentiality There is no general confidentiality guarantee; but party autonomy. ~ Confidentiality clause in de the contract - Some arbitration ules provide for confidentiality + Confidentiality clause in ToR or PO+ = Confidentiality orders (see ICC and WIPO Rules) = Scope: existence of arbitration; submissions and proceedings confidential: hearing and award confidential = Exceptions : legal duty to disclosemaT * Discovery vs document production * IBA Rules on the Taking of Evidence in International Arbitration * Mare limited scope than US style discovery * Document production phase usually set out in PO4. 40 Finally. * No appeal * Setting aside or vacatur proceedings * Narrow scope of judicial review. Enlorceability: * 1958 New York Convention on the recognition and enforcement of foreign arbitral awards : 161 member states * Narrow scope of judicial review * No equivalent multilateral treaty with respect to court judgments (e.g, Brussels Ibis Regulation; Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (not yet in fore) “Chet What ar the hope wont characteris of ternational wiht? etd ns a ee ten rayne en ‘Global Technology Dispute Resolution Cauneil and the Silicon Valley Arbitration & Mediation Center ‘Survey ~ Results released in September 2017 Here, we are talking about technology so there is a need of experts, and the characteristics may differ. It could be that arbitrators order parties to submit some documents. If parties do not submit the evidence, arbitrates cannot do anything (¢ courts can apply sanctions). Therefore, arbitrators are less powerful than courts. Very often, arbitration law provides the possibility for parties to go to courts during theProceedings tor some specitic measures in the arbitration proceedings (e.g. arbitration proceeding in Belgium, one ef the parties rafuse to produce evidence, the ether party can go before a court to ask for sanctions) —> itis important to compare which law provides such possibility! 4 Source of law in arbitration (ntroduction Is there a need for regulation of arbitration? Regulation is necessary. - Arbitration agreements might have to be enforced ~ Awards might have to be enforced > Need for transparent procedural standards (nternational law * Intemational Conventions - New York Convention (Convention on the cognition and enforcement of forwign arbitral awards, 1958)—> commercial arbitration - Washington ICSID Convention (Convention on the settlement of investments disputes between States and nationals of otherStates, 1965) —> investment arbitration * Regional Gonvertions - The European Convention on International Commercial Arbitration, 1961 = Panama Convention (Inter-American Convention on Commercial Arbitration, 1975) > InteraArab Conventions ~ OHADA Treaty, 1983, - BITs - NAFTA + UNCITRAL Model Law on Intemational Commercial Arbitration (1985 - 2006) and UNCITRAL arbitration rules (1976 - 2010) —> soft law ~ Used by states as a model tortheir arbitration law ~ Used by parties in ad hoc arbitrations Domestic law * Which law? = Law of the arbitral seat = Law of the state of enforcementWhich role? Framework for the annulment of arbitral awards: Framework for recognition and enforcement of arbitral awards State support for arbitral proceedings: enforcement of arbitration clause; assistance with the appointment of arbitrators; interim measures. 42 Soft law. * Addresses specific aspects of the arbitration process * Reflects general principles of international arbitration * Binding source of rules. subject to parties’ agreements. * Chartered institute of arbitrators guidelines (e.g. Source of inspiration for (best) practice - Formal: subject to parties’ agreement + Informal: arbitrators and counsel likely ta be inspired. Examples © IBA Rules on the taking of evidence in International arbitration IBA Rules of ethies for international arbitrators IBA Guidelines on conflict of interest in international arbitration IBA Guidelines on party representation in international arbitration ABA Code of ethics of arbitrators appointment, cost orders) ‘Young ICCA Guide on arbitral secretaries Procedural rules Procedural rules. = Applicable in specific arbitration proceedings - Nota source of law sensu stricto Institutional rules: - Eg. ICC, LCIA, CEPANI, ... = Notes on the conduct of arbitration Ad hoe arbitrations = Application of institutional rules? = UNCITRAL arbitration rules. interviewing arbitrators, terms ot* Custom made solutions - Parties’ agreements - Counsels' suggestions - Arbitrators’ procedural rules. Practice of international arbitration * Personal practice of arbitrators and counsels 43 * Published suggestions of renown practitioners (e.g. Redfern schedule) * Institutions’ published guides * Arbitral awards as precedents? 2. Agreement to arbitrate, involvement of third parties Il! agreement between the parties is necessary to have arbitration. You need the agieement of the parties to submit the dispute to arbitration Agreement to arbitrate and its validity + Doctrine of separability Issue: What is the impact of invalidityinullity/termination of the agreement for the arbitration clause? Within that main contract there is an agreement between the parties to arbitrate, What happens to the arbitration clause if the main contract comes to an end (2.9. breach of contract by one of the parties)? Solution: the separability of the arbitration clause. If parties have made an agreement on the whole, arbitration clause will still be valid even though there is an issue with the main contract. Of course, if there is no agreement on the whole, the arbitration clause will not have any effect, E.g. Art. 1690(1) Belgian Judicial Code: an arbitration agreement that is part of a contract is considered as separate from the others clauses of the contract. So, if the arbitral tribunal founds the invalidity of the contract, there is no auiomatic invalidity of the arbitration agreement. E.g.: Swiss Fed arbitration clause. I Tribunal (1993) - Tobler: the invalidity of the main contract cannot affect the E.g.: House of Lords (1942) — Hayman vs. Darwins Ltct distinction between void contracts and voldable ones, The former invalidates the arbitration clause. The latter does nat. E.g.: French Cour de cassation (1963) — Gosset: in international arbitration, the agreement to arbitrate, whether concluded separately or included in the contract to which it relates, is always, save in exceptional circumstances which are not alleged to exist in this case, completely autonomous in law, which excludes the possibilty of it being affected by the possible invalidity of the main contract. You can see that in most laws, the separability clause exists. It is also included in various national and international instruments:* UNCITRAL (Article 16): for that purpose, an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract. A decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause. * ICC Rules (Art. 6, §9): unless otherwise agreed, the arbitral tribunal shall nat cease to have jurisdiction by reason of any allegation that the contract Is non-existent or null and void, provided that the arbitral tribunal upholds the validity of the arbitration agreement. The arbitral tribunal shall continue to have jurisdiction to determine the 44 parties’ respective rights and to decide their claims and pleas even though the contract itself may be non-existent or null and vold. * CEPANI (Art. 7.4). Consequences * on the one hand, the non-existence, invalidity, nullity or termination of the underlying contract does not have a necessary effect on the arbitration agreement However, it is possible that the invalidity affects both the contract and the arbitration agreement. E.g.: if there is no agreement by the parties on the whole contract, the arbitration clause will not have any effect and will also be declared invalid. * on the other hand the invalidity, nullity or termination of the arbitration agreement does not necessarily have an impact on the underlying contract. * it ls possible to apply different rules to the underlying agreement under one hand and the arbitration agreement on the ather hand. E.g.: Spanish law applicable to the main contract, but Swiss law applicable to the arbitration clause. It might be useful to do so if the seat of arbitration would be, for example, in Switzerland —» freedom of parties. E.g.: the Paris Court of Appeal decided that the validity of the arbitration contract may be assessed without having regard to conflict of law nules and without having regard to any national law. The validity of the arbitration clause should be determined taking info account the intention of the parties. Only the mandatory provisions and the demands of public order should morecver be taken into account. E.9.: role of the mandatory provisions of the law of the seat of arbitration: Art. V NY Genvention: J. Recognition and enforcement of the award may be refused, if the parties to the agreement referred to in articte Ii were, under the law applicable to them, under some incapacity, ar the said agreement is nat valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made. - Principle of consent * Necessity of an agreement to arbitrate: arbitration clause within the contract or submission agreement Generally, arbitration clause are very short because nabady is in the mood for disputes. On the contrary, when parties have to wrile a submission agreement, the dispute has arisen and parties can write the arbitration clause with all the elements of the dispute in Mind (e.q. who is competent, how to select arbitrators).