IHU School of Humanities

MA in Art, Law and Economy

Module: Settlement of Disputes

Prof. Dr. iur. Matthias Weller, Mag.rer.publ.
General Overview

I. Litigation
II. Alternative Dispute Resolution
III. Workshop
IV. Final Discussion

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II. Alternative Dispute Resolution
I. Modes of Alternative Dispute Resolution
1. Arbitration
2. Mediation
3. Negotiation

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II. Alternative Dispute Resolution
II.1 Arbitration – Key Features
- Arbitration Agreement
- Ad hoc / institutional (e.g. ICC)
- Legalistic Procedure (e.g. ICC Arbitration Rules 2012)
- Appointment of Arbitrators
- Confidentiality
- Binding Award
- Enforcement of award nearly worldwide
(New York Convention 1958)
- High Costs

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II. Alternative Dispute Resolution
II.1 Arbitration – Key Provisions ICC Arbitration Rules
- Article 1 – Role of International Court of Arbitration
administration of arbitral proceedings
Statutes of the Court: Appendix I
- Article 3 – Written Notifications or Communication
pleadings / communications in writing
- Article 11 – Impartiality of Arbitrators
- Article 12 – Constitution of Tribunal
- Article 18 – Place of Arbitration

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II. Alternative Dispute Resolution
Article 19 – Rules Governing Proceedings
Article 21 – Applicable Rules of Law
Article 23 – Terms of Reference
Article 25 – Establishing the Facts
Article 26 – Hearings
Article 31 – Making of Award

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II. Alternative Dispute Resolution
Very few known examples for arbitration in art and cultural property
disputes
1.Altmann v. Austria (Award of 15 January 2004)
 Holocaust claim
2.State of Eritrea v. The Federal Democratic Republic of Ethiopia
 pillage / destruction of cultural sites during the war
3. Malaysian Historical Salvors Sdn BHD v. Government of Malaysia
 treasure hunting company, dispute about shares of proceeds from auction

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II. Alternative Dispute Resolution
II.2 Mediation – Key features
flexible procedure in which two or more parties attempt to solve a conflict under the
assistance of a mediator
no binding decision by mediator
mediator opens, or improves the dialogue
mediator thinks "outside of the box”
parties should disclose all necessary information (“disclosure principle”)
strict confidentiality of proceedings
voluntary proceedings

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II. Alternative Dispute Resolution
II.2 Mediation – Typical steps in the proceedings
(1) Opening
(2) Collection of information
(3) Analyzing of interests
(4) Brainstorming
(5) Forming a mediation agreement
 Different positions and interests of the parties are considered separately from
each other
Mediator tries to create an atmosphere, where all parties can feel comfortable

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II. Alternative Dispute Resolution
II.2 Mediation – European Code of Conduct for Mediators

1.1. Competence
Mediators must be competent and knowledgeable in the process of
mediation.
Relevant factors include proper training and continuous updating of
their education and practice in mediation skills, having regard to any
relevant standards or accreditation schemes.

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II. Alternative Dispute Resolution
II.2 Mediation – European Code of Conduct for Mediators

1.2. Appointment
Mediators must confer with the parties regarding suitable dates on which
the mediation may take place. Mediators must verify that they have the
appropriate background and competence to conduct mediation in a given
case before accepting the appointment. Upon request, they must disclose
information concerning their background and experience to the parties.

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II. Alternative Dispute Resolution
II.2 Mediation – European Code of Conduct for Mediators

1.3. Fees
Where not already provided, mediators must always supply the
parties with complete information as to the mode of remuneration
which they intend to apply. They must not agree to act in a
mediation before the principles of their remuneration have been
accepted by all parties concerned.

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II. Alternative Dispute Resolution
II.2 Mediation – European Code of Conduct for Mediators

1.4. Promotion of mediators' services

Mediators may promote their practice provided that they
do so in a professional, truthful and dignified way.

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II. Alternative Dispute Resolution
II.2 Mediation – European Code of Conduct for Mediators

2.1. Independence
If there are any circumstances that may, or may be seen to,
affect a mediator‘s independence or give rise to a conflict of
interests, the mediator must disclose those circumstances
to the parties before acting or continuing to act.

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II. Alternative Dispute Resolution
II.2 Mediation – European Code of Conduct for Mediators

2.1. Independence
Such circumstances include:
– any personal or business relationship with one or more of the parties;
– any financial or other interest, direct or indirect, in the outcome of the mediation;
– the mediator, or a member of his firm, having acted in any capacity other than
mediator for one or more of the parties.

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II. Alternative Dispute Resolution
II.2 Mediation – European Code of Conduct for Mediators

2.1. Independence
In such cases the mediator may only agree to act or continue to act if he is
certain of being able to carry out the mediation in full independence in order
to ensure complete impartiality and the parties explicitly consent.

The duty to disclose is a continuing obligation throughout the process of

mediation.

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II. Alternative Dispute Resolution
II.2 Mediation – European Code of Conduct for Mediators

2.2. Impartiality
Mediators must at all times act, and endeavour to be seen
to act, with impartiality towards the parties and be
committed to serve all parties equally with respect to the
process of mediation.

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II. Alternative Dispute Resolution
II.2 Mediation – European Code of Conduct for Mediators

3.1. Procedure
The mediator must ensure that the parties to the mediation
understand the characteristics of the mediation process and
the role of the mediator and the parties in it.

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II. Alternative Dispute Resolution
II.2 Mediation – European Code of Conduct for Mediators

3.1. Procedure
The mediator must in particular ensure that prior to
commencement of the mediation the parties have understood and
expressly agreed the terms and conditions of the mediation
agreement including any applicable provisions relating to
obligations of confidentiality on the mediator and on the parties.

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II. Alternative Dispute Resolution
II.2 Mediation – European Code of Conduct for Mediators

3.1. Procedure
The mediation agreement may, upon request of the parties, be drawn up in
writing.
The mediator must conduct the proceedings in an appropriate manner,
taking into account the circumstances of the case, including possible
imbalances of power and any wishes the parties may express, the rule of law
and the need for a prompt settlement of the dispute.

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II. Alternative Dispute Resolution
II.2 Mediation – European Code of Conduct for Mediators

3.1. Procedure
The parties may agree with the mediator on the manner in which
the mediation is to be conducted, by reference to a set of rules or
otherwise.
The mediator may hear the parties separately, if he deems it useful.

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II. Alternative Dispute Resolution
II.2 Mediation – European Code of Conduct for Mediators

3.2. Fairness of the process

The mediator must ensure that all parties have adequate
opportunities to be involved in the process.

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II. Alternative Dispute Resolution
II.2 Mediation – European Code of Conduct for Mediators

3.2. Fairness of the process

The mediator must inform the parties, and may terminate the mediation, if:
– a settlement is being reached that for the mediator appears unenforceable or
illegal, having regard to the circumstances of the case and the competence of
the mediator for making such an assessment, or
– the mediator considers that continuing the mediation is unlikely to result in a
settlement.

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II. Alternative Dispute Resolution
II.2 Mediation – European Code of Conduct for Mediators

3.3. The end of the process

The mediator must take all appropriate measures to ensure that any
agreement is reached by all parties through knowing and informed
consent, and that all parties understand the terms of the agreement.
The parties may withdraw from the mediation at any time without
giving any justification.

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II. Alternative Dispute Resolution
II.2 Mediation – European Code of Conduct for Mediators

3.3. The end of the process

The mediator must, upon request of the parties and within
the limits of his competence, inform the parties as to how
they may formalise the agreement and the possibilities for
making the agreement enforceable.

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II. Alternative Dispute Resolution
II.2 Mediation – European Code of Conduct for Mediators

4. CONFIDENTIALITY
The mediator must keep confidential all information arising out of or in
connection with the mediation, including the fact that the mediation is to
take place or has taken place, unless compelled by law or grounds of
public policy to disclose it. Any information disclosed in confidence to
mediators by one of the parties must not be disclosed to the other parties
without permission, unless compelled by law.

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II. Alternative Dispute Resolution
II.2 Mediation – ICC ADR Rules 2001 Key Provisions
Article 1 – Scope of Rules
- all business disputes (national / international)
- rules may be modified by agreement
Article 2 – Commencement of ADR Proceedings
Article 3 – Selection of the Neutral
Article 5 – Conduct of the ADR Procedure
- agreement about settlement technique
- default technique: mediation

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II. Alternative Dispute Resolution
Article 6 – Termination of ADR Proceedings
- signing of settlement or
- notification of ending otherweise, in particular the failure of ADR proceedings
Article 7 – General Proceedings
- confidentiality of proceedings
- confidentiality of settlement
- no use of information in following arbitration / litigation proceedings as evidence
- no appearance of Neutral as witness

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II. Alternative Dispute Resolution
II.3 Directive 2008/52/EC on certain aspects of mediation in civil and
commercial matters

Article 1 – Territorial scope: Cross-border disputes

- one party domiciled in another Member State
Article 3 – Definition of Mediation
Article 6 – Enforceability
Article 7 – Confidentiality
Article 8 – Effect on limitation / prescripion periods

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II. Alternative Dispute Resolution
II.4 Institutionalised Mediation for Cultural Property
(1) WIPO Arbitration and Mediation Center
(2) ICOM-WIPO Art and Cultural Heritage Mediation Program
(3) UNESCO Mediation and Conciliation Program
(4) Spoliation Advisory Panels (Holocaust Claims), e.g.
(a) Spoliation Advisory Panel (UK)
(b) Beratende Kommission (GER)
(c) Restitutiekommissie (F)
(d) Kommission für Provenienzforschung (Austria)

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II. Alternative Dispute Resolution
(1) WIPO Arbitration and Mediation Center
- http://www.wipo.int/amc/en/index.html
- based in Geneva, Switzerland, with a further office in Singapore,
- ADR options (arbitration and mediation)
- procedures offered by the Center are widely recognized as particularly
appropriate for technology, entertainment and other disputes
involving intellectual property
not specifically for cultural property disputes

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II. Alternative Dispute Resolution
(2) ICOM-WIPO Art and Cultural Heritage Mediation Program
-http://icom.museum/programmes/art-and-cultural-heritage-mediatio
n/icom-wipo-art-and-cultural-heritage-mediation/
- specially designed for art and cultural property disputes
- list of experienced and competent mediators
- electronic case facility
- „good offices“ (advice)
- combination with arbitration / expert determination

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II. Alternative Dispute Resolution
ICOM-WIPO Mediation Rules – Key Provisions
Article 2 – Scope of Application, e.g.
- restitution
- loan and deposit
- acquisition
- intellectual property
- public (State) / museums / indigenous communities / individuals

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II. Alternative Dispute Resolution
Article 3 – Commencement of the Mediation
Article 7 – List of Mediators
Article 8 – Appointment of the Mediator
Article 9 – Nationality of the Mediator
Article 10 – Impartiality / Independence
Article 14 – Conduct of Mediation (ICOM Code of Ethics)
Article 17 – Role of the Mediator
Article 18 – Confidentiality / no use of docs as evidence
Article 23 – Termination
Article 25 – Fees (€ 1.500 / € 300 per hour)

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II. Alternative Dispute Resolution
WIPO Form for a Mediation Agreement (Future Dispute):
"Any dispute, controversy or claim arising under, out of or relating to this
contract and any subsequent amendments of this contract, including, without
limitation, its formation, validity, binding effect, interpretation, performance,
breach or termination, as well as non-contractual claims, shall be submitted to
mediation in accordance with the ICOM-WIPO Mediation Rules.
The place of Mediation shall be [specify place]
The language to be used in the mediation shall be [specify language].“

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II. Alternative Dispute Resolution
WIPO Form Mediation Agreement (Existing Dispute):
1. MEDIATION PROCEDURE
We, the undersigned parties, hereby agree to submit to mediation in accordance
with the ICOM-WIPO Mediation Rules the dispute set out below.
2. DISPUTE: [Brief description of dispute]
3. PLACE OF MEDIATION
The place of mediation shall be [specify place].
4. LANGUAGE OF MEDIATION
The language to be used in the mediation shall be [specify language].

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II. Alternative Dispute Resolution
5. MISCELLANEOUS (both future and existing disputes)
The present mediation agreement is signed and enters into force
immediately on [DATE],
IN WITNESS WHEREOF, the undersigned Parties sign the
present agreement in [LOCATION] at the date above.
THE FIRST PARTY          THE SECOND PARTY
For and on behalf of        For and on behalf of
Name and Role                 Name and Role

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II. Alternative Dispute Resolution
(4) Example of Spoliation Advisory Panel (UK)
- resolves claims from people, or their heirs, who lost property during
the Nazi era, which is now held in UK national collections
- considers both legal and non-legal obligations, such as the moral
strength of the claimant’s case, and whether any moral obligation rests
on the holding institution.
- recommendations not legally binding on any parties
- Parties may take recommendation as binding settlement of the claim.

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