ADR Chatroom
Primetime for derivatives?
Our Hong Kong face, Sala Sihombing has just published an article in the ADR Times looking at new developments in ADR for derivatives trading.
Time to log on for Cyberweek 2012
Our Hong Kong face, Sala Sihombing writes that the annual online dispute resolution conference, hosted by the Werner Institute at Creighton University's School of Law, is gearing up to launch next week. This year Cyberweek 2012 will include a free online webinar hosted through ADRHub
http://www.adrhub.com/forum/topics/live-webinar-online-arbitration-monday-october-29th-6pm-edt-5pm-c
Dutch Mediation Institute's Annual Mediation Conference
Our Dutch face, Majlie de Puy Kamp writes that on Friday the 16th of November, the Dutch Mediation Institute (NMI) will once again host their annual Mediation Conference in Den Bosch, the Netherlands. The theme of this year's conference is: 'Next Level'. Now that the EU has caught onto the moving force that is ADR, Dutch mediators, lawyers, judges and legislators will discuss the next steps to be made and new challenges to face. For the full programme please go to:http://www.mediationcongres.nl/content/programma
Tickets are 245 euros, with various discounts for students and NMI accredited mediators.
This year will also be the first year where the Mediation Award will be revealed and handed out during the Mediation Conference. If you know someone who deserves this prize, check outhttp://www.mediationcongres.nl/content/mediationaward-2012-0 and sign them up!
Mediation in the Czech Republic Act No. 202/2012
Our Spanish face, Laura Lozano writes that the Czech Republic finally transposed the Directive 2008/52/EC on mediation in civil and commercial matters which became effective on 1 September 2012. There was a significant delay as all the members states should have transposed it before 21 May 2011(not very surprisingly Spain was also delayed). Until now the Czech mediation law was regulated under the context of criminal victim–offender cases, by the Law on the Probation and Mediation Service, therefore this is a big step for Czech Republic.
Regarding the new legal regime introduced by the Act, it should be highlighted that
· There is an obligatory character of the first mediation session, if it is ordered by a court.[1] The first mediation will be limited by a 3 hour maximum.
· Mediators must be registered. A university degree as well as a masters and passing a Mediator’s exam will be required.
· Administrative sanctions for mediators are introduced. People using the title of “registered mediator”, not preserving confidentiality or documentation may face fines up to EUR4,000.[2]
We are glad to see that many countries are taking steps to encourage mediation, but still we have serious concerns regarding the compulsory mediation, which is still not common in Europe, with the exception of Italy. Mediation should be based on the universal principle of VOLUNTARINESS. Time will tell us how ADR develops in Czech Republic, but still the regulation of mediation is always good news to share.
[1] Section 100(3) of the Civil Procedure Code
[2] Sections 25 and 26 of the Act
RF Supreme Arbitrazhny Court has introduces new draft mediation law
Our Russian Face Elena Seryapina notes that RF Supreme Arbitrazhny Court has recently introduced a newly drafted Law concerning Mediation to the Federal Legislation Body of Russia – State Duma – for discussion and further adoption. The Draft Law proposes to widen establishment of state courts and to offload state judges by introducing new positions of “Court Reconciliators”.
In accordance with the plan of the Supreme Arbitrazhny Court of Russia, only professionals employed and accredited by state courts: retired judges, assistants of judges, any court personnel, who earned JD or equivalent, - shall be allowed to act as Court Reconciliators at the same state courts. The official list of all Court Reconciliators shall be adopted by RF Supreme Arbitrazhny Court.
The Draft Law also stipulates that Court Reconciliators shall not be additionally paid for performing the mentioned above services. They will get a regular office salary from the court budget, as they would be getting paid working as ordinary court clerks. Moreover, Court Reconciliators will be deemed as state (government) employees working for the court salary[1], performing an official state function, which imposes on them additional strict rules and regulations. Bearing in mind an enormous load of court cases[2] and incredibly small salary of court clerks in Russia, the quality of services to be performed by Court Reconciliators might be at a very low level. And that is crucial, since it makes the whole effort of RF Supreme Arbitrazhny Court – worthless.
The second major minus of the Draft Law is the stipulated authority of a Judge of a state court to suspend a case from the trial and to send the parties to mediation without their direct consent. The authors of the Draft Law say that such authority is not “forcing” the parties to ADR, but rather offering them an opportunity to look at their case from a different prospective and to evaluate all pluses of mediation. However, Elena Seryapina believes that the Draft Law legalizes the “forced mediation” rather than the “voluntary mediation”, since an act of a Judge to suspend the case from the trial will be obligatory for the parties, whether they like it or not. Moreover, the parties to the case will not be able to influence on such act or to object to it.
It should be noted that a basic Federal law “On Mediation” No. 193-FZ dated July 27, 2010 was adopted in Russia now more than 2 years ago, but mediation is still very uncommon not only in a court system but also in business practice. For example, last year only 11 cases in State Arbitrazhny courts ended up in mediation.[3]
For more information please refer to:
http://www.rg.ru/2012/08/07/sud.html
[1] In Russia an average monthly salary of a court clerk is $400.
[2] In accordance with the information provided by the Chairman of RF Supreme Arbitrazhny Court A. Ivanov, an average workload in Moscow Arbitrazhny Court in 2012 is expected to be 159 cases per judge monthly. (http://www.rg.ru/2012/08/07/sud.html)
ADR in Asia Conference, Hong Kong
Our Hong Kong face, Sala Sihombing attended the ADR in Asia Conference organised by the HKIAC. Her post is available on her website, Conflict Change.
Hong Kong's new Mediation Ordinance
Hong Kong face, Sala Sihombing writes that the Secretary of Justice has gazetted the Mediation Ordinance which will come into effect on 1 January 2013.
The Mediation Ordinance does not deal with the thorny issue of accreditation and this remains an open question in Hong Kong. However, the Mediation Ordinance does introduce a statutory basis for confidentiality for mediation. The Ordinance confirms the basic premise that mediation proceedings are confidential, and then provides exceptions where disclosure will be permitted without the permission of the court, including information is in the public domain; information is subject to discovery (in civil litigation) and dislcosure is required to reduce the danger of injury. These exceptions are quite broad and in addition, the court may allow disclosure. It will be interesting to see how these exceptions impact the desire for confidentiality that marks so many mediations.
Colombia's new ADR regime
New National and International Arbitration Statue in Colombia[1]
Our Spanish face, Laura Lozano notes that it was yesterday, October 12th, when the Colombian Law 1563 that regulates both national and international arbitration entered into force. The statute follows the UNCITRAL Model and has Peruvian and Swiss influences. The statute makes clear that Colombia is “arbitration friendly” and an interesting arbitration seat option.
Awards rendered by tribunals seated in Colombia will be considered local awards. Therefore, no recognition before local courts prior to their enforcement will be needed.[2] At the same time, those awards by tribunals not seated in Colombia are also governed by the statute. However, they will still need to be submitted to the Supreme Court or the Council State. The grounds for refusing requests in accordance with Article V of the New York Convention are followed. The recognition of foreign awards process is a 10 day service process, followed by a 20 day decision making process.[3]
[1] Law 1563 of 2012
[2] Article 111
[3] Articles 111-114
A Tale of Two Cultures: nomadic and settler
Our Hong Kong face, Sala Sihombing writes in the ADR Times about the creativity and sensitivity needed when mediating between two cultures.
http://www.adrtimes.com/articles/2012/10/5/a-tale-of-two-cultures-nomadic-and-settler.html
Federal Ombudsman Conference in the US
Our US face, M. Nycole Hearon notes that the Coalition of Federal Ombudsman will be holding its 11th Annual Conference on October 29th at the U.S. Patent and Trademark Office.
Dubai launches a Real Estate Arbitration Center
Our Spanish face, Laura Lozano writes that the Dubai Land Department launched the Dubai Real Estate Arbitration Center last October 4th. The aim of the center is solving property disputes in one of the most sophisticated markets in a smooth and fast manner. Following the trend of including mediation under its services, the Dubai Real Arbitration Centre, includes a special section of real estate reconciliation where neutrals will try to structure an amicable and fair agreement between the parties.
For further details please visit: http://www.dubailand.gov.ae/EngNewsDetail.aspx?newsId=160
Dr. Izzeldin Abuelaish, the Gaza Doctor, visits Hong Kong
Our Hong Kong face, Sala Sihombing attended an event on 6 October 2012 organised by the Asia Society and the HK International Literary Festival 2012, in which Dr Izzeldin Abuelaish spoke about his experiences and his thoughts about peace, forgiveness and anger. Dr. Abuelaish is well known globally for his inspirational work, 'I Shall Not Hate'.
In Hong Kong, Dr. Abuelaish spoke movingly of his belief in the necessity of truth and justice to achieve peace. Without the light of truth, he commented we cannot expect to achive peace and security. Without justice, he stated there is no peace. Often anger is viewed as an emotion which hinders the pursuit of peace, but Dr. Abuelaish believes that anger provides the energy to seek peace.