HSF’s Paulino Fajardo receives the Barakah Award for outstanding contribution to mediation

Paulino Fajardo, Herbert Smith Freehills’ Head of Disputes for the EMEA region, has been awarded the prestigious Barakah Award (Europe category) 2023 for outstanding contribution to the field of mediation.

A partner in our Madrid office, Paulino is dual qualified in England and Spain and is a leading practitioner in international litigation and arbitration, particularly in the insurance sector.  The award recognises his commitment to promoting mediation of commercial disputes. Continue reading

UK government consults on whether to sign the Singapore Convention on mediated settlements

The UK government yesterday launched a consultation seeking views on whether the UK should sign the Singapore Convention.  The consultation closes on 1 April 2022.

The Singapore Convention

More formally known as the United Nations Convention on International Settlement Agreements Resulting from Mediation (full text here), the Convention came into force in September 2020.  It provides a framework for a global enforcement regime for settlement agreements resulting from mediation of international commercial disputes, broadly akin to the 1958 New York Convention for the enforcement of arbitral awards (though with some significant differences).  In essence,  jurisdictions that ratify the Convention agree to recognise and enforce a mediated settlement agreement that falls within the Convention’s scope, avoiding the need for the enforcing party to obtain a court judgment for breach of contract and then attempt to enforce the judgment in the foreign jurisdiction (unless the agreement can be converted into an arbitral award).

For details of the the Convention’s key provisions, including where it will apply, see:


Background  –  the UK position

When the Convention was launched to much fanfare in August 2019, the record-breaking 46 initial signatories included several of the world’s largest economies – notably China, the US and India. Since then the roll call has expanded to be currently 55 signatories, including the addition last year of two leading regional economies, Brazil and Australia.  To date, nine countries have completed ratification and become member states of the Convention.

However, very notable absences from the signatory list are the UK and all the EU member states.  It has been suggested Continue reading

New Swiss Rules of Mediation

The Swiss Chambers’ Arbitration Institution has announced the release of revised Swiss Rules of Mediation, which entered into force on 1 July 2019.

The revised Rules replace the first harmonised Swiss Rules of Mediation, adopted in 2007.

The stated aim of the revisions is to further encourage their use by clarifying, shortening and simplifying their content. They also include revisions designed to make them compatible with the new enforcement opportunities offered by Singapore Convention on Mediated Settlements, which is anticipated to be signed by the first signatory countries at a ceremony in Singapore on 7 August 2019.

The launch of the new Swiss Mediation Rules will be held in Geneva on 27 September 2019 and in Zurich on 9 October 2019.

 

 

Brexit: UK unwinds implementation of EU ADR laws

Jan O’Neill
Professional Support Lawyer, London

 

The UK Government has published legislation to effectively revoke the implementation of the EU Mediation Directive (2008/52/EC) after Brexit.

The Cross-Border Mediation (EU Directive) (EU Exit) Regulations 2019 (the Regulations) were made on 1 March 2019 and will come into effect on exit day, whenever that occurs.

Why?

The development is part of a wider policy decision by the Government to revoke/repeal UK domestic legislation that implemented EU law in instances where that law is based on reciprocity between EU Member States. Continue reading

ADR for employment lawyers: lessons from the Civil Justice Council?

Peter Frost, Partner in our London office, has published a post on our Employment Notes blog reviewing the current and potential use of ADR in employment disputes.  The post, which was first published in the Employment Lawyers Association (ELA) Briefing March 2019, can be accessed here.

As we have previously reported, Peter has co-chaired various reports on this issue by the ELA’s Arbitration and ADR Group.   The findings of those reports are discussed in the briefing “Employment ADR: The future” prepared by our Employment team in 2018,  which also considered data collected during the 2016-17 Global Pound Conference Series in the context of employment disputes in the key jurisdictions of Australia, France, Germany, Spain and the UK.

If you are interested in discussing the use of alternative methods for resolving employment disputes, whether that be introducing a workplace mediation scheme or exploring options for resolving an ad hoc dispute, please do get in touch with Peter or your usual Herbert Smith Freehills contact.

 

EU Parliament Resolution on the implementation of the Mediation Directive

The EU Parliament has adopted a Resolution on the implementation of the EU Mediation Directive (2008/52/EC), containing recommendations aimed at increasing the use of mediation in civil and commercial disputes throughout the EU.

The Resolution follows a 2016 report by the EU Commission which concluded that, overall, the Mediation Directive had added value, particularly by prompting significant legislative changes in several Member States. No revision of the Directive itself was recommended. However, the report noted continuing difficulties with the functioning of many of the national mediation systems in practice. These were attributed principally to the lack of a “mediation culture” in many Member States, insufficient knowledge of how to deal with cross-border cases, the low level of awareness of mediation, the functioning of quality control mechanisms for mediators and a reluctance by courts to propose mediation.

In response, Parliament has made the following recommendations:

  • EU Member States should step up their efforts to encourage the use of mediation in civil and commercial disputes, such as through information campaigns, improved cooperation between legal professionals and an exchange of best practices.
  • The Commission should assess the need to develop EU-wide quality standards for the provision of mediation services.
  • The Commission should assess the need for member states to establish national registers of mediated proceedings. (subject to data protection rules).
  • The Commission should undertake a detailed study on the obstacles to the free circulation of foreign mediation agreements across the EU, and on options to promote the use of mediation.
  • The Commission should find solutions to extend the scope of mediation to other civil or administrative matters.

We will report on any steps to implement these recommendations in due course.

CJEU holds that mandatory mediation is not inherently precluded by EU law

The Court of Justice of the European Union (CJEU) has concluded that national legislation imposing mandatory mediation as a pre-condition to litigation is not precluded by the EU ADR legislative framework, provided that the parties are not prevented from exercising their rights of access to the judicial system.  

However, to the extent that such a pre-condition required consumers to be assisted by a lawyer in the mediation process, or penalised them for withdrawing from the mediation without good grounds, it would be contrary to the Consumer ADR Directive (2013/11/EU):  Menini and another v Banco Popolare Società Cooperativa (Case C-75/16) (14 June 2017).  

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Advocate General Opinion on the Consumer ADR Directive and compulsory mediation

In a case referred to the Court of Justice of the European Union (CJEU) by the Italian courts, an Advocate General opinion has been issued which considers the scope of the Consumer ADR Directive, including whether it precludes national legislation from imposing mandatory mediation as a pre-condition to litigation:  Menini and another v Banco Popolare Società Cooperativa (Case C-75/16). 

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Consultation on the relationship between courts and ADR in Europe

A consultation has been launched  "to consider the concerns that have arisen in Europe as a result of the exponential growth of numerous different forms of alternative dispute resolution".  

The paper, entitled "The Relationship between Formal and Informal Justice: the Courts and Alternative Dispute Resolution", is a joint project by the The European Law Institute and the European Network of Councils for the Judiciary (the latter chaired by Sir Geoffrey Vos, Chancellor of the High Court).

The consultation's focus is on how the interface between courts and ADR processeses is working in Europe. It seeks views on whether identified concerns can be addressed by developing statements of best practice or models, to be followed by both courts and ADR providers when assessing what dispute resolution process should be adopted in a particular dispute.

The interface between courts and ADR processes is of course a key issue being discussed more globally in the ongoing Global Pound Conference (GPC) series, and it will be interesting to see how the data and commentary generated out of the GPC (following the final event in London in July 2017) compares to the conclusions from this consultation (the final report on which is planned for the end of 2017). 

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The EU Online Dispute Resolution (ODR) Platform – an update on timing

It has been confirmed that online businesses will have an extended timeframe in which to comply with new obligations to signpost customers to the Online Dispute Resolution (ODR) Platform being set up by the EU Commission.

As we have previously reported, the EU ODR Regulation which came into force last year (and was implemented in the UK as part of new ADR Regulations) includes a requirement that, from 9 January 2016, all businesses selling goods or services online within the EU carry a link on their website (and in some cases in their contractual terms) to the ODR Platform. While businesses have been preparing to comply with the obligation by 9 January, the missing piece of information to enable them to do so has been the ODR Platform website address, which has not yet been released by the EU Commission.

The UK Department for Business, Innovation & Skills (BIS) has now confirmed that it has been advised by the EU Commission that the 'go live' date for the ODR Platform has been delayed to 15 February 2016.  Businesses will therefore now not be required to carry a link to the ODR Platform until it is launched on this new date.  BIS has confirmed:

'We can reassure you that although the date of 9 January remains in our Regulations, we fully understand that it will not be possible for businesses to meet this date as the ODR platform will not yet be launched. There will of course be no question of enforcement action before 15 February".

We will continue to monitor and report when the link to the ODR Platform becomes available. The EU Commission's most recent factsheet can be accessed here.

UPDATE 1.2.16:  The EU Commission has now announced the website address for the ODR Platform, which will be operational from 15 February:  http://ec.europa.eu/consumers/odr/