Zoekresultaat: 28 artikelen

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    On 25 June 2018 the United Nations Commission on International Trade Law (UNCITRAL) finalised two instruments on international commercial settlement agreements resulting from mediation.
    This article presents an insider’s view of this process, from the inception of the project to its completion in 2018. It will present the different stages of this process, from the discussions on the proposal to the actual discussions and negotiations and their different phases, including the agreed main features of the two instruments.


Norel Rosner
Norel Rosner works in the Directorate General Justice and Consumers of the European Commission. He was involved in the UNCITRAL project on the enforceability of international commercial settlement agreements as negotiator on behalf of the European Union.
Artikel

UNCITRAL and a New International Legislative Framework on Mediation

Tijdschrift Nederlands-Vlaams tijdschrift voor mediation en conflictmanagement, Aflevering 4 2018
Trefwoorden Solving disputes, United Nations, Trade law, Uncitral
Auteurs Judith Knieper en Corinne Montineri
SamenvattingAuteursinformatie

    More than sixty years after the adoption of the New York Convention, UNCITRAL finalised at its annual session, in July 2018, an instrument akin to the New York Convention in the area of mediation: the United Nations Convention on International Settlement Agreements Resulting from Mediation (‘the Singapore Convention on Mediation’ or ‘the Convention’), which was adopted by the United Nations General Assembly on 20 December 2018. In addition, UNCITRAL adopted the UNCITRAL Model Law on International Commercial Mediation and International Settlement Agreements Resulting from Mediation, (2018, amending the Model Law on International Commercial Conciliation (2002); ‘the revised Model Law’).
    This contribution gives an overview of these two texts and their drafting process, starting with an overview of the works done by UNCITRAL over the past decades in the field of international mediation.


Judith Knieper
Judith Knieper is legal officer at the International Trade Law Division of the United Nations Office of Legal Affairs, which also serves as the Secretariat of UNCITRAL.

Corinne Montineri
Corinne Montineri is legal officer at the International Trade Law Division of the United Nations Office of Legal Affairs, which also serves as the Secretariat of UNCITRAL. The views expressed in this article are those of the authors and do not necessarily reflect the views of the Organization.

Elisabetta Silvestri
Elisabetta Silvestri is Associate Professor of Italian Civil Procedure and Comparative Civil Procedure; Scientific Director of the postgraduate program on Mediation and ADR, Department of Law, University of Pavia. Co-Director of the annual seminar ‘Public and Private Justice’, Inter-University Centre, Dubrovnik, Croatia; member of the Scientific Advisory Board of Almo Collegio Borromeo, Pavia. She graduated from the University of Pavia and received a LL.M. degree from Cornell Law School. She is a member of the European Law Institute and the International Association of Procedural Law. She has written on Italian civil procedure and a variety of topics in the field of comparative procedure. She has lectured extensively in Italy and abroad; she is a member of one of the Working Groups established by the European Law Institute and UNIDROIT for the development of the project ‘From Transnational Principles to European Rules of Civil Procedure’.
Artikel

Conciliation Between Lawyer and Client (Consumer) at the Czech Bar Association

Tijdschrift Nederlands-Vlaams tijdschrift voor mediation en conflictmanagement, Aflevering 1 2017
Trefwoorden Legal fees, Consumer dispute, Czech Republic, Czech Bar Association, Professional secret
Auteurs Martina Doležalová
SamenvattingAuteursinformatie

    The 2013/11/EU Directive on alternative dispute resolution for consumer disputes has forced the bar authorities in all European countries to think about the implementation of a dispute resolution mechanism to handle disputes between lawyers and their clients. The fear, if not done, would be that disputes between lawyers and clients would fall into the general consumer dispute resolution mechanisms, which many felt would not be adapted to the peculiarities of disputes between lawyers and clients, in particular concerning the proper respect of professional secrecy. Hence the need for the bars to develop their own system. The Czech Bar Association has been among the first to propose such mechanism to the Ministry of Industry and Trade. This article describes the broad outlines of the system.


Martina Doležalová
Martina Doležalová, PhD., is a lawyer and registered mediator, conciliator in consumer disputes, head of the ADR section at the Czech Bar Association.
Artikel

Dispute resolution and conflict management in Germany

Evolution of a decade

Tijdschrift Nederlands-Vlaams tijdschrift voor mediation en conflictmanagement, Aflevering 1 2017
Trefwoorden Germany, European Mediation Directive, German Mediation Law, Institute of Conflict Management, commercial dispute resolution
Auteurs Stefanie Hartog en Michael Hammes
SamenvattingAuteursinformatie

    Despite the positive development of the European Mediation Directive and its translation in the German Mediation Law, in 2014 only 1.5% of the cases in court proceedings at the lower German courts were referred to court mandated conciliation or mediation proceedings. Against this background and in the context of a broader ten years research project, PricewaterhouseCoopers and the Institute of Conflict Management at the European University Viadrina Frankfurt (Oder) initiated a series of studies in 2005. This series was recently concluded with the fifth study conducted end of 2015 and published in October 2016. In addition to assessing the overall corporate landscape in Germany with regard to commercial dispute resolution, the study also considered the future developments and the required changes for further advancing this field.


Stefanie Hartog
Stefanie Hartog is a Senior Consultant of PricewaterhouseCooper’s Forensic Services practice based in Frankfurt am Main, Germany.

Michael Hammes
Michael Hammes is a Director of PricewaterhouseCooper’s Forensic Services practice based in Frankfurt am Main, Germany. Michael has extensive experience in dispute resolution. He frequently acts as a party-appointed or tribunal appointed expert in arbitration or court proceedings or as an expert arbitrator.
Artikel

A Distorted Mediation Landscape: Judicial Mediation in the Chinese Civil Courts

Tijdschrift Nederlands-Vlaams tijdschrift voor mediation en conflictmanagement, Aflevering 3 2016
Trefwoorden Chinese civil justice, Mediating civil and commercial disputes in China, Comparative civil procedure, Judicial behaviour in Chinese civil courts
Auteurs Peter Chan
SamenvattingAuteursinformatie

    Mediation plays a critical role in the development of any civil justice system. The positive effects of mediation could only manifest if the process is protected in ways that allow parties to truly be able to choose what is best in their interests and explore options free from interference from anyone else. The Chinese legal culture, coupled with a systemic distortion of the function of mediation during the period between March 2008 and March 2013, made it very difficult to develop an authentic mediation system that places party autonomy and other core principles at the heart of the process. As much as the leaders of the Supreme People’s Court today are aware of the need to strengthen the courts role in declaring legal norms and enforcing rights, it is argued that courts (especially lower courts) are likely to continue to use judicial mediation for institutional or strategic purposes.


Peter Chan
Peter Chan is Assistant Professor, School of Law, City University of Hong Kong. He received his PhD in June 2016 from Maastricht University under the supervision of Prof. dr. C.H. van Rhee.

    In this article Herman Verbist analyses the new ICC-rules of 1 January 2014. He gives a historical overview of the ICC mediation rules and reflects on the comtemporary rules based on modern mediation practices. Also he gives clear tools for mediation procedures.


Herman Verbist
Herman Verbist is advocaat bij de balies te Gent en Brussel, werkzaam bij Everest Advocaten, erkend bemiddelaar en redacteur van dit tijdschrift.
Article

Access_open Relief in Small and Simple Matters in Belgium

Tijdschrift Erasmus Law Review, Aflevering 4 2015
Trefwoorden Belgium, small matters, simple matters, recovery of unchallenged claims, summary order for payment
Auteurs Stefaan Voet
SamenvattingAuteursinformatie

    This article is based on a national report that was written for the XVth World Congress of the International Association of Procedural Law that was held in Istanbul in May 2015 and that focused on Effective Judicial Relief and Remedies in an Age of Austerity. It first of all sketches the general judicial context in Belgium and some of its relevant features: the judicial organisation, the goals of the civil justice system, the course of an ordinary civil lawsuit, the role of the court, and the litigation costs. Next, a detailed and critical overview of the current and future procedures that offer relief in small and simple matters is given. The current summary order for payment procedure, which was introduced in 1967, did not meet its goals. The article concludes that a new trend is emerging in Belgium, namely keeping small and unchallenged claims outside the judiciary and providing for cheaper and more efficient alternatives.


Stefaan Voet
Stefaan Voet is an Associate Professor of Law at the Katholieke Universiteit Leuven and a Visiting Professor at the Universiteit Hasselt.
Article

Access_open The Impact of the Economic Downturn in the Spanish Civil Justice System

Tijdschrift Erasmus Law Review, Aflevering 4 2015
Trefwoorden judiciary, judge-made justice, court fees, legal aid, ADR-methods
Auteurs Laura Carballo Piñeiro en Jordi Nieva Fenoll
SamenvattingAuteursinformatie

    The Spanish justice system has been shaken by the economic downturn as many other institutions have. This article addresses in the first place some statistical data that shed light as regards to the number of judges and the costs and length of the procedure in Spain. These figures help to understand, in the second place, the impact of austerity measures on the judiciary, namely, the freeze on the hiring of judges and the establishing of high court fees. While they mainly concern the supply side of justice services, others such cost reductions in legal aid have had, in the third place, an impact on the demand side, driving many citizens to social exclusion and to resorting to self-defence mechanisms. The final part of this article addresses some remedies that may alleviate judiciary’s workload, but that fall short of doing it. All in all, the Spanish justice system seems to require a holistic approach to patch up edges, but one in which the role of judge-made justice in a democratic society has to be central again.


Laura Carballo Piñeiro
Laura Carballo Piñeiro is Associate Professor of Private International Law at the Common Law Department of the University of Santiago de Compostela.

Jordi Nieva Fenoll
Jordi Nieva Fenoll is Professor of Procedure Law at the Administrative and Procedure Law Department of the University of Barcelona.
Artikel

The Belgian Law on Mediation, in light of the UNCITRAL Model Law on International Commercial Conciliation and of the UNCITRAL Project on Enforceability of Settlement Agreements

Tijdschrift Nederlands-Vlaams tijdschrift voor mediation en conflictmanagement, Aflevering 1 2015
Trefwoorden UNCITRAL Model Law on International Commercial Conciliation, Belgian Mediation Act, U.S. proposal made to UNCITRAL to elaborate international convention for enforcement of mediated settlement agreements
Auteurs Judith Knieper en Corinne Montineri
SamenvattingAuteursinformatie

    This contribution sets out the work done so far by UNCITRAL in the field of conciliation/mediation, but also examines whether the Belgian Mediation Act is compatible with the UNCITRAL Model Law on International Commercial Conciliation of 2002. Finally, it gives an introduction to the proposal made by the U.S. delegation to the UNCITRAL Commission to elaborate an international convention on the enforcement of mediated settlement agreements.


Judith Knieper
Judith Knieper is Legal Officer in the International Trade Law Division of the Office of Legal Affairs of the United Nations, Vienna.

Corinne Montineri
Corinne Montineri is Legal Officer in the International Trade Law Division of the Office of Legal Affairs of the United Nations, Vienna, and Secretary of UNCITRAL Working Group II on Arbitration and Conciliation.

    ADR in Kenya is traceable to the pre-colonial era. Before colonial rule, African communities applied traditional justice systems in the resolution of disputes. Some of these traditional justice systems are what are formally called ADR. It is through the imposition of formal justice systems by the British that certain ADR mechanisms were recognised in Kenya. In recent times, ADR is one of the commonly used avenues in accessing justice in Kenya. ADR in Kenya is growing at an unprecedented rate courtesy of its recognition in law, inaccessibility of courts and tribunals, backlog of cases and increased commercial activities requiring the use of ADR processes. Consequently, there are efforts by government and the private sector aimed at promoting ADR in Kenya. These efforts suggest that the future of ADR in Kenya is promising. In this article, the authors discuss the growth, development and practice of ADR in Kenya highlighting some of the likely challenges and opportunities in its use.


Francis Kariuki
Francis Kariuki is a Lecturer at Strathmore University Law School.

Linet Muthoni
Linet Muthoni is the Executive Officer of the Strathmore Dispute Resolution Centre.
Artikel

Dispute Management as a Means of Value Based Corporate Governance

Tijdschrift Nederlands-Vlaams tijdschrift voor mediation en conflictmanagement, Aflevering 2 2014
Trefwoorden Viadrina Component Model, CMRM model, Conflict Spider, Dispute Management
Auteurs Cornelia Schmidt en Michael Hammes
SamenvattingAuteursinformatie

    Disputes are part of a company’s daily business reality, involving a broad range of internal and external stakeholders. As disputes may have significant consequences in terms of costs and damages, it is crucial that disputes are managed in a ‘wise’ manner. In this context, PwC and the Institute of Conflict Management at the European University Viadrina Frankfurt (Oder) initiated a broader ten years research project. The fourth and most recent survey was published in October 2013 and examines the question of how dispute management can be established as a means of value based corporate governance. The survey describes how disputes can be successfully managed by employing a professional framework and associated tools.


Cornelia Schmidt
Cornelia Schmidt is a Consultant in PricewaterhouseCooper’s Forensic Services practice based in Frankfurt am Main, Germany. Cornelia advises clients on fraud and dispute related issues. She has been extensively involved in the recent survey.

Michael Hammes
Michael Hammes is a Director of PricewaterhouseCooper’s Forensic Services practice based in Frankfurt am Main, Germany. Michael has extensive experience in dispute resolution. He frequently acts as a party-appointed or tribunal appointed expert in arbitration or court proceedings or as an expert arbitrator.
Artikel

Labour mediation in Spain in times of crisis

Tijdschrift Nederlands-Vlaams tijdschrift voor mediation en conflictmanagement, Aflevering 4 2013
Trefwoorden Spain, Economic crisis, Collective bargaining, Collective Agreements
Auteurs Yolanda Maneiro Vázquez, José María Miranda Boto en Ricardo Rodríguez Contreras
SamenvattingAuteursinformatie

    The authors give an insight into the Spanish developments in ADR in the recent years of economic crisis. The crisis has led to a fuller activation of the Spanish ADR system. The larger number of mediation processes is clearly related to the difficulties collective bargaining is going through. As a result of the latest liberal reform which decentralises collective bargaining, a new crack has opened in the overall system: since September 2012 there is regulation on the functioning of the National Consultative Committee for Collective Agreements, granting it the authority to solve any dispute arising between the undertaking and workers’ representatives regarding total or partial opting-out of the collective agreement. Furthermore, regions without an ADR system in place should forward such disputes in their territory to the Committee.


Yolanda Maneiro Vázquez
Yolanda Maneiro Vázquez works at the University of Santiago de Compostela.

José María Miranda Boto
José María Miranda Boto works at the University of Santiago de Compostela.

Ricardo Rodríguez Contreras
Ricardo Rodríguez Contreras works at the Labour Asociados, Madrid.

Rob Jagtenberg
Rob Jagtenberg is docent aan de Erasmus Universiteit Rotterdam en redactielid TMD.

    In this interview with prominent representatives of the British Acas and the Belgian Social Mediators Service important developments in the ADR labour practice are discussed. In particular, the impact of the financial crisis and the ever advancing globalization process on the labour negotiating climate is the centre of attention.


Annie de Roo
Annie de Roo is hoofdredacteur van TMD, verbonden aan de Erasmus Universiteit Rotterdam en mediator.

Rob Jagtenberg
Rob Jagtenberg is docent aan de Erasmus Universiteit te Rotterdam en verricht aldaar vergelijkend onderzoek naar mediation en conflictmanagement in Europa. Tevens is hij redacteur van TMD.
Artikel

Arbitration and Alternative Dispute Resolution in the Belgian Construction Sector

Tijdschrift Nederlands-Vlaams tijdschrift voor mediation en conflictmanagement, Aflevering 2 2012
Trefwoorden dispute resolution, arbitration, Construction Law Disputes, Belgium
Auteurs Benoît Kohl en Sophie Bourgois
SamenvattingAuteursinformatie

    Construction contracts are particularly prone to the emergence of disputes. In Belgium, construction disputes have traditionally been referred to State Courts. In recent years however, there has been a growing interest in Alternative Dispute Resolution (ADR), which has gradually affected the Belgian construction sector. There are now several institutions dedicated solely to providing arbitration and ADR services to the construction industry.Beside the Centre belge de l’arbitrage et de la mediation, three institutions are specialized in the settlement of construction and real estate disputes: the Chambre de Conciliation, d’Arbitrage et de Médiation en matière immobilière, the Commission de conciliation construction and the Centre Scientifique et Technique de la Construction. These institutions offer fast and cost-effective ways of settling disputes, which are often more suitable than judicial proceedings


Benoît Kohl
Benoît Kohl, Professor (University of Liège), Visiting Professor (University of Paris II), Attorney (Stibbe Brussels).

Sophie Bourgois
Sophie Bourgois, Attorney (Stibbe Brussels).
Artikel

Mediation options for resolving commercial disputes in China: A guide for foreign enterprises

Tijdschrift Tijdschrift voor Civiele Rechtspleging, Aflevering 2 2012
Trefwoorden Chinese law, Chinese civil procedure, Chinese commercial dispute resolution, mediation, ADR
Auteurs P.C.H. Chan
SamenvattingAuteursinformatie

    Consistent with the state’s policy of promoting mediation, commercial disputes in China are frequently settled through mediation. As a foreign enterprise doing business in China, it is important to understand the nature and practice of commercial mediation.
    The article introduces foreign enterprises to the Chinese court system and arbitration regime and the position of mediation within the country’s commercial dispute resolution context. It highlights the practical aspects and potential pitfalls of commercial mediation in China.
    Mediation of commercial disputes may occur during a lawsuit (court mediation) or arbitration proceedings (med-arb). It may also occur as private mediation through independent institutions


P.C.H. Chan
P.C.H. Chan is Teaching Fellow at the School of Law of the City University of Hong Kong, solicitor, HKSAR, and solicitor, England & Wales.
Artikel

Mediation Law in Germany

A major move or the end of flexibility?

Tijdschrift Nederlands-Vlaams tijdschrift voor mediation en conflictmanagement, Aflevering 2 2011
Trefwoorden German Mediation Code, confidentiality, duties of disclosure, limitation periods
Auteurs Renate Dendorfer
SamenvattingAuteursinformatie

    In the contribution ‘Mediation Law in Germany’ Renate Dendorfer discusses the background and contents of the ‘German Code for Promotion of Mediation and other Proceedings of Alternative Dispute Resolution’ in light of the implementation of the EU Mediation Directive. Important issues such as duties of the mediator, confidentiality, and training and education are focused on.


Renate Dendorfer
Prof. dr. Renate Dendorfer LL.M. MBAHeussen Rechtsanwaltgesellschaft mbH, Munich.
Artikel

The DIS Mediation Rules

Tijdschrift Nederlands-Vlaams tijdschrift voor mediation en conflictmanagement, Aflevering 3 2010
Trefwoorden mediation, alternative dispute resolution, consensual
Auteurs Prof. dr. Stephan Breidenbach en Dr. Holger Peres
SamenvattingAuteursinformatie

    As a consensual dispute resolution method, mediation is gaining ever more practical significance. Above all, businesses are beginning to understand that mediation poses little risk of failure, while offering a realistic chance of continuing, and in some cases even developing, business relationships. To meet real-life demands, the German Institution of Arbitration (DIS) now provides new mediation rules as part of a whole set of new dispute resolution rules.


Prof. dr. Stephan Breidenbach
Stephan Breidenbach is a tenured professor of civil law, law of civil procedure, and international business law at Europe University Viadrina in Frankfurt (Oder), Germany. He contributed to the design of the DIS dispute resolution system.

Dr. Holger Peres
Holger Peres is an attorney and partner at BEITEN BURKHARDT Rechtsanwaltsgesellschaft mbH in Munich, Germany. He contributed to the design of the DIS dispute resolution system.

Annie de Roo
Annie de Roo is hoofdredacteur TMD.
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