According of Fundamental Rights of the European Union,
According to article 6 of ECHR which states, everyone is entitled to fair and public hearing within a reasonable time appointed by the law through a reasonable and neutral tribunal. The CJEU declared the right to get an effective remedy as the general principle of EU law.
Same provisions also contains in Article 47 of the Charter of Fundamental Rights of the European Union, which says – “Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article. Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. ”
In this regards one, inter alia, may have issues on whether or not a contractual responsibility to settle viable future disputes through the ADR procedure could by some means affect the right of getting right of entry to court. The green paper of the commission has given a positive answer to this question that indicating the ADR does no longer suspend the limitation period, which in flip can preclude the execution of the proper right to recourse to the courtroom.
However, the CJEU in its judgment in joined cases proclaimed that provisions of the EU law are to be interpreted as non-precluding legislation of the MS pursuant to which consideration of a case in the court is subject to the disputing parties’ attempt to resolve the dispute out-of-court. In the CJEU case in question, the author can observe the argumentation line similar to the Commissions in the Green Paper. The CJEU determined conditions when domestic law imposing on disputing parties obligation to refer to an out-of-court settlement procedure, does not preclude them from having access to the justice, particularly
“…provided that that procedure does not result in a decision which is binding on the parties, that it does not cause a substantial delay for the purposes of bringing legal proceedings, that it suspends the period for the time-barring of claims and that it does not give rise to costs – or gives rise to very low costs – for the parties, and only if … interim measures are possible in exceptional cases where the urgency of the situation so requires.”
Since in the above-considered judgment the CJEU was tackling the questions in the consumer field in the light of the general principle of the EU law – the right to valid remedies, one may conclude that most probably the CJEU will use the same approach considering the necessity to recourse to the ADR process in commercial disputes.In other words, the CJEU positions on similar issues regarding trade dispute will be the same principle as mentioned above, subject to existence of certain criteria.
It is possible that someone is concerned about how the ECRR conditions are related to the commercial contracts that predominantly enter between companies that in turn are not subject to human rights. However, the commercial contracts are not always entered between the companies. For instance, the mentioned provisions of the ECHR can be actual in protecting the weak party to a transaction in such deals as the trader (individual entrepreneur) versus the giant retailer (company) or service provider (individual entrepreneur) versus the purchasing company or facilities owner (individual) versus lessee (company) etc. From the author viewpoint, In these cases, it is necessary to check the applicable law provisions with respect to criteria mentioned above in the CJEU judgment as to make sure that the ADR clause in particular contract will not be deemed as preventing access to justice of a party to a contract (individual).
Using the noted above argumentation we may additionally also give an explanation for a well-known provision of the Model Mediation Agreement drafted with the aid of the CEDR and mentioning that the referral of a dispute beneath the CEDR mediation method does no longer have an effect on any right that exists in accordance with Article 6 ECHR.
However, turning again to mediation as a indispensable circumstance before having resort to the court, I consider that right here it should be observed a “clash” between the wish of a MS, by means of domestic law, to promote the ADR and possibly lower courts dockets through way of making the ADR as an essential circumstance for feasible recourse to a court, from the one side, and the voluntary nature of the ADR concept, from the different side. In this simple example, we can state the reality that practical application of the ADR idea differs from its theoretical basis in such a necessary moment as the indispensable right to select whether or not to have recourse to the ADR or not. Since this matter is no longer the focal point of this paper, the writer will no longer complicated similarly on it.
Nevertheless, at the end of the day, perhaps, the inner market dictates such requirements. A non-expensive, speedy and at the equal time advantageous machine of dispute managing is required in order to enforce benefits of the internal market.
2.3 Appreciation and ADR regulation in the EU
Generally, the EU positively time-honored ADR. The incremental movements of the European Parliament, the Council, the Commission and the MS verify this statement.
As the Commission and the Council mentioned in part 2 of the Vienna Action Plan in 1998 “Judicial cooperation in civil matters is of fundamental importance to the “area of justice”. The rules on conflicts of law or jurisdiction should therefore be amended, particularly as regards contractual and non-contractual obligations, divorce, matrimonial regimes and inheritance, and mediation should be developed …”
The meeting of European Council has been held in Tampere on 15 and 16, October 1999 on the preparation of the freedom, security, and justice sector. The European Council specifically point out that MS replacement should be made for additional judicial strategies.
Following the conferences in question, the Commission in April 2002 adopted the Green Paper on Alternative Dispute Resolution in Civil and Commercial Law (the “Green Paper”). In the Green Paper, the Commission raised a vary of questions on the ADR improvement inside the EU concern to reply through the MS.
Going further, after consideration of MS’ feedbacks, in July 2004 at the European Commission Justice Directorate conference in Brussels the European Code of Conduct for Mediators (the “Code of Conduct”) have been launched. The Code of Conduct aims to apply to civil and commercial disputes. Improvement of mediation quality and trust in mediation are the purpose of the Code of Conduct. It sets out a range of principles that can be applicable to mediator’s activities under voluntary basis.
The following step in the ADR improvement direction used to be the suggestion of the European Parliament and the Council for a Directive on Certain Aspects of Mediation in Civil and Commercial Matters (the “Proposed Directive”) made 22 October 2004. An Explanatory Memorandum to the Proposed Directive (the “Memorandum”) underlined that the idea of getting right of entry to justice ought to encompass promoting of access to the system of ample dispute decision and not simply get admission to the judicial system. The Proposed Directive supplied two hints that were going to facilitate get right of entry to dispute resolution. First suggestion related to the establishment of minimum common rules within the EU on several key aspects of civil procedure. Such aspects include suspension of the limitation period, enforcement of settlement agreements, confidentiality. The second suggestion concerned the court’s tools indispensable for active promotion of mediation, however, without making the mediation compulsory or subject to specific sanctions. Moreover, as a legal basis for adoption of the Proposed Directive, the Memorandum highlighted proper functioning of the internal market, i.e. ensuring (i) access to dispute settlement mechanisms while executing by persons the four freedoms and (ii) the freedom to provide and receive mediation services.
Following the presentation by the Commission of the Proposed Directive, the European Parliament and the Council on 21 May 2008 issued the Directive on Certain Aspects of Mediation in Civil and Commercial Matter (the “Mediation Directive”).The Mediation Directive addressed to MS except for Denmark.
The scope of the Mediation Directive limited by cross-border disputes in civil and commercial matters. However, mediation instructions say that no one should stop MS from the implementation of the internal mediation process. Therefore, taking the above mentioned into consideration, the following conclusion could be drawn: the provisions of the Mediation Directive are could be applicable and can be applied for both cross-border and internal disputes and respective mediation processes.
Those mediation directive will be without partiality to national legislation, making utilization of mediation mandatory alternately subject on incentives alternately authorizes given that such national regulation does no more stop theparties starting with working out their right from claiming approach of the legal framework. Furthermore, it includes provisions on the enforceability of contract agreement, confidentiality of the mediation, the influence of the mediation on limitation period. The transposition period for MS to bring their laws, regulations and administrative provisions in compliance with the Mediation Directive specified by the period of time before 21 May 2011. As a result of the implementation of the Mediation Directive, the Commission will, no later than 21 May 2016, prepare and submit to the European Parliament, the Council and respective Committees, a report on the application and impact of the Mediation Directive in MS.
After amendments introduced by the Treaty of Lisbon to TFEU, TFEU contains the obligation of the European Parliament and the Council to adopt measures necessary for the proper functioning of the internal market which aimed at ensuring the development of alternative methods of dispute settlement. In other words, the obligation in question now vested on the treaty level that confirms the great significance that the EU attaches to the development of the ADR.
Meanwhile, in relation to initiatives with a global dimension we should always consult with the UNCITRAL Model Law on International industrial Conciliation (2002) (the “Model Law”). consistent with the Resolution of the general Assembly,the General Assembly acknowledge the worth for international trade of friendly strategies for subsiding industrial disputes, taking under consideration progressively usage in international and domestic practice of such strategies, as well as, basic cognitive process that the Model Law would contribute to the event of harmonious international economic relations, recommends that every one states provide due thought to the enactment of the Model Law, in sight of the desirability of uniformity of the law of dispute settlement procedures and therefore the specific desires of international industrial conciliation practice.
Apart from definition to conciliation, the Model Law foresees general provisions on the conduct of conciliation, revelation of knowledge, confidentiality, the acceptability of proof in alternative proceedings, enforceability of settlement agreement. States want to enact the Model Law might modify some its provisions so as to accommodate specific national circumstances. Therefore, one might gain a conclusion that the ADR was with success accepted within the EU and evidenced to be the economical tool resolution the disputes.
2.4 Common ADR technique in EU