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PAGE PAGE PAGE PAGE PAGE PAGE 01 Austria 05 Belgium 09 Bulgaria 65 Monaco 69 Netherlands 73 Poland
PAGE PAGE PAGE PAGE PAGE PAGE 13 Cyprus 17 Czech Republic 23 Finland 77 Portugal 81 Slovakia 87 Spain
PAGE PAGE PAGE PAGE PAGE PAGE 27 France 33 Germany 37 Greece 91 Sweden 95 Switzerland 99 Turkey
PAGE PAGE PAGE PAGE PAGE 41 Hungary 45 Ireland 49 Isle of Man 103 United Arab Emirates 107 United Kingdom
PAGE PAGE PAGE 53 Israel 57 Italy 61 Luxembourg Civil Litigation
1. In what language(s) may court attorney fees beyond the services which Austria obligates a witness to appear proceedings be conducted? What are reimbursed according to the fixed set before court, to testify and to tell the arrangements can be made for of fees in a standard case). truth. In rare cases must witnesses testify translation/interpreter services? under oath. The Austrian law does not The amount of costs depends on the distinguish between witness examination The official court language is German. duration of the proceeding. For example, and cross-examination. It is usually If persons involved in the trial are not for a dispute value of Euro 1 million, the judge who questions a witness. able to understand or speak German, attorney costs would be around Euro Thereafter, the parties are allowed to an interpreter is summoned. In areas 25,000 for the claimant and the same ask additional questions whereas leading where the minority languages Slovenian, amount for the defendant and with questions are not allowed. According to Croatian or Hungarian are officially additional court fees of around Euro the Principle of Immediate Apprehension acknowledged by constitutional law, 12,000 for the first instance. (“Unmittelbarkeitsgrundsatz”), the judge members of the minority groups can may base his judgment only on that choose to use their language in court. 4. What are the basic rules of evidence which was presented during disclosure of documents in civil the hearing. Hence, written witness 2. What types of pre-action measures and commercial proceedings? statements are not a sufficient proof. are available and what are their Which documents do not require limitations? Must you send a warning disclosure? Is electronic disclosure of 6. How are settlement discussions letter before issuing any proceedings? documents normal? usually conducted (namely whether Discovery” or “disclosure” rules are not oral or written and whether A disclosure of documents is rather applicable under Austrian law. A potential between the parties direct or their uncommon. In general, both parties plaintiff may conduct an independent representatives)? Is the settlement have to support the proceedings in procedure for the taking of evidence correspondence between the disclosing all facts or circumstances, (“Beweissicherungsverfahren”) if there is parties/counsel privileged (i.e., may including documents that could be actual danger that evidence which is at not be disclosed to the court)? relevant for solving the matter in dispute. the moment easily available may soon Documents have to be disclosed if one Settlement discussions can be conducted be destroyed or changed. Furthermore, party refers to such document in its orally or in writing, in or out of parties may apply for interim relief own giving of evidence or if one party court. If the settlement negotiations (“einstweiliger Rechtsschutz“) or an is entitled to require such disclosure are conducted out of court, there is assertion of (undisputed) claims by legal by statutory regulations of the Austrian no obligation to disclose respective dunning proceedings (“Mahnverfahren“). Civil Code or if the document is a joint correspondence to the court. In court Under Austrian law, a plaintiff is not document to both parties according to proceedings, the judge is obliged to ask obligated to send a warning letter before the document´s content. A third party the parties in the first hearing whether initiating court proceedings. has to disclose a document only if a the parties are willing to resolve the statutory obligation for disclosure exists dispute in a settlement. Further, judges 3. What are the costs of civil and or if a document is a joint one for the may initiate settlement discussion commercial proceedings? Who bears third party and the party seeking to use at every stage of the trial if deemed these costs? the document as evidence. If a party fails appropriate. A settlement reached by the The court fees are stipulated to submit documents requested by the parties in court has similar effects as a in the Austrian Court Fees Act court, the court may take such failure judgment, i.e., it is enforceable. (“Gerichtsgebührengesetz”) and into consideration of its evaluation of determined by the amount in dispute. evidence. Once electronic data gets 7. What is the typical duration of a The applicable court fee is a flat-fee printed, it is produced as a document court procedure? determined independently from the and the general rules about submission of documents apply. Other electronic In Austria, the average duration of court duration of the proceedings. A flat-fee proceedings (assuming a dispute value accrues per each instance. The parties are documents fall under the category of prima facie evidence and disclosure of around Euro 1,000,000) is around 18 free to agree on attorney fees, e.g. based months for the first instance. on an hourly-rate agreed between the requests cannot be enforced (sec 369 parties or the Austrian Attorneys´ Tariff refers to sec 303-307 Austrian Code of Act (“Rechtsanwaltstarifgesetz”). Attorney Civil Procedure – “Zivilprozessordnung”). fees based on the Austrian Attorney´s Tariff Act are determined by the amount 5. What is the process for witness in dispute and fee units for the specific evidence (namely, is it deposition attorney´s activities. There are no based in advance, or witness contingency fees (“Erfolgshonorare”) in statement, or examination or Contact Austria. As a general rule the unsuccessful cross- examination)? Can a witness Siemer-Siegl-Füreder GERALD GRIES party has to reimburse the prevailing be compelled to attend to give Vienna, Austria Partner | Head of Litigation party not only for the court fees but also evidence? for the attorney´s fees at a rate of the The common process is witness www.ssfp-law.at T: +43 1 512 1445 Austrian Attorneys´Tariff Act (regardless examination. Witness summons within E: [email protected] of whether the prevailing party has paid
01 Litigation, Arbitration And Alternative Dispute Resolution Litigation, Arbitration And Alternative Dispute Resolution 02 8. How can foreign judgments be • European: According to the Regulation for example the Hague Convention. 10. What type of pre-arbitration 14. How are settlement discussions judgment between the parties. Upon enforced? (EC) No 44/2001 (“EuGVVO”) Section 79 Austrian Enforcement Act measures are available and what are usually conducted (namely whether receipt of the award by the parties, judgments of EU Member States will stipulates that reciprocity provided their limitations? oral or written and whether domestic awards are enforceable, i.e., a For the enforcement of foreign be acknowledged in each of those in treaties has to be established between the parties direct or their challenge of an award has no suspensive judgments in Austria several regulations states and can be enforced if declared before a judgment will be enforced. According to sec 593 Austrian Code of representatives)? Is the settlement effect with respect to its enforceability. (European, multi- or bilateral or enforceable. Consequently, the enforcement of Civil Procedure (“Zivilprozessordnung”) correspondence between the In order to enforce the domestic award, autonomous conventions) apply: foreign judgments is entirely subject to the parties may submit a request for parties and/or counsel privileged the chairman of the arbitral tribunal • Multilateral or bilateral conventions: all types of interim measures to the Enforcement may also be obtained with multilateral or bilateral treaties. (i.e., may not be disclosed to the has – upon request of the party – to arbitral tribunal or directly to the Arbitrator)? confirm in writing the legal effects and competent Austrian court. As Sec 593 enforceability of the arbitral award Austrian Code of Civil Procedure is not There are no specific provisions (most practically on an exemplar of Arbitration And Alternative Dispute Resolution mandatory, the parties may opt out of as to how settlement negotiations the arbitral award). Foreign awards Sec 593 all together. Type and scope of have to be conducted, all mentioned are required to be recognized and the interim measure is not specified in alternatives are possible. Generally, declared enforceable by the competent 1. Are mediation clauses in involving an economic interest that lies a judgment, i.e., it is enforceable. the Austrian Arbitration Act. if the parties are represented by district court before enforcement is commercial contracts binding and within the jurisdiction of the courts lawyers, the discussions will be usually granted (sec 614 Austrian Code of Civil enforceable? of law can be subject to an arbitration 6. How can foreign judgments be 11. What are the costs of arbitration conducted by those representatives. proceedings and who bears these Procedure - “Zivilprozessordnung”; Sec 82 agreement. Arbitration agreements enforced? It is up to the parties if settlement Enforcement Act – “Exekutionsordnung”). Mediation clauses in commercial costs? are enforceable (sec 584 and sec 593 correspondence will be disclosed to Austria is inter alia a member to the contracts are in principle binding. They For the enforcement of foreign Austrian Code of Civil Procedure - the arbitrators. In the absence of a U.N. Convention on the Recognition cannot be realistically enforced as the judgments in Austria several regulations The parties may agree on how to “Zivilprozessordnung”). confidentiality agreement between the and Enforcement of Foreign Arbitral obligation to mediate does not oblige (European, multi- or bilateral or allocate the costs both in the arbitration parties, a party is not prevented from Awards (“New York Convention”). the parties to actually settle the dispute. General comments on the Austrian autonomous conventions) apply: agreement as well as during the arbitral disclosing settlement correspondence A party of the arbitration may file an Each party can therefore abandon Arbitration Act: The Austrian Arbitration proceedings. Failing an agreement by the • European: According to the Regulation to an arbitrator/the panel. The parties action for the arbitral award to be set the mediation at any time or refuse Act is based on the UNCITRAL Model parties, the arbitral tribunal decides on (EC) No 44/2001 (“EuGVVO”) may find it convenient for the terms aside with the competent domestic to accept the result. After an attempt Law while harmonizing the Model the allocation of costs of the arbitral judgments of EU Member States will of settlement to be embodied in an court. Sec 611 (2) Austrian Code of has been made to resolve the dispute, Law provisions with Austrian law and proceedings between the parties at be acknowledged in each of those award which is usually easier for a party Civil Procedure (“Zivilprozessordnung”) it is possible to approach the courts. practice. The Austrian Arbitration its own discretion while taking into states and can be enforced if declared to enforce performance by the other lists exhaustively the following grounds Nevertheless, if a mediation clause was Act is regulated in sections 577-618 consideration the circumstances of the enforceable. party of a future obligation. Or the for challenge: agreed upon by the parties, courts will Austrian Code of Civil Procedure case. A specific and separate motion • Multilateral or bilateral conventions: by the parties to that effect is not parties may decide for a simple arbitral deny action as inadmissible prior to (“Zivilprozessordnung”). Only a few • There is no valid arbitration Enforcement may also be obtained necessary. Of course, a cost decision is settlement not embodied in an award mediation proceedings. The Austrian mandatory provisions exist, in general which upon request of the parties, must agreement (at all). the parties are free to determine the with e.g., the Hague Convention. possible only if the parties have indeed Supreme Court decided in 2008, if be recorded by the arbitral tribunal • The arbitral tribunal has wrongfully proceedings within the limits of ordre Sec 79 Austrian Enforcement Act disclosed the respective amounts the parties fail to reach a settlement during the arbitral proceedings and denied its jurisdiction (even though within a period of three months public and good faith. stipulates that reciprocity provided together with sufficient evidence (where in treaties has to be established necessary). Arbitration institutes often the protocol has to be subsequently there is a valid arbitration agreement). upon commencement of mediation signed by the arbitrators. According before a judgment will be enforced. provide a cost calculator on their • One of the parties was under some proceedings, the court accepts the claim. 4. What type of arbitration is to Austrian law, arbitral settlements commonly used for resolving Consequently, the enforcement of website (e.g., the VIAC cost calculator: incapacity to conclude the arbitration www.wko.at/arbitration/kostenrechner/ constitute enforceable titles eo ipso like 2. What is the procedure for commercial disputes: ad hoc foreign judgments is entirely subject to agreement. multilateral or bilateral treaties. kostenrechner.html). regular court settlements. However, mediation? Is it a popular method arbitration or institutional enforcement of such settlements • A party was not given proper notice for resolving commercial disputes? arbitration? 12. What are the basic rules of outside Austria might be difficult. of the appointment of an arbitrator 7. Which arbitration institutes are Settlements that are made out of court or of the arbitral proceedings or was Austrian law does not provide specific Both types are commonly used but with document disclosure in arbitration? most popular? are generally subject to stamp duties, for other reasons unable to present procedural rules for mediation. The a stronger tendency to institutional Which documents do not require whereas settlements reached before the its case. determination of any procedural rules proceedings VIAC (Vienna International Arbitral disclosure? courts are exempt from such duties. If • The award deals with a dispute not is solely up to the mediator and the Centre / Internationales Schiedsgericht The disclosure of documents is the arbitral tribunal renders an award covered by the arbitration agreement, parties. The Austrian Civil Law Mediation 5. How are settlement discussions der Wirtschaftskammer Österreich) ICC subject to agreement between the on agreed terms, the settlement given or contains decisions on matters Act (“Zivilrechtsmediationsgesetz”) usually conducted (namely whether (International Chamber of Commerce) parties. “Discovery” rules are not per the formal requirements of an award, is beyond the scope of the arbitration is primarily limited to qualifications oral or written and whether 8. What influence can the parties have se applicable in Austrian arbitration not subject to stamp duties. _ agreement or the plea of the parties for registered mediation training between the parties direct or their on the identity of the arbitrator(s)? proceedings. for legal protection; if the default institutions, the duty of confidentiality representatives)? Is the settlement According to the current opinion concerns only one part of the award and the right of mediators to refuse correspondence between the The parties are free to determine the 13. What is the procedure for witness of Austrian tax authorities, arbitral that can be separated, only that part of to give evidence in civil and criminal parties/counsel privileged (i.e., may number of arbitrators. Most commonly evidence in arbitration (namely, settlements (which are not subject of the award shall be set aside. law proceedings. Up to now mediation not be disclosed to the court)? used is one arbitrator or a panel of is it deposition based or witness an award) are qualified as out-of-court • The composition or constitution is not a popular alternative dispute Settlement discussions can be three arbitrators. If the parties fail to examination or cross-examination)? settlement and thus stamp duties at a of the arbitral tribunal was not in resolution method with regard to conducted orally or in writing, in or out agree on the number of arbitrators, rate of 1% of the settlement sum (of the The method of witness examination accordance with a provision of the commercial disputes. of court. If the settlement negotiations a panel of three arbitrators will arbitral settlement) would be charged. is subject to agreement between the Austrian Arbitration Act or with an are conducted out of court, there is be appointed. Each party appoints parties. Both oral witness examination 3. What are the costs of civil and one arbitrator and those two party 15. Under what circumstances can an admissible agreement of the parties; commercial proceedings? Who no obligation to disclose respective and/or written witness statements may correspondence to the court. In court appointed arbitrators agree on the third Arbitration Award be enforced, • The arbitral proceedings were bears these costs? be agreed upon. In the absence of a challenged or annulled? proceedings, the judge is obliged to ask one who acts as the chairman of the party agreement, both the admissibility conducted in a manner that conflicts According to Austrian arbitration law, the parties in the first hearing whether panel. and the conducting of the taking of According to sec 607 Austrian Code of with the fundamental values of the arbitration clauses are binding if they the parties are willing to resolve the evidence lies within the discretion of Civil Procedure (“Zivilprozessordnung”), Austrian legal system (ordre public). dispute in a settlement. Further, judges 9. In what language is an arbitration comply with the form requirements proceeding conducted? the arbitral tribunal while granting the the award that has been rendered by an • The subject matter of the dispute is and scope of application set forth may initiate settlement discussion parties a fair and just judiciary process. arbitral tribunal with its seat in Austria, not arbitrable under Austrian law. in sections 581, 582 and 583 of the at every stage of the trial if deemed The parties are free to agree on the has the effect of a final and binding court Austrian Code of Civil Procedure appropriate. A settlement reached by language to be used in the arbitration. (“Zivilprozessordnung”). Any claim the parties in court has similar effects as
03 Litigation, Arbitration And Alternative Dispute Resolution Litigation, Arbitration And Alternative Dispute Resolution 04 Civil Litigation
1. In what language(s) may court • Costs of investigating measures such 5. What is the process for witness proceedings be conducted? What as a court-appointed expert, if any. evidence (namely, is it deposition arrangements can be made for • The procedural indemnity, which is a based in advance, or witness translation/interpreter services? lump sum for lawyer’s fees and costs. statement, or examination or cross- examination)? Can a witness Belgium is divided into four linguistic The amounts depend on the value of the claim and the nature of the be compelled to attend to give regions: the single-language Dutch, evidence? French and German linguistic regions proceedings and vary between Euro where the proceedings are respectively 165 and Euro 16.500 . The court has Witness evidence, although permitted conducted in the language of the limited powers to reduce or increase by the Judicial Code, is very seldom region. In the bilingual (Dutch and these amounts. The unsuccessful applied in civil and commercial French) region of Brussels-Capital, party usually bears the costs of the proceedings. The usual process is the proceedings can be introduced in proceedings. witness examination. Dutch or in French upon the plaintiff’s choice. The Belgian Act on the Use The legal indemnities for civil or Since 2012, the Belgian judicial code of Languages in court proceedings of commercial disputes are determined by provides for specific rules regarding 15 June 1935 provides specific rules law. For a civil or commercial dispute the written witness statements. Article under which the defendant may request with a value of Euro 1,000,000 the 961/2 of the Belgian judicial code states the court to change the language of standard legal indemnities amount to that, in addition to an overview of the the court proceedings in Dutch or Euro 11,000. facts, the written witness statement in French. Foreign defendants may needs to include the identification also make use of this right. If persons In specific circumstances, the judge can of the witness, along with his/her involved in the proceedings are not able also lower these indemnities to the relation towards the parties (e.g.: to understand the language of the court minimum amount of Euro 1,100 e.g. whether they are related or whether proceedings, an interpreter will be used. if the financial resources of the losing they work together) as well as the Courts also require a translation of party are limited. The judge can also date and signature of the witness. documents that are not in the language award the maximum legal indemnities The witness statement also needs to of the court proceedings. for an amount of Euro 22,000 e.g. if the include the statement that the witness case is very complex or if the claim was is aware of the fact that the witness 2. What types of pre-action measures clearly unfounded or unreasonable. statement will be used as an exhibit in are available and what are their legal proceedings, and that knowingly limitations? Must you send a 4. What are the basic rules of providing false statements is punishable warning letter before issuing any disclosure of documents in civil by law. proceedings? and commercial proceedings? Which documents do not require Pre-action measures can be ordered by: The judge is free to determine the disclosure? Is electronic disclosure probative value of the written witness • The court in summary proceedings or of documents normal? statement. However, since the content There are no disclosure proceedings. and form of the written witness • The court ruling on the merits of statements have now been explicitly the case. Usually they aim either The parties are free to submit to the court any evidence they wish. Written determined by the judicial code, this to preserve evidence, or to freeze has in fact increased the probative value a situation awaiting the outcome and contemporaneous documents are the most important evidence under of the written witness statements and in the proceedings on the merits. has also increased the use of written One must not send a warning letter Belgian law. The parties are nevertheless under the obligation to cooperate in witness statements in civil proceedings. before starting legal proceedings or It is very seldom that in follow-up of the arbitration proceedings. good faith with the burden of proof of the other party. filing of a written witness statement as 3. What are the costs of civil and exhibit, the court or judge would also examine the witness during a hearing. commercial proceedings? Who If a party does not comply with this However, the possibility does exist. bears these costs? obligation, the court may impose, either The cost of civil and commercial at its own discretion or upon the other proceedings includes: party’s request, an obligation to submit a specific document provided that the • Stamp duties, registration fees and requested document is relevant to the enrollment rights. matter and there are serious, certain • Cost and fees related to the service and unequivocal presumptions that Contact of legal documents, such as writ of the party against which the injunction Lydian HUGO KEULERS YVES LENDERS summons and judgment (i.e., bailiff fees is sought has the document in his and costs). possession. Brussels, Belgium Partner | Commercial & Litigation Partner | Commercial & Litigation • Costs of authenticated copies of the www.lydian.be T: +32 2 787 90 90 T: +32 3 304 90 08 judgments. E: [email protected] E: [email protected]
05 Litigation, Arbitration And Alternative Dispute Resolution Litigation, Arbitration And Alternative Dispute Resolution 06 6. How are settlement discussions may not be disclosed to the court 8. How can foreign judgments be 8. In what language is an arbitration 11. What are the basic rules of of the Court of First instance may usually conducted (namely whether in case settlement negotiations fail enforced? proceeding conducted? document disclosure in arbitration? not examine the merits of the dispute oral or written and whether as evidence for admission of liability. Which documents do not require settled by arbitration and can refuse to between the parties direct or their Correspondence exchanged between The direct enforcement of foreign The parties generally have the possibility disclosure? enforce the arbitration agreement only representatives)? Is the settlement the parties directly and/or between the judgments is governed by the Belgian to freely choose the language of the if such agreement or its enforcement correspondence between the parties and a member of the Belgian judicial Code and several bi- and multi- arbitration. In case where parties fail There is no discovery like in the US for are contrary to public order, or if the parties/counsel privileged (i.e., may Bars is not privileged, even it if expressly lateral international treaties to which to find an agreement on the language arbitration proceedings governed by dispute was not arbitrable. The decision not be disclosed to the court)? includes a “without prejudice” warning. Belgium is a party. of the proceedings, the language or Belgian law. The Arbitral Tribunal may which grants exequatur is covered by languages of the arbitration proceedings order a party to disclose documents Most importantly, the Brussels res judicata. Settlement discussions can be 7. What is the typical duration of a will be determined by the Arbitral (upon periodic penalty payment). The conducted in different ways, orally or in Regulation provides for the rules Tribunal, due regard being given to requested parties must produce the court procedure? An appeal to the arbitral award is only writing, usually out of court. Generally, if for enforcing judgments throughout the circumstances of the case and, in documents on which they rely. Evidence the European Union. There is no possible if this possibility has been the parties are represented by lawyers, Commercial disputes on the merits particular, the language of the contract in arbitration proceedings governed by international treaty in force between provided for in the arbitral agreement. the discussions will be conducted of the case usually take about 1.5 to 2 which provides for arbitration, or the Belgian law is to a very large extent also Belgium and the US on the enforcement Unless stipulated otherwise, the term by the lawyers. Correspondence years in first instance. In appeal, these arbitration agreement itself. dominated by contemporaneous written of judgments. Written examination is for appeal is one month following the exchanged between members of one proceedings usually take up to 2 or 3 evidence material. very seldom applied and/or requested in date of the arbitral award. It is very of the Belgian Bars is privileged and years. Belgian civil or commercial proceedings. 9. What type of pre-arbitration exceptional that Belgian arbitration measures are available and what are 12. What is the procedure for witness agreements provide for a possibility of their limitations? evidence in arbitration (namely, an appeal and hence a re-hearing of the is it deposition based or witness dispute. Arbitration And Alternative Dispute Resolution The courts are competent to order examination or cross-examination)? interim measures at any time, even if arbitration proceedings are pending. Witness evidence in Belgian arbitration An award can be annulled if: The court may order measures (i) to is only seldom applied and mostly 1. Are mediation clauses in By request of the parties, or on its 6. What influence can the parties have • If the decision is contrary to public obtain or to safeguard evidence material includes witness examination by the commercial contracts binding and own initiative but with the consent of on the identity of the arbitrator(s)? order. enforceable? the parties, a Court may order judicial and/or (ii) to suspend or freeze certain arbitrators. mediation in pending proceedings, as The parties are free to determine the actions for a certain period of time (for • If the dispute can legally not be Yes. long as the case has not been closed for number of arbitrators. If there is no instance awaiting the outcome of the 13. How are settlement discussions submitted to arbitration proceedings. the purposes of rendering a judgment. agreement, a panel of three arbitrators arbitration proceedings). If arbitration usually conducted (namely whether • If no valid arbitration agreement exists. will be appointed (Article 1682 of 2. What is the procedure for The parties agree on the name of the proceedings are pending, each party may oral or written and whether • If the Arbitral Tribunal has exceeded mediation? Is it a popular method mediator, who must be accredited. the Belgian Judicial Code). Each party also ask the arbitral tribunal to order between the parties direct or their appoints one arbitrator and the two its jurisdiction or its powers; if the for resolving commercial disputes? Judicial mediation is conducted in the interim or conservatory measures representatives)? Is the settlement Arbitral Tribunal has omitted to decide appointed arbitrators appoint a third (except attachments). Mediation is used in an increasingly same way as voluntary mediation. The correspondence between the on one or more issues of the dispute, dispute continues to be pending before arbitrator who will be the Chairman of parties and/or counsel privileged number of disputes in Belgium now that the arbitration panel. In case of CEPANI- and if such issues cannot be separated there is a legal framework in the Judicial the Court during the entire time of 10. What are the costs of arbitration (i.e., may not be disclosed to the from the issues on which it did decide. the mediation proceedings. At any time, arbitration, CEPANI appoints the proceedings and who bears these Arbitrator)? Code. Mediation is always optional for • If the award has been rendered by an the Court may take such measures as Chairman of the arbitration panel. costs? the parties to a dispute and can never arbitral tribunal that was irregularly it deems necessary. At the request, by There are no specific provisions be imposed by the court. Either one 7. How can foreign judgments be The costs of arbitrations proceedings as to how settlement discussions appointed. party takes the initiative and the other the mediator or by one of the parties, the Court may terminate the mediation enforced? shall include the fees and expenses of must be conducted. All scenarios • If the parties were not given the parties accept (voluntary mediation), the arbitrators. They are usually fixed are possible. Generally, if the parties opportunity to present their case or the parties accept the proposal of a even before the expiry of the time limit The direct enforcement of foreign which has been set. If mediation leads to on the basis of the amount of the claim. are represented by lawyers the and their arguments, or if any judge to mediate (judicial mediation). judgments is governed by the Belgian Unless otherwise agreed, the provisions discussions will be conducted by the other imperative rule of arbitration a settlement agreement, the parties may judicial Code and several bi- and multi- request the Court to homologate their of the Belgian Judicial Code dealing with lawyers. Correspondence exchanged proceedings has been violated, In a voluntary mediation, the parties lateral international treaties to which agreement. the recovery of judicial costs (including between members of the Belgian Bars provided such a violation of the rules decide by mutual agreement, with the Belgium is a party. Most importantly, the the attorney’s fees) do not apply in is privileged (unless exceptions) and had an impact on the award. assistance of the mediator, upon the Brussels Regulation provides for the arbitration proceedings. Such costs can therefore may not be produced in • If the arbitral award was not duly rules for the conduct of the mediation 3. Are arbitration clauses in commercial rules for enforcing judgments throughout be recovered under the principle “costs litigation and/or arbitration in case the motivated. as well as its duration. The parties contracts binding and enforceable? the European Union. Since 10 January follow the events”, meaning that the settlement discussions would fail. can decide whether to participate in Yes, except for termination of disputes 2015 the Brussels Ibis Regulation has unsuccessful party bears the costs of • If the rights of defence of one of the the mediation in person or/and to be about exclusive distribution agreements entered into force and applies to all legal the arbitration proceedings (including 14. Under what circumstances can an parties have been violated, on the represented. The mediation costs and and agency agreements on Belgian proceedings that were initiated after 10 reasonable costs and fees of the Arbitration Award be enforced, condition that this irregularity has fees are payable in equal shares by the territory providing for the application of January 2015 and all judicial decisions successful party’s attorney). challenged or annulled? affected the arbitral award. parties, unless otherwise agreed. The another legal system as substantive law. rendered after the said date. The Brussels • If it was obtained by fraud. mediation may concern part of or the Ibis Regulations has abolished the former The parties shall mostly voluntarily comply with the award. Otherwise, entire dispute. 4. What type of arbitration is exequatur proceedings. If a creditor now obtains a foreign (e.g. French) the award can be enforced upon the commonly used for resolving request of a party (by the exequatur The agreement reached after mediation commercial disputes: ad hoc judgment that is enforceable according does not have the status of a judgment to its own national law (e.g. French law), request). The President of the Court of arbitration or institutional First instance has exclusive jurisdiction and shall not be enforceable by the arbitration? the creditor can immediately contact courts. However if the mediation is a Belgian bailiff to execute and enforce to handle such request. He can order conducted by an accredited mediator, Institutional arbitration. the foreign judgment in Belgium without enforceability of the award if it can the parties may request the court to needing any enforcement judgment from no longer be challenged in front of validate their agreement. The agreement 5. Which arbitration institutes are most a Belgian court. . There is no international the arbitrator(s), or if the arbitrators shall therefore become legally popular? treaty in force between Belgium and the have declared it to be provisionally enforceable as if it were a judgment. US on the enforcement of judgments. enforceable notwithstanding appeal. The The Belgian Centre for Mediation and Written examination is very seldom exequatur request does not have the Arbitration (CEPANI) The International applied and/or requested in Belgian civil same effect as an appeal. The President Chamber of Commerce in Paris (ICC) or commercial proceedings. 07 Litigation, Arbitration And Alternative Dispute Resolution Litigation, Arbitration And Alternative Dispute Resolution 08 Civil Litigation
1. In what language(s) may court may reduce them; success fees cannot document should be presented on proceedings be conducted? What be recovered from the other party). electronic carrier as well. arrangements can be made for translation/interpreter services? In case the claim value amounts to 5. What is the process for witness Euro 1,000,000 the state fee for the evidence (namely, is it deposition The official language used in court is first instance procedure would be Euro based in advance, or witness Bulgarian. If the persons involved in the 40,000 and for the second and third statement, or examination or trial are not able to speak Bulgarian, an instance – Euro 20,000 each. Pursuant cross-examination)? Can a witness interpreter will be appointed. to the above-mentioned regulation be compelled to attend to give of the Supreme Bar Council on the evidence? 2. What types of pre-action measures minimal attorney fees, the attorney are available and what are their fee for that value shall be at least Euro The process for witness evidence is limitations? Must you send a 30,000 (net of VAT) for each court based on witness examination at open warning letter before issuing any instance. hearing before the jury of the court proceedings? with the presence of the parties. As an exception, if the circumstances require, In general there are two pre-action 4. What are the basic rules of it is possible that the interrogation is measures available for the potential disclosure of documents in civil done by another court outside the plaintiff. Both are optional. The first and commercial proceedings? district of the decisive court. When measure is imposing interim security Which documents do not require it is difficult to obtain the witness measures – the plaintiff may ask the disclosure? Is electronic disclosure evidence during the trial, the witness court to freeze some of the assets of of documents normal? might be interrogated in the court the potential defendant. If the seizure is Under the Bulgarian Code of Civil beforehand. Written statements are not allowed, the potential plaintiff may also Procedure there is no full disclosure admissible. Only if after the collection be required to deposit a certain amount of documents. The parties submit of the witness statements the claim in the court’s account as collateral in documents to the court according is withdrawn and then filed again, it favor of the defendant. The second to their own procedural needs. Each is possible the statements written in measure is the procedure for securing party may require the other to be the court minutes to be accepted as evidence before filing the claim. When obliged to present a document after valid on the condition that there are there is danger that a particular piece giving reasons for its significance to serious difficulties for their recollection. of evidence may be lost or collecting the dispute. If the other party fails to Once summoned before the court, it may be difficult, the court could be present the requested document, the the witness is obligated to appear and asked to collect the particular evidence court might consider as proven the give statements and answers. If the in advance. Sending a warning letter or facts which should be ascertained by the witness fails to do so, he or she could any other notification is not required presentation of the required and not be fined and brought before the court before starting the claim procedure. presented document. compulsory. 3. What are the costs of civil and The plaintiff as well as the defendant 6. How are settlement discussions commercial proceedings? Who usually conducted (namely whether bears these costs? may require a document to be presented by a third party, if there is oral or written and whether The costs of civil and commercial any evidence of the existence of such between the parties direct or their proceedings are the state fees and the document and its possession by the representatives)? Is the settlement expenditures of the parties. The state third party. If the third party fails to correspondence between the fees are regulated in Tariff for the state present the document, a fine could be parties/counsel privileged (i.e., may fees collected by the courts under the imposed by the court and the third not be disclosed to the court)? Code of Civil Procedure. The exact party is liable for the damages caused by Settlement discussions can be both oral amount of the fee depends on the type its inaction. and written. They can be conducted of case and can vary, but for monetary in or out of the court and between claims the state fee is 4% of the value Any official documents relevant to the parties directly or between their of the claim at first instance, and 2% at the case should be presented by the representatives. If a settlement is each consecutive instance. The other respective party. In addition, the court reached, the claim can be withdrawn or, expenditures are the remunerations may require the documents directly alternatively, the settlement agreement of the expert witnesses (determined from the respective institution. might be incorporated in the court by the court and never excessive) and minutes and affirmed by the court, the legal fees. The minimal legal fees Electronic disclosure of documents and thus become a court settlement are set in a special regulation issued by is done only when the document in with res judicata effect. Settlement Contact the Supreme Bar Council. As a general Dimitrov, Petrov & Co. question is electronic. As a general correspondence is not privileged and in METODI BAYKUSHEV ALEXANDER TODOROV rule, the unsuccessful party must bear rule, the electronic document may be case of a dispute can be submitted to Sofia, Bulgaria Partner | Head of Litigation Partner | Head of Real Estate & the court costs and reimburse the presented printed on paper and verified court. www.dpc.bg T: +359 2 421 42 01 Foreign Investment opponent’s state fees and reasonable by the presenting party. But, on demand legal fees which have been actually paid of the other party, the electronic E: [email protected] T: +359 2 421 42 01 (if the legal fees are excessive, the court E: [email protected]
09 Litigation, Arbitration And Alternative Dispute Resolution Litigation, Arbitration And Alternative Dispute Resolution 10 7. What is the typical duration of a the case would be resolved in additional is issued under Regulation (EU) No 9. What are the costs of arbitration 12. How are settlement discussions 4. The party was not duly notified of court procedure? 5 to 8 months. 1215/2012 of the European Parliament proceedings and who bears these usually conducted (namely whether the appointment of an arbitrator or and of the Council, it is subject to direct costs? oral or written and whether the commencement of the arbitration The procedure before the first instance In complex disputes the procedures enforcement by a bailiff (execution between the parties direct or their procedure, or for reasons beyond its usually takes 6 to 12 months (add a The costs of arbitration proceedings are before each instance could last longer. agent) without the need of being representatives)? Is the settlement control was not able to take part in few months if the case is before the declared as enforceable by a Bulgarian usually determined by the respective correspondence between the the procedure. courts in Sofia as they are much busier court. A non-EU judgment could be internal regulations if the arbitration is parties and/or counsel privileged compared to the other courts). The 8. How can foreign judgments be institutional or, in ad-hoc arbitrations 5. The award settles a dispute not enforced? enforced under the provisions of (i.e., may not be disclosed to the covered by the arbitration agreement normal duration of the second instance multilateral or bilateral treaties or they are subject to agreement between Arbitrator)? is 5 to 9 months. Cassation (third the parties. Usually the costs vary or deals with issues outside the scope If the foreign judgment is held by a according to the provisions of the of the dispute. instance) review is admissible on very court within the European Union, Bulgarian Code of International Private between 1% and 5% of the values of the There are no specific provisions in this limited grounds. The Supreme Court all institutions and authorities must Law. The later provides a formal claim claim. For smaller claims the percentage area. All of the mentioned alternatives 6. Formation of the arbitration tribunal of Cassation would usually issue a acknowledge its effect. In order to procedure before the Bulgarian court could be higher. are possible. The parties could claim or the arbitration procedure does court ruling on the admissibility of the be enforced, the judgment must be for the enforcement of the foreign from the arbitration tribunal to not comply with the agreement of cassation appeal in 6 to 12 months. If declared by the Bulgarian court as judgment. 10. What are the basic rules of reproduce their settlement agreement the parties unless the arbitration the court finds the appeal admissible, enforceable. If the foreign judgement document disclosure in arbitration? in the arbitration award. The settlement agreement is contrary to the Which documents do not require correspondence between the parties or mandatory provisions of the Bulgarian disclosure? their representatives is not privileged International Commercial Arbitration and it depends on the parties whether Act and if there is no arbitration There aren’t any specific regulations it’s disclosed to the tribunal. agreement – in case the provisions Arbitration And Alternative Dispute Resolution regarding document disclosure. As a of the International Commercial general rule all presented documents 13. Under what circumstances can an Arbitration Act were not applied. must be forwarded promptly to the Arbitration Award be enforced, other party. 1. Are mediation clauses in 3. Are arbitration clauses in 6. What influence can the parties have challenged or annulled? commercial contracts binding and commercial contracts binding and on the identity of the arbitrator(s)? An arbitration award issued by domestic enforceable? enforceable? 11. What is the procedure for witness The arbitration tribunal could comprise evidence in arbitration (namely, arbitration tribunal has the same status Mediation clauses in commercial Arbitration clauses are binding. of one or more arbitrators – the is it deposition based or witness as a final judgment of the Bulgarian contracts could not be deemed binding However, each party may file a claim exact number is determined by the examination or cross-examination)? court. After the arbitration award enters and enforceable because none of the before the court and if the other party parties. If no particular number of into force, a writ of execution could be There are no specific provisions parties could be forced to participate fails to challenge the court competence arbitrators has been stipulated, the issued by Sofia City Court which is the regarding witnesses. The parties are in mediation procedures. However, if on time, the dispute will be resolved by Bulgarian International Commerce competent court for the issuance of free to establish rules about how properly stipulated, the parties might the court. Arbitration Act provides that they must writs on the basis of arbitration awards. witness evidence is to be collected in be obliged to first follow certain be three. Each of the parties chooses In order to be enforced, the foreign the arbitration procedure. Both oral procedures for amicable settlement of one arbitrator and the chairperson is arbitration tribunal award should be 4. What type of arbitration is hearing and written statements are the dispute before referring it to the chosen by the mutual consent of the acknowledged by the Sofia City Court. commonly used for resolving possible. If the parties could not come court/arbitration. other two arbitrators. If no consent commercial disputes: ad hoc to an agreement, the arbitration tribunal can be reached, the chairperson of the The arbitration awards may be set aside arbitration or institutional is entitled to determine the procedure. arbitration panel should be appointed in a special claim procedure before the 2. What is the procedure for arbitration? The institutional arbitrations have their by the chairperson of the Bulgarian Supreme Court of Cassation only on mediation? Is it a popular method own rules which are usually quite broad for resolving commercial disputes? Both types of arbitration are used in the Chamber of Commerce and Industry. the following grounds: Bulgarian arbitration practice but the and leave room for the discretion of the The procedure for mediation is institutional arbitration is more popular. tribunal. 1. The party was incapable when 7. In what language is an arbitration concluding the arbitration agreement. regulated in the Bulgarian Mediation Act. proceeding conducted? It provides that mediation procedure 5. Which arbitration institutes are 2. The arbitration agreement is not valid begins under the parties’ mutual most popular? The parties are free to choose the according to the applicable law. agreement. A proposal for starting a language to be used in the arbitration The most popular institute is the Court 3. The award concerns a subject which is mediation procedure could be made procedure. not arbitrable. by each of the parties, by the court or of Arbitration at the Bulgarian Chamber by other authority. Before starting the of Commerce and Industry and Court 8. What type of pre-arbitration procedure, the mediator should inform of Arbitration at the Bulgarian Chamber measures are available and what are the parties about the essence of the of Economy. The newly established KRIB their limitations? mediation and its possible consequences. Court of Arbitration (http://arbitration. Attorneys-at-law or other specialists bg/) is also becoming popular. Each of the parties is entitled to apply can participate in the mediation for all kinds of interim measures before procedure. During the procedure, the state court (regardless whether the after clarifying the parties’ statements, arbitration procedure has started or the mediator should suggest different not). options for solving the dispute. If any agreement is adopted, the procedure is terminated. Otherwise the procedure continues until reaching an agreement or until one of the parties withdraws its consent of participation. The mediation procedure is still not a very popular method for solving disputes.
11 Litigation, Arbitration And Alternative Dispute Resolution Litigation, Arbitration And Alternative Dispute Resolution 12 Civil Litigation
1. In what language(s) may court Typical costs for a civil case in Cyprus 6. How are settlement discussions proceedings be conducted? What with a value of Euro 1 million, can range usually conducted (namely whether arrangements can be made for from Euro 20,000 to Euro 200,000 oral or written and whether translation/interpreter services? depending upon the importance and between the parties direct or their complexity of the case and the number representatives)? Is the settlement The languages used in Court of hearings. Appeal costs are generally correspondence between the proceedings are Greek and lower than the costs of hearings at parties/counsel privileged (i.e., may Turkish, the official languages of the first instance. The appeals court usually not be disclosed to the court)? Republic of Cyprus. Translation and/ awards costs as part of its judgment and or interpretation may be effected these very rarely exceed Euro 10,000. The choice of negotiation means is by a professional translator and/or left to the parties and their respective interpreter or by any person evidenced 4. What are the basic rules of lawyers. Usually after a case has gone to to be apt in both the original and the disclosure of documents in civil court, negotiation is conducted between translation language who gives a written and commercial proceedings? lawyers. Talking to another lawyer’s and/or oral oath, depending on the Which documents do not require client without the lawyer’s consent requirements of the case, to that effect. disclosure? Is electronic disclosure is against lawyer’s rules of ethics. The Republic will, on its own expense, of documents normal? Correspondence exchanged in the provide a translator/interpreter to any course of negotiations for settlement is, party/parties not understanding Greek The term disclosure does not exist as a general rule, privileged and cannot or Turkish. in the Cypriot legal order. The terms be presented in court as evidence used are discovery and inspection of supporting or denying the allegations of 2. What types of pre-action measures documents. Cyprus Civil Procedure either party. are available and what are their rules are identical to English CPR of limitations? Must you send a 1957. As a result, disclosure is not 7. What is the typical duration of a warning letter before issuing any obligatory or overly extensive. However, court procedure? proceedings? the general rule is that should a discovery and/or inspection order be Civil cases in Cyprus can take anything Sending a warning letter is compulsory made by any court, the party to which from three to five years to complete at only where it is prescribed by law, e.g., it is addressed must comply and any first instance and a further three to four by Article 212(a) of Companies Law documents not disclosed cannot be years on appeal. Cap 113 before filing an application for presented or relied upon at the hearing. the dissolution of a company or before Under the CPR rules as mentioned 8. How can foreign judgments be filing an action for libel. Further, there above, discovery must be on oath and enforced? is no compulsory pre-action measure inspection can take place anywhere the Enforcement is through the provisions in terms of attempting to settle or parties agree to do so. negotiate the case before going to court. of law 12(I)/2000 for the Recognition, Registration and Enforcement of 5. What is the process for witness 3. What are the costs of civil and foreign judgments, which applies only evidence (namely, is it deposition if the foreign judgment is from a state commercial proceedings? Who based in advance, or witness bears these costs? which has signed a bilateral agreement statement, or examination or with the Republic of Cyprus to that As between lawyer and client, costs cross-examination)? Can a witness effect. In relation to EU Member are determined by the type of retainer be compelled to attend to give States, EC Regulation 44/2001 for the signed by the client to the lawyer, which evidence? international jurisdiction, recognition can take any of the following forms: Witnesses’ evidence is given in the form: and enforcement of foreign judgments in civil and commercial matters, applies 1. As prescribed by a regulation issued by examination, cross-examination and re- examination. As a general rule evidence although its application has only recently the Supreme Court from time to time started to be enforced and much case as to fees which provide for minimum is given orally. Examination of a witness can be in the form of a written witness law is anticipated on its interpretation in and maximum charges for each specific relation to domestic law. service provided in the course of a statement for evidence in chief followed court case. There are also prescribed by cross examination. Although written fees in the same format for out-of- witness statements are not compulsory court advising, legal drafting, legal work they are becoming increasingly common. pertaining to conveyancing, etc. 2. On the basis of any other agreement A witness can be compelled by the made between lawyer and client, court to attend to give evidence and/or Contact such as by retainer, hourly rate, etc. produce documents, after a summons Ioannides Demetriou LLC ANDREW DEMETRIOU As to costs between the parties, the for witness has been issued either by the court itself or by the party requiring Nicosia, Cyprus Director unsuccessful party bears the litigation costs of the other party, as assessed such evidence or documents and the www.idlaw.com.cy T: +357 22 022 999 by the Registrar and such assessment summons has been duly served on the E: [email protected] can be objected to, but it rarely is and intended witness and the latter did not usually under special circumstances. appear.
13 Litigation, Arbitration And Alternative Dispute Resolution Litigation, Arbitration And Alternative Dispute Resolution 14 11. What is the procedure for witness 13. Under what circumstances can an Arbitration And Alternative Dispute Resolution evidence in arbitration (namely, Arbitration Award be enforced, is it deposition based or witness challenged or annulled? examination or cross-examination)? An arbitration award becomes binding 1. Are mediation clauses in 4. What type of arbitration is 8. What type of pre-arbitration The choice of witness evidence is with and enforceable as a court order commercial contracts binding and commonly used for resolving measures are available and what are the parties. They may decide between: once it is registered with the court enforceable? commercial disputes: ad hoc their limitations? according to the provisions of Cap. arbitration or institutional • Filing pleadings, in which case witness 4 and any other relevant law. An It is not common practice in Cyprus to arbitration? Interim measures are available. Since evidence will follow the examination insert mediation clauses in contracts. arbitration is mostly ad hoc, even if arbitration agreement may be annulled - cross-examination - re-examination if the arbitrator(s) or umpire show bad Arbitration clauses are much more Ad hoc arbitration. There is no body in there is an arbitration clause between path. common. At the moment, there is no Cyprus for institutional arbitrations. The the parties, and a dispute arises, the behaviour or malpractice in conducting legal framework in Cyprus regarding Arbitration Law, Cap 4, and Law 101/87, parties would have not yet agreed • Filing a statement of case complete the arbitration or if the arbitration was mediation in civil and commercial the international commercial arbitration upon an arbitrator(s) identity and with evidence, in which case witness conducted improperly or the decision matters. However, in case a mediation law, provide for one or two or three therefore resolve to court for interim evidence will again follow the has been issued improperly. clause is inserted into a contract it is of arbitrators or two arbitrators and one pre-arbitration measures. As mentioned examination - cross-examination - re- course binding as between the parties umpire, according to the wishes of the above however, a court case initiated examination path, if necessary. according to its terms. parties. by one party may be stayed on the • Conducting a documents only application of the other party and arbitration (more popular with 2. What is the procedure for 5. Which arbitration institutes are referred to arbitration. construction disputes) in which case mediation? Is it a popular method most popular? the parties forgo their rights for for resolving commercial disputes? 9. What are the costs of arbitration witness calling. As mentioned above there is no body proceedings and who bears these Due to the absence of a legal in Cyprus for institutional arbitrations. costs? framework regarding mediation as However, commercial contracts signed 12. How are settlement discussions mentioned above, resolving by mediation in Cyprus or by a Cypriot party/parties The costs of the arbitrator(s) and usually conducted (namely whether is not yet common practice. However, may refer to institutional arbitration who is to bear them are agreed in the oral or written and whether as a Member State of the EU, Cyprus abroad such as the London Court of arbitration agreement. However, the between the parties direct or their should transpose into its domestic legal International Arbitration (LCIA) or the contract containing the arbitration representatives)? Is the settlement order Directive 2008/52/EC which is International Chamber of Commerce clause or the agreement to refer correspondence between the designed to facilitate the voluntary use (ICC). disputes to arbitration must not contain parties and/or counsel privileged of mediation in crossborder (as defined) a provision that each party shall pay (i.e., may not be disclosed to the civil or commercial disputes. It calls on 6. What influence can the parties have its own costs; as such a provision is Arbitrator)? the Member States to encourage and on the identity of the arbitrator(s)? considered void by law. However, it shall The choice of negotiation means is facilitate recourse to mediation (and not be considered void if it is contained left to the parties and their respective development of such procedures at The parties decide the arbitrator(s)’ in a separate agreement as to costs. identity. In case the parties cannot lawyers. Correspondence exchanged the national level if they do not already Most of the time, each party does pay in the course of negotiations for exist) and to put codes of conduct in decide on the identity of the its own arbitration costs. arbitrator(s) the court may, on the settlement is, as a general rule, place to ensure the quality thereof. Such privileged and cannot be presented as law, as already mentioned, has not yet application of either party, appoint 10. What are the basic rules of arbitrator(s). evidence supporting or denying the been put into effect. document disclosure in arbitration? allegations of either party. Which documents do not require 3. Are arbitration clauses in 7. In what language is an arbitration disclosure? commercial contracts binding and proceeding conducted? enforceable? Disclosure of documents and its extent In whatever language is agreed between is for the parties to decide. Yes, they are. If the arbitration clause in the parties. It is usually Greek but not a contract is clear and unequivocal and necessarily so. either party goes to court bypassing the arbitration clause, the court on the application of the opposing party may order a stay of court proceedings and refer the matter to arbitration, in accordance with the provisions of the Arbitration Law Cap. 4. The only exception to the rule that arbitration clauses are binding and enforceable is when allegations of fraud are made by either side, in which case the court may order that it hears the dispute, or the part of it, that relates to fraud.
15 Litigation, Arbitration And Alternative Dispute Resolution Litigation, Arbitration And Alternative Dispute Resolution 16 Civil Litigation
1. In what language(s) may court the case and duly justify the request governed by the applicable provisions proceedings be conducted? What for issuing the preliminary injunction. of Decree No. 177/1996 Coll., setting arrangements can be made for In addition, the claimant is obliged out the manner of compensation of the translation/interpreter services? to deposit into the court’s account costs of the individual acts performed in a security in the amount of approx. provision of legal services. The Decree Court proceedings are held in Euro2,000, for business cases, or, in also provides for contractual or non- the Czech language. Nevertheless, other cases, of approx. Euro400, which contractual remuneration of attorneys- pursuant to Section 18 of the Code serves as a security for indemnification at-law. of Civil Procedure, the parties to the for damage or other injury that may proceedings are entitled to act before be incurred as a consequence of a For the purpose of decision-making a court in their mother tongue, where preliminary injunction. Similarly, on the on reimbursement of the costs of the court shall appoint an interpreter basis of a petition lodged by a to secure the proceedings in connection with for a party whose mother tongue is evidence prior to commencement of a decision in rem in civil proceedings, other than the Czech language, once the proceedings if there is a concern the courts determine this item in the such need is ascertained during the that the evidence could not be taken costs of the proceedings pursuant to proceedings. later, or could be taken later only with Decree No. 177/1996 Coll., which sets 2. What types of pre-action measures greatest difficulties. Evidence can also out a lump-sum rate of remuneration are available and what are their be secured in the form of notarial or for representation of parties by limitations? Must you send a warning distrainer record on acts performed in attorneys-at law. Court fees are set letter before issuing any proceedings? the given case or on the state of the out in Act No. 549/1991 Coll. and given case, provided that such an act their amount is dependent on the In disputes whose nature permits was performed in the presence of a subject of the proceedings. A court the parties to optionally provide for notary or court distrainer or if these fee is generally payable upon lodging their mutual relations on the basis of persons confirmed the state of the case. the action or petition concerned with substantive law, a petition may be lodged Czech law does not require any notice the court. During court proceedings, with any court having jurisdiction over or proposal for amicable resolution of the parties are obliged to bear their the given case, requesting that the a dispute be sent to the other party. own costs and the costs of their legal court make an attempt to reach an However, having regard to the practice counsels. Depending on the success in amicable solution or, where a settlement and the above-mentioned duty of the proceedings, the court decides, in its agreement has been concluded, that court to attempt to reach amicable decision in rem, also on the duty of the the court approve the settlement resolution of a dispute prior to hearing parties to reimburse the costs of the agreement. This possibility for resolution the given case, it is desirable, in most proceedings, where the success in the of a dispute before lodging an action is disputes, that particularly the plaintiff be case is, in general, decisive. provided for in Section 67 of the Code able to prove to the court, at the first of Civil Procedure; however, it is not hearing, that he has at least attempted For example, in case of a disputed often used by parties in dispute. Indeed, to reach an amicable solution with the value of Euro 1 million (approx. CZK in any case, a settlement agreement may other party prior to lodging the action. 27 million), the costs would consist be concluded during court proceedings, of court fees of approximately Euro after lodging an action, where the Code 3. What are the costs of civil and 50,000 (CZK 1,350,000) and attorney’s of Civil Procedure stipulates that the commercial proceedings? Who bears fee of approximately Euro 12,400 court shall proceed so that a dispute these costs? (CZK 335,170) including 21% VAT. The between the parties is resolved in an amount of attorney’s fee depends on amicable manner, where possible, for the The costs of civil proceedings include, the number of legal operations provided sake of swift hearing of a case. The court without limitation, out-of-pocket within the legal dispute, therefore the may issue a preliminary injunction prior expenses of the parties and their aforementioned fees are calculated for to commencement of the proceedings legal counsels, a court fee, the loss the ideal case of a short dispute (incl. if it is necessary to provisionally provide of earnings of the parties and their two court sessions). for the relations between the parties or legal representatives and the costs of if there is a concern that enforcement evidence. Reimbursement for the value of the decision in rem could be impaired. added tax and attorney’s fees are part of By virtue of a preliminary injunction, a the costs of the proceedings only where duty may be imposed on a person other a party is represented by an attorney-at- than a party to the proceedings only law or a patent attorney. Out-of-pocket if this can be fairly required from such expenses mean postage fees, travel costs a person. When submitting a petition and the costs of subsistence allowance for issuing a preliminary injunction, a and accommodation. Out-of-pocket Contact claimant is obliged to state the facts of expenses of attorneys-at-law are Tríska & Žák JIRI ZAK ZBYNEK HAVLIK Prague, Czech Republic Partner Partner www.triskazak.cz T: +420 221 105 206 T: +420 221 105 206 E: [email protected] E: [email protected]
17 Litigation, Arbitration And Alternative Dispute Resolution Litigation, Arbitration And Alternative Dispute Resolution 18 4. What are the basic rules of disclosure answer or if it is misleading, particularly 7. What is the typical duration of a of documents in civil and commercial due to simulation of non-proven court procedure? Arbitration And Alternative Dispute Resolution proceedings? Which documents do or incorrect facts. In each case, the not require disclosure? Is electronic presiding judge must state the reasons The duration of court proceedings is not regulated by legislation. A case is disclosure of documents normal? for not allowing a question in a protocol, 1. Are mediation clauses in 3. Are arbitration clauses in 4. What type of arbitration is unless minutes of the testimony are typically decided by the court within The parties to the proceedings submit two or three years after filing the commercial contracts binding and commercial contracts binding and commonly used for resolving being taken. The general duty to make enforceable? enforceable? commercial disputes: ad hoc documents to the court according a witness testimony in civil proceedings suit. The duration is mainly influenced to their own procedural needs, in by evidence produced before court. arbitration or institutional is thus provided for. The possibility to Generally, these are contractual Parties may agree in writing that arbitration? particular in connection with the duty refuse a witness testimony in cases The proceedings at a court of appeal arrangements whose provisions are property disputes between them, to state the decisive facts of the case where a witness could breach his or her typically last from 6 months to 2 years binding on all parties to a contract, whose discussion and resolution would Both types of arbitration proceedings and to propose evidence to prove them. duty to maintain confidentiality of secret depending on the subject of a dispute subject to fulfilment of the general otherwise fall within the jurisdiction of are commonly used. Institutional However, the court may order that any information protected by special law and saturation of the court of appeal. requirements for validity. Czech laws courts, with the exception of disputes proceedings are preferred mostly by person, who has in his or her possession and other statutory or State-protected contain no detailed rules governing arising in connection with enforcement larger corporations. a document required for taking evidence duty of confidentiality also applies to 8. How can foreign judgments be mediation; therefore, it is at the of a decision (distraint) and incidental in the given case, submit the document the duty to make a witness testimony. enforced? discretion of the parties how they will disputes, are to be resolved by one or 5. Which arbitration institutes are to the court. Documentary evidence provide for their rights and obligations more arbitrators or by an arbitration In such cases, examination of a witness Enforcement of a decision or ordering most popular? must be submitted to the court and in this aspect. The issue of enforceability court. If, in performing the first act may be performed only if the relevant of distraint on the basis of decisions of the evidence as a whole taken in a of such arrangements is more complex in proceedings before the court, a The Arbitration Court attached to person has been relieved of this duty by foreign courts is governed by Council manner protecting the duty to maintain as, in case of unsuccessful mediation, defendant claims that the given case the Economic Chamber of the Czech the competent authority or the person Regulation No. 44/2001, where the confidentiality of secret information the parties usually proceed to initiation should have been heard by arbitrators, Republic and the Agricultural Chamber in whose favour this duty exists. court simultaneously also decides on protected by special law and other of court of arbitration proceedings. It pursuant to an agreement between the of the Czech Republic. declaration of enforceability, or by a statutory or State-protected duty can be expected that, having regard parties, the court will discontinue the 6. How are settlement discussions bilateral or multilateral international of confidentiality. Making documents to business customs, the court or proceedings. Nevertheless, the court 6. What influence can the parties have usually conducted (namely whether convention providing for enforcement available by electronic means for arbitrator would take into account will hear the given case if the parties on the identity of the arbitrator(s)? oral or written and whether of judgments of courts of the States the purpose of court proceedings is breach of contractual arrangements, declare that they do not insist on the between the parties direct or their Parties. Enforcement of European Arbitration proceedings are governed permitted and is often used by the providing for an obligation to resolve arbitration agreement or if the court representatives)? Is the settlement enforcement orders, within the meaning by Act No. 216/1994 Coll. An arbitration parties. a dispute amicably, by one of the ascertains that, pursuant to Czech laws, correspondence between the parties/ of Regulation (EC) No. 805/2004 of the agreement shall, as a rule, specify the parties to a contract and dispute, when the relevant matter cannot be subjected counsel privileged (i.e., may not be European Parliament and of the Council, number (odd, in each case) and identity 5. What is the process for witness rendering the decision in rem; however, to arbitration agreement or that the disclosed to the court)? represents a special case, where the of the arbitrators or the manner of evidence (namely, is it deposition such arrangements are rare in Czech arbitration agreement is invalid or non- determining the number of arbitrators While the circumstances of a case are court directly orders enforcement and based in advance, or witness commercial contracts. existent or that discussion of the matter and their appointment. Otherwise, always decisive, negotiations can be enforces a judgment pursuant to the statement, or examination or cross- in arbitration proceedings extends each party appoints one arbitrator and held both by correspondence and in Czech laws, without special recognition examination)? Can a witness be 2. What is the procedure for the framework of the competence these arbitrators appoint the presiding the form of personal meetings. Where proceedings. compelled to attend to give evidence? mediation? Is it a popular method conferred by the agreement. arbitrator. Permanent arbitration courts parties are represented by attorneys- for resolving commercial disputes? may be established by virtue of the Section 126 of the Code of Civil at-law, negotiations are usually held law; these courts adopt their Statutes Procedure stipulates that each person, primarily between the attorneys. It is solely the matter of negotiations and Rules that must be published. An who is not a party to the court Attorneys-at-law are bound by a duty of between the parties to provide for arbitrator is obliged to notify the parties proceedings, is obliged to appear at confidentiality with respect to all facts such a procedure in a contract or of any circumstance that could raise the court upon request and is obliged ascertained by them during provision of some other agreement as Czech laws doubts as to his or her impartiality to make a witness testimony. (S)he legal services. However, it is understood contain no regulation that would set or that would represent grounds for must testify the truth and must not that the parties always inform the court out detailed conditions of mediation his or her exclusion from an office of conceal any facts. A witness has the of the outcome of negotiations as this in commercial disputes. This method arbitrator. right to refuse a testimony only if (s) is, as a rule, associated with further of dispute resolution is not common he would thereby incriminate himself procedural acts of the parties. in the Czech Republic, not considering or herself or a close person. The court the usual attempt of parties and their decides as to whether or not refusal to legal counsels to resolve a dispute make a witness testimony is justified. amicably before lodging an action so Examination of witnesses is performed that an action is justifiably lodged only by the presiding judge who invites a after exhausting other possibilities witness to describe all facts related to of resolution of a dispute. However, the subject of the testimony that are in most cases, this procedure is not known to him or her. The presiding based on any contractual arrangements judge, members of the tribunal, the providing for an obligation of the parties parties, or their legal counsels, and to attempt first to resolve a dispute experts, in the specified order, are amicably. entitled to ask questions. The presiding judge will not allow a question posed by a party or an expert only if such a question does not relate to the subject of the testimony, if it indicates the
19 Litigation, Arbitration And Alternative Dispute Resolution Litigation, Arbitration And Alternative Dispute Resolution 20 7. In what language is an arbitration 10. What are the basic rules of 12. How are settlement discussions 13. Under what circumstances can an • It has been ascertained that there are proceeding conducted? document disclosure in arbitration? usually conducted (namely whether Arbitration Award be enforced, grounds, on the basis of which renewal Which documents do not require oral or written and whether challenged or annulled? of proceedings may be requested in As a rule, arbitration proceedings are disclosure? between the parties direct or their civil court proceedings. held in the Czech language; however, representatives)? Is the settlement An arbitration award must be delivered parties may agree on the manner of There are no generally applicable rules to the parties. Parties may agree in an • If the court cancels an arbitration correspondence between the award pursuant to sub-paragraph a) holding arbitration proceedings. In each governing publication of documents in parties and/or counsel privileged arbitration agreement that an arbitration case, the applicable provisions of the arbitration proceedings, because the award may be reviewed by other or b) of the above-cited provision, the (i.e., may not be disclosed to the court proceeds in hearing the merits Code of Civil Procedure apply mutatis parties can provide for the manner of Arbitrator)? arbitrators upon request of the parties mutandis to arbitration proceedings, i.e., hearing the proceedings and also the or a party. Unless a different time limit of the case upon request of a party, also to the right of a party to act in his obligation to reimburse the costs in Similar to civil court proceedings, no is stipulated in an arbitration agreement, after the legal force of the relevant or her mother tongue. an arbitration agreement. In general, exact rules are stipulated by the law a request for review of an arbitration judgment, and resolves the dispute. The the possibility of taking evidence in for negotiations on a settlement. While award must be sent to the other party arbitration agreement remains valid 8. What type of pre-arbitration arbitration proceedings is limited to the circumstances of a case are always within 30 days of the date when the after cancellation of the arbitration measures are available and what are evidence proposed by the parties, unless decisive, negotiations can be held both party requesting the review received award, but the arbitrators who issued their limitations? evidence is taken by the court at the by correspondence and in the form the arbitration award. An arbitration the original decision are excluded request of the arbitrators. of personal meetings. Where parties award that cannot be reviewed pursuant from new hearing and resolution of Only the court may, upon petition of a are represented by attorneys-at-law, to the abovementioned agreement or the same case. Even where no petition party, issue a preliminary injunction in 11. What is the procedure for witness negotiations are usually held primarily for which the time limit for lodging for cancellation of an arbitration award arbitration proceedings if it is found that evidence in arbitration (namely, between the attorneys. Attorneys-at-law a review request has elapsed to no has been lodged by a party, the party enforcement of the arbitration award is it deposition based or witness are bound by a duty of confidentiality effect, becomes effective as a final court against which enforcement of the could be impaired. The court and the examination or cross-examination)? with respect to all facts ascertained by judgment and enforceable as of the arbitration award has been ordered parties proceed similarly as if a petition them during provision of legal services; date of delivery thereof. An enforceable may lodge a petition for discontinuing for ordering a preliminary injunction in The manner of hearing of arbitration however, it is understood that parties arbitration award is an enforcement already initiated proceedings on civil court proceedings were lodged by proceedings depends on the agreement or their legal counsels always inform order, on the basis of which the court enforcement of the decision, in a party. of the parties. However, arbitrators the arbitrator of the outcome of may order enforcement of a decision addition to the grounds stipulated in may examine witnesses only if negotiations, even if it is negative. pursuant to the Code of Civil Procedure the Code of Civil Procedure, also if: 9. What are the costs of arbitration they appear voluntarily and make a or distraint with appointment of a court • The arbitration award is invalidated by proceedings and who bears these testimony. Procedural acts that cannot distrainer, within the meaning of Act No. one of the defects set out in Section costs? be performed by the arbitrators 120/2001 Coll. Any party may claim that 31 (a), (d) or (f) of Act No. 216/1994 themselves, although the arbitrators, an arbitration award be cancelled by Coll. Generally, it holds that each party on their own instigation (without the court, provided that such a petition • A party which must be represented bears its own costs incurred during request of the parties), consider them is lodged within three months of by its statutory representative was the proceedings. In practice, parties to be necessary for due hearing and delivery of the arbitration award to the not represented by the statutory agree on the manner of appointment resolution of the given dispute, are relevant party. The court may suspend representative and its acts have not of an arbitrator upon conclusion of an performed by the court at the request arbitration agreement, referring also enforceability of an arbitration award been approved, even additionally. of the arbitrators. The court is obliged upon request of a party. The court to the relevant Rules providing for the • A person who acted on behalf of a to satisfy an arbitrator’s request, unless will cancel an arbitration award upon fees and the manner of decision-making party or its statutory representative the required act is not permissible request of a party, pursuant to Section on the costs of the proceedings by in arbitration proceedings was not pursuant to the law. 31 of Act No. 216/1994 Coll., if: the relevant arbitrator or arbitration authorized to do so and his or her court. A decision on the costs of the • The arbitration award was issued in acts have not been approved, even proceedings is usually based on the a matter for which a valid arbitration additionally. If such a petition is lodged, success in the case, similar to civil court agreement cannot be concluded. the court enforcing the arbitration proceedings. • The arbitration agreement is invalid award suspends the proceedings for other reasons, or has been on enforcement of the arbitration terminated, or does not apply to the award and orders the obliged party agreed matter. to lodge a petition for cancelling the arbitration award with the competent • An arbitrator participating in the court within 30 days. If the petition is matter was not authorised to do so not lodged within the time limit, the under the arbitration agreement or court continues the proceedings on otherwise or did not have the capacity enforcement of the arbitration award. to act as an arbitrator. If the arbitration award is subsequently • The arbitration award was not cancelled, the parties may request, adopted by a majority of the similar to the above, that the court arbitrators. hear and resolve the case, or they may • A party was not given the opportunity submit the case to newly appointed to discuss the matter before the arbitrators for a new hearing. arbitrators. • The arbitration award imposes a remedy on a party that was not requested by the entitled party or that is impossible or not permissible under Czech laws.
21 Litigation, Arbitration And Alternative Dispute Resolution Litigation, Arbitration And Alternative Dispute Resolution 22 Civil Litigation
1. In what language(s) may court 5. What is the process for witness proceedings be conducted? What evidence (namely, is it deposition arrangements can be made for based in advance, or witness translation/interpreter services? statement, or examination or cross- examination)? Can a witness The official languages used in court are be compelled to attend to give Finnish and Swedish. If persons involved evidence? in the trial are citizens of another Nordic country, they are allowed to use Witness evidence is based on oral their own language and if necessary, an witness statements subject to cross- interpreter is summoned. Translation examinations. A witness can be and interpreter services in other compelled to give evidence unless languages will become part of the legal statutory grounds exists for refusal expenses. (e.g. client privilege issues). Experts can provide written reports. 2. What types of pre-action measures are available and what are their 6. How are settlement discussions limitations? Must you send a usually conducted (namely whether warning letter before issuing any oral or written and whether proceedings? between the parties direct or their representatives)? Is the settlement An interim relief can be applied by correspondence between the the parties as a pre-action or during a parties/counsel privileged (i.e., may trial if there is a need to safeguard the not be disclosed to the court)? interest of either of the parties to the proceedings before the judgment in Settlement discussions can be held substantial matter. The rules on interim between the parties or led by the relief can be found in the Finnish Code court. The discussions are usually both of Judicial Procedure (4/1734) Chapter oral and in writing. According to local 7. bar rules, one can refer to one’s own settlement offer but not to the other 3. What are the costs of civil and party’s offer. commercial proceedings? Who bears these costs? 7. What is the typical duration of a court procedure? The court fees are fixed. Party costs and attorney fees and other legal costs The average length of a court procedure that are reasonable and necessary are at the court of first instance (the paid by the losing party to a dispute as District Court) is 9-10 months. stated in the Finnish Code of Judicial Procedure (4/1734) Chapter 21. The 8. How can foreign judgments be same goes for the aforementioned court enforced? fees. The core rule is that foreign judgments 4. What are the basic rules of cannot be enforced without an disclosure of documents in civil international agreement or a national and commercial proceedings? provision forming the basis of the Which documents do not require enforcement action. The Brussels I disclosure? Is electronic disclosure recast -regulation (1215/2012) is the of documents normal? primary regulation for enforcement within the EU. Documents given to or received by the court of law during the litigation are public documents. Also the verdict is public. Non-disclosure can be applied for based on statutory grounds such as Contact business secrets or sensitivity reasons. Lexia Attorneys Ltd KENNETH SVARTSTRÖM Helsinki, Finland Counsel | Litigation www.lexia.fi T: +358 50 3360082 E: [email protected]
23 Litigation, Arbitration And Alternative Dispute Resolution Litigation, Arbitration And Alternative Dispute Resolution 24 12. How are settlement discussions Arbitration And Alternative Dispute Resolution usually conducted (namely whether oral or written and whether between the parties direct or their 1. Are mediation clauses in 6. What influence can the parties have 8. What type of pre-arbitration representatives)? Is the settlement commercial contracts binding and on the identity of the arbitrator(s)? measures are available and what are correspondence between the enforceable? their limitations? parties and/or counsel privileged The parties can select the arbitrator(s), (i.e., may not be disclosed to the Mediation clauses are generally binding if agreed. The parties can agree that Interim measures by the arbitrator Arbitrator)? and enforceable. the arbitrators must fulfil certain are possible, such as precautionary qualifications. Alternative methods measures. Such measures are, however, The parties usually conduct settlement 2. What is the procedure for of selecting arbitrator(s) can also be not enforceable by local courts. Local discussions in a way (orally or in mediation? Is it a popular method stated in the arbitration agreement. If courts can provide interim measures, if writing) they deem fit. As in the litigation for resolving commercial disputes? selection of the arbitrator has not been needed (see litigation answer number 2 answer number 6 above, local bar defined in the arbitration agreement, above). rules allow you to refer to your own Some provisions on court led each party selects one arbitrator and settlement proposal but not the other settlement can be found on the Finnish those selected make the selection of 9. What are the costs of arbitration party’s. Code of Judicial Procedure (4/1734) and one more arbitrator as the chairman proceedings and who bears these in the mediation rules of the Finnish (this if the arbitration is ad hoc as costs? 13. Under what circumstances can an Bar Association. In general, mediation per the Finnish Arbitration Act). If the Arbitration Award be enforced, is carried out between the parties in rules of the Arbitration Institute of The losing party is usually liable for challenged or annulled? normal party settlement negotiations, the Finland Chamber of Commerce the legal costs such as attorney’s and if any. apply, the parties may jointly nominate arbitrator’s fees. An arbitration award must drafted the sole arbitrator. However, failing in writing and each arbitrator must 3. Are arbitration clauses in such joint nomination, the Board shall 10. What are the basic rules of sign it as stated in the Arbitration commercial contracts binding and appoint the sole arbitrator. Where the document disclosure in arbitration? Act section 36. The enforcement of a enforceable? parties to an arbitration according to Which documents do not require Finnish arbitration award must follow disclosure? certain procedural phases as stated Arbitration clauses are binding the aforementioned rules have agreed that the dispute shall be referred to in the Arbitration Act sections 43-45. and enforceable. If the dispute has According to the Finnish Arbitration Act The court is required to enforce the international aspects, it is advisable to an arbitral tribunal composed of three (967/1992), the arbitrator can order a arbitrators, each party shall nominate Arbitration Award unless there are include details about language, law, and party to put forward evidence if deemed grounds for nullity or annulment as the seat of the arbitration. one arbitrator and jointly the third necessary. An enforceable decision arbitrator, who shall act as the presiding stated in section 40 and 41 of the on such disclosure can be applied, if Arbitration Act. arbitrator of the arbitral tribunal. Failing deemed necessary from a local court. 4. What type of arbitration is such joint nomination, the Board shall commonly used for resolving appoint the presiding arbitrator. commercial disputes: ad hoc 11. What is the procedure for witness arbitration or institutional evidence in arbitration (namely, arbitration? 7. In what language is an arbitration is it deposition based or witness proceeding conducted? examination or cross-examination)? Both types of arbitration are known and used in Finland. The parties can agree on the language Witness evidence is usually given orally used in arbitration. If it has not and subject to cross-examination. been agreed on, it will be up to the Written witness statements are 5. Which arbitration institutes are arbitrators to decide the language of the most popular? possible, subject to the parties’ arbitration. agreement. The Arbitration Institute of the Finland Chamber of Commerce.
25 Litigation, Arbitration And Alternative Dispute Resolution Litigation, Arbitration And Alternative Dispute Resolution 26 Civil Litigation
1. In what language(s) may court It must be noted, however, that these a formal written notice to the creditor proceedings be conducted? What remedies are only granted in specific is to stop interest running. arrangements can be made for cases. For the purpose of seizing goods translation/interpreter services? under a ROT clause, the following will There is a 10 years limitation period in be required: Evidence of acceptance of many commercial matters – but there French law requires all court the ROT clause by the debtor are shorter limitation periods, such as proceedings, oral and written pleadings, one year in transport matters. evidence (e.g., witness statements), and • Evidence of identification of the goods documents to be in French. concerned (batch or serial numbers) Also, it must be noted that there is a • Evidence of the location of the goods 5-year limitation period for civil matters Translations and interpretation have and a 2-year limitation period for to be carried out by a translator/ The debtor can apply to the court for consumer matters. interpreter on the court’s official list of any such interim orders to be set aside, approved interpreters. in which case the parties and their 3. What are the costs of civil and lawyers will be able to attend Court to commercial proceedings? Who Documents which have not been express their respective positions. bears these costs? translated are liable to be excluded from the proceedings. Court fees are set by law and are very Legal Fees low (less than Euro 1,000). 2. What types of pre-action measures Fees are usually based on hourly are available and what are their rates (or special retainers for volume In terms of fees for legal services, recovery work). limitations? Must you send a the costs for civil and commercial warning letter before issuing any proceedings vary hugely depending on proceedings? Lawyers provide cost estimates which the nature and difficulty of the case. usually have to be updated in light of Provisional / Interim Measures These costs are not related to the developments in the litigation. amount under dispute. The average In France it is possible to obtain interim costs incurred in civil and commercial orders from the court for: proceedings related to disputes assessed Local law agents’ fees may also be at Euro 1 million range from Euro incurred for assisting with filing • The production and preservation 15,000 to Euro 30,000. pleadings and attending the local court of evidence (if necessary, with the for procedural hearings. assistance of a court expert, e.g., for Written Notice computer records, etc.) In the case of disputes between the • The appointment of a court bailiff In most cases, proceedings should be client and the lawyer about fees, the or expert to record a specific state preceded by a formal written notice matter is referred in the first instance of facts. For example, an expert may to pay or letter before action sent by to the local Bar Council for arbitration be appointed to examine a machine registered post with return receipt. with an appeal to the regional Court of requiring repair, to record its state Appeal. prior to the repair being carried out For example, written notice is and to authorise appropriate repairs. necessary: Court Fees • A charging order over real or movable • Prior to urgent summary proceedings Court fees are payable at first instance property; for example, where there is for payment of debts and at each stage on appeal through the a serious risk of non-payment in the • To set interest running regional courts of appeal to final appeals case of persistent refusal or failure to on points of law to the French Supreme pay (full details of the property will be Court. needed). In some cases notice will not be given to the debtor, for example to avoid • An attachment of assets, if there is a destruction or removal of evidence or The calculations are not simple and vary risk they may be sold or removed (e.g., property. somewhat from place to place and from under a reservation of title (“ROT” court to court. At first instance these clause). According to the civil law reform, which are unlikely to exceed several hundred will be applicable from October 1st, euros in most cases. 2016, the debtor may send a formal written notice to the creditor in the On appeal there will be court fees and event that the latter refuses to receive fees of Court of Appeal law agents Contact payment. For example, the main effect of (‘Avoués’) who have a monopoly for Bignon Lebray JACQUES GOYET ANTOINE ARMINJON Paris, France Partner Partner www.bignonlebray.com T: +33 1 44 17 17 44 T: +33 4 72 11 33 00 E: [email protected] E: [email protected]
27 Litigation, Arbitration And Alternative Dispute Resolution Litigation, Arbitration And Alternative Dispute Resolution 28 the filing of pleadings and assist with consider a settlement proposal or risk second expert, if they wish to challenge 7. What is the typical duration of a 8. How can foreign judgments be the directions hearing and procedural an adverse costs order, if it continues the expert’s findings. court procedure? enforced? timetable at the Court of Appeal. These with the litigation. fees are partly fixed and partly scale fees 5. What is the process for witness In first instance, the duration of a Except for certain judgments from other court procedure ranges from 10 to 18 EU jurisdictions which can be enforced (varying with the amount in issue). Interest evidence (namely, is it deposition based in advance, or witness months. It is approximately the same in directly in France, in most cases it is case of an appeal. necessary to apply ex parte to the The Avoués’ profession is currently Contractual interest can be claimed, statement, or examination or local High Court (Tribunal de Grande being phased out. The Avocat handling otherwise legal interest from the date of cross-examination)? Can a witness Instance) with an original or certified the case will continue to be responsible formal notice to pay sent by registered be compelled to attend to give As an exception, there is a faster copy of the judgment or order and a full for the drafting of pleadings and strategy letter with return receipt. evidence? procedure (référé) for claims to which translation prepared by a French official and will plead the case on appeal. a judge rules that there are no serious Under the terms of a ministerial order Parties and witnesses are not usually objections. These proceedings usually court translator, for recognition and required to attend at trial, but may be take approximately 1 month in the first enforcement in France. On the other hand, on final appeal on of December 23rd, 2015, the legal rate advised to do so to enable the court to instance. point of law to the French Supreme of interest is fixed twice a year. The ask any useful questions of them. It is usually helpful to indicate that Court the Avocat will be required to current legal rate of interest which is essential procedural requirements use a Supreme Court agent who has a applicable to commercial matters for have been followed in the other monopoly of pleading in that court and the first semester of 2016 is 1.01%. In the absence of satisfactory jurisdiction (notice to defendant giving charges scale fees. documentary evidence, the parties There is a legal limit on the rate of can produce statements from direct an opportunity to file a defence) and witnesses to the facts. These statements absence of any public policy grounds for Bailiff’s Fees interest in certain cases (e.g., bank loans to individuals, consumer contracts, etc.). are written by the witness and signed by refusal of recognition and enforcement. French procedural rules require service them, so are not depositions in the UK/ of most process (including judgments 4. What are the basic rules of US sense. Any interim or provisional measures and orders) to be effected by an disclosure of documents in civil needed to secure property for official Court Bailiff (if abroad, with and commercial proceedings? (The evidential value of witness enforcement purposes may also be translations). Which documents do not require statements will be likely to be obtained ex parte at this stage. disclosure? Is electronic disclosure discounted by the court, if given by the The bailiff’s charges are based partly on of documents normal? parties, members of their family or by Once the order has been obtained, fixed fees and partly on scale fees (based persons in their employ, or who are the Court Bailiff can be instructed to on the amount involved). In some cases, Documents and written witness in a dependent financial or business enforce the foreign order or judgment. special fees are payable. Bailiff’s charges statements on which parties wish relationship with either party). to rely must be produced with their are, in most cases, recoverable from the The defendant can appeal the decision. defendant or debtor, if the claimant is written pleadings. Parties are supposed 6. How are settlement discussions successful, but the claimant will have to to disclose documents relevant to usually conducted (namely whether pay the bailiff in advance. the case but are not strictly obliged oral or written and whether to disclose documents which may be between the parties direct or their detrimental to their position. However, Other Expenses representatives)? Is the settlement the other party will ask the court to correspondence between the The following costs are usually incurred draw appropriate inferences and in parties/counsel privileged (i.e., may and must be taken into account: certain cases may obtain an order for not be disclosed to the court)? production. • Company search fees French law does not grant privilege • Translation costs Orders for discovery of documents are to ‘without prejudice’ discussions • Court experts’ fees and those of any unusual, although possible under French conducted by the parties. special experts retained by the client procedure (including against persons to assist who are not parties to the proceedings In order to retain privilege and but who are in possession of an confidentiality of any settlement Cost Awards Against the Unsuccessful essential document). discussions under French law, these Party have to be conducted through lawyers Any technical or scientific questions will admitted to practice in France under The courts can award costs to have to be dealt with by a registered correspondence not stated as open. successful litigants at their discretion court expert appointed by the court Most French lawyers will mark but any awards made are usually on on special application. The expert will any settlement correspondence as the low side (probably not more than organize site visits and hearings and may ‘confidential’. one quarter of actual costs). As a result, appoint a specially qualified assistant there is less pressure on the parties expert. To be valid under French law, a to make attempts to settle actions and settlement must settle a genuine thereby avoid the risk of adverse costs The parties will attend with their dispute. The parties must have had awards being made against them at trial. lawyers and, where necessary, with access to legal advice and the wording suitably qualified experts to enable full used must declare the settlement to be Another point to be taken into account discussion of the technical issues. The full and final. in more complex and lengthy litigation, parties may produce written statements is that there is no system for payments from independent experts if need be A settlement can be recorded by the into court in France (as in the English to deal with technical questions and court on application by either party to system) and, therefore, no mechanism, to support an application to appoint a enable enforcement. as in the UK, to force the other party to
29 Litigation, Arbitration And Alternative Dispute Resolution Litigation, Arbitration And Alternative Dispute Resolution 30 5. Which arbitration institutes are 8. What type of pre-arbitration 12. How are settlement discussions Arbitration And Alternative Dispute Resolution most popular? measures are available and what are usually conducted (namely whether their limitations? oral or written and whether ICC (International Chamber of between the parties direct or their Commerce) and CMAP (Paris Mediation Usual provisional or interim measures dispute resolution. This procedure Mediation is also developing in family/ representatives)? Is the settlement 1. Are mediation clauses in and Arbitration Centre). can be obtained from the courts. In introduces the possibility to make the divorce and consumer disputes. correspondence between the commercial contracts binding and most cases, an interim award by the agreement enforceable. An Order of 2015 (transposing a parties and/or counsel privileged enforceable? arbitrator(s) for any such measures can Directive of 2013) on the extrajudicial (WIPO procedures in Geneva are also (i.e., may not be disclosed to the Yes. This is provided by a French Statute widely used in IP disputes). also be enforced in France. The French Code of Civil Procedure settlement of consumer disputes obliges Arbitrator)? of 1995 (no. 95-1995).This was amended determines which court has professionals to guarantee consumers by a Directive of 2008 (no. 2008/52/ 9. What are the costs of arbitration As for ordinary proceedings. Where jurisdiction over the matter and which the recourse to a mediation mechanism 6. What influence can the parties have EC) transposed in French law by an proceedings and who bears these Counsel from different jurisdictions procedure must be used to obtain the on the identity of the arbitrator(s)? Order of 2011 (no. 2011-1540) dealing costs? are involved, care will be needed to homologation. It also mentiones the 3. Are arbitration clauses in with certain aspects of mediation in This will depend on such factors as ascertain that similar rules to those possibility to appeal the decision in the commercial contracts binding and commercial matters. This Order was the terms of the arbitration agreement These are at the discretion of the applicable in France will govern event of a rejection. enforceable? also completed by a Decree of 2012 (no. (which may provide for the identity or arbitrator(s) and/or as provided by settlement discussions between the rules of the relevant arbitration 2012-66). Yes. Legislation of 2008 widened the qualification of the arbitrators) or the Counsel; and where necessary institution chosen by the parties. Since 2008, the use of mediation will scope of commercial disputes capable choice of an arbitration institution such appropriate agreement obtained to suspend limitation periods during the The use of mediation procedures of being submitted to arbitration; which as the ICC whose rules will enable the secure confidentiality. mediation which should not normally may be imposed or proposed by the is now possible in most commercial institution to determine the choice of Institutional arbitration rules usually exceed three months for court- legislator, proposed by the judge or disputes, with some limited exceptions arbitrators. apply administrative costs based on a 13. Under what circumstances can an ordered mediations and 2 months for initiated by the parties. (e.g., between partners of certain types scale proportionate to the amount in Arbitration Award be enforced, contractual mediations (according to of professional corporations). 7. In what language is an arbitration issue, with arbitrators’ fees varying in challenged or annulled? CMAP’s rules), unless the parties agree proceeding conducted? the same manner within a specific range, Contractual mediation otherwise. or fixed by the institution. Foreign arbitration awards can be 4. What type of arbitration is Usually in French, but arbitrators have enforced in France under the New French law acknowledges contractual commonly used for resolving mediation led by a third party without However, mediation has been slower the discretion for example where the 10. What are the basic rules of York Convention by a procedure similar commercial disputes: ad hoc parties both use a foreign language or to that used to enforce foreign court any court intervention. to take off in commercial dispute arbitration or institutional document disclosure in arbitration? resolution in France compared to the all the documents and evidence is in a Which documents do not require judgments. Challenge can be raised arbitration? foreign language and it is convenient and Furthermore, the French Supreme UK or the USA (probably for cultural disclosure? on the basis of public policy grounds reasons, lower levels of legal costs and In the absence of reliable statistics, cost effective to conduct the arbitration such as procedural irregularity, lack Court decided in a case on April 8, in a foreign language. Normal civil procedure code rules will 2009 that the parties cannot waive the absence of significant legal cost it is difficult to answer this question. of fair hearing, lack of impartiality of sanctions in litigation compared to However it is thought that many apply in ad hoc arbitration, although the arbitrators, or contradiction with mediation procedure that is provided by arbitrators have considerable discretion a contractual clause. other jurisdictions). international commercial contracts The arbitrators will be attentive to mandatory French international public negotiated with legal advice will provide ensuring the parties have agreed provided normal rules of justice/due policy rules, or where the arbitrators to the use of the relevant language process (fair hearing, etc.) are applied. have gone beyond their terms of Court-ordered mediation The Paris Commercial Court was a for institutional arbitration such as the precursor and has supported mediation ICC. and the public policy requirements reference. The French courts are now The court may order mediation where for some years. Certain other local for the validity of their award, by In international institutional arbitration more restrictive in their acceptance of the parties agree but they cannot be commercial courts and regional Certain standard forms such as ensuring that parties have not been in France, arbitrators tend to avoid such ‘public policy’ challenges. obliged to pursue mediation which is Courts of Appeal are beginning to those recommended by the ICC for deprived of a fair hearing by the use allowing full pre-trial discovery in the based on consent. The parties can agree propose mediation to the parties (e.g., international sales of goods, distribution, of a particular language and that English or US sense. Where the parties have agreed for to mediation by a designated individual Grenoble Regional Court of Appeal for agency, etc., will provide for arbitration. adequate interpretation and translation French procedural rules to apply, an or mediation organization provided employment disputes, Toulouse Regional facilities have been available during the Rules for the protection of trade application can be made to the French arbitration. the person is suitably qualified and Court of Appeal for commercial The ICC International Court of secrets and secret know-how protecting courts to deal with any difficulty arising independent. disputes). Arbitration in Paris reports a significant disclosure of sensitive material to the during the course of the arbitration. increase in arbitration cases since 2005 Many international arbitrations other party may be applicable. Specific legislative provisions The ICC and CMAP have been active in (from 500 cases in 2005 to over 800 in are conducted in France in foreign In internal arbitration, the parties may languages. The ICC rules refer to the 11. What is the procedure for witness renounce the right of appeal in writing There are specific legislative provisions promoting mediation with the support 2009). The CMAP also notes an increase language of the contract as one of evidence in arbitration (namely, in the arbitration agreement. on mediation in family and divorce, of the Paris Chamber of Commerce and in workload. Industry. (The CMAP handles about 300 the relevant factors to be taken into is it deposition based or witness employment, discrimination and criminal account. examination or cross-examination)? cases. mediations each year with a 70 percent We also have experience of French ad successful settlement rate). hoc arbitration in international contract One example we have experienced is This is determined by the arbitrators 2. What is the procedure for disputes under the French civil code and usually subject to a decision in the Most of the publicly-quoted companies of procedure where the contract did an ad hoc arbitration in France with mediation? Is it a popular method US, French, Spanish and Saudi parties terms of reference or procedural order for resolving commercial disputes? in France have signed a charter for the not provide for arbitration and the made by the arbitrators. Arbitrators use of mediation as a dispute resolution parties wished to avoid litigation in the conducted in French but where it was agreed that to reduce costs, all (including French arbitrators) familiar The parties may voluntarily agree to mechanism. French courts on the one hand, and with the UK/US system of evidence ad hoc or institutional mediation, or the additional administrative costs of documents could be produced in English without translations, the parties often require statements or depositions the court may encourage the parties The French insurance industry actively institutional arbitration on the other. agreeing that their command of English with (limited) oral witness evidence, to mediate. The law imposes strict uses mediation-type procedures to was sufficient. with examination and cross-examination confidentiality of the mediation process resolve disputes between insurance where necessary. on all parties involved. companies and their insured. Banks also frequently provide for mediation in their Any award to be enforced in France Furthermore, there is a homologation contracts with clients. must be in French. procedure common to all agreements resulting from the various alternative
31 Litigation, Arbitration And Alternative Dispute Resolution Litigation, Arbitration And Alternative Dispute Resolution 32 Civil Litigation
1. In what language(s) may court the attorney’s specific activities. It is 5. What is the process for witness proceedings be conducted? What highly common to agree on negotiated evidence (namely, is it deposition arrangements can be made for attorney’s fees. As a general rule the based in advance, or witness translation/interpreter services? unsuccessful party has to bear the court statement, or examination or costs and reimburse the opponent’s cross- examination)? Can a witness The official language used in court is statutory court fees (regardless of be compelled to attend to give German. If persons involved in the whether the opponent actually paid evidence? trial are not able to speak German, an statutory or negotiated fees). interpreter is summoned. The usual process is witness examination. The witness is questioned The overall court fees assuming a by the judge, there is no cross- 2. What types of pre-action measures dispute value of Euro 1,000,000 in examination but it is possible for the are available and what are their regular proceedings are Euro 16, 008 parties to put direct questions to the limitations? Must you send a at first instance, Euro 21,344 at second witness with approval of the court. warning letter before issuing any instance and Euro 26,680 at third A witness who has been properly proceedings? instance, altogether Euro 64,032, if the summoned, yet fails to appear, can be proceeding goes through all instances. “Discovery” rules are not applicable charged with the costs attributable to under German law. A potential plaintiff his failure to appear. At the same time, may conduct an independent procedure Each party`s statutory attorney fees a coercive fine can be imposed on him for the taking of evidence (“selbständiges are, assuming a dispute value of Euro and coercive detention ordered if the Beweisverfahren”) if the procedure may 1,000,000 at Euro 44,097.96 in first coercive fine cannot be collected. In serve to avoid a lawsuit or if there is instance, Euro 52,799.04 in second case of repeated absence, a witness may actual danger that evidence which is at instance and Euro 69,351.98 in third also be brought before the court by the moment easily available may soon instance, altogether Euro 166, 248.98, force. be destroyed or changed. Furthermore, if the proceeding goes through all parties may apply for interim relief instances. Additional statutory attorney 6. How are settlement discussions (“einstweiliger Rechtsschutz“) or an fees may incur, for instance if the taking usually conducted (namely whether assertion of (undisputed) claims by legal of evidence is particularly extensive. oral or written and whether dunning proceedings (“Mahnverfahren“). between the parties direct or their A warning letter is not a precondition Both kind of fees may reduce if the representatives)? Is the settlement for taking legal action, however, if a proceeding terminates by other means correspondence between the plaintiff takes legal action without first of controversial judgement, for instance parties/counsel privileged (i.e., may issuing a warning letter, according by court settlement, abandonment of not be disclosed to the court)? to the rules of the German Code of action or judgement by confession. Civil Procedure (“Zivilprozessordnung” Settlement discussions can be or “ZPO”) he may have to bear the 4. What are the basic rules of conducted in many different ways, costs of the legal proceedings if the disclosure of documents in civil orally or in writing, in or out of court. respondent immediately accepts the and commercial proceedings? Generally, if the parties are represented asserted claim without defending the Which documents do not require by lawyers, the discussions will be case and has not otherwise provided disclosure? Is electronic disclosure conducted by those representatives. cause for complaint. of documents normal? If the settlement discussions are conducted out of court, there is no 3. What are the costs of civil and A disclosure of documents is rather obligation to disclose the according commercial proceedings? Who uncommon. According to §§ 422, 423 of correspondence to the court. It is bears these costs? the German Code of Civil Procedure common to inform the court of (“ZPO”) documents have to be the outcome of those settlement The court fees are regulated disclosed if the other party is entitled discussions and have the settlement by the German Court Fees Act to require such disclosure by statutory recorded in writing by the court. (“Gerichtskostengesetz” or “GKG”). regulations of the German Civil Code According to the value in dispute (“Bürgerliches Gesetzbuch” or “BGB”) 7. What is the typical duration of a German courts will determine the or the German Commercial Code court procedure? applicable fee-unit from a schedule (“Handelsgesetzbuch” or “HGB”) such annexed to the GKG and charge as §§ 259, 371, 402, 666, 667, 716,810 A first instance procedure is usually the number of fee-units set forth by BGB or §§ 118, 157 HGB (each of them closed within 5 to 10 months. Appeals law for the court’s specific activities. applies only in special cases) or if the procedures are usually closed within Statutory attorney fees are based on other party referred to such document 7 to 10 months. However, these are the Federal Attorney Remuneration in their giving of evidence. An electronic average values regarding all kind civil Contact Act (“Rechtsanwaltsvergütungsgesetz” disclosure of documents is uncommon. procedures; the duration may vary, Arnecke Sibeth ANTON OSTLER THOMAS HERTL HANS GEORG HELWIG or “RVG”) and are also calculated depending on the complexity of the Germany Partner | Munich Partner| Frankfurt Partner | Berlin by multiplying the applicable fee-unit case. If a proceeding’s duration is according to the value in dispute with inadequately long, compensation can be www.arneckesibeth.com T: +49 89 388 08 361 T: +49 69 979 885 252 T: +49 30 8145 913 42 the statutory number of fee-units for demanded, § 198 GVG. E: aostler@ E: thertl@ E: hhelwig@ arneckesibeth.com arneckesibeth.com arneckesibeth.com
33 Litigation, Arbitration And Alternative Dispute Resolution Litigation, Arbitration And Alternative Dispute Resolution 34 8. How can foreign judgments be • European: According to the EuGVVO, Convention or other multilateral or 11. What is the procedure for witness or the agreement is not valid under enforced? judgments of EU member states will bilateral treaties. evidence in arbitration (namely, the law to which the parties subjected be acknowledged in each of those • Autonomous regulations: If no other is it deposition based or witness it or – if no such agreement was made For the enforcement of foreign states and can be enforced if declared examination or cross-examination)? – German law. judgments in Germany several regulations apply, the German Code enforceable. The EuVTVO applies for of Civil Procedure (“ZPO”) sets forth • The applying party was not given regulations (European, bilateral or European enforcement orders. There are no specific provisions multilateral treaties, autonomous) autonomous regulations in §§ 722, 723, concerning witnesses, the procedure notice of the appointment of an equally apply with the parties being • Multilateral and bilateral treaties: 328 ZPO Generally speaking, enforcing for witness evidence is subject to arbitrator or of the arbitration or was free to choose the most advantageous Enforcement may also be obtained foreign judgments in Germany may be agreement. Both oral hearings and otherwise unable to present his case. regulations. in accordance with the Hague quite time consuming. written statements can be agreed upon. • The award deals with a dispute that was not arbitrable according to 12. How are settlement discussions the arbitration clause or contains usually conducted (namely whether decisions on matters beyond the oral or written and whether scope of the arbitration clause. Arbitration And Alternative Dispute Resolution between the parties direct or their • The composition of the tribunal or the representatives)? Is the settlement procedure of the arbitration was not correspondence between the in accordance with a provision of the In general, the parties are free to 1. Are mediation clauses in 7. In what language is an arbitration parties and/or counsel privileged Arbitration Act or with a permissible determine the procedure. For the most commercial contracts binding and proceeding conducted? (i.e., may not be disclosed to the agreement made by the parties and part, the course of the arbitration is enforceable? Arbitrator)? this presumably affected the award. Or subject to respective agreements of the The parties are free to choose the the court finds that: Mediation clauses in commercial parties – within the limits of ordre public language to be used in the arbitration There are no specific provisions as contracts are generally binding. They and good faith. proceedings. to how settlement discussions are • The matter in dispute cannot be cannot be realistically enforced as conducted, all mentioned alternatives settled in arbitration under German the obligation to mediate does not 4. What type of arbitration is 8. What type of pre-arbitration are possible. Generally, if the parties law. oblige the parties to actually settle the commonly used for resolving measures are available and what are are represented by lawyers the • Recognition or enforcement of the dispute. Nevertheless, if a mediation commercial disputes: ad hoc their limitations? discussions will be conducted by award leads to a result that is in clause was agreed upon, courts will arbitration or institutional Interim measures stay possible. those representatives. It is subject to conflict with the ordre public. deny action as inadmissible prior to arbitration? agreement whether the settlement mediation proceedings. Irrespective of correspondence will be disclosed to the the obligation to mediate, it is always Both types can be used, institutional 9. What are the costs of arbitration arbitrator(s). permissible to request interim measures arbitration is more popular. proceedings and who bears these costs? by a court. 13. Under what circumstances can an 5. Which arbitration institutes are The decision on the costs is subject to Arbitration Award be enforced, 2. What is the procedure for most popular? agreement. If no agreement has been challenged or annulled? mediation? Is it a popular method DIS (Deutsche Institution für made by the parties, the arbitration for resolving commercial disputes? tribunal decides at its own discretion According to § 1055 of the German Schiedsgerichtsbarkeit e. V. / German Code of Civil Procedure (“ZPO”) an A procedure regulated by law does not Institution of Arbitration) ICC who has to bear the costs, taking into consideration the circumstances of the award made in arbitration, where the exist. The parties are free to establish (International Chamber of Commerce) seat is Germany, has the same status a mediation procedure. Mediation is case, in particular the outcome of the proceedings. as a final judgment of German courts. offered by courts as well as by lawyers. 6. What influence can the parties have Domestic awards can be enforced if Up to now, it is not a popular method of on the identity of the arbitrator(s)? they are declared enforceable (§ 1060 resolving disputes. 10. What are the basic rules of ZPO), foreign Awards can be enforced The parties are free to determine the document disclosure in arbitration? in accordance with the New York number of arbitrators. It is standard 3. Are arbitration clauses in Which documents do not require Convention (§ 1061 ZPO). Arbitration in German arbitration proceedings commercial contracts binding and disclosure? Awards can be challenged under the to agree either on one arbitrator or enforceable? conditions stated in § 1059 ZPO by on a panel of three arbitrators. If no The disclosure of documents is subject filing an application to set aside the A broad range of disputes are generally agreement is made, a panel of three to agreement. “Discovery” rules are award with the proper court. The arbitrable. Arbitration clauses are arbitrators will be appointed. Each party not applicable in German arbitration court will do so if the applying party binding if they meet the requirements appoints one arbitrator and those two proceedings. establishes that one of the following specified in §§ 1030, 1031 of the arbitrators appoint the third arbitrator circumstances existed: German Code of Civil Procedure who will act as the chairman of the (“ZPO”) and are enforceable according panel. • One of the parties to the arbitration to the regulations of §§ 1032, 1033 agreement was under some incapacity ZPO. GENERAL COMMENT ON pursuant to the law applicable to him ARBITRATION PROCEEDINGS IN GERMANY: The Arbitration Act, based upon the UNCITRAL Model Law is codified in §§ 1025-1066 of the German Code of Civil Procedure (“ZPO”). Only a few binding regulations exist.
35 Litigation, Arbitration And Alternative Dispute Resolution Litigation, Arbitration And Alternative Dispute Resolution 36 Civil Litigation
1. In what language(s) may court 4. What are the basic rules of lawyers, notaries, doctors on the proceedings be conducted? What disclosure of documents in civil facts learned in the exercise of their arrangements can be made for and commercial proceedings? profession or close relatives). A witness translation/interpreter services? Which documents do not require can be compelled to attend by way of a disclosure? Is electronic disclosure court fine. The official court language is Greek. of documents normal? If persons involved in the trial (e.g. 6. How are settlement discussions witnesses) are not able to speak Greek, Each party must submit in court the usually conducted (namely whether an interpreter is appointed. supporting evidence documents that are oral or written and whether invoked in its written pleadings, along between the parties direct or their 2. What types of pre-action measures with such written pleadings. Under the representatives)? Is the settlement are available and what are their new Greek Civil Procedure Code, in correspondence between the limitations? Must you send a force since 1.1.2016, mutual written parties/counsel privileged (i.e., may warning letter before issuing any pleadings and supporting documents not be disclosed to the court)? proceedings? are submitted in court 100 days after the filing of the law suit. Mutual counter There is no standard for the conducting Interim measures are provided under pleadings and rebutting evidence of settlement negotiations. Negotiations Greek Code of Civil Procedure. documents are submitted within 15 days may be conducted either orally or in They mainly aim to freeze or regulate after the above deadline. writing, either through an attorney temporarily a situation until a ruling or directly between the parties. This on the merits is issued or to freeze Public documents are considered depends largely on the circumstances, goods or assets. The existence of risk genuine and can only be challenged including location of the parties, i.e. and danger if judicial action is delayed for forgery while the authenticity of whether the dispute is cross-border or is a necessary prerequisite. In case of private documents, if challenged, shall be not. Usually the attorneys of the parties extreme urgency for specific cases proved by the party who invoked and are however involved. The settlement provided by law, an ex parte interim used them at the trial. Photocopies of agreement may also be submitted and measures process is also possible. documents have equal probative force as recorded before court and it can also be the original, as far as their authenticity submitted before court for ratification No obligation to send a warning letter is certified by a person who is legally in order to become an enforceable before initiating any legal proceedings responsible for issuing copies. title. The settlement correspondence is exists. under general confidentiality obligations. Although the e-filing possibility is A special confidentiality provision is 3. What are the costs of civil and foreseen in the Code, there is currently provided in the Commercial Mediation commercial proceedings? Who no process in place for e-filing of Law 3898/2010, stating expressly that no bears these costs? pleadings or evidence documents. minutes are kept during a mediation, the parties involved in the mediation cannot Costs involve legal fees and court serve as witnesses for the dispute and expenses which mainly consist of 5. What is the process for witness any information exchanged during the a special court duty. Legal fees are evidence (namely, is it deposition mediation cannot be used in court. regulated by Articles 91 to 180 of based in advance, or witness Legislative Decree 3026/1954 as statement, or examination or amended by Law 3919/2011 setting cross- examination)? Can a witness 7. What is the typical duration of a minimum fees. However, they can be, be compelled to attend to give court procedure? and usually are, the object of negotiation evidence? According to Article 237 of the new between parties and lawyers. Court Under the new Greek Civil Procedure Greek Code of Civil Procedure expenses are based on the amount Code, in force since 1.1.2016, the (applicable since 1.1.2016), within at issue. The losing party is ordered main process for witness evidence is 100 days (130 days if the defendant is by court to pay the court expenses submission before court of witness domiciled/seated abroad) from filing and legal fees of the winning party. affidavits. If the court deems it necessary, of the action the parties must submit However, this concerns only the it has the right to summon any of the their pleadings and provide the relevant statutory minimum legal fees which are witnesses for which an affidavit has been evidence. Counter pleadings are filed usually significantly less than the ones submitted to testify orally. within the next 15 days and a hearing incurred on the basis of the negotiated date is set within the next 30 days. The agreement. The court may also order Oral witness examination and cross first instance ruling is usually issued all parties to share the costs, if the legal within 6-8 months from the hearing. As matter at issue was complex. examination is provided for the interim measures procedure. regards the second instance procedure, Contact a hearing date is set within 6-8 months As an example, for a dispute value of upon filing of the appeal and the ruling is Tsibanoulis & Partners As a general rule, each person EVY KYTTARI MARINA PERRAKI Euro 1 million, statutory fees are set at issued within 6-8 months upon hearing. summoned by the court is obliged Athens, Greece Partner Partner 10,000 Euros, as per Article 63 of the Finally, the process before the Supreme to appear and testify under oath as a Greek Lawyer’s Code and a court duty Court is usually concluded within one www.tsibanoulis.gr T: +30 21 036 75 100 T: +30 21 036 75 100 witness, unless he/she has a right to of approximately 1.1% of the amount at year. E: [email protected] E: [email protected] issue is added to the costs. refuse to give testimony (e.g., clerics,
37 Litigation, Arbitration And Alternative Dispute Resolution Litigation, Arbitration And Alternative Dispute Resolution 38 8. How can foreign judgments be As regards multilateral and bilateral The defeated party shall not be denied 7. In what language is an arbitration 11. What is the procedure for witness or to bona mores, the existence of enforced? treaties, enforcement may be obtained the right of defense and participation proceeding conducted? evidence in arbitration (namely, incomprehensible or contradictory in accordance thereto, where applicable. in the trial unless the refusal was in is it deposition based or witness provisions in the award, the violation of EU Regulation No. 1215/2012 on accordance with provision applied to According to Article 22 of Law examination or cross-examination)? the principle of parties’ equality during jurisdiction and the recognition and 2735/1999 under the title “International Foreign judgments which fall outside nationals of the State the court of which the proceedings. enforcement of judgments in civil and Commercial Arbitration”, the parties are According to Article 888 of the Greek the scope of the EU Regulation No. delivered the judgment. commercial matters provides the rules free to select a language of their choice Code of Civil Procedure witnesses and 1215/2012 and multilateral or bilateral Greece is a signatory to the New York for enforcing judgments throughout the for the arbitration proceedings. If such a experts are not obliged to testify under treaties shall be declared enforceable Convention on the recognition and European Union. selection has not been provided by the oath. The testimony of the witness may as specified in Articles 905 and 323 enforcement of foreign arbitral awards. parties, the matter shall be regulated by be in any form agreed by the parties of the Greek Civil Procedure Code. The enforcement of arbitral awards in the arbitral court. such as in writing or in the form of oral the territory of the contracting parties examination. The arbitral tribunal may is made under its provisions. 8. What type of pre-arbitration require the taking of evidence to be measures are available and what are made by the respective district court. their limitations? Thus, the district court has the power Arbitration And Alternative Dispute Resolution to impose the duty of testimony of the The arbitrators cannot order, reform relevant witness. or revoke interim measures. An arbitral 1. Are mediation clauses in In Greece, private law disputes may be 4. What type of arbitration is award which orders, reforms or revokes 12. How are settlement discussions commercial contracts binding and subject to mediation. Mediation may commonly used for resolving provisional measures is automatically usually conducted (namely whether enforceable? be the result of a) agreement between commercial disputes: ad hoc void. oral or written and whether the parties before or pending litigation arbitration or institutional between the parties direct or their A mediation clause is binding and proceedings; b) court invitation, in arbitration? 9. What are the costs of arbitration representatives)? Is the settlement considered to be a sui generis case where the court before which proceedings and who bears these correspondence between the substantive law contract between the proceedings are pending uses its Arbitration offered by national costs? parties and/or counsel privileged parties, for the validity of which a prior discretion to invite the parties to (Chambers of Commerce) or (i.e., may not be disclosed to the explicit, but not necessarily written, international (ICC) bodies are used The cost of arbitration proceedings use mediation, taking into account all (arbitrators’ fees and expenses) is Arbitrator)? agreement shall be reached. According relevant circumstances of the case; more often, or the arbitration provided to the explanatory memorandum of under the Greek Civil Procedure Code. determined by the relevant provisions There are no specific rules as to how c) another EU Member State’s court of the Greek Civil Procedure Code Law 3898/2010, a mediation clause shall order to mediate; or d) compulsory settlement discussions are conducted. be reaffirmed before the conduct of 5. Which arbitration institutes are (Article 882) regulating the costs These may be conducted either orally mediation by law. Mediation is currently depending on the subject of the dispute. the mediation. As a consequence of its not a popular method for resolving most popular? or in writing, either through an attorney character as a sui generis substantive The arbitral tribunal shall determine or directly between the parties. Usually, commercial disputes in Greece, mainly Athens Chamber of Commerce and the way costs are borne by the law contract, potential breach may due to relatively low costs for litigation. if the parties are represented by lawyers, create claim for damages. Industry, ICC (International Chamber of parties, following the rules applicable the discussions will be conducted Commerce). on the judicial procedure of the Civil 3. Are arbitration clauses in through them. As regards any settlement agreement Procedure Code. commercial contracts binding and 6. What influence can the parties have reached through the process of enforceable? 13. Under what circumstances can an commercial mediation in accordance on the identity of the arbitrator(s)? 10. What are the basic rules of Arbitration Award be enforced, with law 3898/2010, it constitutes Arbitration is regulated by articles document disclosure in arbitration? challenged or annulled? The parties are free to agree on any Which documents do not require a legally enforceable title as per the 867-903 of the Greek Code of Civil method of appointing the arbitrators respective Greek Civil Procedure Code Procedure. An arbitration clause is disclosure? An arbitration award constitutes a legal under the principle of equality, which title for enforcement under Greek Civil provisions, upon filing thereof before the enforceable if it is in accordance with derives from Article 110 of the Greek The disclosure of documents is not Court of First Instance. the above provisions. The arbitration Procedure Law. According to Article 895 Code of Civil Procedure. Furthermore, regulated by a specific provision. of the Greek Code of Civil Procedure, clause shall be in written form and refer according to Article 872 of the The parties are called upon by the 2. What is the procedure for to a specific legal relationship. Not every to the extent the arbitration agreement Greek Code of Civil Procedure, if the arbitrators under art. 886 of the Greek does not provide for an action against mediation? Is it a popular method dispute can be resolved by means of arbitration agreement does not specify Civil Procedure Code to provide their for resolving commercial disputes? arbitration. According to article 867 of it, or if it provides, the deadline for such the arbitrators, each party shall appoint evidence, under the general rule of action has expired, the arbitration award the Greek Civil Procedural Code, only one. If the parties have not appointed equality between the parties. There is no obligatory procedure for private law disputes may be brought to has the force of res judicata. mediation. The process is determined by arbitrators and the agreement does not arbitration. provide otherwise, arbitrators shall be the mediator and the parties. Mediators Nullification proceedings may only be appointed by Court of First Instance in Greece are familiar with the generally initiated for specific reasons mentioned from the list of arbitrators and in accepted worldwide process variations, in Article 897 of the Greek Civil absence of catalogue by persons of its with most of them following the Procedure Law, such as the lack of choice. facilitative mediation model. Mediation validity of the arbitration agreement, was introduced in Greece by virtue of the expiration of the arbitration law 3898/2010 “Mediation in civil and agreement prior to the issuance of commercial matters”, which entered the arbitral award, the opposition of into force on 16.12.2010, implementing the arbitral award to public policy the provisions of Directive 2008/52/ EC “on certain aspects of mediation in civil and commercial law matters” of the European Parliament and of the Council and regulates cross-border (within the EU) and national mediation.
39 Litigation, Arbitration And Alternative Dispute Resolution Litigation, Arbitration And Alternative Dispute Resolution 40 Civil Litigation
1. In what language(s) may court As a general rule, the losing party has to 5. What is the process for witness proceedings be conducted? What bear the court costs, which include the evidence (namely, is it deposition arrangements can be made for court duty and all other costs incurred based in advance, or witness translation/interpreter services? by the winning party. There is one statement, or examination or exception, though: although the winning cross- examination)? Can a witness The official language used in court is party may request reimbursement be compelled to attend to give Hungarian. If persons involved in the for all of the attorney’s fee, but this is evidence? trial are not able to speak Hungarian, an not automatic. The court will have to interpreter is summoned. approve the amount of the attorney’s The usual process is witness fee, and if it is unreasonable according examination. The witness is questioned 2. What types of pre-action measures to the judgment of the court, then the by the judge, there is no cross- are available and what are their court will determine to what extent examination but it is possible for the limitations? Must you send a the legal fee is to be reimbursed by the parties to put direct questions to the warning letter before issuing any losing party. There is a ministry decree witness with approval of the court. proceedings? that sets out the rates up to which legal The witness is required to testify if summoned to a court hearing. A warning letter is strongly advised fees are generally approved by the court. to be sent in all cases before any It is to be noted that in case either 6. How are settlement discussions proceeding, otherwise the plaintiff usually conducted (namely whether might be obliged to pay the costs of of the party wants to challenge the judgment of the court of first instance, oral or written and whether the proceedings even in the event of a between the parties direct or their judgment in his favor. In addition to the a court duty is payable in the appeal procedure. The applicable rate is 8% of representatives)? Is the settlement above, in case of disputes of companies, correspondence between the the parties are required to conduct the dispute value, but maximum HUF 2,500,000 (ca. Euro 8,300). The judgment parties/counsel privileged (i.e., may a pre-action mediation in attempt to not be disclosed to the court)? settle their disputes out of court. Under of the court of second instance is legally certain conditions (for instance if there binding, but can still be contested under Settlement discussions can be is actual danger that evidence which is limited circumstances at the Supreme conducted in many different ways, at the moment easily available may soon Court. In this procedure the duty is orally or in writing, in or out of court. be destroyed or changed), the plaintiff 10% of the dispute value, but maximum Generally, if the parties are represented may apply for preliminary discovery HUF 3,500,000 (ca. Euro 11,600). These by lawyers the discussions will be (“elozetes bizonyítás”). Furthermore costs are to be advanced by the party conducted by those representatives. parties may also apply for interim relief challenging the decision and will be (The code of ethics of our bar (“ideiglenes intézkedés“) if it is necessary borne by the losing party. In the appeal association requires that attorneys to prevent the occurrence of directly procedures typically no other costs contact the attorney of the opponent, threatening loss or to retain the state arise. rather than directly the opponent serving as a basis for the legal dispute or party.) If the settlement discussions in the event of a rightful and equitable As an example, for a dispute value of are conducted out of court, there is interest of the party, provided, however, Euro 1 million, court costs in Hungary no obligation to disclose the according that the advantages of such action will could typically be about Euro 15,000 correspondence to the court and it presumably exceed the disadvantages of to Euro 20,000, which does not include is general practice to set out that any such action. the attorney’s fees. Legal fees could correspondence aiming to settle the be in a much wider range, depending dispute out of court may not be used in 3. What are the costs of civil and on the complexity of the matter. It the court procedure. If a settlement is commercial proceedings? Who would not be untypical that attorneys reached, it is recommended to inform bears these costs? charge a success fee in addition to or in the court of the outcome of those combination with a lower base fee. settlement discussions and have the Civil and commercial lawsuits are settlement recorded in writing by the subject to payment of a court duty. 4. What are the basic rules of court. The plaintiff is required to advance disclosure of documents in civil the court duty upon filing the petition. and commercial proceedings? The court duty is 6% of the dispute Which documents do not require value, but maximum HUF 1,500,000 (ca. disclosure? Is electronic disclosure Euro 5,000). In addition to the court of documents normal? duty, there are various other costs that typically arise during a court proceeding A disclosure of documents is rather (such as attorney fees, translation and uncommon. However, the court Contact travel costs, expert fees etc.). There are may oblige the opponent to disclose Kovacs Nora Ugyvedi Iroda NORA KOVACS advanced by the party who incurred documents to the other party, if so Budapest, Hungary Partner these costs. requested, and if sufficient grounds are provided as to why the disclosure www.fklaw.hu T: +36 1 266 9168 of such documents is inevitable from E: [email protected] the perspective of the subject of the procedure.
41 Litigation, Arbitration And Alternative Dispute Resolution Litigation, Arbitration And Alternative Dispute Resolution 42 7. What is the typical duration of a of first instance and therefore instead be acknowledged in each of those • Autonomous regulations: If no other 12. What is the procedure for witness • One of the parties to the arbitration court procedure? of passing a judgment in the merits of states and can be enforced if declared regulations apply, a court decision evidence in arbitration (namely, agreement was under some incapacity the case they choose to revoke the enforceable The EuVTVO applies may still be declared enforceable is it deposition based or witness pursuant to the law applicable to him. There is no binding legislation in force whole judgment, in which case the for European enforcement orders. if it complies with the statutory examination or cross-examination)? as to how quickly the courts are • The agreement is not valid under the proceeding starts anew at the court of In certain cases, decisions of courts requirements set out in Hungarian law to which the parties subjected it required to pass a judgment. The courts first instance. In such an event, the court of other European member states Law. There are no specific provisions in the capital are very much overloaded; concerning witnesses, the procedure or – if no such agreement was made – proceeding can get more protracted. can be enforced directly, without any Hungarian law. consequently, it may take more time preliminary procedure to declare a 9. What are the costs of arbitration for witness evidence is subject to to finish a case in Budapest than in agreement. Both oral hearings and 8. How can foreign judgments be decision enforceable. proceedings and who bears these • The applying party was not given any other county. Depending on the enforced? costs? written statements can be agreed upon. complexity of the case and whether • Multilateral and bilateral treaties: As a general rule, discovery rules are notice of the appointment of an or not either of the parties requests For the enforcement of foreign Enforcement may also be obtained Interim measures are possible in more flexible and less formal than at arbitrator or of the arbitration or was witnesses to be heard, a judgment of a judgments in Hungary several in accordance with the Hague arbitration proceedings as well. ordinary courts. otherwise unable to present his case. first instance can be expected within 12- regulations (European, bilateral or Convention or other multilateral or • The award deals with a dispute that bilateral treaties. 24 months. Appeal procedures usually multilateral treaties, autonomous) 10. What are the basic rules of 13. How are settlement discussions was not arbitrable according to take just one hearing, hence, they are equally apply with the parties being • Autonomous regulations: If no other document disclosure in arbitration? usually conducted (namely whether the arbitration clause or contains faster and can be expected to last ca. free to choose the most advantageous regulations apply, a court decision Which documents do not require oral or written and whether decisions on matters beyond the 6 months. It is to be noted, though, regulations. may still be declared enforceable disclosure? between the parties direct or their scope of the arbitration clause. that the courts of second instance if it complies with the statutory representatives)? Is the settlement • European: According to the EuGVVO, The costs vary depending on the • The composition of the tribunal or the may also resolve that the case was not requirements set out in Hungarian correspondence between the procedure of the arbitration was not properly substantiated by the court judgments of EU member states will Law. specific arbitration forum, but as a parties and/or counsel privileged general rule, they are also dependent in accordance with a provision of the (i.e., may not be disclosed to the Arbitration Act or with a permissible on the value of the claim. Arbitration Arbitrator)? proceedings are usually more agreement made by the parties and expensive, and there is no maximum For settlement discussions the same this presumably affected the award. or Arbitration And Alternative Dispute Resolution value set. In the case of the Court of rules applies as in case of litigation at the court finds that Arbitration organized by the Chamber ordinary courts. • The matter in dispute cannot be of Commerce and Industry, there is settled in arbitration under Hungarian 1. Are mediation clauses in should be set out in writing, and institution arbitration, the parties are a cost calculator available on their 14. Under what circumstances can an law. commercial contracts binding and including such in the general terms and to appoint their arbitrator from the list website. As to who bears these costs, Arbitration Award be enforced, • Recognition or enforcement of the enforceable? conditions applied by one of the parties of arbitrators provided by the Court of the arbitration tribunal decides at its challenged or annulled? award leads to a result that is in is usually insufficient to refer the dispute Arbitration. own discretion who has to bear the conflict with the Hungarian ordre As explained above, in the event of Arbitration clauses are binding, as a to a court of arbitration costs, taking into consideration the public. As a general rule, Hungarian commercial disputes mediation is a general rule, and the court may only 7. In what language is an arbitration circumstances of the case, in particular courts are reluctant to override the statutory condition precedent to even deny its enforcement if such dispute is 4. What type of arbitration is proceeding conducted? the outcome of the proceedings. arbitration court decisions, as the start the litigation procedure. However, not arbitrable or the decision is against commonly used for resolving cases when such rewards can be it can be very formal, as the law only commercial disputes: ad hoc The parties are free to choose the the Hungarian ordre public. Foreign requires that the parties « try » to language to be used in the arbitration 11. What is the procedure for witness contested are very limited. arbitration or institutional evidence in arbitration (namely, Awards can be enforced in accordance settle their dispute, but if no settlement arbitration? proceedings with the New York Convention. is reached, then they can still refer their is it deposition based or witness examination or cross-examination)? Arbitration Awards are not subject to dispute to the court. Both types can be used, institutional 8. What type of pre-arbitration appeal, however they can be challenged arbitration is more popular. The most measures are available and what are There are no specific provisions under the conditions stated in the Act 2. What is the procedure for popular court of arbitration is the their limitations? concerning witnesses, the procedure on Arbitration by filing an application mediation? Is it a popular method Court of Arbitration organized by the to set aside the award with the proper For the enforcement of foreign for witness evidence is subject to for resolving commercial disputes? Chamber of Commerce and Industry. court. The court will do so if the judgments in Hungary several agreement. Both oral hearings and applying party establishes that one of There is an act on mediation, which regulations (European, bilateral or written statements can be agreed upon. 5. Which arbitration institutes are the following circumstances existed: sets out the fundamental rules of most popular? multilateral treaties, autonomous) mediation procedures, in the event equally apply with the parties being the parties wished to include a more The most popular court of arbitration free to choose the most advantageous formal mediation as an interim dispute is the Court of Arbitration organized regulations. resolution forum. However, the by the Chamber of Commerce and settlement reached in such mediation Industry. • European: According to the EuGVVO, can still be contested at court, the only judgments of EU member states will consequence of such contest is that be acknowledged in each of those 6. What influence can the parties have states and can be enforced if declared the plaintiff will be obliged to bear all on the identity of the arbitrator(s)? costs irrespective of the outcome of enforceable The EuVTVO applies the procedure. Mediation is currently The parties are free to determine the for European enforcement orders. not a popular method for resolving number of arbitrators. It is standard In certain cases, decisions of courts commercial disputes. in Hungarian arbitration proceedings of other European member states to agree either on one arbitrator or can be enforced directly, without any 3. Are arbitration clauses in on a panel of three arbitrators. If no preliminary procedure to declare a commercial contracts binding and agreement is made a panel of three decision enforceable. enforceable? arbitrators will be appointed. Each • Multilateral and bilateral treaties: party appoints one arbitrator and Enforcement may also be obtained A broad range of disputes are generally those two arbitrators appoint the in accordance with the Hague arbitrable. It is, nevertheless, important third arbitrator who will act as the Convention or other multilateral or to note that the arbitration clause chairman of the panel. In the case of bilateral treaties.
43 Litigation, Arbitration And Alternative Dispute Resolution Litigation, Arbitration And Alternative Dispute Resolution 44 Civil Litigation
1. In what language(s) may court The level of costs will vary depending 5. What is the process for witness proceedings be conducted? What upon the complexity of the matters at evidence (namely, is it deposition arrangements can be made for issue, the volume of documentation, based in advance, or witness translation/interpreter services? the number and duration of court statement, or examination or attendances, etc. Where costs cannot be cross- examination)? Can a witness Court proceedings are conducted in agreed, a bill of costs can be referred to be compelled to attend to give English. If a witness is not fluent in a Taxing Master for assessment. evidence? English and an interpreter is required, the Courts Office should be notified In matters before the Commercial For example, for a dispute over Euro in advance and an interpreter will be Court (generally where the matters in 1,000,000, if no appearance is entered arranged. dispute are commercial in nature and by the defendant judgment can be the value of the dispute exceeds Euro1 obtained through the court offices and million), parties are obliged to exchange 2. What types of pre-action measures costs would typically be approximately detailed witness statements in advance are available and what are their Euro 2,500. If an appearance is entered of the hearing. When an action comes limitations? Must you send a and a summary application is made to on for hearing, the Court will hear oral warning letter before issuing any court, the matter can be dealt with on testimony and witnesses will be subject proceedings? affidavit and costs would typically be in to examination and cross-examination. the region of Euro 10,000. If the claim Pre-action measures available include: Other than before the Commercial is fully defended and a full hearing is Court witness statements are • Interim injunctive relief with a view to required, costs are likely to be in the occasionally directed, but more often maintaining a status quo pending a trial region of Euro 50,000 for a one day oral evidence is given at the hearing. of the issues or to preserve assets or hearing. evidence. Applications for summary judgment will be on affidavit, though a party may in • Discovery and inspection of 4. What are the basic rules of limited circumstances apply to cross- documentation can be sought pre- disclosure of documents in civil examine the deponent of an affidavit. A action if it can be established that it and commercial proceedings? witness who is within the jurisdiction is necessary to properly ascertain the Which documents do not require can be compelled to attend to give identity of defendant(s) in an action. disclosure? Is electronic disclosure evidence by way of subpoena. of documents normal? It is good practice to issue a warning A party can be required to make 6. How are settlement discussions letter prior to commencement of discovery and facilitate inspection of usually conducted (namely whether proceedings. Failure to issue a warning documentation relevant to the matters oral or written and whether letter can have cost implications for an in issue where discovery and inspection between the parties direct or their applicant. are necessary for a fair hearing of the representatives)? Is the settlement proceedings or for saving costs. Privilege correspondence between the 3. What are the costs of civil and can be claimed over certain categories parties/counsel privileged (i.e., may commercial proceedings? Who of documents, such as lawyer/client not be disclosed to the court)? bears these costs? communications for the purpose of Settlement discussions are conducted in seeking or providing legal advice. Parties The Court has discretion to award many different ways. Negotiations may will be obliged to disclose documents costs in all proceedings. In the normal be in correspondence or may be verbal. in paper format and also electronically course, costs follow the event and Sometimes a settlement meeting will be stored information. Where electronically a successful party will usually be convened at which negotiations will take stored information is held in searchable awarded an order for costs against the place. Settlement discussions will generally format, a party may be ordered to unsuccessful party. Costs are usually be conducted between the lawyers, on the make available its information and awarded on a party and party basis; that instruction of the respective clients. The communications technology systems to will include all costs necessary for the parties will typically agree that settlement facilitate the inspection and to utilise enforcing or defending of the rights of discussions are “without prejudice” and searching facilities. the party. Costs are seldom awarded on will be privileged. A party may opt to a solicitor and own client basis or on an make an open proposal, thus waiving the indemnity basis. A successful party can privilege. expect to recover the bulk of the costs that it incurs in the proceedings but may 7. What is the typical duration of a not recover the entire costs incidental court procedure? to the proceedings. Where the dispute is admitted to the Contact Solicitors are required to set out in Commercial Court (which handles WhitneyMoore GERRY CARROLL JOHN LYNCH writing to their client the basis upon commercial disputes for over Euro Dublin, Ireland Partner | Litigation Partner | Head of Litigation which costs will be incurred and, in 1,000,000), the case will usually come on www.whitneymoore.ie T: 353 1 611 0000 T: 353 1 611 0000 litigation matters, to caution the client for hearing within three to six months. that if the client is unsuccessful in the Outside of the Commercial Court, it E: [email protected] E: [email protected] action it may be liable for the party typically takes eighteen months to come and party costs of the opposing side. to hearing.
45 Litigation, Arbitration And Alternative Dispute Resolution Litigation, Arbitration And Alternative Dispute Resolution 46 8. How can foreign judgments be Judgment (if appropriate) and certain If judgment for a liquidated sum is volume of documentation, the number 13. How are settlement discussions • The award deals with a dispute not enforced? other certificates depending on which obtained in another EU state and is and duration of court attendances, etc. usually conducted (namely whether contemplated by or not falling within jurisdiction issued the judgment. not contested, a judgment creditor can Where costs cannot be agreed, a bill of oral or written and whether the terms of the submission to To enforce a foreign judgment in Ireland, Normally, a foreign judgment cannot be rely on Regulation (EC) No 805/2004 costs can be referred to a Taxing Master between the parties direct or their arbitration. the normal procedure would be to reviewed as to substance. creating a European Enforcement Order for assessment. representatives)? Is the settlement • The composition of the arbitral make an application to the Master of which obviates the need to apply to correspondence between the the High Court for an Order granting authority was not in accordance The Court Order is served on the the Irish court for a declaration of 11. What are the basic rules of parties and/or counsel privileged leave to enforce. This application is with the agreement of the parties defendant who then has one month to enforceability. document disclosure in arbitration? (i.e., may not be disclosed to the made ex-parte by Motion grounded or the law of the country where the appeal. During that one month period Which documents do not require Arbitrator)? on affidavit. The affidavit must exhibit arbitration took place. no steps can be taken to enforce the disclosure? the judgment, a translation of the Settlement discussions are conducted • The subject matter of the dispute judgment. Parties are generally required to make in many different ways. Negotiations is not capable of settlement by discovery and allow inspection of may be in correspondence or may arbitration under the laws of Ireland. documentation relevant to the matters be verbal. Sometimes a settlement • The award is contrary to public policy. meeting will be convened at which in issue where discovery and inspection • Misconduct by the arbitrator or Arbitration And Alternative Dispute Resolution negotiations will take place. Settlement are necessary for a fair hearing of the where the award has been improperly discussions will generally be conducted issues or for saving costs. Privilege can procured. Enforcement may also be be claimed over certain categories between the lawyers, on the instruction other certificates depending on which refused where the award has not 1. Are mediation clauses in 6. What influence can the parties have of documents, such as lawyer/client of the respective clients. Settlement jurisdiction issued the judgment. yet become binding or has been set commercial contracts binding and on the identity of the arbitrator(s)? communications for the purpose of correspondence between lawyers is Normally, a foreign judgment cannot be aside or suspended by a competent enforceable? seeking or providing legal advice. Parties generally “without prejudice” and is Typically the disputing parties will reviewed as to substance. The Court authority in the country the award can be required to disclose documents privileged. A party may opt to make Mediation clauses in commercial endeavour to agree the identity of Order is served on the defendant who was made. A foreign award may be in paper format and also electronically an open proposal, thus waiving the contracts are binding. The Courts an arbitrator. If agreement cannot be then has one month to appeal. During enforced in Ireland provided certain stored information. Where electronically privilege. will often stay an action to facilitate reached, there will be a procedure for that one month period no steps can criteria are satisfied, including a stored information is held in searchable mediation between parties. a third party to appoint an arbitrator. be taken to enforce the judgment. If requirement that the award be final in format, a party may be ordered to In the absence of an agreed procedure, judgment for a liquidated sum is obtained 14. Under what circumstances can an the country in which it was made and make available its information and 2. What is the procedure for an arbitrator will be appointed by the in another EU state and is not contested, Arbitration Award be enforced, that the enforcement is not contrary communications technology systems mediation? Is it a popular method Court. a judgment creditor can rely on challenged or annulled? to public policy or the laws of Ireland. to facilitate the inspection and to utilise for resolving commercial disputes? Regulation (EC) No 805/2004 creating searching facilities. An award of an arbitrator may be 7. In what language is an arbitration a European Enforcement Order which enforced by way of application to Court. Mediation is not regulated by law and proceeding conducted? the parties are free to agree their obviates the need to apply to the Irish Once leave to enforce is directed by court for a declaration of enforceability. 12. What is the procedure for witness own procedures. Mediation may in Arbitrations are generally conducted in evidence in arbitration (namely, the Court, the award may be enforced certain circumstances be ordered by English, though the parties could agree Where the judgment is from a non-EU in the same manner as a judgement or jurisdiction, (and assuming no reciprocal is it deposition based or witness the Commercial Court in commercial some other language. examination or cross-examination)? order of the Court. Enforcement may disputes. Mediation is becoming agreement is in place) enforcement be refused or set aside if: requires summary proceedings in the There are no specific provisions increasingly popular and a number of 8. What type of pre-arbitration • A party to the arbitration agreement High Court seeking an Irish judgment in concerning witnesses, the procedure lawyers are qualified mediators and are measures are available and what are was under some incapacity. retained by disputing parties to act in their limitations? the terms of the foreign judgment. for witness evidence is subject to that capacity. agreement. Both oral hearings and • The arbitration agreement was not The most common pre-arbitration 10. What are the costs of arbitration written statements can be agreed upon. valid or lawful. 3. Are arbitration clauses in measures relate to maintaining or proceedings and who bears these As a general rule, discovery rules are • Proper notice of the appointment of commercial contracts binding and restoring the status quo pending costs? more flexible and less formal than at an arbitrator had not been given. enforceable? the determination of the issues, the ordinary courts. preservation of assets and/or evidence The arbitrator will, at his/her discretion Arbitration clauses are binding and and in relation to discovery and decide who has to bear the costs, taking enforceable. inspection of documents. Parties may into consideration the circumstances of also apply to the arbitrator for security the case and in particular the outcome 4. What type of arbitration is for costs. of the proceedings. Costs are usually commonly used for resolving awarded on a party and party basis; that commercial disputes: ad hoc 9. How can foreign judgments be will include all costs necessary for the arbitration or institutional enforced? enforcing or defending of the rights of arbitration? the party. Costs are seldom awarded on Enforcement will vary depending a solicitor and own client basis or on The UNCITRAL (United Nations on whether it is an EU or non-EU an indemnity basis. A successful party Commission on International Trade judgment, the nature of the order can expect to recover the bulk of the Law) Model Law applies in the majority and whether there is a European costs that it incurs in the proceedings of arbitrations that take place within Enforcement Order. Generally to but may not recover the entire costs Ireland. enforce an EU foreign judgment in incidental to the proceedings. Solicitors Ireland, the procedure would be to are required to set out in writing 5. Which arbitration institutes are make an application to the Master of to their client the basis upon which most popular? the High Court for an Order granting costs will be incurred and, in litigation leave to enforce. This application is matters, to caution the client that if ICC (International Chamber of made ex-parte by Motion grounded the client is unsuccessful in the action Commerce) ICDR (International on affidavit. The affidavit must exhibit it may be liable for the party and party Centre for Dispute Resolution) / AAA the judgment, a translation of the costs of the opposing side. The level (American Arbitration Association) Judgment (if appropriate) and certain of costs will vary depending upon the complexity of the matters at issue, the
47 Litigation, Arbitration And Alternative Dispute Resolution Litigation, Arbitration And Alternative Dispute Resolution 48 Civil Litigation
1. In what language(s) may court claim if a “standstill agreement” such as the Isle of Man. On filing an proceedings be conducted? What cannot be agreed. In certain cases application for permission to appeal to arrangements can be made for (e.g., fraud) a party can apply to the the Privy Council a fee of £1,000.00 is translation/interpreter services? civil court without telling the intended payable, where the appeal value is over defendant(s) to obtain powerful orders £500,000.00. The official language used in court is directed towards preserving assets • On filing a case where the appeal value English. An interpreter will be provided (freezing orders) or preserving evidence by the Courts Service for deaf and is over £500,000.00 a further £5,000.00 (search and seizure orders). The court fee is payable. hearing impaired litigants. The Courts can supplement such orders with orders Service will provide a foreign language requiring the delivery up of passport(s) • There is no statutory framework in interpreter if a person involved in the and prohibiting them from leaving the respect of Advocates charges in the proceedings: jurisdiction. A pre-action exchange Isle of Man. It is difficult to calculate would give the intended defendant(s) an Advocate’s fees as fees are likely • Cannot speak or understand the to be charged in accordance with an language of the court well enough to the opportunity to dissipate assets or destroy evidence. Advocate’s hourly rates and applied on take part in the hearing. a case by case basis in accordance with • Cannot get public funding. the time spent on a matter. 3. What are the costs of civil and • Cannot afford to privately fund an commercial proceedings? Who interpreter, and has no family member, bears these costs? 4. What are the basic rules of or friend, who can attend to interpret disclosure of documents in civil for them and who is acceptable to the Court fees are regulated by the Island’s and commercial proceedings? court. legislation. A variety of court fees are Which documents do not require payable within the civil and family courts disclosure? Is electronic disclosure 2. What types of pre-action measures and these are set out in Statutory of documents normal? Instruments. Each party is primarily are available and what are their Ordinarily, parties will be required to limitations? Must you send a responsible to pay their own lawyer. Many lawyers charge for their services disclose documents which assist or warning letter before issuing any harm the case of any of the parties to proceedings? on the basis of hourly rates. The Court has absolute discretion on the issue the dispute (including their own case). The Isle of Man has its own Rules of the of costs. It is usual that the successful The opponent has the right to inspect High Court of Justice 2009. In addition party (ies) are awarded costs. It is original documents and/or take copies as would be expected various Rules and unusual for all costs actually incurred of disclosed documents. Privileged Regulations exist to cover the range of to be recovered. Unlike England and documents must be disclosed (i.e., Courts and Tribunals. The rules state Wales there are no Conditional Fee the fact of their existence revealed) that the parties to a dispute should, Agreements in the Isle of Man. but the content need not be revealed. before starting proceedings, exchange Commercially sensitive information can be blanked out if it is irrelevant and it sufficient information about the matter The court fees payable in civil and to allow them to understand each would not be appropriate to disclose commercial proceedings in the Isle of it. A “document” includes all media on other’s position and make informed Man, assuming a dispute value of Euro decisions about settlement. There are which information is recorded - this 1 million (Approximately GBP 800,000) includes electronic information, and can pre-action protocols for different types are as follows: of disputes (for example, personal injury, extend to deleted data and metadata. construction and engineering, clinical • For filing a claim between £500,000.01 Parties are expected to make electronic negligence and professional negligence). and £1,000,000.00 a fee of £2,000.00 is disclosure. The parameters of the extent However, even in cases not covered payable. of electronic disclosure can be decided by the protocols, the court expects • A further £750.00 being payable for the by the court, if the parties cannot the parties to exchange information scheduling of any matter which is set agree. It is open to a litigant to apply and attempt to resolve the claim down for a hearing of more than two to the court for “specific disclosure” without litigating. If the court concludes days duration, per day of part thereof. if it believes that particular documents that proceedings were commenced exist that should be disclosed, but the • The filing of any Notice or Application precipitously, then it can mark its other side has refused disclosure. A within the Appeals process is subject to disapproval with an adverse costs award party is entitled to any document that is a £300.00 fee with an additional £750.00 at the appropriate time. The claimant referred to or identified in a statement being charged for the scheduling of any should send a “Letter before claim” of case (also referred to as a pleading) Appeal matter which is set down for a to the defendant and the defendant or witness statement or affidavit. hearing of more than two days, per day should be allowed to respond within a or part thereof. “reasonable period of time.” However, Contact • The Judicial Committee of the Privy Laurence Keenan Advocates LARRY KEENAN where there is a potential limitation period which may expire if proceedings Council, is the court of final appeal Douglas, Isle of Man Senior Director are not issued, a party will not be for a number of the UK Overseas www.laurencekeenan.com T: +44 1624 611933 criticised for issuing a “protective” Territories and Crown Dependencies [email protected]
49 Litigation, Arbitration And Alternative Dispute Resolution Litigation, Arbitration And Alternative Dispute Resolution 50 5. What is the process for witness 6. How are settlement discussions Ex parte applications, for example where evidence (namely, is it deposition usually conducted (namely whether a freezing injunction is sought, can be Arbitration And Alternative Dispute Resolution based in advance, or witness oral or written and whether scheduled and determined quickly owing statement, or examination or between the parties direct or their to commercial sensitivity, however, there cross-examination)? Can a witness representatives)? Is the settlement is often further proceedings on the back 1. Are mediation clauses in 3. Are arbitration clauses in 7. In what language is an arbitration be compelled to attend to give correspondence between the of the initial application and the length commercial contracts binding and commercial contracts binding and proceeding conducted? evidence? parties/counsel privileged (i.e., may of time expended is only determinable enforceable? enforceable? not be disclosed to the court)? on a case by case basis. Usually English, although the parties may The general rule is that any fact which Mediation clauses are binding and Arbitration clauses are binding and agree on the language to be used. needs to be proved by the evidence The parties are free to decide how 8. How can foreign judgments be enforceable. It should be noted that enforceable as long as the clause: of a witness is proved by written they conduct settlement discussions enforced? mediation itself differs from litigation 8. What type of pre-arbitration evidence at any other hearing other and negotiations. Many disputes are and arbitration in that the parties • Gives the arbitrator(s) the power to decide all disputes that may arise measures are available and what are than a trial (Rule 8.2 (1)(b)) and by resolved through the process of lawyer An arrangement for the reciprocal cannot be forced to settle. their limitations? oral evidence at trial (Rule 8.2(1)(a)). In to lawyer negotiation and agreement enforcement of judgments is in place to between the parties. both circumstances a witness statement through a combination of oral and enforce Manx judgments in the United 2. `What is the procedure for • Excludes state courts, to the extent Interim measures are available. Interim should be prepared and served on each written exchanges. Negotiations are Kingdom and certain other jurisdictions mediation? Is it a popular method possible, from the dispute resolution measures are often requested without party. In any other hearing the witness almost uniformly conducted “without and territories and to enforce certain for resolving commercial disputes? process. notice and usually ordered on a will usually not be called to give oral prejudice” (i.e., without prejudice to foreign judgments in the Isle of Man. • Puts in place an efficient procedural provisional basis; they are subject to evidence and the hearing will proceed the position that is being adopted in The usual rule is that fresh proceedings The parties can agree among themselves framework that secures an arbitral later adjustment or setting aside by on the basis of the written evidence and the litigation) and as such are protected must be commenced in the Isle of Man with the mediator on the format. award that is capable of being the tribunal. Interim measures are oral submissions. At trial the witness from disclosure in the litigation to enforce a foreign judgment unless Typically, the parties commence by enforced. sometimes referred to as “interim statement sets out the “evidence in process if no agreement is reached. If one of a number of exceptions apply exchanging position papers in advance measures of protection” or “provisional of the mediation. During the mediation, relief. chief” of the witness. Oral evidence an agreement is reached, the without in which case the foreign judgment 4. What type of arbitration is from the witness will be generally prejudice communications are no longer simply needs to be registered in the Isle the mediator meets privately with each party to discuss the problem commonly used for resolving limited to the replies given under cross- privileged. A party may refer to without of Man. It is then possible to proceed commercial disputes: ad hoc 9. What are the costs of arbitration examination by the opposing party at prejudice communications if there is to enforce the judgment as if it were confidentially. This allows each party to proceedings and who bears these be frank with the mediator and have arbitration or institutional trial. A summons requiring a witness to a dispute as to whether settlement a Manx judgment. The registration of arbitration? costs? attend court to give evidence can be was actually reached. It is possible certain Judgments are governed by the a realistic look at their case in private, The terms of the Arbitration referred to issued: to negotiate on a “without prejudice Judgments (Reciprocal Enforcement) without fear that any weaknesses Institutional arbitration is generally will determine forum, fees and who pays save as to costs” basis whereby (Isle of Man) Act 1968 and others under discussed will be communicated to preferred due to reputation, familiarity • In circumstances when a witness is the costs. communications can only be revealed the High Court Act 1991. other parties. The mediator shuttles with proceedings, understanding of reluctant to appear. (unless the parties agree otherwise) at back and forth seeking to identify and costs and fees and the convenience of • Where a witness needs to satisfy an the conclusion of the litigation, when narrow the issues between the parties. the process. However, corporations in 10. How can foreign judgements be employer they need time off work. the court considers the question of The mediator can call plenary sessions sectors, such as shipping, construction enforced? • Where a witness feels their costs. where all the parties meet around or commodities, that have a tradition By virtue of Part II of the Arbitration relationship with a party will be the table to discuss their differences. of arbitration, often adopt ad hoc Act 1976, a foreign arbitral award compromised if they give evidence 7. What is the typical duration of Generally the parties themselves should arbitration. may be enforceable in the Isle of Man without being compelled. court procedure? attend the mediation. They are usually between parties, of whom one is subject accompanied by their lawyer. In the 5. Which arbitration institutes are to the jurisdiction that is a party to the • To ensure a busy expert witness will The duration of court procedure will case of a party that is a company or most popular? Geneva Convention on the Execution of be available to give evidence at trial. depend on the nature of the matter association, its representative will need Foreign Arbitral Awards. In order that a in dispute. This will be extended if the The main institutions used are: to have authority to reach a binding foreign award may be enforceable in the Written evidence is usually in the form matter is referred to Appeal and again settlement at the mediation. It is a • The London Court of International Isle of Man it must have: of a signed witness statement. In certain if the matter is to be further referred condition of mediation that the parties Arbitration(“LCIA”) proceedings for example an injunction to the Judicial Committee of the Privy will treat all discussions and documents a. been made in pursuance of an where a ‘freezing order’ is requested Council for a final ruling. as confidential and “without prejudice.” • The International Chamber of agreement for arbitration which was the evidence must be in the form of a Mediation is an accepted method of Commerce (“ICC”) valid under the law by which it was sworn affidavit. That said, and subject to the negotiation resolution, but can be expensive because • The Stockholm Chamber of governed; process having been attempted, a fully of the need to prepare in advance, and Commerce (“SCC”) b. been made by the tribunal provided prepared case should expect to be the parties have to pay for the mediator, • The American Arbitration Association for in the agreement or constituted listed for trial within 6-12 months. It is as well as for their own advisers. (“AAA”) The ICC is regarded as the in the manner agreed upon by both the time requirement which dictates leading international arbitral institution parties; availability, i.e. trials requiring longer because of the volume of cases and c. been made in conformity with the law time periods are set down further the significance of disputes heard. governing the arbitration procedure; into the future whereas shorter trials are easily slotted in where there is d. become final in the country in which it 6. What influence can the parties have was made; availability for shorter timeframes. on the identity of the arbitrator(s)? e. been in respect of a matter which The parties are able to determine may lawfully be referred to arbitration the number of arbitrators and their under the law of the Island; and the identities. enforcement thereof must not be contrary to the public policy or the law of the Island.
51 Litigation, Arbitration And Alternative Dispute Resolution Litigation, Arbitration And Alternative Dispute Resolution 52 Civil Litigation
1. In what language(s) may court of reliable prima facie evidence that or discovered by such after investigation proceedings be conducted? What there is reasonable concern that the and inquiry relating to the case at arrangements can be made for defendant is planning to leave the hand. Document discovery relates translation/interpreter services? country forever or for a prolonged to documents relating to the issue in period, and that this would cause dispute. Specific discovery may also be Hebrew is the official language for court serious difficulties with regards to requested for particular documents – if proceedings in Israel. In the event the the proceedings or execution of any it is in the hands of the other party or parties, or any one of them, speak only judgment. If the defendant is a foreign in his possession or under his control. English, hearings may at times be held resident, no stay of exit will be granted Internal correspondence between in English, even without a translator, if except in very unusual and rare attorneys and clients is confidential, the judge speaks English and does not circumstances and based on special and not subject to discovery. Other require a translator. If the parties speak grounds stated and recorded. documents may also be confidential, and other languages, a translator is required, the court may be asked to rule with and is independently hired by the parties Temporary Receivership: respect to such. Electronic discovery is or hired through the court. not yet accepted by law in Israel. The court may appoint a temporary 2. What types of pre-action measures receiver for certain of the defendant’s 5. What is the process for witness are available and what are their assets which are in his possession or in evidence (namely, is it deposition limitations? Must you send a the possession of another, if the court based in advance, or witness warning letter before issuing any is convinced on the basis of reliable statement, or examination or proceedings? prima facie evidence that there is a real cross- examination)? Can a witness concern regarding harm to the value Temporary Lien: be compelled to attend to give of the assets or that the respondent or evidence? In a monetary claim or a claim in kind, any other person might on his behalf the court may impose a temporary lien smuggle such assets out or destroy The most common situation in Israel on the defendant’s assets or on the them. is proof of facts through affidavits. The assets of a defendant which are being court usually instructs that primary held by a third party, after examining the 3. What are the costs of civil and testimony be submitted by affidavit. damages likely to be caused to either commercial proceedings? Who Affidavits come in place of primary party resulting from imposing such bears these costs? examination of the affiant. Later, the lien. A motion to impose a lien can be affiant will be crossexamined and Fee payment is the duty of the party granted based on reliable prima facie re-examined. Parties who have not instigating the process. In a monetary evidence that there is a cause of action, submitted affidavits of testimony as action, fees are 2.5 percent of the and subject to the plaintiff’s deposit of a required will not be permitted to overall amount of the action, paid in bond for compensation of any damages present the witness or prove these facts. two instalments. The first half is paid caused to the defendant in the event the upon opening the process, and the 6. How are settlement discussions action is rejected. second half 20 days before the date set usually conducted (namely whether for trial. At the end of any process, the oral or written and whether Temporary Injunction: court decides whether to charge one between the parties direct or their The court has the authority to grant party for the other party’s attorneys’ representatives)? Is the settlement a temporary injunction, which is an fees and legal expenses, and rules on correspondence between the equitable remedy, after examining the the rates of such, provided attorney’s parties/counsel privileged (i.e., may damages which will be caused to the fees are no less than the minimal not be disclosed to the court)? petitioner if such temporary relief is rates recommended by the Israel Bar Settlement discussions may be not granted, as opposed to the damages Association. conducted in many different ways, caused to the respondent if temporary orally or in writing, in or out of court. relief is granted, as well as equity law 4. What are the basic rules of Generally, if the parties are represented considerations – whether the petition disclosure of documents in civil by attorneys, the discussions will be was lodged in good faith and if granting and commercial proceedings? conducted by those representatives. the remedy is just and right under the Which documents do not require If the settlement discussions are circumstances, and does not cause harm disclosure? Is electronic disclosure conducted out of court, there is no beyond what is necessary. of documents normal? obligation to disclose the related The court may award an order correspondence to the court. It is Stay of Exit: instructing one party to disclose to the common to inform the court of the outcome of such settlement discussions The court may also grant a stay of exit other party, by affidavit, what documents and have the settlement recorded in Contact from the country against a defendant, are in his possession or were in his writing by the court. GKH Law DAVID FOHRER if it has been convinced on the basis possession or under such party’s control Tel Aviv, Israel Partner | Head of Litigation www.gkh-law.com T: +972 3 607 4539 E: [email protected]
53 Litigation, Arbitration And Alternative Dispute Resolution Litigation, Arbitration And Alternative Dispute Resolution 54 7. How can foreign judgments be laws of the country in which it was • The content of the judgment is not 10. What type of pre-arbitration 14. How are settlement discussions enforced? given. contrary to public policy. measures are available and what are usually conducted (namely whether their limitations? oral or written and whether The Israeli court may declare a foreign • The judgment is final and cannot be • The judgment is enforceable in the appealed. country in which it was given. between the parties direct or their judgment to be exercisable under the Temporary lien, temporary injunction representatives)? Is the settlement following cumulative conditions: • The duty to be exercised under the A motion for exercise of a foreign or any other temporary remedy correspondence between the judgment may be enforced under the judgment must be filed within five years existing under law if the process is at parties and/or counsel privileged • The court which gave the judgment laws of the State of Israel. of the date on which the judgment was the court. The court has jurisdiction to was authorized to give such under the (i.e., may not be disclosed to the handed down. determine with regards to temporary Arbitrator)? remedies even when a process in under arbitration. There are no specific provisions as to how settlement discussions are Arbitration And Alternative Dispute Resolution 11. What are the costs of arbitration conducted, all mentioned alternatives proceedings and who bears these are possible. Generally, if the parties costs? are represented by attorneys, the 1. Are mediation clauses in 4. What type of arbitration is 6. How can foreign judgments be discussions will be conducted by commercial contracts binding and commonly used for resolving enforced? The decision regarding costs is subject those representatives. Whether or not enforceable? commercial disputes: ad hoc to agreement. If no agreement has been settlement correspondence will be arbitration or institutional The Israeli court may declare a foreign made by the parties, the arbitration Mediation clauses in commercial judgment to be exercisable under the disclosed to the Arbitrator(s) is subject arbitration? tribunal decides at its own discretion to agreement. contracts are generally binding. They following cumulative conditions: who bears the costs, taking into cannot be realistically enforced as the Arbitration may come about in a few consideration the circumstances of the obligation to mediate does not oblige ways: • The court which gave the judgment 15. Under what circumstances can an was authorized to give such under the case, in particular the outcome of the Arbitration Award be enforced, the parties to actually settle the dispute. proceedings. Nevertheless, if a mediation clause was • Initiated by the parties, if there is an laws of the country in which it was challenged or annulled? arbitration agreement. given. agreed upon, courts will deny action An arbitration ruling approved by the • Initiated by the court when there is no • The judgment is final and cannot be 12. What are the basic rules of as inadmissible prior to mediation court, given the validity of a court ruling, arbitration agreement; subject to the appealed. document disclosure in arbitration? proceedings. It is always permissible to is equivalent to a court ruling, save consent of the parties. Which documents do not require request interim measures by a court, • The duty to be exercised under the disclosure? in the matter of appeals. Causes for irrespective of the obligation to mediate. • If one of the parties petitions the judgment may be enforced under the cancellation of an arbitration ruling: court to delay proceedings at the laws of the State of Israel. The parties may decide whether the • Absence of a valid arbitration 2. What is the procedure for court which have been lodged despite • The content of the judgment is not arbitrator must act under substantive agreement. mediation? Is it a popular method the existence of an arbitration contrary to public policy. law regarding procedure and rulings. If it for resolving commercial disputes? agreement. Types of arbitration in is decided that substantive law applies, • Arbitrator was not lawfully appointed. Israel: • The judgment is enforceable in then the usual laws of discovery as In mediation, the mediator meets with the country in which it was given. • Arbitrator acted without authority • Ordinary – the classic situation explained in Civil Litigation question 4 or ultravires, and there is no estoppel the two parties separately and together, A motion for exercise of a foreign apply. in order to bring them around to a is when there is an arbitration judgment must be filed within five regarding this claim. settlement of the dispute, though the agreement between the parties which years of the date on which the • One party was not given an prescribes the mechanism for the 13. What is the procedure for witness mediator does not have the authority judgment was handed down. evidence in arbitration (namely, opportunity to be heard or to present to decide with regards to the dispute. appointment of an arbitrator and the evidence. manner of arbitration. is it deposition based or witness Mediation is not enforced on the 7. Which arbitration institute is most examination or cross-examination)? • The arbitrator failed to rule on a parties, but obtained in agreement, and • Arbitration is usually ad hoc, but there popular? particular issue specifically given over each of the parties may at any time are also arbitration institutions which If arbitration is held under substantive for ruling. stop mediation procedures. Israel has a have rules of procedure. The Israel Institute of Commercial law, then it is held according to the same mechanism for “obligatory mediation” Arbitration rules that would apply if the case was • The arbitrator did not give the reasons for civil suits of amounts of no more 5. How are settlement discussions heard before a court. for his arbitration ruling, though this than NIS50,000, (about Euro10,000) usually conducted (namely whether 8. What influence can the parties have was a condition. before the stage of pre-trial. The court oral or written and whether on the identity of the arbitrator(s)? • The ruling was given after the period stipulated for such, and the party refers the parties to a meeting with a between the parties direct or their The parties are free to agree between reserved the right to make this claim. mediator in an attempt to conclude the representatives)? Is the settlement them with regard to the identity of dispute through mediation. For suits of correspondence between the the arbitrator, as they so choose, or • The contents of the ruling are more than NIS50,000, evidence will not parties/counsel privileged (i.e., may according to the provisions of the contrary to public policy. be heard before a meeting is held at not be disclosed to the court)? agreement between them. When there • There is a cause under which a the court examining the possibility of is an arbitration agreement and no court would strike an otherwise mediation. Mediation is very common Settlement discussions may be arbitrator is named in the agreement, unappealable final ruling. The parties in Israel. conducted in many different ways, orally or in writing, in or out of court. the court may appoint the arbitrator, at to an arbitration agreement may the request of the parties. agree that the arbitrator’s ruling may 3. Are arbitration clauses in Generally, if the parties are represented by attorneys, the discussions will be be appealed by either an appeal at commercial contracts binding and 9. In what language is an arbitration the court or an appeal before an enforceable? conducted by those representatives. If the settlement discussions are proceeding conducted? arbitrator. Arbitration clauses are binding and conducted out of court, there is no Usually in Hebrew, but the parties may enforceable by court except for limited obligation to disclose the related choose the language. cases in which the court may not correspondence to the court. It is enforce an arbitration agreement. Israel common to inform the court of the is also a party to The Convention on the outcome of such settlement discussions Recognition and Enforcement of Foreign and have the settlement recorded in Arbitral Awards (New York Convention). writing by the court.
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1. In what language(s) may court For example, assuming a dispute value 6. How are settlement discussions proceedings be conducted? What of 1 million, the costs of civil and usually conducted (namely whether arrangements can be made for commercial proceedings vary from a oral or written and whether translation/interpreter services? minimum of Euro 21,400 to a maximum between the parties direct or their of Euro 60, 400. Only if the proceeding representatives)? Is the settlement The only language admitted is Italian. If relates to particular complexity the correspondence between the the parties involved in the proceedings maximum cost could be higher. parties/counsel privileged (i.e., may are not able to understand the not be disclosed to the court)? language, an official interpreter will be 4. What are the basic rules of nominated by the Court. The Court disclosure of documents in civil Settlement discussions can be could also demand the translation of and commercial proceedings? conducted both orally and in writing. the documents that are filed in other Which documents do not require Correspondence exchanged between languages. Nevertheless the use of disclosure? Is electronic disclosure members of the Italian Bars is privileged English and, sometimes, of French of documents normal? and confidential and cannot be disclosed. documents can be accepted by the Correspondence exchanged between Court. There are no disclosure rules in the the parties directly and/or between the proceedings. The parties are free to parties and a member of the Bar is not 2. What types of pre-action measures submit to the court any evidence they privileged, even it if expressly includes a are available and what are their wish within a certain time limit which “without prejudice” warning. limitations? Must you send a depends on the procedings you have warning letter before issuing any promoted. A party could demand the 7. What is the typical duration of a proceedings? Court to order the disclosure of a court procedure? document in some cases, such as under Seizures, injunctions, inhibitory and certain and unequivocal presumptions The typical duration of a court others pre-action measures are that one of the parties has the procedure (without need of witness or foreseen in Italian civil procedure code. document in his possession and the technical experts) is around two and a Usually a pre-action measure can be requested document is relevant to the half years. ordered by the court in summary matter under discussion. proceedings (before starting an ordinary 8. How can foreign judgments be trial) or during a pending litigation. 5. What is the process for witness enforced? Pre-action measures in Italy aim either evidence (namely, is it deposition The EU Regulation provides the rules to freeze the counterpart funds in a based in advance, or witness monetary claim, preserve evidence, for enforcing judgments throughout statement, or examination or the European Union. Outside the or to freeze a situation waiting the cross- examination)? Can a witness outcome of the judgment on the merits EU, several treaties regulate the be compelled to attend to give enforcement of judgments. If no treaty if there is a danger in the delay given evidence? by the ordinary trial timing. There exists, the judgment will have to pass is no rule that establishes the need The process is witness examination. In a formal Court examination during of a warning letter before starting a the Italian code of civil procedure, it which the Court will also listen to the pre-action urgency proceeding or an is also foreseen the possibility to file counterpart’s reasons, if any. ordinary trial, although the lawyers written depositions if both parties agree code of conduct requests to inform the on this. The lawyers give the questions lawyer assisting the counterparts before to the Court, the Court will then decide issuing proceedings when negotiations whether to admit the questions or not or discussions where pending. and then pose the admitted questions to the witness. There is no room for 3. What are the costs of civil and examination or cross examination but commercial proceedings? Who it is accepted that a lawyer may ask bears these costs? the Court to pose further question to a witness if the replies need more The costs of a civil proceeding (lawyer’s circumstances to be understood. A fees and costs) are established by law, witness can be compelled to attend to but can be negotiated between a party give evidence. and its lawyer. The costs are usually advanced and sustained by each party. To be noted that should a party concern At the end of the proceeding, the Court that a witness, whose declaration will require the unsuccessful party to is considered fundamental in the Contact repay the legal costs (fees and costs) proceedings to be started , could Pirola Pennuto Zei e Associati GABRIELE BRICCHI TONIO DI IACOVO totally or partially depending on the disappear (for any reason, including case’s complexity. Italy Partner | Milan Partner | Rome death) before the trial begins, that party www.pirolapennutozei.com T: +39 02 669 951 T: +39 06 570 281 is entitled to request the judge to hear E: gabriele.bricchi@ E: [email protected] the witness in “future memory”. studiopirola.com
57 Litigation, Arbitration And Alternative Dispute Resolution Litigation, Arbitration And Alternative Dispute Resolution 58 12. How are settlement discussions Arbitration And Alternative Dispute Resolution usually conducted (namely whether oral or written and whether between the parties direct or their 1. Are mediation clauses in 5. Which arbitration institutes are 9. What are the costs of arbitration representatives)? Is the settlement commercial contracts binding and most popular? proceedings and who bears these correspondence between the enforceable? costs? parties and/or counsel privileged Chamber of Commerce arbitration or (i.e., may not be disclosed to the Mediation clauses are binding if provided other international entities. The costs of an arbitration proceeding Arbitrator)? by the contract and are enforceable. (lawyer’s fees, Arbitrators fees and 6. What influence can the parties have costs) are established by law or by The process is witness examination. The 2. What is the procedure for on the identity of the arbitrator(s)? the Chamber of Commerce, but can parties and the arbitrators could also mediation? Is it a popular method be negotiated between a party and its establish written depositions. for resolving commercial disputes? It depends on the arbitration clause. If lawyer. The costs are usually advanced the parties are not entitled to nominate and sustained by each party, at the end 13. Under what circumstances can an The new Italian civil procedure code the arbitrator (s), they have no influence of the proceeding the Arbitration Panel Arbitration Award be enforced, provides compulsory mediation for at all. If a party is entitled to nominate may require the unsuccessful party to challenged or annulled? some kinds of civil and commercial its arbitrator, the party is free to repay the legal costs (fees and costs) trials. The procedure is left to the decide on this. The President of the totally or partially depending on the An award can be enforced upon mediator to be decided. arbitration panel is usually decided by case’s complexity. the request of a party (by the the arbitration institution, by the Court exequatur request). The President of Mediation is not very popular for or by the Bar President. the competent Appellate Court has 10. What are the basic rules of exclusive jurisdiction to handle the resolving commercial disputes. document disclosure in arbitration? 7. In what language is an arbitration exequatur request and the opposition. Which documents do not require The exequatur opposition will not allow Specific hypothesis of ADR (including proceeding conducted? disclosure? the mandatory attempt of settlement) the Appellate Court to re-examine Arbitration can be conducted in any The rules of discovery, if not given by the merits of the dispute judged by are provided in favour of the language chosen by the parties. In case consumers in case of disputes against the parties in the arbitration clause or arbitration. The Appellate Court can the parties fail to agree on the language in the Arbitration Entity, are the same as refuse to enforce the arbitration, utility companies, banks and financial of the proceedings, the language or intermediaries. for civil proceedings. basically, only on specific procedural languages of the arbitration proceedings issues regarding the regularity of will be determined by the Arbitration the trial, if the award is in contrast 3. Are arbitration clauses in 11. What is the procedure for witness panel. evidence in arbitration (namely, with a previous decision, if the award commercial contracts binding and or its enforcement are contrary to enforceable? is it deposition based or witness 8. What type of pre-arbitration examination or cross-examination)? public order, or if the dispute was not Arbitration clauses are binding and measures are available and what are arbitrable. enforceable. their limitations? The process is witness examination. The parties and the arbitrators could also Pre-arbitration measures regarding establish written depositions. 4. What type of arbitration is preservation of state of facts are commonly used for resolving available. An arbitration panel cannot commercial disputes: ad hoc decide or impose any other kind of pre- arbitration or institutional arbitration measures, all are left to the arbitration? competence of the ordinary Court. Institutional arbitration (Chamber of Commerce arbitration) or arbitration under the rules of the civil procedure code, are most commonly used
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1. In what language(s) may court 4. What are the basic rules of does not exist, the parties may always proceedings be conducted? What disclosure of documents in civil discuss directly between themselves to arrangements can be made for and commercial proceedings? find a negotiated settlement. translation/interpreter services? Which documents do not require disclosure? Is electronic disclosure 7. What is the typical duration of a Court proceedings may be conducted of documents normal? court procedure? in French, German, or Luxembourgish. If the persons involved in the trial are not Except in certain cases, each party has There is no specific regarding duration able to speak one of these languages, an the burden of proof to provide evidence of a court procedure in Luxembourg. interpreter may be summoned. to support its case. There are no However, cases brought before discovery proceedings in Luxembourg. commercial courts are conducted orally 2. What types of pre-action measures However, the Court may, in certain without exchanges of legal briefs and are available and what are their circumstances, order a party to usually take between 6 months and 1 limitations? Must you send a disclose certain documents. There is no year. Cases brought before civil courts warning letter before issuing any electronic disclosure of documents. are conducted in writing with exchange proceedings? of legal briefs (as many as the parties 5. What is the process for witness deem necessary) and usually takes at The plaintiff may send a written notice evidence (namely, is it deposition least 1 year and can take up to 2 or 3 before introducing a court proceeding, based in advance, or witness years. but it is not a general obligation. In some statement, or examination or areas, the plaintiff must send a written cross- examination)? Can a witness The appeal procedure of civil and notice before introducing proceedings. be compelled to attend to give commercial cases is always in writing For example, according to article 1146 evidence? and usually takes at least 2 years. of the Civil Code, the plaintiff may only claim damages once he has sent a The parties may provide the Court with written notice to the debtor to fulfill his written statements in accordance with 8. How can foreign judgments be obligations. articles 400 to 403 of the Luxembourg enforced? Civil Procedural Code (“Nouveau Code Foreign judgments may be enforced in 3. What are the costs of civil and de procédure civile”). While this is rather Luxembourg before Luxembourg Court commercial proceedings? Who exceptional (except in employment via two different procedures: bears these costs? matters), the Court may also order a witness testify before Court if • Article 679 et seq. of the Civil There are no court fees in Luxembourg. requested by a party or if the Courts Procedural Code which details the There may be bailiff costs and other deems it appropriate. Witness evidence procedure applying to foreign judgments small expenses. Depending on the is not allowed in civil proceedings above rendered in a jurisdiction having a case brought before court, witnesses’, Euro2,500, except in specific cases treaty on judgment recognition with experts’ and interpreters’ costs may (“commencement de preuve par écrit”). Luxembourg or to judgments rendered also be involved. Lawyer’s fees are Indeed, it is important to note that in in the European Union (EU Regulations, freely negotiable and are borne by civil proceedings, it is not possible to e.g., Council Regulation (EC) No the client. If a client is under legal aid, prove above Euro2,500 other than by 44/2001 of 22 December 2000 on lawyer’s fees are fixed and controlled by authenticated or private documents. In jurisdiction and the recognition and the Luxembourg Bar (around Euro90 commercial proceedings, this rule does enforcement of judgments in civil and per hour), and borne by the State. not apply, and evidence can be freely commercial matters, etc.). The Court may grant a procedural brought to the Court. • Article 678 of the Civil Procedural indemnity (“indemnité de procédure”) Code which refers to articles 2123 and to the successful party (most of the 6. How are settlement discussions 2128 of the Civil Code (mortgages) time around Euro1,000 – Euro2,000). usually conducted (namely whether applying to foreign decisions that do not As a general rule, the unsuccessful oral or written and whether fall under a treaty or an EU Regulation. party bears the bailiff costs and other between the parties direct or their expenses. representatives)? Is the settlement correspondence between the parties/counsel privileged (i.e., may not be disclosed to the court)? Settlement discussions are usually conducted out of court in writing or verbally by the parties’ counsels. Contact Communications between lawyers are LG Avocats STÉPHAN LE GOUEFF HERVÉ WOLFF strictly confidential and may not be Luxembourg Managing Partner Partner disclosed to the Court except when T: +352 44 37 37 1 T: +352 44 37 37 1 explicitly authorized in writing. While it www.vocats.com is not advisable, as such confidentiality E: [email protected] E: [email protected]
61 Litigation, Arbitration And Alternative Dispute Resolution Litigation, Arbitration And Alternative Dispute Resolution 62 9. What are the costs of arbitration 13. Under what circumstances can an Arbitration And Alternative Dispute Resolution proceedings and who bears these Arbitration Award be enforced, costs? challenged or annulled? The arbitration clause may determine According to article 1244 of the Regarding the procedure, the parties 1. Are mediation clauses in 5. Which arbitration institutes are who will bear the cost of arbitration. Civil Procedural Code, an arbitration must sign a mediation convention at the commercial contracts binding and most popular? The amount of the arbitration costs will award shall only be challenged beginning of the procedure, by which enforceable? be determined, as the case may be, by before Luxembourg Court (“Tribunal they agree to resolve their dispute in While arbitration proceedings in the applicable arbitration rules. In the d’arrondissement”) by application for Yes. accordance with the rules of mediation. Luxembourg remain relatively rare, the absence of an agreement in this respect, annulment (“par la voie de l’annulation”), It can be noted that the mediator Arbitration Center of the Luxembourg the arbitrator’s award shall determine and in very limited cases (e.g., if the 2. What is the procedure for and the parties have an obligation of Chamber of Commerce is the most the costs of the arbitration and decide arbitration award is against public mediation? Is it a popular method confidentiality. The mediator negotiates resorted to arbitration center. The which of the parties shall bear the costs order, if there was no valid arbitration for resolving commercial disputes? with the parties in order to find a Arbitration Center proposes a set of or in what proportions the costs shall convention, if the dispute could not solution to their dispute. The mediation arbitration rules. It is managed by a The law of 24 February 2012 on be borne by the parties. The costs of the be settled by arbitration, or in case of may not in principle be longer than Council of Arbitration consisting of five mediation in civil and commercial arbitration shall include the arbitrator’s violation of the right of defense). An three months from the date of the members. The Council of Arbitration matters (introduced in the Civil fees and expenses, the administrative Arbitration Award may be enforced signature of the mediation convention. does not itself settle disputes, but rather Procedural Code),.regulates both costs, the fees and expenses of any (exequatur) before Luxembourg Court The parties can nevertheless commonly appoints or confirms the appointments conventional and judicial mediation. experts, and the normal legal costs (“président du tribunal d’arrondissement”). agree to extend the mediation of arbitrators and manages the incurred by the parties. Pursuant to article 1251 of the • Article 1251-8 et seq. of the procedure. The mediator and the parties arbitration proceedings Luxembourg Civil Procedure Code, Civil Procedural Code regulates can decide at any time to stop the Luxembourg Court may refuse to conventional mediation and provides mediation. The use of this alternative 6. What influence can the parties have 10. What are the basic rules of enforce an arbitration award if: that any party may propose to other method to resolve commercial disputes on the identity of the arbitrator(s)? document disclosure in arbitration? parties, as long as the case has not is increasing in Luxembourg. Which documents do not require • The award may still be challenged The parties may agree on the choice of disclosure? been pleaded before the courts, to use the arbitrator(s). A person nominated as before arbitrators mediation in order to settle a case. 3. Are arbitration clauses in an arbitrator shall be independent of the There are no particular rules of • The award or its execution is against The mediator shall be appointed by commercial contracts binding and party nominating him. If a party fails to disclosure of documents in arbitration public order, or if the dispute could the parties or by a third party and an enforceable? nominate an arbitrator, the appointment under Luxembourg law. The general civil not be settled by arbitration; or agreement determining the conditions shall be made by the Council. laws shall apply (see above). of mediation must be signed by the Yes. • There are some nullity causes of the parties. award In addition, Luxembourg has 7. In what language is an arbitration 11. What is the procedure for witness signed the New York Convention on • Article 1251-12 et seq. of the Civil 4. What type of arbitration is proceeding conducted? evidence in arbitration (namely, the Recognition and Enforcement of Procedural Code regulates judicial commonly used for resolving is it deposition based or witness Foreign Arbitral Awards of 10 June mediation and provides that the judge commercial disputes: ad hoc The language of the arbitration is examination or cross-examination)? 1958. in charge of a case may at any stage arbitration or institutional generally determined in consideration of the procedure, and as long as the arbitration? of all the relevant circumstances and in There are no particular rules for witness evidence in arbitration under case is been pleaded, invite the parties Arbitration in Luxembourg may be particular with respect to the language Luxembourg law. The general civil laws to use mediation. Judicial mediation is organized at the Luxembourg Chamber of the contract. The parties may decide, shall apply (see above). initiated at the request of the parties of Commerce and is governed by in the arbitration clause, in which or at the request of the judge if the articles 1224 to 1251 of the Civil language the arbitration proceedings will parties agree. Procedure Code. Alternatively, the be conducted. 12. How are settlement discussions parties may agree to have their usually conducted (namely whether On 13 March 2003, Luxembourg Bar, arbitration proceedings governed by 8. What type of pre-arbitration oral or written and whether Luxembourg Chamber of Commerce, alternative rules such as: measures are available and what are between the parties direct or their and Luxembourg Chamber of Trades their limitations? representatives)? Is the settlement have created a mediation center, under • The rules of arbitration of the correspondence between the Arbitration Center of the Luxembourg According to article 933 of the Civil parties and/or counsel privileged the form of a non-profit association Procedural Code, the judge can always (ASBL). The mediation center aims to: Chamber of Commerce. (i.e., may not be disclosed to the order temporary measures either to Arbitrator)? • Promote knowledge of mediation • The rules of arbitration of the prevent an imminent damage or to stop International Court of Arbitration There are no particular rules for • Create the conditions in order to an illicit trouble. In order to prevent of the International Chamber of the disappearance of proof, he can also settlement in arbitration proceedings develop mediation by choosing Commerce. under Luxembourg law (see above). qualified mediators order any measure of inquiry he may deem useful, including the hearing/ • Offer to companies and citizens a examination of witnesses. simple alternative dispute resolution.
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1. In what language(s) may court The Attorneys’ fees are generally 5. What is the process for witness proceedings be conducted? What calculated on an hourly basis. The evidence (namely, is it deposition arrangements can be made for cost of a procedure depends on its based in advance, or witness translation/interpreter services? complexity and length. Lawyers’ fees statement, or examination or are not recoverable from the defendant. cross-examination)? Can a witness The official language used in the But the Monegasque judge could grant be compelled to attend to give Monaco Courts is French. Documents damages to compensate part of these evidence? in any other language would need to fees, if this is requested by the applicant. be translated into French. If translation According to article 323 and following is required, it has to be certified by a of the Code of Civil Procedure, the Article 259 of the Code of Civil sworn or official translator (which is court may find admissible statements Procedure provides that the foreign appointed on a list drawn up by the of witnesses which have personally applicant which summons a Monegasque Court of Appeal) and duly authenticated. observed the facts of the case. They citizen or entity could be required If persons involved in the trial are not can be written statements made by the to provide a security for costs called able to speak French, an interpreter is witnesses, or after an enquiry conducted ‘cautio judicatum solvi’ in order to file summoned. by the judge. Under penalty of nullity of a procedure in Monaco. That security the statement, the statement must be would be for an amount sufficient to totally handwritten, dated and signed It 2. What type of pre-action measures cover the costs and damages to which has to mention the status of the witness are available and what are their he could be sentenced to. The judgment (name, address, profession, place of limitations? Must you send a which will order the security will also birth), existence or non existence of warning letter before issuing any determine its amount. proceedings? a link of family, alliance, subordination or interest with the parties, mention The Monegasque Code of Civil However, this principle does not apply if the witness has a personal interest Procedure does not provide for the in commercial matters, if the foreign in the trial. It has to indicate that the assistance of the Courts in gathering claimant resides in the Principality of statement will be filed in Court an that the evidence within the trial process. Monaco, if the foreign claimant holds any misrepresentation would expose the Nevertheless, it would be possible for assets of a sufficient value in Monaco, or witness to criminal penalties provided the parties to gather their evidence if the foreign claimant is from a country for by article 103 of the Criminal Code, with the support of Courts, apart from which absolves Monegasque citizens be accompanied by the copy of any the trial, by filing a request with the from paying such a deposit. official document showing the identity President of the First Instance Court of the witness and his signature. (ex parte proceedings). 4. What are the basic rules of disclosure of documents in civil Exceptionally, and according to Articles On this basis the President of the first and commercial proceedings? 326 to 343, the judge may decide by a instance Court could render several Which documents do not require written decision to hear the witnesses orders: disclosure? Is electronic disclosure without the direct intervention of the of documents normal? parties, the parties only submit their • ordonnance de compulsoire allowing the lists of questions for the witnesses to bailiff to gather evidence in records or Each party is supposed to disclose the judge. It is not a common practice. documents held by any opponent or documents to prove its arguments. third party, 6. How are settlement discussions Before the proceedings, the party who usually conducted (namely whether • ordonnance aux fins de constat allowing oral or written and whether the bailiff to describe the reality of wants to obtain certain documents can use a procedure named “compulsoire”. between the parties direct or their certain facts in the opponent’s or a third representative)? Is the settlement party’s place. In this procedure, The President of the First Instance Court authorizes a bailiff correspondence between the to obtain certain documents from a parties/counsel privileged (i.e., may third person or administration. not be disclosed to the court)? 3. What are the costs of civil and commercial proceedings? Who Usually the settlement is conducted out bears these costs? When the proceedings has begun, of court, in writing or orally between there is no specific procedure to obtain lawyers for confidentiality reasons. Article 234 of the civil code provides documents a party does not want to It cannot be disclosed to the Court for Court fees (“Etat de frais”) which disclose. except when explicitly authorized in are composed of fixed costs (between writing. Euro 23 and Euro 69 depending on There is no electronic disclosure of Contact the amount of the claim), mail costs: documents. If the settlement is conducted between Euro 23, a proportional duty (0.40% of the parties directly, it is not privileged. Gardetto Law Offices JEAN-CHARLES GARDETTO the amount of the claim), bailiff fees, Monte Carlo, Monaco Attorney at Law translation fees. The settlement can be recorded by the www.gardetto.mc T: + 377 921 616 17 court at the parties request. E: [email protected] The judge sentences the losing party to bear the court fees.
65 Litigation, Arbitration And Alternative Dispute Resolution Litigation, Arbitration And Alternative Dispute Resolution 66 7. What is the typical duration of a before the First Instance Court which the case (according to the foreign law, 8. What are the costs of arbitration 11. How are settlements discussions court procedure? has exclusive jurisdiction. without contradiction with Monegasque proceedings and who bears theses usually conducted (namely whether law), if the parties have been correctly costs? oral or written and whether In the First Instance Court, a court According to Article 473 of the Code served and been duly able to defend between the parties direct or their procedure take an average of 18 months, In the absence of any arbitration of Civil Procedure, if a reciprocity themselves, if the judgement has representatives)? Is the settlement but can be more depending on the institution in Monaco, we cannot assess treaty exists between the foreign state gained legal authority (res judicata), if correspondence between the difficulty of the case. An Appeal takes on the costs of an arbitration process and the local state (which is currently is enforceable in the country where it parties and/or counsel privileged average 18 months, while the Court of which would be specifically Monegasque. only the case between France and was rendered, and last if the judgment (i.e., may not be disclosed to the Revision takes on average 8 months. Monaco) or if reciprocity of foreign complies with Monaco public order. Arbitrator)? courts is established, the enforcement 9. What are the basic rules of There are no specific rules for 8. How can foreign judgments be proceedings are simplified and However, when there is no reciprocity, document disclosure in arbitration? arbitration. enforced? Monegasque courts should not review the Court will review the foreign Which documents do not require the substance of the foreign judgment judgment in its form and on the merits disclosure? Enforcement proceedings follow the 12. Under what circumstances can an procedure of ‘exequatur’. The exequatur but may only verify that it meets the and will be free to modify it partly or Under Monegasque law if the parties following conditions : If the judgment is totally, in accordance with Article 474 of Arbitration Award be enforced, application has to be introduced by have not chosen specific rules for challenged or annulled? a writ of summons served on the valid in its form, if it has been rendered the Code of Civil Procedure. instance applicable to the arbitral defendant in which he is asked to appear by the judge who has jurisdiction over procedure, the Monegasque Code of of June 10th, 1958. Civil Procedure will apply by default. There are only two proceedings to 10. What is the procedure for witness challenge an arbitration award: the Arbitration And Alternative Dispute Resolution evidence in arbitration (namely, Action for withdrawal (this action can is it deposition based or witness be lodged within a period of 30 days examination or cross-examination)? following the notification of the award) and the Appeal on the merits. 1. Are mediation clauses in 4. What type of arbitration is 6. In what language is an arbitration The procedure for witness evidence commercial contracts binding and commonly used for resolving proceeding conducted? is in arbitration is the same than the enforceable? commercial disputes: ad hoc one organized by the code of civil According to article 438-8 of the Code arbitration or institutional The parties may decide in which of Civil Procedure, if the award contains The procedure of mediation does language the arbitration proceedings will procedure. If the arbitrators find arbitration? necessary to conduct an enquiry on material errors, it would be possible to not exist in Monaco for commercial be conducted. amend or correct it by filing a request disputes. The ad hoc arbitration and the the witnesses, the arbitration tribunal may render a pre arbitral judgment with the President of the First Instance institutional arbitration are both 7. What type of pre-arbitration Court within 30 days of the decision 2. What is the procedure for commonly used. measures are available and what are organizing this enquiry, which would be mediation? Is it a popular method their limitations? enforceable by the President of the First Instance Court according to article 957 The only proceedings which could for resolving commercial disputes? A common forum for arbitration is the be applicable against the order of ICC Arbitration Court. Case Law states that the emergency of the said Code. The procedure of mediation does judge (juge des référés) can still rule on enforcement would be those described not exist in Monaco for commercial temporary or conservatory measures under article 964 paragraph 1 of the disputes. There is no current global arbitration even in the case of an arbitration Code of Civil Procedure. The order institution in the Principality. agreement. of enforcement of the award can be 3. Are arbitration clauses in challenged in very few cases: commercial contracts binding and However, two arbitration institutions It would be possible for any of the enforceable? exist in Monaco but they are related to parties to file a request with the 1. If the judgement has been rendered specific fields: President of the First Instance Court without arbitration agreement or Yes they are. The second paragraph (ex parte proceedings) in view of outside the arbitration agreement, of article 940 of the Code of Civil • The maritime field • The collective labour conflicts obtaining an attachment order under 2. If the award has been rendered once Procedure specifies that in commercial the condition that: matters, the parties can decide when the arbitration agreement has expired, they pass a contract, to submit a 5. What influence can the parties have • the party establishes a principle of 3. If the award has been rendered by possible conflict that would arise on the identity of the arbitrator(s)? claim (the party is the creditor of its persons who could not be appointed between them, to arbitration by opponent for instance) against another as arbitrators or by some of the inserting an arbitration clause. According to article 944 of the Code party, arbitrators authorized to rule in the of Civil Procedure, the agreement to absence of the others, submit a case to arbitration has to • a threat endangers the collection of Case law has extended this option to designate precisely the names of the the claim. 4. If the mandatory forms of the ordinary certain civil matters. arbitrators. They have to be independent judgement provided for under the from the parties. The minimum Such measures are called “Ordonnances”. penalty of nullity have not been compulsory number of arbitrators They are served by a bailiff to the respected, should be 3, and they have to be in odd opponent, once they have been 5. If it has been ruled on non sustained number. executed. These measures could consist claims.” of attachments of accounts, freezing of movables, mortgages on real estates… By virtue of article 964 paragraph 2 of the Code of Civil Procedure, in On the request of the parties, any of the above mentioned cases the the President of the first instance parties could file an opposition to the Court could render several orders enforcement order of the award. like ordonnance de compulsoire and ordonnance aux fins de constat (which is explained above).
67 Litigation, Arbitration And Alternative Dispute Resolution Litigation, Arbitration And Alternative Dispute Resolution 68 Civil Litigation
1. In what language(s) may court court that decides on the merits is in This can, however, not be used as a proceedings be conducted? What no way bound by a judgment given in “fishing expedition.” Only documents arrangements can be made for summary proceedings. that are known to exist can be the translation/interpreter services? subject of the request. Preliminary Examination of Witnesses. The official language used in court Prior to the formal commencement 5. What is the process for witness is Dutch. If persons involved in the of a claim, the court, upon the petition evidence (namely, is it deposition trial are not able to speak Dutch, an of a party, can order a preliminary based in advance, or witness interpreter can be present during the examination of witnesses by a judge. A statement, or examination or proceedings. preliminary examination can be useful cross-examination)? Can a witness to examine a witness whose testimony be compelled to attend to give 2. What types of pre-action measures is important and might otherwise be evidence? are available and what are their lost. Also, the results of the examination The usual process is witness limitations? Must you send a are useful in determining the evidence examination. The witness is questioned warning letter before issuing any position and, thereby, whether further by the judge, there is no cross- proceedings? litigation is opportune. examination but it is possible for the Pre-judgment Attachment. To secure parties to put direct questions to the the claim, the plaintiff may levy one or 3. What are the costs of civil and witness with approval of the court. A more pre-judgment attachments, before commercial proceedings? Who witness can be compelled to attend (or during) legal proceedings. The leave bears these costs? witness hearings to give evidence of the President of the district court is The court fees are regulated by the required for a pre-judgment attachment. Dutch Civil Court Fees Act. The 6. How are settlement discussions Pre-judgment attachments can be levied applicable fee is determined on the basis usually conducted (namely whether on movables, real estate and claims on of the value that is in dispute. The actual oral or written and whether third parties (among others). amount may vary depending on the type between the parties direct or their of court before which the proceedings representatives)? Is the settlement Discovery Rules. Dutch law does not are conducted. The applicable fee has correspondence between the provide for full discovery of documents. to be paid both by the plaintiff and parties/counsel privileged (i.e., may However, article 843a Dutch Civil the defendant. As a general rule, the not be disclosed to the court)? Procedural Code does allow a party unsuccessful party has to bear the court who is considered to have a justified There are no specific provisions as costs and reimburse the opponent’s interest to demand inspection or a copy to how settlement discussions are statutory court fees (regardless of or extract of identifiable documents conducted, all mentioned alternatives whether the opponent actually paid that relate to a legal relationship to are possible and are used in practice. statutory or negotiated fees). Statutory which it is a party. The requirement If the parties are represented by attorney fees are based on the nature that documents are ‘identifiable’ entails lawyers and the discussions are of the work of the lawyer and the value that the party who asks for inspection conducted by those representatives, in dispute. In general the statutory must identify the documents or at least the rules of conduct of lawyers state attorney fees are lower than the real a specified category of documents. The that the lawyers are not allowed to attorney fees, which implies the greater party may demand this information from inform the court on the contents part of the real attorney fees is not any party that has these documents at of the negotiations, unless the other reimbursed to the successful party. its disposal or in its possession. party consents otherwise. Pursuant to those same rules of conduct, all 4. What are the basic rules of correspondence between lawyers is Provisional Relief. In urgent cases, the disclosure of documents in civil privileged. A party can only refer to the President of the district court may sit and commercial proceedings? correspondence during proceedings in summary proceedings to provide Which documents do not require after approval of the other lawyer. If provisional relief. Summary proceedings disclosure? Is electronic disclosure the other lawyer does not consent, have the advantage of being fast. The of documents normal? President generally hands down his the advice of the Dean of the Bar decision in summary proceedings As described before, Dutch law does Association must be sought. If these within 14 days, but may do so earlier if not provide for full discovery of rules are not followed, a lawyer might Contact face disciplinary sanctions by the Bar Lexence the case is urgent. After the summary documents. The procedure pursuant BRAM THOMAS TIMO JANSEN ARNOUT SCHENNINK proceedings, the interested party may to article 843a Dutch Civil Procedure Association. Amsterdam, Netherlands CRAEMER Partner Partner start principal proceedings in which Code (as mentioned under 2 above) www.lexence.com Partner T: +31 20 5 736 842 T: +31 20 5 736 867 the case is judged on its full merits. The offers a possibility to obtain documents. T: +31 20 5 736 763 E: t.jansen@ E: a.schennink@ E: b.t.craemer@ lexence.com lexence.com lexence.com 69 Litigation, Arbitration And Alternative Dispute Resolution Litigation, Arbitration And Alternative Dispute Resolution 70 7. What is the typical duration of a take longer than in other jurisdictions, member states will be acknowledged 7. In what language is an arbitration 11. What is the procedure for witness 13. Under what circumstances can an court procedure? as they consists of a full review on the in each of those states and can be proceeding conducted? evidence in arbitration (namely, Arbitration Award be enforced, merits of the case and the court of enforced if declared enforceable. The is it deposition based or witness challenged or annulled? The typical duration of a first instance The law does not contain any provision appeal may order new evidence through Council Regulation (EC) No 805/2004 examination or cross-examination)? procedure is about 14 months, on the language of the arbitration Enforcement witness hearing or expert reports. The applies for European enforcement however small claims can be dealt orders. proceedings. In principle parties are free Unless the parties have agreed typical duration of an appeal proceeding to agree in which language they wish to otherwise, the arbiters are free to Dutch Arbitral decisions can easily with faster and large or complex cases is about 15 months, again noting that • Multilateral and bilateral treaties: conduct the arbitration proceedings. decide on the application of the general be enforced in The Netherlands. may take (significantly) longer. Civil Furthermore, The Netherlands is a small claims can be dealt with faster Enforcement may also be allowed rules of evidence. Pursuant to the law, and commercial cases are conducted under the applicable Hague signatory to the New York Convention and large or complex cases may take 8. What type of pre-arbitration the arbitrators can hear witnesses, at mostly in writing, normally by a writ of Convention or under other on the recognition and enforcement of longer. Finally, the typical duration of a measures are available and what are the request of one of the parties or at summon and a statement of defence. multilateral or bilateral treaties. foreign arbitral awards. Thus, arbitral proceeding before the Supreme Court their limitations? their own discretion. The procedure in After these documents are submitted to • National Regulations: If no The Netherlands can be compared to awards given in the territory of the is also about 15 months. member states of this convention can the court, in general the court orders international legal mechanism applies, Interim measures are possible in the witness examination (see the answer same manner as described under be enforced in The Netherlands and vice a personal appearance of the parties the Dutch Civil Procedural Code under 5 above). 8. How can foreign judgments be question 2 above, except that in versa. to give information or to try to reach sets forth autonomous regulations in enforced? article 985-994, which allow for the arbitration it follows from article 1040 12. How are settlement discussions a settlement. The court then can give (2) instead of article 843a Dutch Civil Challenge • Several legal mechanisms can be used acknowledgement of foreign judgment usually conducted (namely whether its judgment, but also has the ability to where certain minimum standards Procedural Code. give interim judgments, e.g. ordering (European, bilateral or multilateral oral or written and whether In principle, arbitration awards can (such as valid service, proper ground between the parties direct or their additional evidence. In this context treaties, national) for the enforcement only be challenged in appeal if the for jurisdiction of the foreign court, 9. What are the costs of arbitration representatives)? Is the settlement parties have agreed in the arbitration it should be noted that the court is of foreign judgments in The proceedings and who bears these Netherlands. due process) are met. correspondence between the agreement on the possibility of appeal. allowed to postpone its decision (over costs? parties and/or counsel privileged and over again). Appeal proceedings may • European: According to the Regulation (i.e., may not be disclosed to the (EU) No 1215/2012, judgments of EU The decision on the costs is determined Annulment by the arbitration agreement. If no Arbitrator)? An arbitral award can only be annulled arbitration agreement has been made There are no specific provisions as by the parties, the arbitration tribunal by the regular courts on the following to how settlement discussions are limited grounds: Arbitration And Alternative Dispute Resolution decides at its own discretion who conducted, all mentioned alternatives has to bear the costs, taking into are possible. If during the arbitration • No valid arbitration agreement consideration the circumstances of proceedings the parties reach a • The arbitral tribunal is not composed the case, in particular the outcome of settlement, the arbitral tribunal may, mediation rules and models. In general in accordance with the applicable rules 1. Are mediation clauses in 5. Which arbitration institutes are the proceedings. The NAI Arbitration at the joint request of the parties, mediation is not a very popular method • The arbitral tribunal has not complied commercial contracts binding and most popular? rules provide that – in principle – the record the content of the settlement of resolving commercial disputes. with its assignment enforceable? unsuccessful party has to pay both the in the form of an arbitral award. An Mediation is mainly used in disputes The Netherlands Arbitration Institute in arbitrators’ fees and the legal fees of the arbitral award on agreed terms shall • The arbitral award has not been signed Mediation clauses in commercial regarding employment and family law. Rotterdam (NAI) (http://www.nai-nl.org/ contracts are generally binding. The en/) and The ICC International Court of other party. be regarded as an arbitral award. If the properly or it was an unreasoned parties are represented by lawyers award or enforceability of a mediation clause 3. Are arbitration clauses in Arbitration can be difficult, due to the nature of 10. What are the basic rules of and the discussions are conducted by • The arbitral award itself or the commercial contracts binding and document disclosure in arbitration? those lawyers, the rules of conduct of procedure leading up to the award the clause. Mediation depends on enforceable? 6. What influence can the parties have the willingness of both parties to on the identity of the arbitrator(s)? Which documents do not require lawyers state that they are not allowed violates public order or good morals present the dispute to a mediator. If Unlike mediation, arbitration is disclosure? to inform the arbitration institute The parties are free to decide on the one of the parties is not willing to regulated by law in articles 1020-1077 As described before, Dutch law does on the contents of the negotiations, comply with the mediation clause, the of the Dutch Civil Procedural Code. number of arbitrators, but if parties unless agreed otherwise by the parties. have agreed on an even number of not provide for full discovery of mediation itself might have lost its The arbitration clause is enforceable documents. The procedure pursuant to Pursuant to those same rules of function. Furthermore, if a party starts if it meets the specific statutory arbitrators, the arbitrators shall appoint conduct, all correspondence between an additional arbitrator who shall article 1040 (2) Dutch Civil Procedure legal proceedings even though a valid requirements. The main requirements Code (as mentioned under 2 and 8 lawyers is privileged. A party can only mediation clause is in place, the Dutch are that the arbitration clause i) act as the chairman of the arbitral refer to the correspondence during tribunal. Furthermore, the parties are above) offers a possibility to obtain court will generally try the case and regulates that the parties submit existing documents. proceedings after approval of the will not declare that it lacks jurisdiction and/or future disputes to arbitration and – in principle – free to agree on any other lawyer or the Dean of the Bar (unlike the situation in which parties ii) that it is in writing. Not every subject method of appointing the arbitrators. Association. agrees to arbitration or a binding third can be resolved by means of arbitration. If the parties have not determined in party ruling as means of alternative Examples of such subjects are, among their arbitration agreement in what dispute resolution). others, issues of family law, company law way the arbitrators will be appointed, and bankruptcy law. the arbitrators shall be appointed by 2. What is the procedure for the parties jointly. In general, most mediation? Is it a popular method 4. What type of arbitration is arbitration clauses refer to arbitration for resolving commercial disputes? commonly used for resolving rules for the appointment of the commercial disputes: ad hoc arbitrators, such as the arbitration rules The procedure is not regulated by law. arbitration or institutional of the NAI. The parties are therefore free to agree arbitration? upon a procedure for mediation. The Mediatorsfederation Netherlands (MfN) The vast majority of arbitrations is a national platform for mediation in are institutional arbitrations. _ The Netherlands. Among other things, ARBITRATION AND ALTERNATIVE the MfN offers an infrastructure for mediation in the form of uniform
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1. In what language(s) may court 4. What are the basic rules of out of court, there is no obligation to proceedings be conducted? What disclosure of documents in civil disclose related correspondence to the arrangements can be made for and commercial proceedings? court. The court is frequently informed translation/interpreter services? Which documents do not require of the outcome of the settlement disclosure? Is electronic disclosure discussions and the settlement is often The official language used in court is of documents normal? recorded in writing by the court. The Polish. If persons involved in the trial mediation proceedings are confidential, cannot speak Polish, an interpreter The party referring in proceedings to a and the parties are not authorised is summoned. This mainly refers to document as evidence for its statement to effectively rely during the court witnesses, and to the parties if they are should file a copy of that document. proceedings on the settlement proposal heard before the court. However, at the court’s request, the submitted during the mediation party is obliged to file the original of proceedings. 2. What types of pre-action measures the document (or a certified copy are available and what are their thereof). Also at the court’s request, 7. What is the typical duration of a limitations? Must you send a each person (whether or not a party to court procedure? warning letter before issuing any the proceedings) is obliged to provide proceedings? the court with the original of the Duration of the court procedure document in his/her possession, unless depends on the complexity of the case ”Discovery” rules are not applicable the document contains a state secret. (including the scope of evidentiary under Polish law. A plaintiff may follow proceedings) and the court before an independent procedure to collect 5. What is the process for witness which the case is pending. Generally (secure) evidence before submitting a evidence (namely, is it deposition it can be assumed that proceedings statement of claim, provided there exists based in advance, or witness before the court of first instance takes a risk that evidence will be impossible statement, or examination or about two years. The court of second or too difficult to collect in the future cross-examination)? Can a witness instance issues a judgment after about or that the facts must be established be compelled to attend to give one year. Another year is needed for the due to any other reason. A warning evidence? proceedings before the Supreme Court, letter must be sent in commercial cases. if it is possible to file the cassation. The usual process is examination of 3. What are the costs of civil and witnesses. The witness is questioned by 8. How can foreign judgments be commercial proceedings? Who the judge; there is no cross-examination enforced? but it is possible for the parties to ask bears these costs? For the enforcement of foreign direct questions to the witness with judgments in Poland, numerous The court fees are regulated by the the approval of the court. As a general (European, bilateral or multilateral Act on Court Fees in Civil Cases. In rule, each person summoned by the treaties, autonomous) regulations apply. general, in cases related to pecuniary court is obliged to appear and testify claims, the court fee amounts to 5 as a witness, unless he/she has a right • European: Regulation 44/2001 on percent of the claim value, but no more to refuse to give testimony (e.g., close jurisdiction and the recognition and than PLN100,000 (about Euro25,000). relatives). A witness can be compelled enforcement of judgments in civil and Certain claims are subject to a fixed fee to attend to give evidence by way of a commercial matters, and other EU regardless of the claim value. The fee court fine and use of means of coercion. Regulations. is preliminarily borne by the party that brings a claim or institutes an action. • Multilateral and bilateral treaties: 6. How are settlement discussions Enforcement may also be obtained in At the end of the proceedings, as a usually conducted (namely whether general rule – subject to the court’s accordance with the Lugano Convention oral or written and whether or other multilateral or bilateral treaties. decision – the unsuccessful party has between the parties direct or their to bear the court fees and reimburse representatives)? Is the settlement • Autonomous regulations: If no other the opponent’s statutory legal fees and correspondence between the regulations apply, the Polish Code expenses. parties/counsel privileged (i.e., may of Civil Procedure (k.p.c.) sets forth not be disclosed to the court)? autonomous regulations in Articles Assuming that the dispute value is Euro 1145-1152. 1,000,000 basic costs are the court Settlement discussions can be fees in the amount of PLN 50,000 and conducted in many different ways, the costs of legal representation in the orally or in writing, in or out of amount of PLN 14,000. court. Generally, if the parties are represented by lawyers, discussions will be conducted by the representatives. If Contact settlement discussions are conducted Domański Zakrzewski Palinka sp.k. PAWEL LEWANDOWSKI Warsaw, Poland Partner | Dispute Resolution www.dzp.pl T: +48 22 557 76 40 E: [email protected]
73 Litigation, Arbitration And Alternative Dispute Resolution Litigation, Arbitration And Alternative Dispute Resolution 74 13. Under what circumstances can an Arbitration And Alternative Dispute Resolution Arbitration Award be enforced, challenged or annulled? According to §1212 of the Polish Code proceedings. The detailed provisions on 1. Are mediation clauses in 4. What type of arbitration is of Civil Procedure, an arbitration award costs are usually set forth in the rules commercial contracts binding and commonly used for resolving has the same status as a final judgment of institutional arbitration which the enforceable? commercial disputes: ad hoc of Polish courts, after it has been arbitration or institutional parties must agree to observe. Meditation clauses are binding. However, acknowledged or declared enforceable arbitration? by such Polish court. Foreign arbitration each party may bring a claim to the 10. What are the basic rules of court and then the court will forward Both types can be used. Institutional awards can be declared enforceable document disclosure in arbitration? after a court hearing is held. Foreign the case to be mediated only upon (both domestic and international) Which documents do not require request of the opposite party arbitration is more popular. awards can be enforced under the New disclosure? York Convention. Arbitration Awards 2. What is the procedure for 5. Which arbitration institutes are The disclosure of documents is subject can be challenged under the conditions mediation? Is it a popular method most popular? to agreement between the parties. stated in Article 1205 of the Code of for resolving commercial disputes? “Discovery” rules are not applicable Civil Procedure by filing an application Court of Arbitration at the Polish in Polish arbitration proceedings (i.e., for the award to be overturned by the Meditation is voluntary and could Chamber of Commerce (Krajowa Izba under domestic arbitration rules). appropriate court. The court will do so, be commenced either based on a Gospodarcza – KIG) in Warsaw ICC if the applying party proves that one of mediation clause or by the court. The (International Chamber of Commerce) 11. What is the procedure for witness the following circumstances existed: mediation ends with a settlement which evidence in arbitration (namely, must be recognized by the court. 6. What influence can the parties have • There was no arbitration agreement is it deposition based or witness or the arbitration agreement was not on the identity of the arbitrator(s)? examination or cross-examination)? 3. Are arbitration clauses in valid or became invalid under the law commercial contracts binding and The parties are free to determine the There are no specific provisions applicable to it. enforceable? number of arbitrators. It is standard concerning witnesses, the procedure • The applying party was not given in Polish arbitration proceedings to for witness evidence is subject to notice of the appointment of an Generally, disputes relating to property appoint either one arbitrator or a panel agreement. Both oral hearings and arbitrator or of the arbitration or was rights (rights that represent money of three arbitrators. The most common written statements can be agreed upon. otherwise unable to present its case. value) are arbitrable. As to non-property rule is that each party appoints one • The award covers a dispute that rights, disputes are arbitrable if they arbitrator and those two arbitrators 12. How are settlement discussions may be subject to the court settlement. appoint the third arbitrator who acts was not arbitrable according to usually conducted (namely whether the arbitration clause or contains Arbitration clauses are binding if they as the panel chairman. If no agreement oral or written and whether meet the requirements specified in is made, then according to the rules decisions on matters beyond the between the parties direct or their scope of the arbitration clause. Article 1161 of the Polish Code of Civil provided in the Polish Code of Civil representatives)? Is the settlement Procedure and are enforceable under Procedure, a panel of three arbitrators • The composition of the tribunal or correspondence between the the basic rules of the arbitration did the regulations of Articles 1212–1217 will be appointed by the common court. parties and/or counsel privileged thereof. not comply with the provisions of the (i.e., may not be disclosed to the Polish Code of Civil Procedure or with 7. In what language is an arbitration Arbitrator)? General Comments on Arbitration proceeding conducted? a permissible agreement made by the Proceedings in Poland: There are no specific provisions parties. The parties are free to choose the as to how settlement discussions • The award was obtained as a result The arbitration provisions contained in language to be used in the arbitration are conducted; all the alternatives of a crime or it was based on forged the Polish Code of Civil Procedure are proceedings. mentioned are possible. Generally, if documentation. based upon the UNCITRAL Model Law. the parties are represented by lawyers, • Res judicata. or the court finds that: Only few binding regulations exist. In 8. What type of pre-arbitration the discussions will be conducted by general, parties are free to determine measures are available and what are the representatives. It is subject to • The matter in dispute cannot be the procedure. Arbitration proceedings their limitations? agreement whether the settlement settled through arbitration under are usually subject to appropriate correspondence will be disclosed to the Polish law. arrangements made by the parties. Interim measures are possible. Also mediation is both possible and practised. Arbitrator(s). • Recognition or enforcement of the Only if the parties have not determined award leads to contravention of public the rules (or have not applied any order. recognised rules), will the procedure set 9. What are the costs of arbitration forth in the Code of Civil Procedure proceedings and who bears these apply. costs? The decision on the costs is subject to an agreement. If no agreement has been made by the parties, the arbitration tribunal decides at its own discretion who will bear the costs, taking into consideration the circumstances of the case, in particular the outcome of the
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1. In what language(s) may court the judge may exempt the payment representatives. In this case, the lawyer proceedings be conducted? What if the complexity and the procedural is obliged to keep professional secrecy arrangements can be made for conduct of the parties justifies. regarding all facts which were brought translation/interpreter services? during the negotiations to settle by the For example, the court costs for a other party (or their representatives). The official language used in court is dispute with a value of Euro 1 million It is common to inform the court Portuguese. If the persons involved will amount to approximately Euro of the outcome of those settlement in the trial are not able to speak 15,000. discussions and have the settlement Portuguese, the court can appoint an recorded in writing by the court. interpreter. 4. What are the basic rules of disclosure of documents in civil 7. What is the typical duration of a 2. What types of pre-action measures and commercial proceedings? court procedure? are available and what are their Which documents do not require limitations? Must you send a The duration of a court procedure disclosure? Is electronic disclosure depends on many factors, including the warning letter before issuing any of documents normal? proceedings? court where the procedure is pending, The parties only disclose the documents the existing of opposition by the There are no mandatory pre-action they want and when they want, unless defendant, the evidence to be produced, measures available. the judge orders otherwise. The the complexity of the matter, among However, in certain cases, it is possible documents containing information others. Notwithstanding this, we would to file interlocutory injunctions against under professional secrecy may not be say that the average duration of a simple the debtor (either in order to seize disclosed, even against a court order. court procedure would be between assets or to avoid other actions from Yes. Electronic disclosure of documents 18 to 36 months until first instance the debtor). is normal. decision. Although the lawyers are not obliged to 8. How can foreign judgments be 5. What is the process for witness enforced? send a warning letter before initiating evidence (namely, is it deposition legal proceedings, it is common to do so based in advance, or witness Foreign judgments can be enforceable in order to prevent useless lawsuits. statement, or examination or in Portugal according with several cross- examination)? Can a witness regulations: 3. What are the costs of civil and be compelled to attend to give • European: According to the Regulation commercial proceedings? Who evidence? bears these costs? (EU) no. 1215/2012 of the European The interrogation is made by the Parliament and of the Council of 12 In the Portuguese legal system, the lawyers of the parties, first by the December 2012 judgments of EU court fees are calculated according to lawyer of the party that presented member states will be acknowledged the amount of the civil or commercial the witness and then by the lawyer of in each of those states and can be lawsuit. To initiate a legal proceeding or the other party who has the right to enforced if declared enforceable. The to file an opposition, both parties must cross-examine in order to complete Regulation (EU) no. 1215/2012 of the do an initial payment, which represents or clarify the testimony, subject to the European Parliament and of the Council an advance payment of the final court clarifications sought by the Judge. If the of 12 December 2012 only applies for fees. As a general rule the unsuccessful witness does not attend to the court European enforcement orders. party has to bear the court costs and session and does not justify its absence, • Multilateral and bilateral treaties: reimburse the opponent’s court fees. the court will apply a penalty and the Enforcement may also be obtained in Judge may order its presence in the next accordance with the Hague Convention Court costs in Portugal are a court session. or other multilateral or bilateral treaties. combination of fixed and varied costs. The fixed costs (ranging from Euro 102 6. How are settlement discussions • Autonomous regulations: If no other to Euro 1,632) are calculated according usually conducted (namely whether regulations apply, the Portuguese Civil to the value of the action and are oral or written and whether Procedure Code (“Código de Processo paid upon delivery of the statement between the parties direct or their Civil” or “CPC”) sets forth autonomous of claim or defence. The varied cost representatives)? Is the settlement regulations in Articles 978 and following. are calculated according to the correspondence between the complexity of the proceeding and are parties/counsel privileged (i.e., may determined by the judge at the end of not be disclosed to the court)? the proceedings. For proceedings with Settlement discussions can be Contact a value over Euro 275,000 the parties conducted in many different ways, orally FCB Sociedade de Advogados LUÍS FALCÃO RAMOS RUI TABARRA E CASTRO shall pay additional court costs in the or in writing, although they should amount of Euro 306 for each fraction of be held out of court. Generally, if the Lisbon, Portugal Associate | Dispute Resolution Associate | Co-Head of Dispute Euro 25,000 above the referred amount parties are represented by lawyers the www.fcblegal.com T: +351 21 358 7500 Resolution at the end of the proceedings, although discussions will be conducted by those E: [email protected] T: +351 21 358 7500 E: [email protected]
77 Litigation, Arbitration And Alternative Dispute Resolution Litigation, Arbitration And Alternative Dispute Resolution 78 13. Under what circumstances can an viii) The decision must contain a Arbitration And Alternative Dispute Resolution Arbitration Award be enforced, number of signatures at least equal challenged or annulled? to the majority of the arbitrators and shall include the dissenting opinions, According to Article 705, n. 2 of the 1. Are mediation clauses in 5. Which arbitration institutes are 10. What are the costs of arbitration properly identified. Portuguese Civil Procedure Code commercial contracts binding and most popular? proceedings and who bears these • The court decided based on facts enforceable? costs? (“Código de Processo Civil” or “CPC”) ACL (Associação Comercial de Lisboa an Award made in arbitration where that it could not be aware, or did Mediation clauses in commercial / Câmara de Comércio e Indústria According to the Portuguese Arbitration the seat is Portugal is enforceable in not appreciate any facts that were contracts are generally binding. Portuguesa – Centro de Arbitragem) Law, any evidence admitted by the civil the same terms as a final judgment of relevant to the decision. In the case of Nevertheless, if a party decides to take CAL (Centro de Arbitragem de Litígios procedure law can be produced before Portuguese courts. Foreign Awards International Arbitration, the court’s legal action against the other prior Civis, Comerciais e Administrativos da the court. can be enforced in Portugal after decision is not appealable, unless the to mediation proceedings, the court Ordem dos Advogados). being reviewed and confirmed by a parties have agreed the appeal and set will not deny action as inadmissible, 11. What is the procedure for witness Portuguese court. Foreign Awards its terms. since there is no legal obligation to 6. What influence can the parties have evidence in arbitration (namely, can also be enforced in Portugal submit the dispute to mediation. In on the identity of the arbitrator(s)? is it deposition based or witness in accordance with the New York this case however the other party may examination or cross-examination)? According to the Portuguese Arbitration Convention. A National Arbitration be entitled to a compensation for the Law, the parties can determine the There are no specific provisions Award can be challenged before a breach of the contract. number of arbitrators. The court may concerning witnesses, the procedure judicial court in accordance with the be constituted by a single arbitrator or for witness evidence is subject to Portuguese Civil Procedure Code. 2. What is the procedure for by several, in odd number. If the parties agreement between the parties. According to the Portuguese Arbitration mediation? Is it a popular method have not appointed the arbitrator or According to the Portuguese Arbitration Law, Arbitration Awards can be annulled, for resolving commercial disputes? arbitrators or set the mode of choice, Law, any evidence admitted by the civil within one month of notification of There is no procedure regulated by and there is no agreement between procedure law can be produced before award, on any of the following reasons: law, therefore the parties are free to them to such designation, each shall the court. establish the rules for the mediation appoint at least one arbitrator, leaving it • The dispute was not arbitrable. procedure. In some areas of activity to designated arbitrators the choice of 12. How are settlement discussions • The award was issued by an the companies agree to submit the the last arbitrator. usually conducted (namely whether incompetent or irregularly constituted dispute to mediation (mostly consumer oral or written and whether court. disputes), but it is yet a minority. 7. In what language is an arbitration between the parties direct or their • The award was issued in violation of However it is not a popular method for proceeding conducted? representatives)? Is the settlement the principles mentioned in Article 16 resolving disputes. correspondence between the The parties are free to choose the of the Portuguese Arbitration Law: i) parties and/or counsel privileged language to be used in the arbitration The parties shall be treated equally. 3. Are arbitration clauses in (i.e., may not be disclosed to the proceedings. ii) Defendants will be summoned to commercial contracts binding and Arbitrator)? defend themselves. iii) In all phases enforceable? 8. What type of pre-arbitration There are no specific rules as to how of the process, strict observance Arbitration clauses are binding if they measures are available and what are settlement discussions are conducted, of the principle of contradiction is meet the requirements specified in their limitations? all mentioned alternatives are possible. guaranteed. iv) Both parties must be articles 1 and 2 of the Portuguese Generally, if the parties are represented heard, orally or in writing, before being There are no pre-arbitration measures Arbitration Law and are enforceable by lawyers the discussions will be given the final decision. available. according to the regulations of Articles conducted by those representatives. • The award was issued in violation 705 and 712 and the following of the In this case, the lawyer is obliged to of Article 23 of the Portuguese Portuguese Civil Procedure Code 9. What are the costs of arbitration maintain professional secrecy regarding Arbitration Law which states the (“Código de Processo Civil” or ”CPC”). proceedings and who bears these all facts which were brought during the Arbitration Award shall be made costs? negotiations to settle by the other party in writing and shall contain: i) The 4. What type of arbitration is The decision on the costs can be (or their representatives). identification of the parties. ii) The commonly used for resolving subject to agreement between the reference to the arbitration agreement. commercial disputes: ad hoc parties. However, it is common the iii) The subject of the dispute. iv) The arbitration or institutional arbitration institutes stipulate their identification of the arbitrators. v) The arbitration? own costs. The arbitration tribunal shall place of arbitration and the place and decide who has to bear the costs, taking date on which the decision was made. Both types can be used, although into consideration the circumstances of vi) The signature of the arbitrators. institutional arbitration is more the case, in particular the outcome of vii) The appointment of arbitrators common. the proceedings. who are unable or unwilling to sign.
79 Litigation, Arbitration And Alternative Dispute Resolution Litigation, Arbitration And Alternative Dispute Resolution 80 Civil Litigation
1. In what language(s) may court If there is a danger that an execution of the costs. If a party is successful proceedings be conducted? What of a monetary claim against a debtor in part, the court may grant a partial arrangements can be made for might be impaired, the court may create compensation of the cost (depending on translation/interpreter services? a pledge on the assets of the debtor by the balance of the party´s success) or means of issuing a security measure. The the court may decide that no party gets Court proceedings are held in pledge shall be executed only after the the compensation of the costs. the Slovak language. Nevertheless, final ruling of the court in favor of the pursuant to Section 155 of the Code creditor. The court must favor this tool As an example, for a dispute value of of Civil Procedure, the parties to the (security measure) over the preliminary Euro 1 million, court fee would amount proceedings are entitled to act before injunction. to Euro 33 193,50 and party costs a court in the language, which they (in the most part represented by the comprehend. The court shall appoint Similarly, on the basis of a petition costs of legal representation) would be an interpreter for a party who does lodged to secure evidence prior to somewhere in the range Euro 14 551 – not understand Slovak language, once commencement of the proceedings if Euro 29 102 (assuming that there there such need is ascertained during the there is a concern that the evidence is from 5 to 10 acts of legal assistance proceedings. could not be taken later, or could conducted by the attorney). be taken later only with substantial If a motion or evidence presented to difficulties, the court shall secure 4. What are the basic rules of the court is not in Slovak language, the the evidence adequately applying the disclosure of documents in civil court shall ask the submitting party to principles for presenting the evidence and commercial proceedings? provide within a specified period the during the court proceedings. Which documents do not require translation of such motion or evidence, disclosure? Is electronic disclosure otherwise the court will secure such Slovak law does not require any notice of documents normal? translation. or proposal for amicable resolution of a dispute to be sent to the other party. The parties submit documents to 2. What types of pre-action measures the court according to their own procedural needs, in particular in are available and what are their 3. What are the costs of civil and limitations? Must you send a connection with the duty to state the commercial proceedings? Who decisive facts of the case and to propose warning letter before issuing any bears these costs? proceedings? evidence to support them. However, the The costs of the civil and commercial court may order any person (natural The court may issue a preliminary proceedings are any and all proved, well- or legal) to submit to the court a injunction (in Slovak: “neodkladné founded and reasonably incurred costs, document relevant for the proceedings opatrenie”) prior to commencement which may arise from the proceedings. which the person has in his/her of the proceedings if it is necessary to During court proceedings, the parties possession. Documentary evidence must provisionally provide for the relations are obliged to bear their own costs be submitted to the court protecting between the parties or if there is and the costs of their attorneys. The the duty of confidentiality of information a concern that enforcement of the court bears the costs of translators. imposed by law. judgement could be impaired. The court The costs of legal representation are shall issue the preliminary injunction determined based on the Regulation Making documents available by in the case when the aim cannot be No. 655/2004 Coll. On remuneration electronic means for the purpose of attained by the issuance of a security and compensation of advocates for court proceedings is permitted and is measure (in Slovak “zabezpečovací provided legal services, as amended, often used by the parties but the court prostriedok”). By virtue of a preliminary and the amount of the compensation is free to request the party to present injunction, a duty may be imposed depends on the value of the claim and the original of the document during the on a party to the proceedings to act the number of legal acts exercised by court hearing. or refrain from an action in order to the attorney during the proceedings. achieve the aim of the preliminary injunction. When submitting a petition for issuing a preliminary injunction, a The costs of the adjournment of the claimant is obliged to state the facts of hearing bear the party who caused the the case and duly justify the request adjournment. for issuing the preliminary injunction. The court may issue the preliminary The court decides on the compensation injunction without hearing and seeking of the costs of proceedings based on the opinion of the parties. the principle of success. If a party is fully successful in the proceedings, the court Contact shall award that party full compensation Beatow Partners OLIVER WEBER DANIEL STRAKA Bratislava, Slovakia Partner | Head of Litigation Senior Associate www.beatow.com T: +421 2 5273 1235 T: +421 907 319 172 E: [email protected] E: [email protected]
81 Litigation, Arbitration And Alternative Dispute Resolution Litigation, Arbitration And Alternative Dispute Resolution 82 5. What is the process for witness 6. How are settlement discussions 8. How can foreign judgments be evidence (namely, is it deposition usually conducted (namely whether enforced? Arbitration And Alternative Dispute Resolution based in advance, or witness oral or written and whether statement, or examination or between the parties direct or their In general, the acceptance and enforcement of foreign judgements is crossexamination)? Can a witness representatives)? Is the settlement is concluded, (ii) the mediator governed by Sections 63 – 70 of the 1. Are mediation clauses in 6. What influence can the parties have be compelled to attend to give correspondence between the announces that parties have decided Act No. 97/1963 Coll. on International commercial contracts binding and on the identity of the arbitrator(s)? evidence? parties/counsel privileged (i.e., may not to continue in mediation, (iii) one private and procedural law, as amended. enforceable? not be disclosed to the court)? party announces that the mediation Arbitration proceedings are governed by The court may order the examination The foreign judgements are accepted by Generally, these are contractual in canceled, (iv) other cases specified Act No. 244/2002 Coll. on Arbitration. of the witness upon the proposal of the Depending on the circumstances of a the court authorization of an executor arrangements whose provisions by the Act on Mediation (e.g. the party. Each natural person is obliged to case, negotiations can be held either in to enforce the foreign judgement, no are binding on contractual parties, mediator´s license in canceled). In the arbitration clause, the parties can appear at the court upon a request and writing, through personal meetings or separate decision is necessary. The subject to fulfillment of the general either choose a specific arbitrator(s) or to make a witness testimony before the combination of both. Where parties are exceptions to this where a separate requirements for validity. The mediation The mediation between parties is not agree upon a procedure for selection of court. represented by attorneys, negotiations court decision is necessary are: a) is governed by Act No. 420/2004 on common in the Slovak Republic. The an arbitrator(s). are usually held primarily between the matrimonial matters, b) adoptions, c) Mediation, as amended, which regulates surveys in Slovakia have shown that The witness must testify the truth and attorneys. Attorneys are bound by law limitation of a legal capacity of a natural the mediation process. If the mediation even though the mediation is already The parties have a right to select more must not conceal any facts. A witness to keep confidential all information person. clause fulfills the general requirements not a new form for dispute resolution, it arbitrators, but this number shall be odd has the right to refuse a testimony only which they learn during these for the validity as well as requirements is not common to use it. in each case. If the parties fail to agree if he/she would thereby incriminate negotiations. Rules stipulated by a bilateral or of the Act on Mediation, it shall be on the number of arbitrators, the Act on himself or herself or a close person. For multilateral international conventions binding and enforceable. Also the court can recommend to the Arbitration stipulates that there shall be the reason of economy, the court may However, it is usual that the parties on enforcement of foreign judgments to three arbitrators. order the witness to answer questions inform the court whether there were which Slovak Republic is a party or EC 2. What is the procedure for parties to resolve their dispute through mediation. in writing. settlement discussions prior to the filing Regulation No. 44/2001 (Brussel I) or mediation? Is it a popular method The parties have also a right to agree of the lawsuit and what the outcome EC Regulation No. 2201/2003 (Brussel for resolving commercial disputes? 3. Are arbitration clauses in on the name of arbitrator(s). It they The court invites a witness to describe was. It is also usual that the settlement II), have a priority over application of fail to do so, each party appoints one all facts which the witness knows in discussions are conducted during the Act No. 97/1963 Coll. The mediation process is regulated by commercial contracts binding and the Act on Mediation. enforceable? arbitrator, and these arbitrators appoint relation of the subject of the testimony. proceedings and the parties ask the the third arbitrator, who shall preside After this, first the court and then the court to adjourn the court hearing for Enforcement of European enforcement Arbitration clauses in commercial At the beginning it is necessary to over the panel. parties are entitled to ask question. A that purpose. orders, within the meaning of EC contracts are binding and enforceable. conclude an agreement on mediation question asked by the parties which Regulation No. 1896/2006 represents 7. In what language is an arbitration does not related to the subject of the The settlement correspondence is a special case, where the court directly between the parties in dispute and the mediator. 4. What type of arbitration is proceeding conducted? testimony is not allowed. Also misleading usually not privileged and parties usually orders enforcement and enforces a commonly used for resolving questions and questions which indicate present it to the court in order to judgment pursuant to the Slovak laws, commercial disputes: ad hoc The parties may agree on the language the answer are not allowed. The court evidence that they have attempted to without special recognition proceedings. In the agreement, the parties and the arbitration or institutional of arbitration proceedings. If they fail decides which questions of the parties reach an out-of-court settlement. mediator have to specify the dispute arbitration? to agree, the court of arbitration has a are admissible. which shall be the subject of the right to select the language. 7. What is the typical duration of a mediation, the remuneration of the Both types of arbitration proceedings The court may order joint questioning court procedure? mediator as well as the period for are used. Institutional arbitrations are 8. What type of pre-arbitration of witnesses whose testimonies the mediation. The agreement shall be preferred mostly by larger corporations. measures are available and what are contradict. The typical duration of a court registered in the book of mediation kept their limitations? procedure for the court of first by the respective mediator. 5. Which arbitration institutes are instance is 1.5 – 3.5 years. For appellate most popular? The arbitration court can issue a The general duty to make a witness proceedings, the typical duration is preliminary injunction upon a petition testimony in civil/commercial Under Section 14 of the Act on between 0.5 - 1 year. Mediation, the mediation starts upon The Arbitration Court of the Slovak of a party if the enforcement of the proceedings is thus provided for. The Chamber of Commerce and Industry. arbitration award could be impaired. witness can refuse to testify if his/her the conclusion of the agreement on mediation and its registration in the The conditions for the issuance of the testimony could breach his /her duty preliminary injunction by the arbitration to maintain confidentiality of secret book of mediation. The mediation ends when: (i) the settlement agreement court are similar to those in the civil/ information protected by special law commercial court proceedings. and other statutory or state-protected which is the result of the mediation duty of confidentiality. In such cases, examination of a witness may be performed only if the witness has been relieved of this duty by the competent authority or the person in whose favor this duty exists.
83 Litigation, Arbitration And Alternative Dispute Resolution Litigation, Arbitration And Alternative Dispute Resolution 84 9. What are the costs of arbitration 11. What is the procedure for witness 12. How are settlement discussions 13. Under what circumstances can an d. the arbitration award exceeds proceedings and who bears these evidence in arbitration (namely, usually conducted (namely whether Arbitration Award be enforced, the scope of the agreement on costs? is it deposition based or witness oral or written and whether challenged or annulled? the arbitrator or the scope of the examination or cross-examination)? between the parties direct or their arbitration clause, Costs of arbitration are usually cash representatives)? Is the settlement An arbitration award must be delivered expenses of the parties and their The rules for questioning of witnesses to the parties. An arbitration award e. the arbitration court was not dully correspondence between the appointed, the arbitration proceedings attorneys, costs of evidence, arbitration shall be agreed by the parties. In case, parties and/or counsel privileged which is delivered to the parties and fees, remuneration of arbitration court there is no such agreement, rules of the which cannot be reviewed by another was not conducted in compliance with (i.e., may not be disclosed to the the agreement of the parties or such and its expenses, remuneration of respective arbitration court shall apply. Arbitrator)? arbitrator shall be final. experts or interpreters, remuneration If no rules are agreed or contained in agreement was not concluded, if such events could have affected the decision of the attorneys. the rules of the arbitration court, the Depending on the circumstances of a The parties may agree in an arbitration in rem, arbitrator shall conduct the arbitration case, negotiations can be held either in agreement that an arbitration award In general, each party bears its own proceedings in a way which secures the writing, through personal meetings or may be reviewed by other arbitrators f. if there are grounds for the refusal of costs incurred during the arbitration equality of the parties. combination of both. Where parties are upon request of a party which must the acceptance and enforcement of a proceedings. The arbitration award has represented by attorneys, negotiations be submitted within 15 days after the foreign arbitration award. to deal also with the costs of arbitration. Usually the arbitration rules for are usually held primarily between the delivery of the arbitration award. The compensation of the costs of examination of the witnesses are not attorneys. The party must file the compliant arbitration proceedings is based on so specific in compare to the Code Final arbitration award can be enforced within 60 days after the delivery of the principle of success, similar to civil/ of Civil Procedure so it is up to the The settlement correspondence is by an executor. the arbitration award. The statutory commercial court proceedings. consideration of the arbitrator how to usually not privileged and parties usually provisions regarding the cancelation conduct the questioning. Arbitrators present it to the arbitration court Each party to the arbitration of the arbitration award by the court 10. What are the basic rules of may examine witnesses only if they in order to evidence that they have proceedings may file a complaint with cannot be excluded by the agreement of document disclosure in arbitration? appear voluntarily. If a witness refuses to attempted to reach a settlement. a court to cancel the final arbitration the parties. Which documents do not require give a testimony, the arbitration court award due to the following reasons: disclosure? may ask a civil court to secure the questioning of the witness. a. the arbitration agreement is invalid, Each party is obliged to present the b. the plaintiff was not notified on the documents supporting its claims. appointment of the arbitrator, or on the commencement of the arbitration The arbitration court is allowed to proceedings or was prevented ask a disclosure of documents by from participating in the arbitration third parties, but third parties are not proceedings, obliged to disclose the documents to the arbitration court. In such case, the c. the dispute which was subject of arbitration court can ask a civil court to the arbitration award, was not the make such request. subject of the respective arbitration agreement or arbitration clause, By the document disclosure, confidentiality of information must be observed, similar to the civil court proceedings.
85 Litigation, Arbitration And Alternative Dispute Resolution Litigation, Arbitration And Alternative Dispute Resolution 86 Civil Litigation
1. In what language(s) may court 3. What are the costs of civil and 4. What are the basic rules of proceedings be conducted? What commercial proceedings? Who disclosure of documents in civil arrangements can be made for bears these costs? and commercial proceedings? translation/interpreter services? Which documents do not require Attorney’s fees guidelines and court disclosure? Is electronic disclosure Court proceedings may be conducted proceedings costs are set forth by the of documents normal? in Spanish. However, if proceedings applicable Bar Association Guidelines are conducted in an Autonomous of the place where the attorney is Once the civil or commercial procedure Community of Spain where another registered and the proceedings have has been commenced, each party can official language is recognized, such been conducted. Clerk´s fees (which ask the other party to disclose specific proceedings may be carried out in are mandatory in the majority of the documentation necessary to solve the that language, if no party opposes. proceedings) are regulated by Law and proceeding, as long as the Court has The official languages of Spanish will depend on the amount claimed. approved this request. It is also allowed Autonomous regions are: Catalan Allocation of judicial costs is governed to request information from a third for Catalonia, Balearics and Valencia, under articles 394-398 of the Spanish party that has information relating to Basque for the Basque Country, and Civil Procedural Law. If the Court the matter and is also necessary to Galician for Galicia. (See Article 231 of entirely rejects one party’s claim, it solve the proceeding. the Spanish Judicial Power Law 6/85, will be the unsuccessful party that of 1 July 1985, and Article 142 of the bears the court’s costs. Court costs 5. What is the process for witness Spanish Civil Procedural Law 1/2000 of include the costs of the court, Clerk´s evidence (namely, is it deposition 7 January 2000). Documents that are fees and attorney’s fees subject to the based in advance, or witness not in Spanish or, where applicable, in guidelines stated by the Bar Association. statement, or examination or an official language of the Autonomous If the attorney’s fees are beyond the cross-examination)? Can a witness Community, must be translated into guidelines, the unsuccessful party shall be compelled to attend to give Spanish or into the community language. pay up to one-third of the amount evidence? For any witness not familiar with any of subject to the court proceedings. If the the official languages who is required Court partially rejects one party’s claim, Witness evidence is governed under to appear for interrogation or receive each party shall bear its own costs, articles 360- 381 of the Spanish Civil an oral statement from the Court, shared costs shall be split in half with Procedure Law. Parties may submit to an interpreter must be appointed. each half to be paid by each party. the Court the designation of witnesses. The interpreter will be a person This designation is made in writing knowledgeable of the language, and shall Additionally, the complainant, if it and states the name and position be required to swear and promise to is a company, must pay a tax in the under which these witnesses shall be provide a true translation. (See Articles moment of filing the claim in most interrogated. The Court is the first to 144 and 143, respectively, of the Spanish common cases. This does not apply if ask its own questions of the witness, Civil Procedural Law 1/2000 of 7 the complainant is a natural person. The followed by the party calling that January 2000). quantity of the tax consists on a fixed witness, and lastly by the opposing tax depending on the kind of claim, and party. The Court may decide that 2. What types of pre-action measures a variable tax depending on the amount some questions are not admissible if are available and what are their of the claim. In the case the outcome not related to the facts of the case. limitations? Must you send a results favourable, this tax shall be Witnesses that do not attend the warning letter before issuing any refundable to the complainant by the hearing shall be charged with a fine from proceedings? other party. Euro180 to Euro600, and the Court may compel the witness to attend the According to articles 256 and hearing. Witnesses who do not attend following of the Spanish Procedure Under Civil Procedure Law, in addition the hearing after being compelled, may Law, the claimant, before initiating legal to the attorney’s fees, the claimant incur criminal charges for defaulting the action, can ask the Court to confirm shall pay a judicial tax of Euro 5,300 public authority. See article 291 and 292 information regarding the defendant’s and Clerk’s fee (“procurador”) of Euro of Spanish Civil Procedural Law. capacity or to disclose documents 3,000 (VAT not included). relating to liability insurances or last will. In proceedings relating to intellectual Attorney´s fees shall be agreed by the or Industrial property the claimant attorney and the client. Nevertheless, can ask the Court to disclose relevant a fee guideline is set by the Bar documents or data about the alleged Association where the attorney is infringement before initiating the claim. registered and the proceedings Contact conducted. ECIJA A warning letter may be necessary in JAVIER LÓPEZ MAITE MASCARÓ ANTONIO BALIBREA some proceedings before filing the claim, The guidelines stipulates that for Spain Partner | Dispute Partner | Dispute Associate | Dispute depending on the subject matter of the a dispute of Euro 1,000,000, the www.ecija.com Resolution, Litigation, Resolution, Litigation Resolution, Litigation & proceeding. Attorney´s fees would be Euro 59.640 (excluding VAT) in Madrid; and Euro & Real Estate & Corporate Bankruptcy 54,800 (excluding VAT) in Barcelona. T: +34 917 816 160 T: +34 933 808 255 T: +34 917 816 160 E: [email protected] E: [email protected] E: [email protected] 87 Litigation, Arbitration And Alternative Dispute Resolution Litigation, Arbitration And Alternative Dispute Resolution 88 6. How are settlement discussions 7. What is the typical duration of a before the Courts of first instance of 7. In what language is an arbitration 10. What are the costs of arbitration 13. Under what circumstances can an usually conducted (namely whether court procedure? Spain in order to be enforced. Non- proceeding conducted? proceedings and who bears these Arbitration Award be enforced, oral or written and whether European judgments must follow the costs? challenged or annulled? between the parties direct or their The duration depends on the Court proceeding of Exequatur set forth Arbitration is a private-party representatives)? Is the settlement knowing the case and its charge of in articles 44 and following of the proceeding, therefore, the language of If the arbitration is administered by an A domestic arbitral award is enforceable correspondence between the work. The average duration for civil Law no. 29/2015 of the International the arbitration shall be agreed by the arbitration institute, discovery rules in the same terms as a final judgment parties/counsel privileged (i.e., may and commercial proceedings is 12-18 judicial cooperation in civil order to parties in the arbitration agreement. If shall be those applicable in the Rules. If of Spanish courts. In Spain, an not be disclosed to the court)? months in first instance and 1-2 years in be enforced in Spain. This Exequatur the parties do not set forth the language the arbitration is “ad hoc” and the seat international arbitration award shall second instance. proceeding confirms that the foreign of the arbitration, and the proceedings of the arbitration is Spain, the Spanish be enforced through the proceedings Settlement discussions may be carried judgment has been declared in are administered by an institute, the procedural rules may apply. of an exequatur after being reviewed out orally or in writing. However, the 8. How can foreign judgments be accordance with all due process language of the arbitration shall be and confirmed by a Spanish court. final settlement agreement shall be enforced? guarantees accepted under Spanish determined according to the rules set 11. What are the basic rules of Annulment of an award is governed made in writing in order to be binding public law. forth by that institute. In any event, document disclosure in arbitration? under articles 40-43 of the Spanish for the parties. Correspondence European judgments within the subject and on the issue of what language the Which documents do not require Arbitration Law. The circumstances regarding settlement discussions is matter jurisdiction stated under the award needs to be issued in in order to disclosure? under which an international arbitration privileged. provisions of the E.U. Regulation be enforced in Spain, the provisions set award may be challenged or annulled 1215/2012do not require a special forth in question 1 under Civil Litigation There are no provisions on the taking of are governed by these articles as well. proceeding to be enforced in Spain. shall apply. evidence, and the parties shall stand by Indeed one of the circumstances that These judgments shall be submitted their agreement. In fact, the arbitration is closely revised by our tribunals and 8. What type of pre-arbitration community regards the IBA Rules on which has aroused the most case law measures are available and what are Taking of Evidence for Commercial in our jurisdiction are due process their limitations? Arbitration as the general standards guarantees. International arbitration Arbitration And Alternative Dispute Resolution for taking of evidence in commercial proceedings are strictly requested to Parties may request the Spanish Courts arbitrations. Therefore, witness comply with due process guaranties in to declare preliminary measures in statements shall follow the provisions order to stand before the challenges in an arbitration proceeding before it set forth by the parties, and in the 1. Are mediation clauses in 3. Are arbitration clauses in 5. Which arbitration institutes are Spain. In turn, Spanish tribunals do not commences or while it has already been event no agreements were made, by the have jurisdiction to revise the merits of commercial contracts binding and commercial contracts binding and most popular? started in accordance to the provisions instructions made by the arbitrators of enforceable? enforceable? the arbitration. Since Spain is a signatory The ICC, particularly in international set forth in article 722 of the Spanish the case. of the New York Convention, most of Mediation clauses, as with any other The Spanish Arbitration Act 60/2003 arbitration cases. In local arbitration Law of Civil Procedure and article 11 of international awards are recognised clauses in contracts, are binding for of 23 December 2003, as amended by proceedings, the Barcelona Arbitration the Spanish Arbitration Law. 12. How are settlement discussions and enforced in accordance with the the parties. Mediation proceedings Act 11/2011 of 20 May 2011, states Tribunal (TAB), which is the most usually conducted (namely whether aforementioned. are generally voluntary proceedings that the parties may agree to submit popular arbitral institute in Spain, or the As for the limitations, the Arbitration oral or written and whether the resolution of which has a non- the dispute to arbitration and that Madrid Court of Arbitration. Law article 8.3 and the Law of Civil between the parties direct or their binding effect however, they could be such agreement shall be binding for the Procedure article 724 state that these representatives)? Is the settlement compulsory when users or consumers parties regardless of the validity of the 6. What influence can the parties have measures have to be submitted before correspondence between the are involved. EU Regulation 524/2013 rest of the contract. Moreover, Spain is on the identity of the arbitrator(s)? the tribunal entitled to execute the parties and/or counsel privileged on Online Dispute Resolution set a signatory country of the New York award or before the court where these (i.e., may not be disclosed to the forth a platform for consumers to file Convention, therefore international Parties are free to determine the measures shall be taken into effect. Arbitrator)? complaints about goods or services arbitration proceedings are recognized number of arbitrators, subject only Settlement discussions can be bought over the internet and find an in Spain. to appointing an odd number thereof. 9. How can foreign judgments be conducted orally or in writing, however impartial ADR entity listed to handle Unless otherwise agreed, a sole enforced? for the settlement to be binding, it shall the dispute. Commission implementing arbitrator will be appointed. If the 4. What type of arbitration is be made in writing. Correspondence regulation (EU) 2015/1051 develops parties do not nominate arbitrators Allocation of costs shall be a matter of commonly used for resolving between counsels is privileged. the ODR regulation and lays down the commercial disputes: ad hoc and the arbitration is institutional, the agreement between the parties when electronic complaint form, the exercise arbitration or institutional appointing authority will be designated executing the arbitration agreement. of the functions of the ODR platform arbitration? by the rules of the institution and if It is normal practice that each party and the cooperation between ODR the arbitration is not administered, of the arbitration bears its own costs. contact points. We mostly encounter international the competent court will act as the However, the arbitrators may set forth arbitrations governed by an arbitration appointing authority. any provisions on the award regarding 2. What is the procedure for institution and under its rules rather the costs of the proceedings. In mediation? Is it a popular method than ad hoc arbitrations. Normally, Each arbitration institute provides in practice, costs are commonly imposed for resolving commercial disputes? the institution most often utilized by its rules a proceeding to contest the in proportion to the success of each international clients is the ICC and the arbitrator’s appointment. Articles 17 party’s claims. The rules of the arbitral Mediation is a voluntary proceeding WIPO. and 18 of the Arbitration Act also institutions and the arbitrators consider the agreement to which has a non- regulate the challenge of arbitrators and the parties’ behaviour and collaboration binding effect. Therefore, there is no IBA Guidelines on conflict of interest when deciding on the apportion of the particular proceeding for mediation; are frequently followed especially arbitration costs. it is tailored to each case as is in international arbitration disputes. established in Act 5/2012 of 6 July on Arbitrators and courts can also mediation and commercial matters and take into account the best practices developed by Royal Decree 980/2013 guidelines published by the Club Español of 13 December. For family and labour del Arbitraje. conflicts, there is a mediation law which may be applicable to resolve these disputes, but again, the decision reached under mediation is not binding.
89 Litigation, Arbitration And Alternative Dispute Resolution Litigation, Arbitration And Alternative Dispute Resolution 90 Civil Litigation
1. In what language(s) may court As for the litigation costs, the courts is terminally ill or similar. Experts will proceedings be conducted? What apply the “English rule” meaning that submit a written opinion beforehand arrangements can be made for the losing party will bear both parties’ and then be questioned at the hearing translation/interpreter services? costs for legal counsel, evidence, etc. If as well. A witness can refuse to answer the case is partially won/lost the court questions, e.g. with reference to self- The language used in the Swedish will typically allocate the costs to reflect incrimination but cannot refuse to court system is Swedish. Hearings will the substantive outcome of the case. testify as such. Everyone has a duty to thus be held in Swedish and briefs There are no statutory limits to the testify as a witness if summoned by the shall be written in Swedish. However, costs that can be claimed, but the court court. depending on the circumstances it may will may a general assessment of the be acceptable to submit documentary reasonableness of the claimed costs in 6. How are settlement discussions evidence in other languages, especially relation to size and complexity of the usually conducted (namely whether the other Scandinavian languages or case. oral or written and whether English, since most judges are sufficiently between the parties direct or their familiar with those languages. If a party, 4. What are the basic rules of representatives)? Is the settlement witness or expert does not command disclosure of documents in civil correspondence between the the Swedish language, an interpreter will and commercial proceedings? parties/counsel privileged (i.e., may be provided by the court free of charge. Which documents do not require not be disclosed to the court)? disclosure? Is electronic disclosure 2. What types of pre-action measures of documents normal? Swedish parties will almost always make are available and what are their efforts to settle a dispute out of court. limitations? Must you send a Sweden has no equivalent to the There is no particular format for these warning letter before issuing any American discovery procedure and, discussions, but it is done on a case- proceedings? generally, the parties must preserve by-case basis. Settlement negotiations documents/evidence themselves from are often conducted by the parties There is no formal requirement to send their business dealings that they wish to themselves first and if discussions fail by a warning before bringing an action rely on in court as evidence. However, their attorneys as a second round. Even before a Swedish Court. However, it is upon request by a party the court may after the case has been initiated, the practically always done as part of the order anyone (including non-parties) court is compelled to make efforts to Bar Association’s rules of professional to produce documents or objects that find a settlement and judges will often conduct. Such a warning need not be in may have relevance as evidence in the press the parties to find an amicable any specific form and may even be oral. case. But such a request production solution. As a matter of business culture, it is must specifically identify the document very unusual in Sweden to sue without or object, and the requesting party also Since almost any evidence is permissible making some efforts to settle out of must show that the specific document/ in Swedish court, settlements offers may court first. object really has relevance as evidence. theoretically be invoked as evidence, “Fishing expeditions” are not allowed but such tactics are frowned upon by The plaintiff may request interim and it is possible to avoid production judges and attorneys and while the measures during or prior to the of documents, e.g. if they contain trade Swedish Bar Association’s ethical rules initiation of the court proceedings (no secrets. forbid members to disclose what has warning needed). Relief may be granted taken place during such negotiations, the in any form necessary to secure the 5. What is the process for witness information as such is not privileged. plaintiffs interests until the case is evidence (namely, is it deposition decided. To obtain interim relief the based in advance, or witness plaintiff must show that the claim has statement, or examination or reasonable merit prima facie and also cross- examination)? Can a witness post collateral for the possible damage be compelled to attend to give caused by the interim relief. evidence? 3. What are the costs of civil and The general rule is that all evidence commercial proceedings? Who must be presented at the main bears these costs? hearing. Depositions in advance are not taken and witnesses/experts The court application fee is modest are typically questioned at the main (presently about € 300) and flat in the hearing by counsel on direct and cross sense that it does not depend on the examination. The judges will typically not size of the claim or the complexity of question the witnesses or experts apart Contact the case. Gronberg from minor questions for clarification. KARL-OSCAR DALIN Written witness statements are not Stockholm, Sweden Partner used unless a witness will not likely www.gronberg.se T: +46 72 968 36 68 be available at the main hearing e.g. E: [email protected]
91 Litigation, Arbitration And Alternative Dispute Resolution Litigation, Arbitration And Alternative Dispute Resolution 92 7. What is the typical duration of a formation of the tribunal, and under In order to be enforceable the 8. What type of pre-arbitration 10. What are the basic rules of 13. Under what circumstances can an court procedure? the SCC expedited rules within three judgement must first be submitted measures are available and what are document disclosure in arbitration? Arbitration Award be enforced, months. However, in major cases those to certain designated District Courts their limitations? Which documents do not require challenged or annulled? Case duration varies between different time frames cannot always be kept. or the Svea Court of Appeals in disclosure? courts depending on their work load. Stockholm, which will not re-examine The same rules apply as for court Awards are enforced the same way as a In smaller courts the duration will 8. How can foreign judgments be the substantive matters only formal proceedings, i.e., a plaintiff may apply to On request, the Arbitral Tribunal may Swedish court judgment. Foreign awards typically be shorter than in Stockholm, enforced? requirements. Once the judgement a court for interim relief during or prior grant a party leave to apply to the are enforceable under the 1958-New and a first instance case may take has been approved it can be enforced to arbitration. local court for an order to produce York convention as are Swedish awards. anywhere between 9-18 months. Appeal Within the European Union judgements through the Swedish Enforcement documents or objects that may be of It may be noted that the Chinese proceedings are generally faster, around are freely transferable, but as regards Agency (SEA) for example by seizing A party may also apply to the SCC relevance as evidence. If such leave is government has long recognized awards 6-9 months and leave to appeal is enforcement of judgements from funds, incoming payments or property Institute for an Emergency Arbitrator. granted the party may apply to the rendered under the SCC Institute as necessary. outside of the EU enforcement requires in Sweden. The SCC will seek to appoint an court under the same rules as in civil enforceable. an international agreement between Emergency Arbitrator within 24 proceedings (see above). Arbitration is considerably faster and relevant government and Sweden and hours of receiving the application and An award may only be challenged on under the SCC rules the award shall be that must be checked on a case by case any emergency decision on interim 11. What is the procedure for witness procedural grounds; if the dispute rendered within six months from the basis. measures shall be made not later evidence in arbitration (namely, was not covered by a valid arbitration than 5 days from the date upon which is it deposition based or witness clause, if the arbitrators have exceeded the application was referred to the examination or cross-examination)? their mandate, if the arbitration Emergency Arbitrator. The emergency should legally not have taken place in Arbitration And Alternative Dispute Resolution decision ceases to be binding if The parties may agree on this, but Sweden, if the arbitrators were not an arbitration procedure is not if they do not the Arbitral Tribunal correctly appointed or lacked legal commenced within 30 days; alternatively will decide on procedural matters. In capacity, or if the procedure was 1. Are mediation clauses in 4. What type of arbitration is 6. What influence can the parties have the case has not been referred to an domestic cases the Arbitral Tribunal will otherwise fundamentally flawed. But commercial contracts binding and commonly used for resolving on the identity of the arbitrator(s)? arbitrator or arbitral tribunal within 90 likely apply the same procedure in court the award can then only be challenged enforceable? commercial disputes: ad hoc days, from the date of the emergency (examination and cross-examination, if the procedural error affected the arbitration or institutional As far as the parties agree, they may decision. see above), but in international cases substantive. Historically, few challenge Mediation clauses are binding and arbitration? appoint anyone with legal capacity (not the arbitral proceedings are usually proceedings have been successful. more adapted top the parties. Written enforceable, but in practice it is mentally incapacitated bankrupt etc.). If 9. What are the costs of arbitration oftentimes hard to assess when a Both are used for domestic arbitral they cannot agree on the composition witness statements are very common in proceedings and who bears these international arbitral proceedings in an mediation requirement has been proceedings. In international cases the of the Arbitral Tribunal and have not costs? exhausted. Typically the burden of proof Arbitration Institute of the Stockholm specified anything else beforehand in effort to shorten main hearing and limit is low when it comes to showing that Chamber of Commerce (SCC) is highly the arbitration clause, the Arbitration In ad hoc arbitration the fee to the questioning to cross examination. the negotiations have failed and arbitral regarded both for its own rules and as Act provides that in ad hoc arbitral Arbitral Tribunal is decided by the proceedings can be initiated. administrator of UNCITAL cases. proceedings one arbitrator shall be arbitrators themselves in the award 12. How are settlement discussions appointed by each party and those two and there are no limits on the usually conducted (namely whether 2. What is the procedure for 5. Which arbitration institutes are arbitrators will then choose a chairman. arbitrator’s fees. The Arbitral Tribunal oral or written and whether mediation? Is it a popular method most popular? Under the Stockholm Chamber of will basically charge by the hour. In between the parties direct or their for resolving commercial disputes? Commerce rules the parties appoint cases administered by the SCC Institute, representatives)? Is the settlement The Arbitration Institute of the SCC one arbitrator each and the SCC the fees are related to the size of the correspondence between the If the parties agree the court may which was established in 1917 and is appoints the chairman. In multi-party claims adjudicated and therefore more parties and/or counsel privileged appoint a mediator (typically a senior recognized as a leading neutral centre arbitral proceedings it may get more foreseeable. The SCC webpage (www. (i.e., may not be disclosed to the or retired judge) and order the parties for the resolution of international complicated and it is advisable to specify sccinstitute.se) includes a calculator Arbitrator)? to attend a mediation hearing. Apart trade disputes, particularly East/West the procedure for forming the Arbitral where parties can easily determine from that there are mediation institutes disputes (former Soviet Union/China). Tribunal in the arbitration clause as far what their case will cost based on the The same rules apply as in court (see at both the Stockholm Chamber of Approximately 50% of the arbitration as possible. amounts at stake. The SCC webpage is above), but Arbitral Tribunal will typically Commerce that have their own set cases administered are international available in English Russian and Chinese. not be act to settle a case. of rules. Due to the Swedish culture disputes and parties from as many as 40 7. In what language is an arbitration As for the allocation of litigation of always trying to settle anyway, countries use the services of the SCC proceeding conducted? costs, an Arbitral Tribunal has a bit formalized mediation has not been a every year. In at least 120 of the current more freedom compared to a court very prominent feature in the Swedish bilateral investment treaties (BITs) The parties may choose any language in but, typically the “English rule” will be legal culture, but it is certainly growing Sweden or the SCC is cited as the the arbitration clause. If the parties fail applied (loser pays). in popularity. forum for resolving disputes between to agree the Arbitral Tribunal decides, in investors and the state and the SCC international arbitral proceedings that By way of example, the arbitration costs is currently the world’s second largest usually means English. 3. Are arbitration clauses in for a Euro 1,000,000 SCC Institute institution for investment disputes. commercial contracts binding and arbitration case - excluding attorneys’ enforceable? fees but including arbitrators, the Yes on both accounts. Arbitration is SCC administrative fees and expected the preferred method for resolving expenses - will be approx. Euro 85,000 commercial disputes in Sweden. (three arbitrators, normal rules); Euro 50,000 (one arbitrator, normal rules) or Euro 30,000 (one arbitrator, expedited rules).
93 Litigation, Arbitration And Alternative Dispute Resolution Litigation, Arbitration And Alternative Dispute Resolution 94 Civil Litigation
On 1 January 2011, the Swiss Civil There is no requirement to send by the court to produce all relevant Procedure Code (Zivilprozessordnung/ warning letters or similar notices to documents. If a party fails to produce Code de procédure civile/Codice di the other party before starting legal documents requested by the court, diritto processuale civile, hereinafter proceedings. It is, however, customary to this may be taken into consideration in “CPC”) entered into force, replacing contact the other party before issuing the evaluation of evidence and in the the respective cantonal laws on civil proceedings, in particular if both sides judgment. Compliance with disclosure procedure of the 26 Swiss Cantons. are represented by attorneys. duties may be refused for reasons such However, the organization of the as the psychological integrity of the judiciary remains subject to cantonal 3. What are the costs of civil and person or obligations/duties of secrecy legislation. commercial proceedings? Who (e.g. professional secrets), or if by the bears these costs? parties’ involvement they would expose 1. In what language(s) may court a closely related person to the danger proceedings be conducted? What Court fees are regulated by cantonal of civil or criminal liability. If a disclosure arrangements can be made for legislation. When proceedings are duty exists, the storage medium is translation/interpreter services? initiated, the court will determine of little relevance. This means that potential fees based on the value in e.g. emails, but also pictures or audio In general, the court proceedings in dispute and require the plaintiff to recordings etc. may have to be disclosed. Switzerland are conducted in the official advance those costs, failing which In general, the produced documents language of the respective canton the case would not be admitted. A are to be issued in “hard copy”. Due to where the court is located, i.e. either plaintiff with foreign domicile may the fact that e.g., emails might easily be German, French or Italian. Should there also be required to post security for altered or forged, a mere print out may be more than one official language, the indemnity to the defendant, if (i) not be sufficient proof and additional then the cantons decide on their own so requested by defendant and (ii) no evidence may be necessary. which language(s) is(are) to be used. treaty or convention exists between For example, court proceedings taking Switzerland and the respective country 5. What is the process for witness place within the Canton of Zurich are which would free the residents of the evidence (namely, is it deposition held in German. Appeals procedures contracting states from a granting such based in advance, or witness in front of the Swiss Federal Tribunal security in the other state (such as e.g. statement, or examination or usually follow the language used in under the The Hague Convention on cross- examination)? Can a witness the lower courts. If someone involved International Access to Justice from be compelled to attend to give in the proceedings does not speak 1980, to which Switzerland is a party). evidence? the official language of the canton, translation/interpreter services may be As a general rule, the losing party has The ordinary procedure for witness called upon. Furthermore, a court may to bear the costs of the court and evidence is witness examination by the request translation of foreign language to reimburse the winning party not court, i.e., the witness is questioned by documents offered in evidence; quite only for the court fees but also for the judge only. Cross-examination is often, translation of English documents the attorney´s fees at a rate of the not possible. Additional questions by is not necessary. applicable tariff, which is governed by the parties have to be directed at the cantonal rules. Those rules are usually judge, they are not addressed directly to 2. What types of pre-action measures based on dispute value, but normally the witness. Should the court deem it are available and what are their attorneys charge hourly rates for their unnecessary to interrogate the witness, limitations? Must you send a services. In practice, the winner will it may obtain written statements instead. warning letter before issuing any often not be reimbursed for his full legal Any person has the civil duty to bear proceedings? costs. witness, and thus can be compelled by the court to attend a hearing and to Before or after the start of (opdinary) give testimony. The duty of testimony proceedings, a party may request As an example, for a dispute value of Euro 1 million (or currently about CHF can, however, be refused for the same the court to grant interim measures reasons as referred to under question 4. (“vorsorgliche Massnahmen”), including 1.1 million), court costs in Zurich could ex-parte measures in case of urgency, typically be about CHF 32,000 and party costs practically the same amount. 6. How are settlement discussions according to Art. 261 et seq. CPC. An usually conducted (namely whether applicant must be able to show that oral or written and whether his/her rights have been or are likely 4. What are the basic rules of disclosure of documents in civil between the parties direct or their to be violated and that such violation representatives)? Is the settlement threatens to cause not easily reparable and commercial proceedings? Which documents do not require correspondence between the harm. Under certain circumstances, parties/counsel privileged (i.e., may for instance if the evidence is at risk, disclosure? Is electronic disclosure Contact of documents normal? not be disclosed to the court)? Wenger & Vieli URS WEBER-STECHER GEORG ZONDLER a prospective plaintiff may also have a right to preliminary procedures Normally, each party submits the It is up to the parties and their Zurich, Switzerland Partner | Litigation & Arbitration Partner | Litigation & Arbitration for taking of evidence (“vorsorgliche documents and other evidence in its counsels to decide whether and how www.wegnervieli.com T: +41 58 958 58 58 T: +41 58 958 58 58 Beweisabnahme”). possession when setting out the facts to conduct settlement discussions, in E: [email protected] E: [email protected] of the case to the court. The parties, as or out of court, in writing or orally. well as third persons, can be ordered If the settlement discussions and/or
95 Litigation, Arbitration And Alternative Dispute Resolution Litigation, Arbitration And Alternative Dispute Resolution 96 correspondences are held with counsels, exchanged and, after a first, non-binding 8. How can foreign judgments be version of 2012) and the ICC are the The parties are free to determine 13. Under what circumstances can an it is usually agreed that the content assessment of the case by the court, enforced? most popular arbitration institutions the applicable rules to the arbitration Arbitration Award be enforced, of such negotiations may not to be try to get the parties to agree to a used for international arbitrations proceedings, including the rules on the challenged or annulled? disclosed to a court. Before a plaintiff settlement. The recognition of a foreign judgment located in Switzerland. taking of evidence. In the absence of an can file a claim with a court, compulsory in Switzerland follows international agreement by the parties, in institutional An arbitral award rendered in conciliation procedures in front of a 7. What is the typical duration of a treaties and conventions or, in the 6. What influence can the parties have arbitration, the rules of the relevant Switzerland enjoys the same status as peace judge (Friedensrichter) must take court procedure? absence of these, national law. As on the identity of the arbitrator(s)? institution apply (e.g., Art. 24(3) Swiss a final judgment of a Swiss Court. In place. There are numerous exceptions mentioned above, regarding civil and Rules) and the arbitral tribunal may Switzerland a domestic arbitral award to the mandatory participation in No rules exist as to how quickly a commercial matters on a European As part of the party autonomy, further determine which rules shall be may be enforced according to Art. 381 this procedure, in particular if Swiss court must issue a judgment and there level, the Lugano Convention is the the parties are totally free in their applied for the evidence procedure. et seq. CPC in conjunction with Art. 335 jurisdiction is based on the Convention are also considerable differences from most importance regulation. Subject choice of arbitrators, except for Often the IBA Rules on the taking of et seq. CPC. The parties may request of 30 October 2007 (or its predecessor, canton to canton. Civil and commercial to bilateral treaties with the origin limitations introduced by the parties evidence in international arbitration are a declaration of enforceability, which where still applicable) on jurisdiction cases are conducted mostly in writing state, other foreign judgments will be in the arbitration clause (e.g., specific chosen as a source of reference. . however only has declaratory character. and the enforcement of judgments and exchanges of legal briefs, two by recognized pursuant to the rules set qualification requirements) and the Foreign arbitral awards will be enforced in civil and commercial matters each party, can take up to one year forth in the Federal Act on International limitations deriving from the laws (and 11. What is the procedure for witness in Switzerland according to the New (hereinafter “Lugano Convention”). or more, in particular if a settlement Private Law of 1987 (hereinafter institutional rules) on the independence evidence in arbitration (namely, York Convention (Art. 194 IPLA). A judicial control of settlement hearing is held after the first exchange “IPLA”). Further, distinction must be of arbitrators. is it deposition based or witness According to Art. 393 CPC, as well as procedures is rare. In case the parties of legal briefs (see above at no. 6). If no made between the enforcement of examination or cross-examination)? Art. 190(2) IPLA, the arbitral award can reach a settlement, the document witnesses are heard, a judgment may judgments on monetary claims and non- 7. In what language is an arbitration be challenged only: is handed over to the court for the be expected within about 6 months monetary claims. Judgments regarding proceeding conducted? Disclosure and document production is after written procedures and hearings monetary claims are enforced within rather formalized in the sense that the • If a sole arbitrator was designated record. However, the parties are not Arbitration proceedings can be compelled to disclose the full content of are over. Normally, a first instance the framework of the Swiss Debt requesting party must show credibly irregularly or the arbitral tribunal was procedure can be closed within maybe Enforcement and Bankruptcy Law, while conducted in any language the parties that (i) the requested documents exist constituted irregularly. the settlement to the court. agree to. 18 to 24 months after filing of the judgments concerning non-monetary and (ii) that the opposing party is in • If the arbitral tribunal erroneously held claims are enforced under the rules Settlement discussions in court find claim. In complex cases, first instance possession of these documents and (iii) that it had or did not have jurisdiction. of the CPC. Enforcement under Debt 8. What type of pre-arbitration wide support throughout the Swiss procedures can last much longer. that these documents are of relevance Enforcement and Bankruptcy Law must measures are available and what are • If the arbitral tribunal ruled on matters judicial system, yet the customs of for the decision in the case at hand; i.e., always be made in Swiss Francs, even if their limitations? beyond the claims submitted to it or if cantonal courts in this respect differ Appeals procedures in front of the “fishing expeditions” are prohibited. the judgment claim is denominated in it failed to rule on one of the claims. considerably. Zurich courts, for instance, upper cantonal court are usually shorter In international arbitration, the arbitral The parties are free to determine another currency. • If the equality of the parties or their regularly cite the parties to a settlement and are often terminated within about a tribunal has the parallel power to state the applicable rules to the arbitration right to be heard in an adversarial hearing after first legal briefs (statement year and procedures before the Federal courts to order interim measures. Since proceedings, including the rules on the proceeding was not respected. In of claim and response) have been Tribunal normally last less than one year. the enactment of the new CPC in 2011, taking of evidence. In the absence of an international arbitration, an award also the arbitral tribunals in domestic agreement by the parties, in institutional may further be challenged if the award arbitration proceedings are vested with arbitration, the rules of the relevant is incompatible with Swiss public the same competencies as the tribunals institution apply (e.g., Art. 24(3) Swiss policy (ordre public), as set forth in international arbitrations. Still, only Rules) and the arbitral tribunal may Arbitration And Alternative Dispute Resolution in Art. 190(2) lit. e IPLA. Similarly, the state courts have coercive power. further determine which rules shall be applied for the evidence procedure. according to Art. 393 CPC in domestic Often the IBA Rules on the taking of arbitration a party may further 1. Are mediation clauses in conciliation proceedings are non-judicial 3. Are arbitration clauses in 9. What are the costs of arbitration evidence in international arbitration are challenge the award: commercial contracts binding and may underline the substantive nature commercial contracts binding and proceedings and who bears these chosen as a source of reference. costs? • If the award is arbitrary because it enforceable? and consequently the non-enforceability enforceable? reposes on obviously erroneous of such an ADR clause. However, the The question of who bears the costs 12. How are settlement discussions findings of facts or on a manifest Mediation clauses and alternative issue remains disputed. Yes, arbitration clauses are considered dispute resolution clauses are to be binding upon the parties and of arbitration may be subject to usually conducted (namely whether violation of law or equity (lit. e). the parties’ agreement. Absent such oral or written and whether considered binding upon the parties. 2. What is the procedure for are enforceable in Switzerland (NY • If the designated remunerations Differently, the issue of enforceability Convention). an agreement, it lies in the arbitral between the parties direct or their and expenses of the arbitrators are mediation? Is it a popular method tribunal’s discretion to allocate the costs representatives)? Is the settlement of such clauses is highly controversial. for resolving commercial disputes? apparently too high (lit. f). In this context, the question arises 4. What type of arbitration is of arbitration. In general, taking into correspondence between the whether mediation (and generally The new Swiss Civil Procedure commonly used for resolving account to the specific circumstances parties and/or counsel privileged alternative dispute resolution) clauses Code explicitly addresses mediation commercial disputes: ad hoc of the case, the costs for the arbitration (i.e., may not be disclosed to the are to be considered a condition procedures in Art. 213 et seq., according arbitration or institutional proceedings will be borne by the Arbitrator)? unsuccessful party. precedent to state court procedures, to which the organization and conduct arbitration? In line with the above mentioned, the or purely substantive in nature. In its of the mediation is subject to the lex arbitri does not set forth specific decision from 15 March 15 1999, the parties agreement. The introduction and Both types of arbitration are frequently 10. What are the basic rules of used. In international commercial provisions on the conduct of settlement Zurich Court of Cassation qualified an express establishment of mediation in document disclosure in arbitration? discussions. Therefore, the parties are agreement not to sue (pactum de non the CPC indicates the growing tendency disputes it is more popular to opt for Which documents do not require institutional arbitration. free to decide on whether they wish petendo) as a question of substantial in business to resort to alternative disclosure? to have settlement discussions. Like law, as opposed to a procedural dispute resolution mechanisms. Disclosure and document production is other continental European countries, requirement. The Swiss Federal Tribunal However, in the current practice it is 5. Which arbitration institutes are Switzerland traditionally is in favour most popular? rather formalized in the sense that the rejected an appeal against this decision still rarely used. requesting party must show credibly of settlement efforts at any stage of on 23 August 1999. Therefore, an action The Swiss Chambers’ Arbitration that (i) the requested documents exist the proceedings depending on the before a court would not be rejected as Institution (SCAI) administering and (ii) that the opposing party is in circumstances of the actual case inadmissible despite the existence of an arbitration proceedings under the Swiss possession of these documents and (iii) ADR clause. The fact that mediation and Rules of International Arbitration (latest that these documents are of relevance for the decision in the case at hand; i.e., “fishing expeditions” are prohibited.
97 Litigation, Arbitration And Alternative Dispute Resolution Litigation, Arbitration And Alternative Dispute Resolution 98 Civil Litigation
1. In what language(s) may court court fees (regardless of whether the 6. How are settlement discussions proceedings be conducted? What opponent actually paid statutory or usually conducted (namely whether arrangements can be made for negotiated fees). In other words, the oral or written and whether translation/interpreter services? prevailing party will not be able to between the parties direct or their recover his/her actual costs, but rather representatives)? Is the settlement Turkish is the official language of the only the statutory costs. court, and the language used in hearings correspondence between the is Turkish. In case persons present at the The filing fee is calculated based on parties/counsel privileged (i.e., may hearing who need to actively participate the claim in dispute. Therefore, the not be disclosed to the court)? (i.e., the defendant(s), witnesses, etc.) filing fee for a dispute of Euro 1 million Settlement discussions can be are not able to speak Turkish, a sworn would approximately be Euro 17,100. conducted orally or in writing, in or out interpreter is summoned by the court. There would also be some additional of court. But the final settlement should expenses during the course of the be in writing for purposes of meeting 2. What types of pre-action measures proceedings, such as expert fees, costs the burden of proof. This applies are available and what are their for invitation of witnesses, service fees whether the parties are represented limitations? Must you send a and some additional charges. These by lawyers or directly by the parties warning letter before issuing any would approximately cost between Euro involved. There are no restrictions. If the proceedings? 2.000-3.000. If the plaintiff wins the case, settlement discussions are conducted the court orders this amount to be paid out of court, there is no obligation to There are no official pre-trial phases/ to plaintiff, by the defendant, together disclose the correspondence to the proceedings in Turkey. Although it is with the statutory lawyer’s fee. court. If a settlement is reached out of not a requirement, the general practice court, the plaintiff may chose not to in Turkey is to send to the future 4. What are the basic rules of continue with the proceedings, by failing defendant (respondent) a warning disclosure of documents in civil to appear. In this case, the court would letter through a Notary Public’s office, and commercial proceedings? temporarily remove the case from its before commencing legal action. The docket for two months, during which notice merely serves to put the other Which documents do not require disclosure? Is electronic disclosure time the plaintiff may renew the case. party on notice, and in cases where In the absence of a renewal, the case is the action comprises a monetary claim, of documents normal? automatically dismissed at the end of it could also serve as a default notice. In principle the parties are not forced the two month period. This is referred The recipient is under no obligation to to submit any evidence against their to as the abandonment method. respond to such letter/notice. Failure to interests. However if this evidence is respond will often be deemed to be a required by the court and the disclosing The proper way to record a settlement denial of the allegations made therein. party refrains to submit such evidence would be for the same to be submitted then this evidence shall be deemed as an to the court, and to ask for an order 3. What are the costs of civil and evidence against its interest. Currently that incorporates the settlement. Unlike commercial proceedings? Who there is no general practice in Turkey to the abandonment method explained bears these costs? disclose the documents electronically. above, this would result in a court order that provides for court fees, charges, There are three types of legal costs: 5. What is the process for witness etc. For this reason, parties that settle court fees, legal expenses (court- a claim often choose the abandonment appointed expert fees, service fees, evidence (namely, is it deposition based in advance, or witness method over the settlement/waiver etc) and statutory attorneys’ fees. The method. Turkish Code of Charges determines statement, or examination or the ratios and amount of court fees cross-examination)? Can a witness and legal expenses. The court fees are be compelled to attend to give 7. What is the typical duration of a determined in accordance with the evidence? court procedure? value in dispute, based on the applicable The duration of the court procedure The usual process is witness fee-unit. Statutory attorneys’ fees are differs according to the complexity of examination. The witness is questioned calculated by multiplying the applicable the case and workload of the courts. by the judge; cross-examination is not fee-unit according to the value in However, in general, a court procedure available. The parties are allowed to dispute with the statutory number of of a civil or a commercial dispute would put their questions to the judge, who fee-units for the attorney’s specific take 1,5 to 2 years, at first instance, then, at his discretion, asks the same of activities. These are determined by whereas the appeal stage would the witness. The witnesses responses the court based on the above formula, normally take 1 to 1.5 years. irrespective of the time spent on a are summarized by the judge and put Contact matter. As a general rule, the party on record. Verbatim recording is not Yarsuvat & Yarsuvat Law Firm NILÜFER ÇAKMAKLI BURÇIN SISMANYAZICI against whom a judgment is rendered available. Istanbul, Turkey Senior Associate Associate has to bear the court costs and www.yarsuvat-law.com.tr T: +90 212 345 0600 T: +90 212 345 0600 reimburse the opponent’s statutory E: [email protected] E: [email protected]
99 Litigation, Arbitration And Alternative Dispute Resolution Litigation, Arbitration And Alternative Dispute Resolution 100 8. How can foreign judgments be of proper jurisdiction. The Turkish provides for reciprocal enforcement of 12. How are settlement discussions 13. Under what circumstances can an enforced? court does not analyse the relevant judgments by the courts of one other; usually conducted (namely whether Arbitration Award be enforced, judgment on its merits, but rather on or there must be codified law or oral or written and whether challenged or annulled? A foreign judgment can be enforced procedure. The number of defences that between the parties direct or their in Turkey in accordance with case law in the relevant country that Article 60 of MOHUK states as follows: the relevant party can raise are limited: allows a Turkish court judgment to be representatives)? Is the settlement the provisions of Turkish Private it can either allege that the conditions “[…] Foreign arbitration awards that enforced in that jurisdiction. correspondence between the International Law, known by its popular for enforcement have not been fulfilled; parties and/or counsel privileged are final and enforceable [in that name: MÖHUK. The enforcement of or that an event has occurred that • The judgment should be one that is (i.e., may not be disclosed to the jurisdiction] can be enforced in Turkey. judgments in civil matters rendered by rendered it impossible to enforce the not within the exclusive jurisdiction of Arbitrator)? The enforcement of a foreign arbitration foreign courts, which judgments have foreign judgment. The conditions for Turkish courts. award must be requested in writing become final in accordance with the law enforcement are as follows: There are no statutory provisions from the Asliye [civil] court located of that country are contingent upon the for settlement in terms of arbitration at a jurisdiction that was agreed upon entering of an order for enforcement • An agreement must exist between procedure; general provisions apply. by the parties. In the absence of such of said judgments by the Turkish court Turkey and the relevant country that Settlement discussions can be agreement between the parties, the conducted orally or in writing. As is court located at the place of residence the case with court proceedings, the of the party against whom the award final settlement should be in writing in was rendered, has jurisdiction. If [such order to meet the burden of proof. If place] does not exist, the court located Arbitration And Alternative Dispute Resolution the parties are represented by lawyers, at the place where any assets (which can settlement negotiations can also be be made subject to enforcement) are carried out by said lawyers, or by any located, has jurisdiction.” Based on the 1. Are mediation clauses in 6. What influence can the parties have 9. What are the costs of arbitration other representative. The settlement foregoing: agreement should be disclosed to the commercial contracts binding and on the identity of the arbitrator(s)? proceedings and who bears these • Only “final” foreign awards can be enforceable? costs? arbitrators if it is to be used to end the There is no restriction in terms of arbitration proceedings. Other than that, enforced in Turkey. The Turkish Mediation Law is still being the number of the arbitrators, except The decision on the costs is subject to its confidentiality is subject to the will • Only awards that are enforceable in reviewed by the legislature. Currently, that there must be odd number of agreement. If no agreement has been of the parties, and thus to its own terms. the jurisdiction where they have been Turkey does not have any specific arbitrators. According to Article made by the parties, the parties bear rendered can be enforced in Turkey. statutory procedure for mediation. 415 of the HMK, the parties are the cost, as determined by the tribunal, • Reciprocity is required. Mediation clauses can be stipulated in free to determine the number of in ratio of their fault, which is also commercial contracts, but this does not the arbitrators. In the absence of an determined by the tribunal. In respect of • The Turkish court’s review of the limit the right to submit a dispute to the agreement, a panel of three arbitrators International Arbitration Fee Tariff, the award is limited to the requirements courts. is appointed. Each party appoints one arbitrators’ rates for the year 2016 are of enforceability. arbitrator, who then appoint the third as follows : • Even if a foreign award is final and 2. What is the procedure for arbitrator, who will act as the chairman enforceable in the jurisdiction where mediation? Is it a popular method of the panel. Single - 3 or more arbitrator(s) / it was rendered, and further even if for resolving commercial disputes? Claim Amount (TRL) 0 – 500,000 there is reciprocity between Turkey 7. In what language is an arbitration 5% 8% ; 500,000.01 – 1,000,000 4% and the State where the award has See above. proceeding conducted? 7% ; 1,000,000.01 – 3,000,000 3% been rendered, the Turkish court can 6% ; 3,000,000.01 – 5,000,000 2% 4% deny enforcement of such foreign 3. Are arbitration clauses in The parties are free to choose the 5,000,000.01 – 10,000,000 %5 2% ; arbitration award under certain commercial contracts binding and language to be used in the arbitration 10,000,000 and above 0,1% 0,2% circumstances that are set forth in enforceable? proceedings. Article 62 of MOHUK. 10. What are the basic rules of Arbitration clauses are binding 8. What type of pre-arbitration and enforceable if they meet the document disclosure in arbitration? measures are available and what are Which documents do not require requirements specified in Articles their limitations? 407-444 of the Turkish Code of Civil disclosure? Procedure (“HMK”). There are no pre-arbitration phases/ The disclosure of documents must be measures required under Turkish law. dealt in the agreement. 4. What type of arbitration is If institutional arbitration (such as the ICC) has certain requirements, these commonly used for resolving 11. What is the procedure for witness commercial disputes: ad hoc would apply. It is not uncommon for a party to notify the other in writing evidence in arbitration (namely, arbitration or institutional is it deposition based or witness arbitration? through a notary public that it intends to submit a matter to arbitration, examination or cross-examination)? Both ad hoc and institutional arbitration though this is not a requirement. Often, There is no special provision of law are available in Turkey. the written notice also serves to notify with regard to witness evidence in the other party of the election of arbitration; the general provisions of 5. Which arbitration institutes are an arbitrator, and as an invitation for the Civil Procedure Law, also known as most popular? such other party to appoint its own HMK, apply. ITO (Istanbul Chamber of Commerce) arbitrator. ATO (Ankara Chamber of Commerce) ICC UNCITRAL
101 Litigation, Arbitration And Alternative Dispute Resolution Litigation, Arbitration And Alternative Dispute Resolution 102 Civil Litigation
1. In what language(s) may court 4. What are the basic rules of court refers the matter to an expert proceedings be conducted? What disclosure of documents in civil to examine the matter. As an estimate, arrangements can be made for and commercial proceedings? usually the duration is as follows: translation/interpreter services? Which documents do not require disclosure? Is electronic disclosure Court of First Instance: 8- 14 months All court proceedings are in Arabic. of documents normal? All documents must be submitted Court of Appeal- 3-8 months in Arabic and the party submitting Rules of disclosure as applied in non-Arabic documents must submit a the United States and common law Court of Cassation: 3 to 12 months version translated into Arabic by a legal jurisdictions are not applicable in Additionally, the winning party must also translator. Interpreters are provided the UAE. Pursuant to the UAE’s Civil take into consideration the execution by courts who have a list of registered Procedures Code, both parties can of the judgment, which can also be a interpreters. submit documents supporting their lengthy process. claims. However, there are certain conditions which must be considered 2. What types of pre-action measures 8. How can foreign judgments be are available and what are their in order for a document to stand in enforced? limitations? Must you send a court. As for electronic disclosure of warning letter before issuing any documents, again rules of disclosure Foreign judgments are enforced/ proceedings? do not apply in the UAE. However, executed by filing a case before electronic documents such as emails the Court of Appeal with the same In all emirates except Dubai, when can be submitted in court to support a procedures for filing a normal case (civil a case is filed it is filed before party’s claims. or commercial claims). The provisions the Conciliation Committee. The relating to enforcement of foreign Conciliation Committee’s role is to 5. What is the process for witness judgments are contained in articles 235 try to settle the dispute amicably. If no evidence (namely, is it deposition to 237 of Federal Law number 11 of settlement can be reached, the dispute based in advance, or witness 1992, known as the Civil Procedures is referred to court. A warning letter statement, or examination or Code (the “CPC”), and are applicable or a legal notice is not a prerequisite cross-examination)? Can a witness provided that: for filing a case except for very specific be compelled to attend to give cases. evidence? • The UAE courts do not have jurisdiction over the dispute and the court that 3. What are the costs of civil and At any stage of a case before a issued the judgment does have such commercial proceedings? Who judgment, both parties can request the jurisdiction; bears these costs? court to notify a witness to attend and • The parties have appeared in the legal give a statement on an examination/ proceedings; The cost of civil and commercial cross examination basis. Witness proceedings differs from one emirate evidence is not allowed to refute the • No further judicial appeal or challenge to another. In Dubai, court costs are as contents of written evidence except for is possible in the country where the follows: very specific cases. The court has the judgment was issued (the judgment is final); and • Court of First Instance fees are a sole and absolute authority to oblige a percentage of the claimed amount witness to attend and give a statement • The foreign judgment is not in capped at AED40, 000 or to dismiss the witness’ statement. conflict with any order or judgment previously issued in the UAE and does • Court of Appeal fees are capped at not contradict the public order or AED20, 000 6. How are settlement discussions usually conducted (namely whether morals of the UAE. However, the most • Court of Cassation fees depend on oral or written and whether significant obstacle to enforcement what requests are made and do not between the parties direct or their has traditionally been article 235(1) of exceed AED 10,000. representatives)? Is the settlement the CPC which requires reciprocity of correspondence between the enforcement between the respective All Court fees are borne by the parties/counsel privileged (i.e., may countries. In other words, foreign losing party. The losing party bears not be disclosed to the court)? judgments could only be enforced the professional fees as well, however, in the UAE on the same conditions courts do not award more than AED 3, Settlements are only binding if executed as applied in the foreign country for 000 to AED 5,000 as a maximum for all in writing. Settlements may be disclosed enforcement of judgments issued in the stages as professional fees. to the court. UAE. In practice, this meant that, unless the foreign country had entered into a 7. What is the typical duration of a bilateral agreement with the UAE, or Contact court procedure? was a party to a common multilateral BSA Ahmad Bin Hezeem & ANTONIOS ABDULLAH ISHNANEH convention with the UAE, the relevant The duration of any court action Associates LLP Partner, Litigation provisions of CPC would be of no DIMITRACOPOULOS will depend on many factors such as assistance and the enforcement would Dubai, United Arab Emirates Partner, Head of Arbitration T: +971 4 368 5555 complexity of the dispute, notification be denied. www.bsabh.com and Dispute Resolution E: [email protected] procedures and whether or not the T: +971 4 368 5555 E: [email protected] 103 Litigation, Arbitration And Alternative Dispute Resolution Litigation, Arbitration And Alternative Dispute Resolution 104 9. What are the costs of arbitration Where the DIFC is chosen as the seat As an alternative, enforcement of an Arbitration And Alternative Dispute Resolution proceedings and who bears these of arbitration, the proceedings will not arbitral award may also be pursued costs? be subject to the CPC, but to the DIFC before the DIFC courts, which can Arbitration Law (Law No. 1 of 2008) issue an order of recognition and The tribunal has the ultimate discretion As a general rule, where a corporate dispute and the parties. In ad hoc (“DIFC Arbitration Law”), which does enforcement, regardless of whether 1. Are mediation clauses in over apportionment of their fees and entity is a contractual party, only its proceedings, the parties themselves not mandate that witnesses must swear there is any nexus between the parties/ commercial contracts binding and the other costs of the arbitration, general manager will be authorised to will appoint their chosen arbitrators an oath in relation to their testimonies. dispute and the DIFC. The order of enforceable? although either party may challenge execute an arbitration agreement on who will then appoint a chairman the DIFC courts may then be enforced the decision in this regard before the Mediation clauses in commercial its behalf. If the arbitration agreement in accordance with the arbitration 12. How are settlement discussions outside of the DIFC, through the UAE court when it comes to validating the contracts are binding and enforceable to is signed by a person who is not agreement. Where the parties cannot usually conducted (namely whether courts. Using the DIFC courts for the award. In the UAE, the tribunal has the extent that they must be complied specifically empowered to agree to agree upon a sole arbitrator, or the oral or written and whether ratification of arbitral awards may be no jurisdiction to award legal costs, with as a precursor to further dispute arbitration, then it may be considered party appointed arbitrators cannot between the parties direct or their beneficial as there are only two levels other than with the consent of the resolution processes. In circumstances as invalid. agree upon a chairman, the appointment representatives)? Is the settlement of court which may result in a more parties. Even, in such instances however, where a dispute resolution clause refers would be carried out by the court upon correspondence between the expedient final result. An additional whether tribunals decide to exercise to arbitration/litigation being preceded the application of one of the parties in parties and/or counsel privileged benefit is that the proceedings will be 4. What type of arbitration is such power very much depends on by mediation, the claimant party must accordance with article 204(1) of the (i.e., may not be disclosed to the conducted in English. commonly used for resolving their cultural background, with tribunals demonstrate at least that an attempt Civil Procedures Code (the “CPC”). Arbitrator)? commercial disputes: ad hoc of middle eastern origin tending to to refer the dispute to mediation was The court’s appointment cannot be Challenging and Annulling arbitration or institutional shy away from awarding legal costs There is no standard practice in made. Any failure in this regard may arbitration? challenged (article 204(2) of the CPC). result in the arbitration/litigation being and preferring the application of high the UAE with regard to settlement The general rule is that arbitrators’ considered as premature. Both ad hoc and institutional arbitration interest rates (often in the region of 9%) negotiations, which may be rulings may not be contested in any 7. In what language is an arbitration on sums awarded, in lieu of monetary conducted by the parties, their legal way (article 217(1) CPC). However, are used in the UAE, however, the use proceeding conducted? 2. What is the procedure for of institutional arbitration is more compensation for a given party’s success representatives, or both. The concept of article 216(1) of the CPC sets out the mediation? Is it a popular method common. Where an arbitration is Commonly, under most UAE based on the merits. “without prejudice” communications is circumstances whereby an application for resolving commercial disputes? administered on an ad hoc basis, this institutional rules, unless otherwise not recognised in the UAE, as a result for the annulment of an award may be may require the involvement of the agreed by the parties, the initial language 10. What are the basic rules of there is no legal preclusion to disclosing made. Mediation is unpopular in the UAE as it UAE courts in certain circumstances. of the arbitration shall be the language document disclosure in arbitration? settlement correspondence to the is not a binding process and the parties An example of the court’s involvement of the arbitration agreement. Where Which documents do not require tribunal. However, the background In practice the main grounds for cannot be required to settle their being required is where one of the the arbitration is administered by the disclosure? of the tribunal should always be challenging an award are that the disputes. As a result, few institutions in parties refuses to appoint an arbitrator, UAE courts, Arabic may be imposed as considered before any without arbitration agreement was invalid, or Rules of disclosure as applied in the UAE offer mediation services; those in which case the court can make the the language of the arbitration, in the prejudice correspondence is adduced, that procedural irregularities occurred common law jurisdictions are not which do are: necessary appointment. absence of any express agreement to as arbitrators with a common law in the process which undermined the applicable in the UAE. Notwithstanding a. the Dubai Chamber of Commerce and the contrary. background may react negatively to such integrity of the arbitration. this point, the parties may agree to conduct. Industry; and 5. Which arbitration institutes are apply rules which provide for disclosure, b. the Dubai International Financial most popular? 8. What type of pre-arbitration such as the IBA Rules on the Taking of Where the enforcement proceedings measures are available and what are 13. Under what circumstances can an are heard before the DIFC courts, the Centre (“DIFC”) in association with The most prominent arbitration centres Evidence in International Arbitration. Arbitration Award be enforced, the London Court of International their limitations? grounds for challenging the ratification in the UAE are: challenged or annulled? of an award are located in Article 44 of Arbitration (“LCIA”), which combined The availability of pre-arbitration 11. What is the procedure for witness to create the DIFC/LCIA Arbitration a. the Dubai International Arbitration evidence in arbitration (namely, Enforcement the DIFC Arbitration Law. The grounds measures will depend upon the arbitral listed Article 44 are based on those Centre in Dubai. Centre (DIAC) rules applicable to the proceedings. is it deposition based or witness b. the DIFC/LCIA Arbitration Centre examination or cross-examination)? A domestic award becomes specified in the UNCITRAL Model Law Where the relevant arbitral rules enforceable once it is validated by the on International Commercial Arbitration The procedure for mediation will in Dubai; and. provide for preliminary measures to be The procedure will be as set out in the Court of First Instance, provided that 1985. depend upon the agreement of the applied by the tribunal, these can only c. the Abu Dhabi Commercial applicable arbitral rules or as agreed no application for nullification of the parties and the rules of the institution be enforced by application to the UAE Conciliation and Arbitration Centre between the parties in the terms of award is made to the superior courts. offering the mediation services. courts. Whilst a tribunal’s directions (ADCCAC). reference. Where witness evidence The UAE courts operate under a on preliminary issues may support any is adduced, the witness will usually triple tiered system culminating with In all cases the parties are free to agree application to the court, in practice 3. Are arbitration clauses in be required to attend the hearing for the Court of Cassation. Consequently, upon an arbitral institution, regardless of it may be more expedient to bypass commercial contracts binding and examination failing which that witness’ where an award is challenged, it is their location. the tribunal and file an application to enforceable? written statement may be disregarded. unlikely to be enforced before the the court directly, with evidence that Witnesses must swear an oath in Court of Cassation issues its final Arbitration clauses are binding and the application relates to an ongoing 6. What influence can the parties have relation to their evidence, in accordance judgment ratifying the award. enforceable in commercial contracts on the identity of the arbitrator(s)? arbitration process. except for commercial agency disputes, with Article 211 of the CPC. which include distributorship disputes. Whilst many arbitration agreements The process of applying to the UAE Such disputes are not arbitrable, contain details of the method of courts for interim relief, and the pursuant to article 6 of Federal Law appointing the tribunal, in reality the subsequent formalities in the event No 18 of 1981 (as amended), known rules of the agreed arbitral institution the application is successful, are as the Commercial Agency Law, which will override this. Institutional rules complex in nature. As a result, where states that resolution shall be achieved often permit the parties to nominate any requirement for pre-arbitration through the UAE courts and that no arbitrators who will then be appointed measures is identified, advice must be effect shall be given to any agreement to by the institution itself, provided that obtained from UAE qualified advocates the contrary. the arbitrator is independent of the as soon as possible.
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1. In what language(s) may court Additionally, parties should consider 3. What are the costs of civil and proceedings be conducted? What whether negotiation or some other commercial proceedings? Who arrangements can be made for form of ADR might enable them to bears these costs? translation/interpreter services? settle their dispute without commencing proceedings. If the court concludes Court fees are regulated by Her The official language used in court is that proceedings were commenced Majesty’s Courts Service. A variety of English. An interpreter will be provided precipitously, then it can mark its court fees are payable within the civil by the Courts Service for deaf and disapproval with an adverse costs award and family courts and these are set out hearing impaired litigants. If the case is at the appropriate time. in Statutory Instruments. privately funded, you must supply your own foreign language interpreter. The The claimant should send a “Letter Each party is primarily responsible to Courts Service will provide a foreign of claim” to the defendant and the pay their own lawyer. Many lawyers language interpreter if a person involved defendant should be allowed to respond charge for their services on the basis of in the proceedings: within a “reasonable period of time.” hourly rates. • Cannot speak or understand the This can be up to three months in The general principle is that the loser language of the court well enough to complex cases, but is usually 14 to 28 days. pays the winner’s costs. However, in take part in the hearing. practice, the winner will often only be • Cannot get public funding. However, where there is a potential awarded a percentage of his actual legal • Cannot afford to privately fund an limitation period which may expire spend (a rule of thumb is 60 percent to 70 percent) because the loser can interpreter, and has no family member, if proceedings are not issued, a party will not be criticised for issuing a challenge the proportionality and or friend, who can attend to interpret reasonableness of the work (and the for them and who is acceptable to the “protective” claim if a “standstill agreement” cannot be agreed. cost of that work) done by the winner’s court. lawyers in separate costs proceedings called “assessment.” • Or where the Judge directs that an In certain cases (e.g., fraud) a party interpreter must be booked as the can apply to the civil court without case cannot proceed without one. telling the intended defendant(s) Conditional Fee Agreements (“CFA”) to obtain powerful orders directed and contingency fee agreements for 2. What types of pre-action measures towards preserving assets (freezing costs may be available, depending on the are available and what are their orders) or preserving evidence (search dispute. limitations? Must you send a and seizure orders). The court can warning letter before issuing any supplement such orders with orders For example, assuming a dispute value proceedings? requiring the delivery up of passport(s) of Euro 1 million, the Court issue fee is and prohibiting them from leaving the £10,000. As set out above, the general The rules state that the parties to jurisdiction. Such a without notice principle is that the loser pays the a dispute should, before starting application may be obtained quickly winner’s legal costs, where they are proceedings, exchange sufficient and is intended to give the defendant(s) proportionate and reasonably incurred information about the matter to allow no opportunity to dissipate assets or or reasonable in amount. The actual them to understand each other’s destroy evidence. costs will generally depend on the position and make informed decisions approach taken by the parties to the about settlement. A party may apply for pre-action litigation, the amount of evidence and disclosure of documents, where the issues involved. There are pre-action protocols for disclosure before proceedings have different types of disputes (for example, started is desirable in order to dispose personal injury, construction and fairly of the anticipated proceedings, engineering, clinical negligence and assist the dispute to be resolved professional negligence). However, even without proceedings, or save costs. in cases not covered by the protocols, Such an application would be made on the court expects the parties to notice to the prospective defendant exchange information and attempt to and should be preceded by a request in resolve the claim without litigating. correspondence.
Contact Howard Kennedy LLP SUE THACKERAY CRAIG EMDEN London, United Kingdom Partner | Head of Commercial Joint Managing Partner | Head of www.howardkennedy.com Litigation Dispute Resolution T: +44 20 3755 5743 T: +44 20 3755 5442 E: sue.thackeray@ E: craig.emden@ howardkennedy.com howardkennedy.com 107 Litigation, Arbitration And Alternative Dispute Resolution Litigation, Arbitration And Alternative Dispute Resolution 108 4. What are the basic rules of 5. What is the process for witness 6. How are settlement discussions 7. What is the typical duration of a 8. How can foreign judgments be disclosure of documents in civil evidence (namely, is it deposition usually conducted (namely whether court procedure? enforced? and commercial proceedings? based in advance, or witness oral or written and whether Which documents do not require statement, or examination or between the parties direct or their The typical duration of court There are three regimes for the disclosure? Is electronic disclosure cross- examination)? Can a witness representatives)? Is the settlement proceedings is 12 to 18 months, enforcement of foreign judgments in of documents normal? be compelled to attend to give correspondence between the depending on the court used. The England and Wales, depending on where evidence? parties/counsel privileged (i.e., may English Courts are trialling a speedy, 10 the judgment originates from: Ordinarily, parties will be required to not be disclosed to the court)? month procedure for suitable cases. disclose documents which assist or The general rule is that any fact which • The European regime – judgments harm the case of any of the parties to needs to be proved by the evidence of The parties are free to decide how they from EU and certain EFTA countries. the dispute (including their own case). a witness is proved by written evidence conduct settlement discussions and • The statutory regime – judgments at an interim application (CPR 32.2(1) negotiations. from most commonwealth countries. The opponent has the right to inspect (b)) and by oral evidence at trial (CPR • The common law regime – judgments original documents and/or take copies 32.2(1)(a)). In both circumstances a Many disputes are resolved through the of disclosed documents. witness statement should be served in process of lawyer to lawyer negotiation from other countries, such as the USA. advance. and agreement through a combination Privileged documents must be disclosed of oral and written exchanges. There is a simplified mechanism for (i.e., the fact of their existence revealed) In interim applications the witness the recognition and enforcement of but the content need not be revealed. will usually not be called to give oral Negotiations are almost uniformly judgments of courts in EU member Commercially sensitive information can evidence and the hearing will proceed conducted “without prejudice” (i.e., states, making the enforcement be blanked out if it is irrelevant and it on the basis of the written evidence and without prejudice to the position that procedure less time consuming and would not be appropriate to disclose it. oral submissions. is being adopted in the litigation) and as costly. such are protected from disclosure in A “document” includes all media on At trial the witness statement sets out the litigation process if no agreement is Under the statutory regime, an which information is recorded - this the “evidence in chief” of the witness. reached. application for recognition of the foreign includes electronic information, and can Oral evidence from the witness will judgment must be made, after which, if extend to deleted data and metadata. be generally limited to the replies If an agreement is reached, the without registered, it is enforceable as an English Parties are expected to make electronic given under cross-examination by the prejudice communications are no longer judgment. disclosure. The parameters of the extent opposing party at trial. privileged. of electronic disclosure can be decided Under the common law, fresh by the court, if the parties cannot agree. A summons requiring a witness to A party may refer to without prejudice proceedings must be commenced. The attend court to give evidence can be communications if there is a dispute judgment creditor will generally be able It is open to a litigant to apply to the issued: as to whether settlement was actually to obtain summary judgment in those court for “specific disclosure” if it reached. proceedings on the basis that there is • In circumstances when a witness is believes that particular documents exist no defence to the claim. Thereafter, it is reluctant to appear. enforceable as an English judgment. that should be disclosed, but the other It is possible to negotiate on a “without side has refused disclosure. • Where a witness needs to satisfy an prejudice save as to costs” basis employer they need time off work. whereby communications can only A party is entitled to any document • Where a witness feels their be revealed (unless the parties agree that is referred to or identified in a otherwise) at the conclusion of the relationship with a party will be statement of case (also referred to as litigation, when the court considers the a pleading) or witness statement or compromised if they give evidence question of costs. affidavit. without being compelled. • To ensure a busy expert witness will be available to give evidence at trial.
It is not possible to serve an effective witness summons on a person outside the jurisdiction.
109 Litigation, Arbitration And Alternative Dispute Resolution Litigation, Arbitration And Alternative Dispute Resolution 110 9. What are the costs of arbitration 11. What is the procedure for witness 13. Under what circumstances can an Arbitration And Alternative Dispute Resolution proceedings and who bears these evidence in arbitration (namely, Arbitration Award be enforced, costs? is it deposition based or witness challenged or annulled? examination or cross-examination)? The parties are free to agree how costs An Arbitration Award is equivalent 1. Are mediation clauses in 3. Are arbitration clauses in 6. What influence can the parties have are to be allocated between them, The procedure for witness evidence to a judgment in litigation. It is “final commercial contracts binding and commercial contracts binding and on the identity of the arbitrator(s)? subject to two exceptions: is subject to agreement between the and binding” in that it provides a final enforceable? enforceable? The parties are able to determine parties, or the institutional arbitration determination of the dispute, subject • Section 60 of the Arbitration Act 1996 rules adopted. Witness evidence is only to closely defined statutory rights Mediation clauses are binding and Arbitration clauses are binding and the number of arbitrators and their provides that an agreement which enforceable. enforceable if in writing. identities. If parties fail to agree, the generally given by witness statement and of challenge. With permission of the has the effect that a party is to pay subsequently by cross examination at High Court, an English award may be arbitration clause may provide for the whole or part of the costs of the It should be noted that mediation itself 4. What type of arbitration is powers of appointment to be exercised the hearing. enforced in the same manner as an arbitration in any event is only valid if English court judgment or order. differs from litigation and arbitration commonly used for resolving by a third party, for example, the made after the dispute in question has in that the parties cannot be forced to commercial disputes: ad hoc president of the Law Society. arisen. This means that parties may not 12. How are settlement discussions settle. arbitration or institutional provide in the arbitration agreement usually conducted (namely whether In respect of awards from a foreign arbitration? 7. In what language is an arbitration itself that each party shall pay its oral or written and whether seat, England is a signatory to the 2. What is the procedure for proceeding conducted? own costs in any event, nor provide between the parties direct or their New York Convention, which requires Institutional arbitration is generally representatives)? Is the settlement courts of contracting states to give mediation? Is it a popular method preferred due to reputation, familiarity Usually English, although the parties may that one party shall pay the other for resolving commercial disputes? party’s costs whatever the outcome correspondence between the effect to an arbitration agreement, and with proceedings, understanding of costs agree on the language to be used. parties and/or counsel privileged recognise and enforce awards made in The parties can agree among themselves and fees and the convenience of the of the arbitration. This is so as not to deter either party from commencing (i.e., may not be disclosed to the other states, subject to specific limited with the mediator on the format. process. 8. What type of pre-arbitration Arbitrator)? exceptions. Typically, the parties commence by measures are available and what are arbitration proceedings because it will exchanging position papers in advance However, corporations in sectors, their limitations? be liable for its own costs in any event. There is no particular rule as to how settlement discussions are usually The time limits for appealing, or of the mediation. During the mediation, such as shipping, construction or • The tribunal will not uphold an challenging, an English award are strict. the mediator meets privately with commodities, that have a tradition Some institutional arbitration rules agreement where the parties have conducted and they can be either oral, permit the appointment of an written, between the parties direct or Normally an application must be made each party to discuss the problem of arbitration, often adopt ad hoc agreed an irregular allocation or within 28 days of the date of the award confidentially. This allows each party to arbitration. emergency arbitrator before the quantification of costs. through their representatives or any arbitration is commenced, in order to combination. The parties can reach (although the position is different if be frank with the mediator and have any other arbitral process of appeal a realistic look at their case in private, obtain an order or an interim award 10. What are the basic rules of agreement as to whether the settlement 5. Which arbitration institutes are for interim measures, pending the full or review exists). An award may be without fear that any weaknesses most popular? document disclosure in arbitration? correspondence is privileged, or if it can hearing of the dispute and the final be disclosed to the arbitrator. appealed on a point of law, assuming discussed will be communicated to Which documents do not require this right has not been excluded by other parties. The mediator shuttles The main institutions used are: award. Under English arbitration law, disclosure? a tribunal has power to make orders the arbitration agreement or the back and forth seeking to identify and • The London Court of International institutional arbitration rules, as most narrow the issues between the parties. requiring a party to preserve evidence Disclosure is subject to agreement Arbitration(“LCIA”) or property. between the parties, or the institutional do. An award may be challenged for The mediator can call plenary sessions serious irregularity, or on the basis of where all the parties meet around the • The International Chamber of arbitration rules adopted. It is generally Commerce (“ICC”) The English Arbitration Act 1996 less extensive than disclosure in English lack of substantive jurisdiction, neither table to discuss their differences. of which grounds can be excluded. • The London Maritime Arbitration recognises that in some cases, the court proceedings. The requirements of confidentiality restrict the disclosure of Generally the parties themselves should Association (LMAA) English courts can intervene to support documents produced during or for the attend the mediation. They are usually • The LCIA and ICC are regarded the arbitral process, by making orders purposes of arbitration. accompanied by their lawyer. In the as the leading international arbitral for the preservation or sale of evidence case of a party that is a company or institutions because of the volume of or property, or granting a freezing association, its representative will need cases and the significance of disputes injunction or other form of injunction. to have authority to reach a binding heard. It may do so only where the tribunal settlement at the mediation. has no power or is unable for the time being to act effectively. Save for cases of urgency, the court may intervene only It is a condition of mediation that the with the permission of the tribunal or parties will treat all discussions and the agreement of the parties. documents as confidential and “without prejudice.”
Mediation is an accepted method of resolution, but can be expensive because of the need to prepare in advance, and the parties have to pay for the mediator, as well as for their own advisers.
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