{"id":2129,"date":"2021-01-18T23:47:57","date_gmt":"2021-01-18T23:47:57","guid":{"rendered":"https:\/\/gardencourtmediation.co.uk\/?p=2129"},"modified":"2022-02-20T16:13:50","modified_gmt":"2022-02-20T16:13:50","slug":"disputes-with-an-international-dimension","status":"publish","type":"post","link":"https:\/\/gardencourtmediation.co.uk\/disputes-with-an-international-dimension\/","title":{"rendered":"Disputes with an international dimension"},"content":{"rendered":"

Mediation: When the law encourages litigants to t<\/span>ake <\/span>the law into their own hands!<\/span> By <\/span>Abigail Holt<\/span><\/a><\/strong><\/p>\n

We all intuitively understand the laws of nature, sod<\/span><\/span>‘<\/span><\/span>s law and the law of the jungle, but the reason that lawyers, judges and the complex, expensive infrastructure that accompanies them exists<\/span><\/span>,<\/span><\/span> is that individuals, organisations, companies<\/span><\/span>,<\/span><\/span> and even countries<\/span><\/span>,<\/span><\/span> get very stuck when disputes arise<\/span><\/span>;<\/span><\/span> or, when anticipating problems, are poor at planning to avoid legal pitfalls. \u00a0 \u00a0<\/span><\/span><\/p>\n

C<\/span><\/span>OVID-19<\/span><\/span> is going to generate all sorts of long-term change, once the <\/span><\/span>pandemic\u2019s <\/span><\/span>acute problems <\/span><\/span>lessen<\/span><\/span>, including <\/span><\/span>a plethora of<\/span><\/span> national and international <\/span><\/span>business<\/span><\/span> disputes<\/span><\/span>. Individuals and organisations entering into contacts and negotiating terms would never have envisioned this time last year where we are now. <\/span><\/span>At the same time, b<\/span><\/span>acklogs <\/span><\/span>of hearings <\/span><\/span>are mounting in the Courts in relation to cases that cannot be heard <\/span><\/span>due to COVID-related reasons<\/span><\/span>,<\/span><\/span> and<\/span><\/span>, post-pandemic,<\/span><\/span> the problems due to contracts breached through part or non-performance are going to cause a major <\/span><\/span>additional <\/span><\/span>challenge for legal systems all over the world. <\/span><\/span>Against th<\/span><\/span>e<\/span><\/span>background of <\/span><\/span>global <\/span><\/span>suffering<\/span><\/span>, aggressive<\/span><\/span> and<\/span><\/span> adversarial <\/span><\/span>litigation <\/span><\/span>look<\/span><\/span>s<\/span><\/span> increasingly counter-productive<\/span><\/span>, irresponsible\u00a0<\/span><\/span>and unwise<\/span><\/span>.<\/span><\/span> Is there a viable alternative?<\/span><\/span><\/p>\n

W<\/span><\/span>hatever happens <\/span><\/span>as the consequences of the Christmas Eve B<\/span><\/span>rexit<\/span><\/span> deal bed<\/span><\/span>s<\/span><\/span> down<\/span><\/span>, and however one appraises <\/span><\/span>the practical consequences of the UK diverging from EU law, the essential wisdom of the European Union<\/span><\/span>\u2019s<\/span><\/span> approach<\/span><\/span><\/em> t<\/span><\/span>o mediation<\/span><\/span> as a technique<\/span><\/span> surmounts all politics and <\/span><\/span>will continue to <\/span><\/span>appl<\/span><\/span>y<\/span><\/span> to any international dispute, involving citizens of any county, European or not<\/span><\/span>.<\/span><\/span> Imaginative legal problem-solving through mediation<\/span><\/span>,<\/span><\/span> rather than litigation<\/span><\/span>,\u00a0<\/span><\/span>looks increasingly like the smart way of avoiding or short-circuiting costly litigation. \u00a0 <\/span><\/span><\/p>\n

Rather than (potential) litigants-in-conflict firmly and in black and white (literally) marking out the borders of their dispute and fighting for their territory in front of a Judge who is given State authority to decide who wins and who loses, a skilled mediator sets very different boundaries; creates a safe space or bubble of <\/span><\/span>respect, confidentiality and <\/span><\/span>opportunity<\/span><\/span>,<\/span><\/span> thereby facilitating those distressed by their dispute to see if they can solve their own energy-sapping predicament by finding a mutually-acceptabl<\/span><\/span>e<\/span><\/span> result<\/span><\/span>. Such resolution frequently includes solutions which would never be available to a Judge, limited as s\/he is to a crude set of remedies (compensation, <\/span><\/span>injunctions<\/span><\/span> and legal costs consequences for litigation decisions).<\/span><\/span><\/p>\n

Those involved in disputes with an international element know the additional challenges of language issues and the problems when different legal systems rub up against each other, creating massive headaches of different law<\/span><\/span>s<\/span><\/span> and enforcement of <\/span><\/span>judge-made <\/span><\/span>decisions. <\/span><\/span>The bad news is that, a<\/span><\/span>s a result of the ending of the Brexit transition period, mutual recognition of Court Judgements <\/span><\/span>has<\/span><\/span> g<\/span><\/span>ot<\/span><\/span> a whole lot more complicated<\/span><\/span> for cases which commence after 1 January 2021<\/span><\/span>. However, the good news is that the <\/span><\/span>techniques<\/span><\/span><\/em> a<\/span><\/span>nd <\/span><\/span>value<\/span><\/span><\/em> of mediation <\/span><\/span>are<\/span><\/span> not going to be affected by the vagaries of Brexit. <\/span><\/span><\/p>\n

Mediation <\/span><\/span>still<\/span><\/span> is an opportunity to \u201ctake back control\u201d. \u00a0 \u00a0 \u00a0 <\/span><\/span><\/p>\n


\nThe problem with enforcement of Judgments<\/span><\/span><\/em><\/p>\n

There is a significant wrinkle, though, in <\/span><\/span>relation to <\/span><\/span>mediations with a UK-EU cross-border element for the foreseeable future<\/span><\/span> because t<\/span><\/span>he UK Government <\/span><\/span>h<\/span><\/span>as repealed <\/span><\/span>the European Directive on Mediation<\/span><\/span><\/strong> 2008\/52\/EC\u00a0<\/span><\/span>(through <\/span><\/span>The Cross-Border Mediation (EU Directive) (EU Exit) Regulations 2019<\/span><\/span>)<\/span><\/span> at the same time that Brexit has caused the UK to drop out of the <\/span><\/span><\/strong>(very successful) <\/span><\/span>Pan-European \u201cBrussels Recast\u201d Regulations 1215\/2012 <\/span><\/span><\/strong>\u201c<\/span><\/span>on jurisdiction and enforcement of judgments in civil and commercial matters<\/span><\/span>\u201d.<\/span><\/span> (Th<\/span><\/span>is<\/span><\/span> happened when The Civil Jurisdiction and Judgments (Amendment)<\/span><\/span> (EU Exit) Regulations 2019 (SI 2019\/47) came into force at 11pm on 31.12.20<\/span><\/span>)<\/span><\/span>. <\/span><\/span><\/p>\n

By way of important background about why another potential route is not open, is that Brexit and t<\/span><\/span>he <\/span><\/span>UK\u2019s Civil Jurisdiction and Judgments (Amendment)<\/span><\/span> (EU Exit) Regulations 2019\u00a0<\/span><\/span>also revoked the Lugano Convention <\/span><\/span>because the UK was <\/span><\/span>automatically <\/span><\/span><\/em>a signatory to the Lugano Convention as an EU member and therefore <\/span><\/span>now <\/span><\/span>needs to accede to the Lugano Treaty in its own right<\/span><\/span>. A significant reason for the delay in the UK acceding to the Lugano Treaty is that the Lugano Treaty <\/span><\/span>itself<\/span><\/span><\/em> states that signatory States have to take due account of rulings of the Court of Justice of the European Union (CJEU<\/span><\/span>)<\/span><\/span> in Luxembourg (also known<\/span><\/span> in<\/span><\/span> the UK as the European Court of Justice \u2013 ECJ)<\/span><\/span> and one of the stated objectives of Brexit was that the UK with untrammelled sovereignty did not want to be bound by the CJEU\/ECJ.<\/span><\/span><\/p>\n

What follows is a deep dive into the weeds of what <\/span><\/span>the way forwards <\/span><\/span>to recognise and<\/span><\/span> enforc<\/span><\/span>e<\/span><\/span> judgments <\/span><\/span>(<\/span><\/span>and un-respected mediation settlements<\/span><\/span>)<\/span><\/span> now that the very useful Brussels Recast regime has been stripped away <\/span><\/span>from UK parties <\/span><\/span>by Brexit. The overall message is that it is possible to track a route through<\/span><\/span> the legal complexity<\/span><\/span>, a<\/span><\/span>lthough <\/span><\/span>you may wish to skip the next bit. For those who are up for the challenge, put on the wetsuit, goggles and oxygen tank and dive<\/span><\/span>\u00a0in! <\/span><\/span><\/p>\n

Peering into the gloom, a<\/span><\/span> summary of<\/span><\/span> the situation f<\/span><\/span>rom now on<\/span><\/span> is<\/span><\/span>: <\/span><\/span><\/p>\n

(1) Enforcement of mediated settlements between<\/span><\/span>\u00a0UK parties remains the same<\/span><\/span> (<\/span><\/span>ie\u00a0<\/span><\/span>where there is <\/span><\/span>no<\/span><\/span> cross-border element)<\/span><\/span>; <\/span><\/span><\/p>\n

(2) A<\/span><\/span>ny<\/span><\/span> mediation settlement is potentially enforceable<\/span><\/span> in the UK<\/span><\/span> if it lodged at Court under a Court-approved \u201cTomlin Order\u201d<\/span><\/span> with the UK Courts<\/span><\/span>, including cross-border cases<\/span><\/span>; however<\/span><\/span>,<\/span><\/span><\/p>\n

(3) <\/span><\/span>I<\/span><\/span>f the mediation has resulted in a party to the settlement <\/span><\/span>agreeing to <\/span><\/span>pay monies and <\/span><\/span>the party\u2019s<\/span><\/span> assets are in another EU member state<\/span><\/span><\/strong> (note that<\/span><\/span> the principles also apply to parties in non-EU countries)<\/span><\/span>, AND the paying party fails to comply with the spirit of the mediated agreement <\/span><\/span>by<\/span><\/span> fail<\/span><\/span>ing<\/span><\/span> to pay up, <\/span><\/span>THEN<\/span><\/span> there are likely to be a <\/span><\/span>series of problems in enforcing the <\/span><\/span>j<\/span><\/span>udgement in <\/span><\/span>a<\/span><\/span> UK Court.<\/span><\/span><\/p>\n

Before anyone panics, <\/span><\/span>though, <\/span><\/span>note that parties to mediation usually approach mediations in \u201cgood faith\u201d and settle fully intending to honour their agreements, so the problems identified below <\/span><\/span>only apply to<\/span><\/span> the minority of \u201crogue\u201d mediation settlers who are not good to their word<\/strong><\/span><\/span>, <\/span><\/span>(<\/span><\/span>but noting<\/span><\/span> if there were no rogues, then there would be no need for mediators and lawyers\u2026). The problems summarised below are in fact far more likely to be <\/span><\/span>encountered<\/span><\/span> parties who have <\/span><\/span>not<\/span><\/span><\/strong><\/em> found a mutually-acceptable mediated solution <\/span><\/span>in good faith <\/span><\/span>and, instead, have gone all the way to getting a final judicial decision\/judgment. <\/span><\/span><\/p>\n

It should also be noted that The Civil Jurisdiction and Judgments (Amendment<\/span><\/span>) (<\/span><\/span>EU Exit) Regulations 2019 (SI 2019\/47) allows for recourse to the Lugano Convention (and the 1968 Brussels Convention) <\/span><\/span>for cases that had been started and were ongoing during the Brexit Transition Period<\/span><\/span><\/strong> ie<\/span><\/span> before 31.12.20. <\/span><\/span><\/p>\n

Problems<\/span><\/span> recognising and<\/span><\/span> enforcing judgment<\/span><\/span>s<\/span><\/span> and the approach<\/span><\/span> to take <\/span><\/span>(now that Brussels re-cast no longer applies<\/span><\/span>)<\/span><\/span>: <\/span><\/span><\/p>\n

\u2022 <\/span>The first International Convention to consider <\/span><\/span>on enforcement of judgments <\/span><\/span>is <\/span><\/span>\u201c<\/span><\/span>T<\/span><\/span><\/strong>he Hague Convention<\/strong>\u201d\u00a0<\/span><\/span>(<\/span><\/span>The Hague Convention on Choice of Court Agreements\u00a0<\/span><\/span>2005<\/span><\/span><\/em>)<\/span><\/span>. (This has been given force by UK domestic law by the Private International Law (Implementation of Agreements) Act 2020<\/span><\/span>;<\/span><\/span><\/div>\n
\u2022 <\/span>However, regrettably, t<\/span><\/span>here is currently a stand-off between the EU and the UK on the applicability of The Hague Convention to the UK. <\/span><\/span>According to the EU, <\/span><\/span>T<\/span><\/span>he Hague Convention onl<\/span><\/span>y applies <\/span><\/span>to the UK <\/span><\/span>from 01.01.21, <\/span><\/span>(<\/span><\/span>although the UK argues that the Hague Convention applies from 2015<\/span><\/span> – <\/span><\/span>so there is a gap <\/span><\/span>of uncertainty<\/span><\/span> for cases commenced<\/span><\/span>,<\/span><\/span> or contracts made<\/span><\/span> between <\/span><\/span>2015 <\/span><\/span>and 01.01.21<\/span><\/span>,<\/span><\/span> with the gap between \u201cexit day\u201d on 31.01.20 and 01.01.21 being particularly problematic<\/span><\/span>)<\/span><\/span>; <\/span><\/span><\/div>\n
\u2022 <\/span>For a claim initiated after 31.01.20 and <\/span><\/span>a<\/span><\/span> J<\/span><\/span>udgment (i<\/span><\/span>ncluding a<\/span><\/span> mediation agreement under a Tomlin Order) <\/span><\/span>which <\/span><\/span>arises from an <\/span><\/span>exclusive<\/span><\/span><\/strong> choice<\/span><\/span><\/strong> of court agreement (which specified the UK courts as being the relevant courts) entered into after 01.10.15, then the UK courts will only be recognised <\/span><\/span>if<\/span><\/span><\/strong><\/em> parties to the dispute or the contract <\/span><\/span>specified the UK court as the court of choice<\/strong>.<\/span><\/span> (And <\/span><\/span>also note that<\/span><\/span> the Hague Convention does not apply globally, only to Denmar<\/span><\/span>k, EU, Mexico, Montenegro & Singapore as well as the UK)<\/span><\/span>; \u00a0 <\/span><\/span><\/div>\n
\u2022 <\/span>But if a case was initiated after Exit Day on 31.01.20 AND if a party has put a <\/span><\/span>non-exclusive<\/span><\/span><\/strong> choice of UK court, then The Hague Convention does <\/span><\/span>not<\/span><\/span><\/strong> apply.<\/span><\/span><\/div>\n


\nSo<\/span><\/span>,<\/span><\/span> what if the Hague convention does not apply? (<\/span><\/span>ie<\/span><\/span> if there is a non-exclusive jurisdiction clause or the case involves a party in a country that has not signed up to the Hague convention) and it<\/span><\/span> i<\/span><\/span>s<\/span><\/span> a new <\/span><\/span>cross-border <\/span><\/span>case t<\/span><\/span>h<\/span><\/span>at has arisen in England\/Wa<\/span><\/span>l<\/span><\/span>es?<\/span><\/span><\/p>\n

The parties<\/span><\/span> have to <\/span><\/span>look <\/span><\/span>back to the pre-Brussels Convention situation! <\/span><\/span><\/p>\n

\u2022 <\/span>Is there a <\/span><\/span>bilateral agreement or relevant convention <\/span><\/span><\/strong>b<\/span><\/span>etween the UK and the relevant country <\/span><\/span>on reciprocal recognition or enforcement of Judgments<\/span><\/span> (<\/span><\/span>eg<\/span><\/span> there are agreements between <\/span><\/span>UK\/Germany <\/span><\/span>and <\/span><\/span>UK\/France<\/span><\/span>)<\/span><\/span>.<\/span><\/span> This means that there has to be a trade agreement in force with the relevant country that includes an agreement on reciprocal recognition or enforcement of Judgments<\/span><\/span>. (<\/span><\/span>ie\u00a0<\/span><\/span>it is <\/span><\/span>no<\/span><\/span>t<\/span><\/span> a simple <\/span><\/span>Pan-Convention approach<\/span><\/span> as per Brussels Recast<\/span><\/span>).<\/span><\/span><\/div>\n
<\/div>\n
\u2022 <\/span>If there is no bilateral agreement, then consideration should be given to whether the judgment is enforceable in accordance with the local law of the <\/span><\/span>S<\/span><\/span>tate in which the enforcement is sought.<\/span><\/span> Local legal advice will be necessary<\/span><\/span>, e<\/span><\/span>specially <\/span><\/span>i<\/span><\/span>f the party has assets in more than one country. Most <\/span><\/span>S<\/span><\/span>tates (including England) do enforce such judgments, (although it is not as efficient and streamlined as under the \u201cold\u201d EU Brussels <\/span><\/span>Recast <\/span><\/span>regime).<\/span><\/span><\/div>\n


\nNotwithstanding the complex situation outlined above<\/span><\/span>, in practice, if there is an enforcement problem, even if it is possible to identify a route to enforcement, it is still necessary to bear in mind<\/span><\/span> that it is likely to be advantageous to be on top of issues such as<\/span><\/span>: familiarity with the workings of the enforcing court; are costs awards made in that court? What are the enforcing court\u2019s procedures? Are there assets<\/span><\/span> to enforce against<\/span><\/span>? What is the governing law? Are there any overriding laws, <\/span><\/span>eg<\/span><\/span> Sharia law forbids interest awards?<\/span><\/span> Also, will formal enforcement by necessary (<\/span><\/span>eg<\/span><\/span> will a local regulator enforce?) <\/span><\/span><\/p>\n

Parties would be advised to<\/span><\/span> address<\/span><\/span> potential enforcement i<\/span><\/span>ssues from the outset!<\/span><\/span><\/strong><\/p>\n

Hope on the horizon \u2013 Lugano?<\/span><\/span><\/strong><\/p>\n

The UK applied to re-join the Lugano Convention (on 08.04.2020). The UK is awaiting <\/span><\/span>confirmation as to <\/span><\/span>whether the UK is going to be allowed to re-join the Lugano Convention. If the UK is able to re-join Lugano, then the situation is likely to rever<\/span><\/span>t<\/span><\/span> to being <\/span><\/span>similar <\/span><\/span><\/em>to the advantageous situation under the Brussels Convention.<\/span><\/span><\/p>\n

Mediation <\/span><\/span>as the way to avoid potentially <\/span><\/span>\u201c<\/span><\/span>pyrrhic<\/span><\/span>\u201d<\/span><\/span> victories <\/span><\/span><\/strong><\/p>\n

It is therefore <\/span><\/span>crucial that <\/span><\/span>a <\/span><\/span>skilled mediator needs to be aware of th<\/span><\/span>e<\/span><\/span>s<\/span><\/span>e<\/span><\/span> potential <\/span><\/span>enforcement <\/span><\/span>problem<\/span><\/span>s<\/span><\/span> and reality test any mediated settlement to explore the intention and likelihood that a cross-border mediated settlement will be respected. <\/span><\/span><\/p>\n

Given that the <\/span><\/span>parties to a mediated settlement should (hopefully) be doing so in a spirit of \u201cgood faith\u201d, then <\/span><\/span>the problem of lack of enforcement should not arise<\/span><\/span>.<\/span><\/span> But it <\/span><\/span>is <\/span><\/span>wise and necessary to be alert to the possibility.<\/span><\/span><\/p>\n

Nonetheless, a<\/span><\/span>s <\/span><\/span>(the no longer relevant-to-the-UK) <\/span><\/span>European Directive on Mediation 2008\/52\/EC says, <\/span><\/span>w<\/span><\/span>hen mediation is seen as<\/span><\/span> a voluntary process in the sense that the parties are themselves in charge of the process and may organise it as they wish and terminate it at any time<\/span><\/span><\/em>, <\/span><\/span>it is an invitation to take the law into their own hands<\/span><\/span>!<\/span><\/span><\/p>\n

Resolving cross-border cases without travelling<\/span><\/span><\/strong><\/p>\n

Finally, mediation lends itself readily to electronic communication platforms such as Zoom<\/span><\/span> because of mediations<\/span><\/span>\u00a0relative informality <\/span><\/span>as <\/span><\/span>compared to court proceedings. Th<\/span><\/span>e <\/span><\/span>cost<\/span><\/span>-savings<\/span><\/span> inv<\/span><\/span>olved in \u201cvirtual\u201d mediations (time, travelling, inconvenience) is <\/span><\/span>particularly attractive when disputes and (potential) litigants are based in different countries. \u00a0 \u00a0 <\/span><\/span><\/p>\n

In contrast to the expense, delay, business interruption and uncertainty of litigation, mediation represents the smart way of resolving <\/span><\/span>all <\/span><\/span>disputes<\/span><\/span>, including the most complex of cross-border problems<\/span><\/span>, particularly if the nettle of potential enforcement issues are grasped at the outset.<\/span><\/span> The mediator and parties might need to squeeze into the metaphorical wetsuit to \u201cget their head round\u201d the enforcement issues, but they do not have to pack a real travel bag nor get on a flight.<\/span><\/span><\/p>\n

Overall, deciding to mediate is<\/span><\/span> an active decision to intervene in one\u2019s own dispute with the intention of resolving it. <\/span><\/span>Mediation starts with<\/span><\/span> a <\/span><\/span>proactive <\/span><\/span>state of mind in deciding to <\/span><\/span>tak<\/span><\/span>e-<\/span><\/span>on <\/span><\/span>the legal problem<\/span><\/span>,<\/span><\/span> rather than being taken to Court<\/span><\/span>;<\/span><\/span> a decision to commit to constructive bridge-building<\/span><\/span> and the amicable resolution of disputes<\/span><\/span>, with a view to freeing up energy, time and money. <\/span><\/span>\u00a0 \u00a0 \u00a0 \u00a0<\/span><\/span><\/p>\n","protected":false},"excerpt":{"rendered":"

Mediation: When the law encourages litigants to take the law into their own hands! By Abigail Holt We all intuitively understand the laws of nature, sod‘s law and the law of the jungle, but the reason that lawyers, judges and the complex, expensive infrastructure that accompanies them exists, is that individuals, organisations, companies, and even […]<\/p>\n","protected":false},"author":20,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[1],"tags":[267,268,44,57,224,272,269,270,271,274,118,276,275,273],"acf":[],"yoast_head":"\nDisputes with an international dimension - Garden Court Mediation<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/gardencourtmediation.co.uk\/disputes-with-an-international-dimension\/\" \/>\n<meta property=\"og:locale\" content=\"en_GB\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Disputes with an international dimension - Garden Court Mediation\" \/>\n<meta property=\"og:description\" content=\"Mediation: When the law encourages litigants to take the law into their own hands! 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