2018-01-21
920
The development of harmonious international economic gelations is a very complicated matter. In this context, arbitration plays a meaningful part in settling various disputes among countries with different legal systems. So, the UN General Assembly adopted the Arbitration Rules of the UN Commission on International Trade Law in 1976.
This document governs the arbitration between the parties which have agreed in writing to act so. In practical terms, the relevant cases are examined by the arbitral tribunal.
Any party initiating recourse* shall give to the other party a notice of arbitration, the names and addresses of the parties, a reference to the contract in question, the general nature of the claim and some other provisions. In addition, this document contains a proposal as to the number of arbitrators if the parties have not previously agreed on the issue.
As to the personal composition of the arbitral tribunal the names and addresses of such judges must be sent in writing to the other party. If three arbitrators are to be appointed, each party shall appoint one arbitrator. "Then those two persons will choose the third member of the arbitral tribunal.
If a party has doubts about the arbitrator's impartiality or independence, it may challenge* him. When an arbitrator has been challenged by a party, the other one may agree to it. If a party does not agree to the challenge, the decision will be made by the competent body which is chosen by both parties. If this body sustains* the challenge, another arbitrator shall be appointed or chosen in accordance with the procedure which is provided for in articles 6 and 9 of these Rules.
These are some fundamental provisions regulating the process of arbitration within the United Nations system.
Notes
initiate recourse — выступить с обращением к арбитражу challenge smb - давать отвод кому-л. sustain — поддерживать
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MEDIATION
Mediation* is a process in which a third party (the mediator*) seeks to assist two or more parties involved in a dispute* to reach a voluntary, negotiated resolution of their differences*, usually embodied in a formal written agreement*. Mediation differs from adjudication* and arbitration in that the mediator, unlike a judge or arbitrator, has no authority to impose a solution on* the parties. Mediators seek to have parties to a dispute focus on their interests in resolving their differences rather than their declared positions. Successful mediations result in "win/win" solutions rather than "win/lose" outcomes produced by third party decision-makers* such as judges and arbitrators. Advocates of mediation* believe that it is not only more cost effective* than other forms of dispute resolution, but that mediated solutions are superior since they are crafted* by the disputing parties themselves.
The relative success of mediation in resolving certain types of disputes in the United States, the United Kingdom, Australia, New Zealand, Argentina, China and other countries can be attributed to* a number of factor, the most important of which are probably: dissatisfaction with other available forms of dispute resolution (due to the unpredictability of outcomes, the high cost of litigation or arbitration, and the length of time needed to obtain a final decision), and the existance of a legal framework* supportive of the mediation process.
It is our belief that for mediation to be successfully applied in Russia and Ukraine on a large scale, in particular with respect to commercial and investment disputes, the parties to such disputes must not only believe that mediation has the potential to yield better solutions* to their disputes than other processes, they also must be confident* that if they fail to achieve a successful outcome through mediation, they will not suffer any significant adverse consequences* solely as a result of attempting the mediation* (other than lost time and expenses incurred*).
Notes
mediation — посредничество
mediator - посредник, примиритель
involved in a dispute — вовлеченный в конфликт
reach a voluntary, negotiated resolution of their differences - достичь
добровольного обсужденного двумя сторонами решения
своих разногласий embodied in a formal written agreement — представленного в виде
официального письменного соглашения adjudication — судебный приговор, решение impose a solution on — налагать решение
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third party decision-makers - принимающая решение третья
сторона
advocates of mediation — защитники, сторонники посредничества cost effective — выгодно, более дешево (финансово) crafted — умело созданный, сделанный can be attributed to — может быть отнесен за счет чего-л. legal framework - юридические рамки, структура yield better solutions - выработать, создать лучшие решения be confident - быть уверенным
adverse consequences — неблагоприятные последствия as a result of attempting the mediation - как результат факта
обращения к посредничеству expenses incurred - понесенные расходы
THE ARGENTINE AND ALTERNATIVE MEDIATION MODELS
In October 1995, Argentina, acivillaw country adopted a Law on Mediation and Conciliation*. In part to alleviate* the problems of court overcrowding, Argentina provided for mandatory mediation* of most cases. Once a case is filed* in an Argentine court, it is assigned to* a mediator, and mediation is scheduled to begin within sixty (60) days of the notification* of the respondent* and relevant* third parties. We outline below some features of the law:
Attendance of parties at a mediation is mandatory and parties must be represented by an attorney*. A party that fails to attend is subject to a fine* (Articles 10 and 11)
• Mediation proceedings are confidential. The mediator has discretion*
to hold joint or separate sessions with the parties (Article 11)
• If the parties enter into a mediation agreement*, it shall be signed by
the mediator, the parties, and their attorneys. Such agreement shall
be enforceable* as if it were a court decision. If the parties are unable
to settle their dispute, the mediator shall issue a document to the
parties allowing them to proceed with the claim in a court (Articles
12 and 14)
• The Ministry of Justice maintains a Register of Mediators consisting
of persons who have a law degree and other specialized training
(Articles 15 and 16)
• Mediators must recuse* themselves from handling cases* according
to principles similar to those requiring judges to decline to hear
particular cases*. Parties may request a new mediator to be assigned
to the case if they present a valid reason* (Article 18)
• Mediators shall be compensated according to a set schedule
established by regulations promulgated* by the Ministry of Justice.
If the mediation is successful, the parties themselves will apportion among* themselves the cost of the mediator; if the mediation does not result in an agreement, the mediator's fee is paid out of a special state fund (Article 21)
f he Argentine Law largely assigns to the legal community a monopoly over the conduct of mediation.
Notes
Law on Mediation and Conciliation — Закон о посредничестве и
согласительной процедуре alleviate — облегчать
mandatory mediation — обязательное посредничество case is filed — дело подано (зарегистрировано) it is assigned to — оно (дело) передается notification — уведомление respondent — ответчик relevant — соответствующий attorney — адвокат
is subject to a fine — подвергается штрафу discretion — свобода выбора enter into a mediation agreement — заключить посредническое
соглашение
enforceable - принудительно осуществленный recuse — отводить, освобождать handle a case — вести дело
decline to hear particular cases — отклонять слушание определенных дел
valid reason — веская причина promulgated — обнародованный apportion among — соразмерно распределять между
Ответьте на вопросы.
1. What is arbitration?
2. In what case do the parties involved refer to arbitration?
3. When may arbitration be compelled by law?
4. What other uses of arbitration have gained acceptance in the US in
recent years?
5. What is labour arbitration largely concerned with?
6. Why does arbitration play a meaningful part in settling various disputes
among countries with different legal systems?
T.\ What does the Arbitration Rules of the UN Commission on International Trade Law govern?
8. Who gives a notice of arbitration?
9. What should a notice of arbitration include?
10. What is the personal composition of the arbitral tribunal?
11. In what case may a party challenge the arbitration?
12. What is mediation?
13. How does mediation differ from adjudication?
14. In what solutions do successful mediations result?
15. What can success of mediation in some counties be attributed to?
16. When did Argentina adopt a Law on Mediation and Conciliation?
17. Why did Argentina provide for mandatory mediation of most cases?
18. Once a case is filed what is the futher procedure?
19. Outline some main features of the Law on Mediation and Conciliation.
Unit Twelwe
