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8305 results in Intersentia

Page 390 of 416

  • Chapter 2 - The Principle of Protection of the Weaker Party

  • Norbert Reich
  • Book:
    General Principles of EU Civil Law
    Published by:
    Intersentia
    Published online:
    22 November 2017
    Print publication:
    03 December 2013, pp 37-58

  • Summary

    ELEMENTS OF PROTECTION OF THE WEAKER PARTY

    EU civil law has emerged not so much as a body of rules with an objective of enabling citizens to use their autonomy for purposes, whether economic or not, to be determined by themselves, but rather as a body of provisions that tries to protect the weaker party and to combat discrimination (Chapter 3). To put it simply, at least three areas can be distinguished and have found their way into the Charter, frequently based on prior extensions of citizens’ rights by EU law amendments that will not be documented here, in particular in the field of social and consumer policy:

  • An important element of EU social policy has been the protection of persons in dependent employment situations by guaranteeing fair and just working conditions, Article 31 of the Charter, including the “right (of every worker) to limitation of maximum working hours, to daily and weekly rest periods and to an annual period of paid leave”. This conforms to Article 3(3) TEU on establishing a “social market economy”. Article 8 of the Community Charter of Fundamental Social Rights of 1989 which is referred to in Article 151(1) TFEU, has similar provisions; the ECJ has on several occasions made reference to it. A prominent example to be studied here is the Working Time Directive (WTD) 2003/88/EC of 4 November 2003 (recast), and its predecessor Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time. Their controversial interpretation by the ECJ will be taken as an example (2.3–2.4).

  • Another area where EU law has been active is the protection of consumers as typically weaker parties to contracts with business partners (B2C). This principle is now enshrined in Article 38 of the Charter, although in rather general terms. It was already contained in the old Article 129a EEC under the Maastricht Treaty of 1992, which became Article 153(2) EC of the Amsterdam Treaty and has now been transferred to Article 12 TFEU.

  • Chapter 7 - An Emerging Principle of Good Faith and of a Prohibition of Abuse of Rights?

  • Norbert Reich
  • Book:
    General Principles of EU Civil Law
    Published by:
    Intersentia
    Published online:
    22 November 2017
    Print publication:
    03 December 2013, pp 189-212

  • Summary

    SOME MISUNDERSTANDINGS ABOUT GOOD FAITH IN CONTRACT LAW: ELEMENTS OF A DUTY OF LOYAL COOPERATION IN CONTRACTING

    The concept of “good faith” in contract law has been the subject of extensive legal writing in the Member States of the EU. Comparative lawyers usually distinguish between the continental approach where the general clause of good faith is part of the general law of obligations, including contracting, and the attitude in common law, which seems to ignore such a general concept. As a sort of “proof”, Hesselink cites a prominent English judge as having said:

    “In many civil law systems, and perhaps in most legal systems outside the common law world, the law of obligations recognises and enforces an overriding principle that in making and carrying out contracts parties should act in good faith […]English law has, characteristically, committed itself to no such overriding principle but has developed piecemeal solutions in response to demonstrated problems of unfairness.”

    In this context, it comes as a surprise that the ECJ, in the Messner case (5.9), refers to the “principles of civil law, such as those of good faith”. As far as German contract law is concerned, this is of course nothing surprising, but for an English lawyer it must have been quite shocking and remained unexplained how far this refers merely to applicable, i.e. German, law or EU civil law in general, which is the object of this study. I have tried to limit the impact of this judgment, against the overarching criticism of Hesselink, to the case before the ECJ; in this case the ECJ only authorised the German court to impose upon the consumer an obligation under the German rules of good faith which was not expressly included in the relevant Distance Contracts Directive, but which now has been put into Article 14(2) of the new Consumer Rights Directive 2011/83 (2.1). I am not aware of later references by the ECJ to a general principle of good faith in EU civil law. But of course this would not exclude its autonomous development once EU civil law becomes more coherent and comprehensive.

  • Summary. Seven Theses and a Conclusion

  • Norbert Reich
  • Book:
    General Principles of EU Civil Law
    Published by:
    Intersentia
    Published online:
    22 November 2017
    Print publication:
    03 December 2013, pp 213-214

  • Summary

  • EU general civil law principles as understood in this study owe their origin both to the acquis communautaire and its link with the rights and principles contained in the Charter of Fundamental Rights, and to earlier documents of constitutional relevance of the EU. Their legitimacy can be found in Article 19(1) TEU, whereby the ECJ must “ensure that in the application the interpretation of the Treaties the law is observed” (Introduction).

  • Three of these general principles are substantive in nature (“framed autonomy”, protection of the weaker party, and non-discrimination: Chapters 1 to 3), one remedial (effectiveness: Chapter 4), and two methodological (balancing and proportionality: Chapters 5 and 6). A “half” principle of “good faith” is just emerging but is so far rather narrow in scope (Chapter 7).

  • The first and foremost function of these general principles is one of interpreting the acquis. This task is conferred on the ECJ mostly within the framework of reference proceedings (Article 267 TFEU), as the many examples in Chapters 1 to 3 of this study have demonstrated. Member State courts at whatever level of the judicial hierarchy participate in this process. Conflicts between the substantive principles must be settled by a balancing approach (Chapter 5). An individualistic Vorverständnis (pre-understanding) of the ECJ can be seen to exist.

  • The second, more contested gap-filling function of general principles relates mostly to the three facets of the effectiveness principle, namely eliminatory, hermeneutical and remedial. This function must be coordinated with the so-called procedural autonomy of Member States which may result in a “hybridisation of remedies”, for example in an ex officio control of unfair terms, or in creating a remedy of compensation for serious violations of Union-granted citizen rights.

  • Legality of EU action (as well as “implementing” Member State law in a broad sense) is monitored mainly by recourse to the proportionality principle (Chapter 6), as set out in the controversial Test-Achats judgment referring to the “coherence” criteria. This works against attempts to create some kind of comprehensive EU contract or sales law, even in the form of an optional instrument like the CESL.

  • Chapter 6 - The Principle of Proportionality

  • Norbert Reich
  • Book:
    General Principles of EU Civil Law
    Published by:
    Intersentia
    Published online:
    22 November 2017
    Print publication:
    03 December 2013, pp 155-188

  • Summary

    IMPORTANCE OF THE PRINCIPLE OF PROPORTIONALITY FOR EU CIVIL LAW: SOME GENERAL REMARKS

    “HARD LOOK” IN REVIEWING OF NATIONAL MEASURES

    The principle of proportionality as a constitutional principle of EU law – including EU civil law – was first developed to justify restrictions by Member States on free movement under the public policy or general interest proviso. The Court summarised the basic principles in Gebhard mentioned earlier within the context of “framed autonomy” (1.9): Member State restrictions on autonomy of contracting which have a negative impact on fundamental freedoms must be justified not only by a legitimate public interest, but they must also be suitable for attaining the given objective (relationship between means and end), and be necessary for achieving the proposed goal, without putting an excessive burden on the individual. In general terms, this amounts to the “less restrictive alternative” test. A state measure which puts an unreasonable burden on the individual and which can easily be substituted by a less intrusive measure capable of attaining the same objective will not be regarded as being “necessary”.

    The Gebhard test has been used many times in later cases, sometimes with slight variations in the wording, which I will not follow up here. Its impact on (mandatory) contract law of Member States restricting free movement of goods, services or capital has been mentioned above with some examples from ECJ practice (1.10–1.11). With regard to the “imperative requirements in the general interest”, the catalogue of these interests – consumer or worker protection, environmental concerns, fairness of commercial transactions – is an open-ended one, with the exception of “purely economic interests”, which do not justify restrictions. Member States will usually be able to find a justified public interest which legitimates restrictions on the exercise of fundamental freedoms by EU market citizens. The debate in the many cases which have been decided under the Gebhard test, or closely related tests, will therefore usually concentrate on:

  • – first, the adequacy of a certain restrictive regulation (is it suitable for attaining the proclaimed general interest objective?);

  • – second, its necessity with regard to its intrusive elements (does it go beyond what is required to attain this objective, for example as in the case of “information” vs. “regulation” to protect consumers or guarantee fair commercial practices?);

  • Chapter 1 - The Principle of “Framed” Autonomy

  • Norbert Reich
  • Book:
    General Principles of EU Civil Law
    Published by:
    Intersentia
    Published online:
    22 November 2017
    Print publication:
    03 December 2013, pp 17-36

  • Summary

    FREEDOMS FRAMED BY LAW

    Primary European Union law originally did not expressly guarantee the autonomy of economic actors (the active market citizen), but it presupposed it in its legal rules. Article 3(3) TFEU requires as the basis for the internal market “a highly competitive social market economy”. European Union law is not a comprehensive legal order, but builds on the legal systems of the Member States. Every liberal legal order has the autonomy of private parties as its basic philosophy, and it had therefore not been necessary for the ECJ to define autonomy explicitly as a fundamental principle. An open market economy can only exist if actors can freely decide whether to enter markets or not, and, if so, when and how. On the other hand, on the demand side, potential customers (whether businesses or consumers) should be free to choose the products, services and suppliers at the prices and conditions they prefer. Freedom of decision for active market citizens and freedom of choice for consumers and customers are two of the governing principles of a liberal market system.

    These freedoms are supplemented by the freedom of contract, now recognised as a fundamental right (1.13). Freedom of contract as framed by EU law has positive and negative aspects.

    It is positive insofar as freedom of contract implies the freedom to choose with whom one wants to enter into contractual negotiations (and ultimately contracts) and freedom as to the terms of the contract (such matters as price and the quality of products and services offered and purchased, and the freedom to decide what will constitute valid performance of the contract).

    However, it is negative insofar as (in contrast to formerly socialist economies) one cannot normally be forced to enter into any contract; parties may opt out of Member State contract law by means of choice of law and jurisdiction clauses (at least to the extent that the rules of the relevant Member State legal system of contract law are not mandatory), and usually the content of their contracts will not be prescribed by the state or other third party.

  • Introduction. What are General Principles of EU Civil Law?

  • Norbert Reich
  • Book:
    General Principles of EU Civil Law
    Published by:
    Intersentia
    Published online:
    22 November 2017
    Print publication:
    03 December 2013, pp 1-16

  • Summary

    AN ONGOING DEBATE: “PRINCIPLES” VS. “RULES”

    “General principles” of EU law have long been recognised as part of unwritten law. They have been developed in a constant flow of case law of the now called Court of Justice of the EU (CJEU or simply ECJ) which takes its mandate from Article 19(1) TEU whereby “[i]t shall ensure that in the interpretation and application of the Treaty the law is observed.” The law – das Recht – le droit – this formula was to be found already in the original EEC Treaty, and was taken over by what later became the EC Treaty after Amsterdam (Article 220 EC) and has not changed its wording in the latest Lisbon version. However, its “upgrading” from what is now called the Treaty on the Functioning of the EU (TFEU), formerly the EC Treaty, to the Treaty on European Union (TEU) containing the basic principles and institutions of the Union itself, shows its high standing and importance in the political and legal order.

    The formula deliberately goes beyond a mere positivist concept of law. It obviously refers to the sources of the EU Treaties as “primary law” – now including the Charter of Fundamental Rights (the Charter) according to Article 6(1) TEU – and secondary law in the sense of Article 288 TFEU, namely regulations, directives and decisions. “General principles” seem to be in an “intermediary location” – something between primary and secondary law, even though they are, in the words of the ECJ, of constitutional relevance. A number of such general principles – mostly relating to constitutional and administrative law – have been developed, described and analysed in the fundamental study of Tridimas. They seem to be generally accepted by the ECJ, by its AGs, and by scholarship, even though there may be debates about their origin, scope and exact legal nature. However, principles of constitutional or administrative law will not be this book's focus, but rather principles of EU civil law.

  • Chapter 5 - The Principle of Balancing

  • Norbert Reich
  • Book:
    General Principles of EU Civil Law
    Published by:
    Intersentia
    Published online:
    22 November 2017
    Print publication:
    03 December 2013, pp 131-154

  • Summary

    INTRODUCTION: A DIALOGUE ON BALANCING IN EU CIVIL LAW

    This chapter takes up some ideas that are well known in EU constitutional law, namely the need to balance seemingly contradictory positions that each claim protection of their interests in one of the many “rights” or “principles” of the Charter. Take as starting point the ECJ's Promusicae case (1.8) which concerned the balancing of the right to protection of intellectual property under Articles 17 and 47 of the Charter on the one hand with the right to privacy and personality protection under Articles 7 and 8 on the other. The Court wrote:

    “The present reference for a preliminary ruling thus raises the question of the need to reconcile the requirements of the protection of different fundamental rights, namely the right to respect for private life on the one hand and the rights to protection of property and to an effective remedy on the other […] That being so, the Member States must, when transposing the directives mentioned above, take care to rely on an interpretation of the directives which allows a fair balance to be struck between the various fundamental rights protected by the Community legal order. Further, when implementing the measures transposing those directives, the authorities and courts of the Member States must not only interpret their national law in a manner consistent with those directives but also make sure that they do not rely on an interpretation of them which would be in conflict with those fundamental rights or with the other general principles of Community law, such as the principle of proportionality.”

    A similar approach was taken in the more recent Sky case (1.13):

    “In the light, first, of the importance of safeguarding the fundamental freedom to receive information and the freedom and pluralism of the media guaranteed by Article 11 of the Charter and, second, of the protection of the freedom to conduct a business as guaranteed by Article 16 of the Charter, the European Union legislature was entitled to adopt rules such as those laid down in Article 15 of Directive 2010/13, which limit the freedom to conduct a business, and to give priority, in the necessary balancing of the rights and interests at issue, to public access to information over contractual freedom.”

  • Chapter 3 - The Principle of Non-Discrimination

  • Norbert Reich
  • Book:
    General Principles of EU Civil Law
    Published by:
    Intersentia
    Published online:
    22 November 2017
    Print publication:
    03 December 2013, pp 59-88

  • Summary

    “SPILL-OVER” EFFECTS OF NONDISCRIMINATION ON CIVIL LAW?

    The concept of non-discrimination, also called “equal treatment”, plays an important role in Union law, and has in many cases decided by the Court of Justice of the EU been understood as a general constitutional principle. As regards the economic law of the Union, market subjects should be treated as equals if they are in a comparable situation, or conversely, law should not impose equal treatment on them if they are in different situations, unless such this difference is objectively justified. The Codorniú case provides us with an example. The Court invalidated a Community regulation forbidding Spanish producers from using the traditional term crémant by reserving it to French and Luxembourg producers of sparkling wine. The measure was held to violate the principle of non-discrimination because Spanish producers were without justification put on an unequal basis relative to other producers.

    Over time EU non-discrimination law, apart from the distinctly market-orientated approach, has also taken on a social dimension by including within its ambit the struggle against discrimination based on gender, race, ethnic origin, age, disability or sexual orientation. This development is part of a more general trend in fundamental rights in the EU.

    Article 21 on “non-discrimination” of the Charter of Fundamental Rights, which became formally part of EU law after the Lisbon Treaty was ratified, but which had guided the ECJ in its interpretation and application of Community law beforehand, reads:

    “1. Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.

    2. Within the scope of application of the Treaty […] and without prejudice to the special provisions […] any discrimination on grounds of nationality shall be prohibited.”

  • Chapter 27 - Due Notice

  • from PART VI - PRINCIPLES OF CIVIL LITIGATION
  • Neil H. Andrews
  • Book:
    Andrews on Civil Processes
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    08 August 2013, pp 753-762

  • Summary

    NATURE OF THE PRINCIPLE OF DUE NOTICE

    Due notice demands that proceedings should not be conducted without both parties enjoying reasonable notice of the case. Nor should the court decide an action or any part of it without giving both parties reasonable opportunity to contradict the proposed decision. At the core of this principle is the need for the legal system to show respect for a person's individuality. It is the antithesis of justice for judgment to be awarded behind the back of a defendant who has no reasonable opportunity to controvert the case against him. Such highhandedness is both a naked form of despotism and old-fashioned bad manners. This principle also enables the court to avoid making an incorrect decision. Furthermore, the opportunity to satisfy the court will normally include the right to submit oral argument to supplement written submissions, at any rate in the context of case management decision-making, and of course at trial. This principle of due notice or audi alteram partem (‘let the other side be heard’) is one of the principles of natural justice. Its twin is nemo judex in causa sua or the principle of judicial impartiality (on which 26.19 ff).

    The (non-binding) American Law Institute/UNIDROIT Principles recommend:

    ‘Neither the court nor the judge should accept communications about the case from a party in the absence of other parties, except for communications concerning proceedings without notice and for routine procedural administration. When communication between the court and a party occurs in the absence of another party, that party should be promptly advised of the content of the communication.’

    The American Law Institute/UNIDROIT Principles elaborate upon the requirement of ‘Due Notice and Right to be Heard’ by noting these requirements:

  • (i) initial notification to the defendant of commencement of proceedings and the nature of the allegations and relief sought;

  • (ii) linguistic transparency;

  • (iii) the defence must be communicated to the claimant;

  • (iv) proper notification of motions and determinations by the court;

  • (v) the parties’ right to ‘submit relevant contentions of fact and law and to offer supporting evidence’;

  • Chapter 16 - Fees, Expenses and Recoverable Costs

  • from PART II - ARBITRATION
  • Neil H. Andrews
  • Book:
    Andrews on Civil Processes
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    08 August 2013, pp 313-318

  • Summary

    INTRODUCTION

    Those technically qualified to graduate (or to receive postgraduate degrees), and now proposing to gain their degree, are unable to receive their degrees in the University of Cambridge unless they have paid their university and college bills. A Rite of Passage is thus subject to a prior Right to Payment. On a similar basis, the arbitral tribunal can withhold the award if they have not yet been paid in full for their fees and expenses.

    Here there are two matters, (i) the question whether the arbitrator (or tribunal) is entitled to fees and expenses, or entitled to keep payments made in respect of these and (ii) the question of payment of costs as between the parties to the reference. These will be examined in turn.

    ARBITRAL TRIBUNAL's FEES

    The court can determine a dispute over fees and expenses. It would not seem to matter whether the fees have yet to be paid or whether they have already been paid, because the criterion to determine whether they are ‘excessive’ should apply uniformly. This appears to be the judicial approach, even though the criteria are only set out in connection with the second context.

    In a case where the fees had been paid in order to obtain the award (this is the usual case), in Hussmann (Europe) Ltd v. Al Ameen Development & Trade Co (2000), Thomas J examined closely the fees submitted by a tribunal and held that they were not excessive, although the number of hours spent was surprisingly high and the fee claim was, therefore, borderline. It might be significant that the chairman in this case was a judge who had been permitted to act gratuitously, although his ‘fee’ would be paid to the Treasury. There was certainly no suggestion that the hours claimed had not genuinely been worked.

    In United Tyre Co Ltd v. Born (2004) the Court of Appeal considered a preliminary issue concerning delay in the bringing of an application under section 28(3) for adjustment of a fee. Again in this case (as is usual) the fee had already been paid in order to obtain the award. The fee greatly exceeded the value of the claim and the number of hours claimed, in addition to secretarial hours, was surprisingly high.

  • Chapter 6 - ‘The Seat’ and the Range of Relevant Laws

  • from PART II - ARBITRATION
  • Neil H. Andrews
  • Book:
    Andrews on Civil Processes
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    08 August 2013, pp 155-168

  • Summary

    THE SEAT OF THE ARBITRATION

    In England the ‘juridical seat of the arbitration’ is determined as follows:

  • (i) It can be ‘designated’ (a) ‘by the parties to the arbitration agreement’, or (b) ‘by any arbitral or other institution or person vested by the parties with powers in that regard’, or (c) ‘by the arbitral tribunal if so authorised by the parties’; or

  • (ii) in the absence of (i) (a) to (c), the seat can be ‘determined… having regard to the parties’ agreement and all the relevant circumstances’.

    • If the seat is England and Wales, the provisions of Part 1 of the Arbitration Act 1996 (England and Wales) apply.

    Even if the seat is not England and Wales or ‘no seat has been designated or determined’ the Arbitration Act 1996 (England and Wales) will apply to the following matters: (i) the grant of a stay of legal proceedings; (ii) enforcement of an award; (iii) unless this is ‘inappropriate’, securing attendance of witnesses; (iv) unless this is ‘inappropriate’, various supportive powers concerning, for example, taking of evidence, preservation of evidence, etc; (v) the court can exercise any of the powers contained within Part 1 of the Arbitration Act 1996 (England and Wales) if ‘by reason of a connection with England and Wales… the court is satisfied that it is appropriate to do so’; (vi) the provision on the ‘separability’ of the arbitration agreement (9.07 ff); and (vii) the provision on the death of a party. Clarke J in ABB Lummus Global Ltd v. Keppel Fels Ltd (1999) considered the structure of these provisions of the Arbitration Act 1996 (England and Wales).

    CHANGE OF SEAT

    The English Arbitration Act 1996 does not appear to contain explicit guidance on whether the seat can be changed from that which was originally designated or determined. However, Clarke J in ABB Lummus Global Ltd v. Keppel Fels Ltd (1999) and Aikens J in Dubai Islamic Bank PJSC v. Paymentech Merchant Services Inc (2001) accepted that the parties can by agreement vary the seat.

  • Chapter 18 - Challenges to English Arbitral Awards under English Law

  • from PART II - ARBITRATION
  • Neil H. Andrews
  • Book:
    Andrews on Civil Processes
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    08 August 2013, pp 331-372

  • Summary

    GENERAL POINTS CONCERNING CHALLENGES UNDER THE 1996 ACT (SECTIONS 67, 68 AND 69)

    THE THREE GROUNDS OF CHALLENGE IN OUTLINE

    There is a ground of challenge before the High Court (Commercial Court: 24.01 ff, vol I) based on (i) lack of jurisdiction (section 67, Arbitration Act 1996: 18.19 ff), or (ii) the assertion that the arbitral panel has been guilty of ‘serious irregularity affecting the tribunal, the proceedings or the award’ (section 68, 1996 Act: 18.41 ff), or (iii) on the basis of an error of (English) law (section 69, 1996 Act: 18.67 ff).

    Ground (iii), under section 69, can be excluded by agreement (18.95 ff).

    But grounds (i) and (ii) are mandatory: they cannot be excluded by party agreement.

    Permission to appeal, under sections 67–69, from the High Court to the Court of Appeal can only be given by the High Court itself, unless (i) the High Court decision was made outside the court's jurisdiction, or (ii) consideration of the issue of permission involved an unfair process, or (iii) there is a preliminary issue whether section 69 applies at all or whether the parties have excluded it. The reason for exception (iii) is this: ‘there is a distinction between those cases where the court is assisting or overseeing the arbitration process and the cases where the question is whether the jurisdiction of the court has been excluded.’

    The policy of the law is to lean against second appeals from arbitration decisions, that is, from the High Court and then to the Court of Appeal. That policy was noted in the Itochu case (2012), the Amec case (2011), and earlier in the Sukuman case (2007), where Waller LJ said:

    ‘[The Arbitration Act 1996 contains] many sections in which the right to appeal to the Court of Appeal is circumscribed by the necessity to obtain leave from “the court” at first instance. This was important to those drafting the Arbitration Act 1996 (England and Wales). It was the intention of those drafting the Arbitration Act 1996 (England and Wales) to limit appeals to the Court of Appeal to avoid the delay and expense that such appeals can cause.

  • Chapter 2 - Mediation Combined with Arbitration

  • from PART I - MEDIATION
  • Neil H. Andrews
  • Book:
    Andrews on Civil Processes
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    08 August 2013, pp 65-82

  • Summary

    INTRODUCTION

    This chapter is devoted to connections between mediation and arbitration. The main points of contact are as follows.

    (i) Multi-tier dispute resolution clauses render mediation an obligatory step prior to arbitration or litigation; in England it is possible for the innocent party to seek a stay of premature litigation to create the opportunity for mediation to be pursued, if the opponent, in breach of such a multi-tier dispute resolution clause, has wrongly commenced litigation before conducting mediation (1.59 ff); the leading English decision is Cable & Wireless case (2002).

    (ii) Occasionally the English court might recommend mediation to try to resolve an impasse; this can arise when the parties have litigated in different jurisdictions in order to determine whether they should be arbitrating; this was Colman J's response to a jurisdictional wrangle concerning a disputed arbitration agreement in C v. RHL (2005) (2.07).

    (iii) Mediation might be voluntarily attempted by the parties even aft er arbitration has begun (2.08).

    (iv) Parties might clothe an arbitrator as a mediator (‘med-arb’, that is, ‘intraarbitral mediation’); here the arbitrator is required, if necessary, to perform the successive roles of mediator and arbitrator; but this ‘chameleon’ style of dispute resolution is controversial; nevertheless, there has been commercial interest in expansion of this consensual method of ‘med-arb’ (2.09 ff). The problems here are:

  • (a) there are doubts whether an arbitrator will be necessarily competent to act in both capacities;

  • (b) the prospect of arbitration might impede the parties’ in the conduct of mediation because they might be inhibited from weakening their prospects during arbitration, if the mediation fails;

  • (c) there are also dangers of confidential information imparted during the mediation phase being improperly used by the arbitrator during the second phase;

  • (d) the mediator might have a financial conflict of interest because greater remuneration might arise if the dispute proceeds to arbitration;

  • (e) a mediated settlement achieved through the intervention of an arbitrator is not obviously an ‘arbitral award’ (and the better view is that it is not such an award); problems of enforcement can arise, therefore, if an attempt is made to enforce the settlement using the machinery of enforcement applicable to arbitral awards.

  • Chapter 10 - Courts Giving Effect to Arbitration Agreements

  • from PART II - ARBITRATION
  • Neil H. Andrews
  • Book:
    Andrews on Civil Processes
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    08 August 2013, pp 211-242

  • Summary

    INTRODUCTION

    This is a tough topic, because the law has become convoluted and there is also the prospect of changes to European law to remove the inconvenient West Tankers case (10.49 ff).

    The following propositions will be developed in this chapter:

    (i) A stay of judicial proceedings is the primary mechanism for ‘giving effect’ to an arbitration agreement (10.03 ff). Mustill & Boyd (2001) explain a stay's operation in this context:

    ‘A stay of legal proceedings is the principal means by which an arbitration agreement is enforced, there being no direct power to compel a party, by mandatory injunction, to appoint an arbitrator or to bring his claim by arbitration. A negative injunction is not, since the Judicature Acts [1873–75], the proper remedy for stopping court proceedings in England and Wales, although an injunction may, in a proper case, be granted to stay foreign proceedings brought in breach of an agreement to arbitrate.’ Mustill & Boyd continue: ‘By staying the [English court] proceedings, the court compels the claimant either to proceed by arbitration or to abandon his claim.’

    (ii) The New York Convention (1958) requires contracting states to give effect to arbitration agreements (10.22).

    (iii) But English courts are more robust: they will issue an injunction to stop a party pursuing litigation or arbitration outside England if that conduct is a violation of an arbitration agreement in respect of which the English court has jurisdiction to ‘police’ compliance (10.23 ff).

    (iv) However, the English courts have been at logger-heads with the European Court of Justice. In the (in)famous West Tankers case (10.49 ff), the ECJ held that an anti-suit injunction cannot be granted to stop the (English) respondent from commencing or continuing to pursue court litigation in another Member State within the EU.

    (v) Outside the geographical zone of this restriction, however, the English courts retain the power to issue anti-injunctive relief, for example if the off ending proceedings are brought in New York or Singapore, these being jurisdictions outside the European judicial area (10.39 ff).

    (vi) Member States’ courts must adhere to a decision of an EU Member State court which involves an incidental decision that an arbitration agreement is not valid or operative (10.56 ff).

Page 390 of 416