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  • 1. Disputes Resolution
  • 2. Methods of Resolving Disputes
    • Litigation – Court Action
    • Arbitration
    • Mediation
    • Conciliation
    • Negotiation
  • 3. Litigation
    • Advantages
      • Final resolution subject only to appeal
      • No expense for judge
    • Disadvantages
      • Lengthy period of time
      • Expense of legal fees
      • Possibly corruptible
      • Will decision be accepted outside the Court's country?
      • No expertise in field in dispute
  • 4. Mediation / Conciliation
    • Advantages
      • Inexpensive
      • Fast
      • Minimum level of antagonism
    • Disadvantages
      • No definitive procedures or structure
      • Not final
  • 5. Conciliation
    • UNICITRAL Model Law
      • Recent and only adopted in four countries including Croatia and Hungary
      • Purpose (Introduction)
        • Recognizing the value for international trade of methods for settling commercial disputes in which eh parties in dispute request a third person or persons to assist them in their attempt to settle the dispute amicably,
        • Noting that such dispute settlement methods, referred to by expressions such as conciliation and mediation and expressions of similar import, are increasingly used in international and domestic commercial practice as an alternative to litigation,
  • 6. Conciliation
    • UNICITRAL Model Law
      • Purpose (Introduction)
        • Considering that the use of such dispute settlement methods results in significant benefits, such as reducing the instances where a dispute leads to the termination of a commercial relationship, facilitating the administration of international transactions by commercial parties and producing savings in the administration of justice by States.
        • Convinced that the establishment of model legislation on these methods that is acceptable to States with different legal, social and economic systems would contribute to the development of harmonious international economic relations, …
  • 7. Conciliation
    • UNICITRAL Model Law
      • Definition (Art. 1)
        • For the purpose of this Law, “conciliation” means a process, whether referred to by the expression conciliation, mediation or an expression of similar import, whereby parties request a third person or persons (“the conciliator”) to assist them in their attempt to reach an amicable settlement of their dispute arising out of or relating to a contractual or other legal relationship. The conciliator does not have the authority to impose upon the parties a solution to the dispute.
  • 8. Conciliation
    • UNICITRAL Model Law
      • Definition (Art. 1)
        • A conciliation is international if:
          • The parties to an agreement to conciliate have, at the time of the conclusion of that agreement, their places of business in different States; or
          • The State in which the parties have their places of business is different from either:
            • The State in which a substantial part of the obligations of the commercial relationship is to be performed; or
            • The State with which the subject matter of the dispute is most closely connected.
  • 9. Conciliation
    • UNICITRAL Model Law
      • Conduct of Conciliation (Art. 6)
        • A conciliation is international if:
          • The parties to an agreement to conciliate have, at the time of the conclusion of that agreement, their places of business in different States; or
          • The State in which the parties have their places of business is different from either:
            • The State in which a substantial part of the obligations of the commercial relationship is to be performed; or
            • The State with which the subject matter of the dispute is most closely connected.
  • 10. Conciliation
    • UNICITRAL Model Law
      • Confidentiality (Art. 9)
        • Unless otherwise agreed by the parties, all information relating to the conciliation proceedings shall be kept confidential, except where disclosure is required under the law or for the purposes of implementation or enforcement of a settlement agreement.
  • 11. Conciliation
    • UNICITRAL Model Law
      • Admissibility of Evidence in Other Proceedings (Art. 10)
        • A party to the conciliation proceedings, the conciliator and any third person, including those involved in the administration of the conciliation proceedings, shall not in arbitral, judicial or similar proceedings rely on, introduce as evidence or give testimony or evidence regarding any of the following:
          • An invitation by a party to engage in conciliation proceedings or the fact that a party was willing to participate in conciliation proceedings;
  • 12. Conciliation
    • UNICITRAL Model Law
      • Admissibility of Evidence in Other Proceedings (Art. 10)
          • Views expressed or suggestions made by a party in the conciliation in respect of a possible settlement of the dispute;
          • Statements or admissions made by a party in the course of the conciliation proceedings;
          • Proposals made by the conciliator;
          • The fact that a party had indicated its willingness to accept a proposal for settlement made by the conciliator;
          • A document prepared solely for purposes of the conciliation proceedings.
  • 13. Conciliation
    • UNICITRAL Model Law
      • Admissibility of Evidence in Other Proceedings (Art. 10)
        • Paragraph 1 of this article applies irrespective of the form of the information or evidence referred to there in.
        • The disclosure of the information referred to in paragraph 1 of this article shall not be ordered by an arbitral tribunal, court or other competent governmental authority and, if such information is offered as evidence in contravention of paragraph 1 of this article, that evidence shall be treated as inadmissible. Nevertheless, such information may be disclosed or admitted in evidence to the extent required under the law or for the purposes of implementation or enforcement of a settlement agreement.
  • 14. Conciliation
    • UNICITRAL Model Law
      • Admissibility of Evidence in Other Proceedings (Art. 10)
        • The provisions of paragraphs 1,2 and 3 of this article apply whether or not the arbitral, judicial or similar proceedings relate to the dispute that is or was the subject matter of the conciliation proceedings.
        • Subject to the limitations of paragraph 1 of this article, evidence that is otherwise admissible in arbitral or judicial or similar proceedings does not become inadmissible as a consequence of having been used in a conciliation.
  • 15. Negotiations
    • Advantages & Disadvantages
      • Same as mediation
  • 16. Arbitration
    • Advantages
      • Truly international and impartial
      • Less susceptible to corruption
      • Experts in the field in dispute
      • Typically faster than court
      • Final decision
      • Enforceable throughout the world
      • In a neutral location
    • Disadvantages
      • Expensive
      • Time consuming
  • 17. Slovenian Arbitration Law No. 26/99
    • Application (Article 459)
      • This Chapter shall govern the procedure before arbitral tribunals, having their seat in the Republic of Slovenia, unless another law or international agreement stipulates that a particular arbitral tribunal, having its seat in the Republic of Slovenia, shall be considered a foreign arbitration.
  • 18. Slovenian Arbitration Law No. 26/99
    • Application (Article 460)
      • In disputes arising from rights with which they can freely dispose, the parties may provide for jurisdiction of a domestic arbitration by their agreement.
      • In disputes in which at least one party is a natural person with permanent residence in a foreign state or a legal person with its seat in a foreign state, the parties may also agree on a jurisdiction of a foreign arbitration, unless a court of the Republic of Slovenia has exclusive jurisdiction over such disputes.
  • 19. Slovenian Arbitration Law No. 26/99
    • Arbitration Agreement (Art. 461)
      • An arbitration agreement may be concluded in relation to a particular dispute, as well as in relation to future disputes which may arise from a particular legal relationship.
      • An arbitration agreement shall be valid only if made in writing.
      • An arbitration agreement is also made in writing if made by the exchange of letters, cables, telex messages or other means of telecommunications, which can provide a written record of its conclusion.
  • 20. Slovenian Arbitration Law No. 26/99
    • Arbitration Agreement (Art. 461)
      • An arbitration agreement shall be deemed to have been made in writing also by the exchange of a statement of claim, in which the claimant alleges the existence of such agreement, and a statement of defense, in which the respondent fails to deny this allegation.
  • 21. Slovenian Arbitration Law No. 26/99
    • Exclusion of Court Proceeding (Art. 468)
      • If the parties have agreed to confer the jurisdiction over a certain dispute to arbitration, a court of law with which an action has been brought in the same matter and between the same parties shall, upon defendant's objection to its jurisdiction, declare itself not competent, set aside all acts already performed in the proceedings, and dismiss the action.
      • The defendant must raise the objection referred to in the first paragraph of this Article not later than at the preliminary hearing or, in the absence of such hearing, at the main hearing, before he begins pleading the substantive issues of the dispute.
  • 22. Slovenian Arbitration Law No. 26/99
    • Qualifications of Arbitration (Art. 468)
      • An arbitrator shall disqualify himself if grounds for disqualification, as set forth in Article 70 of this Code, are present. Any party may ask that an arbitrator be disqualified on the same grounds.
      • The party who has appointed an arbitrator, either alone or together with the opposing party, may challenge such arbitrator only when the grounds for disqualification came into existence, or the party has learnt of such grounds, after the appointment had been made.
      • Unless otherwise agreed by the parties, the decision regarding disqualification shall be made by the court, referred to in Article 466 of this Code.
  • 23. Slovenian Arbitration Law No. 26/99
    • Award (Art. 473)
      • An arbitral award shall contain a statement of reasons, unless it is agreed otherwise by the parties.
      • The original and all copies of the arbitral award shall be signed by all arbitrators. The arbitral award shall be valid even though an arbitrator refuses to sign it, provided the majority of arbitrators have signed it, and have stated on the face of it, that an arbitrator withheld his signature.
      • Copies of the arbitral award shall be served on the parties by the court, specified in the third paragraph of Article 466 of this Code. Permanent courts of arbitration shall serve their awards themselves.
  • 24. Slovenian Arbitration Law No. 26/99
    • Grounds to Set Aside (Art. 477)
      • Setting aside of an arbitral award may be claimed:
      • if the arbitration agreement has not been concluded at all, or if the arbitration agreement is not valid (Articles 460 to 462);
      • if any provisions of this Code, or of the arbitration agreement, regarding the composition of the arbitral tribunal or the rendering of the award, have been violated;
      • if an arbitrator who should have been disqualified pursuant to the provisions of this Code, or who has been disqualified by a decree of the court (Article 468), participated in rendering of arbitral award;
  • 25. Slovenian Arbitration Law No. 26/99
    • Grounds to Set Aside (Art. 477)
      • if due to any unlawful procedural action, particularly with respect to the service of process, a party has been denied the opportunity to be heard before the arbitral tribunal;
  • 26. Slovenian Arbitration Law No. 26/99
    • Grounds to Set Aside (Art. 477)
      • if a person incapable of being a party to the civil proceedings, participated in the arbitral proceedings as a claimant or respondent, or if a party to the proceedings, which is a legal person, was not represented by a person authorized by law to represent it, or if a person incapable of being a party to civil proceedings was not represented by a lawful representative, or if the latter did not have the necessary permission to start the litigation or take a particular procedural action, or if a representative of a party did not have a power-of-attorney, unless the litigation or individual procedural actions were subsequently approved;
  • 27. Slovenian Arbitration Law No. 26/99
    • Grounds to Set Aside (Art. 477)
      • if the arbitral award has no statement of reasons, as specified by the first paragraph of Article 473 of this Code, or if the original and copies of the arbitral award are not signed in accordance with the second paragraph of Article 473 of this Code;
      • if the arbitral tribunal overstepped the limits of its powers;
      • if the decision of the arbitral award is incomprehensible or self-contradictory;
  • 28. Slovenian Arbitration Law No. 26/99
    • Grounds to Set Aside (Art. 477)
      • if the arbitral award is contrary to the public order of the Republic of Slovenia;
      • if it was established by a final judgment of a court of law, that an arbitral award has been rendered as a result of a criminal offence of a witness, an expert, an arbitrator, a party's statutory representative or attorney, or of any other person participating in the proceedings, or if the arbitral award is based on a forged document, or a document certifying false facts.