Green paper on alternative dispute resolution in civil and commercial law
Date: 2002-04-19
Institutions: European Commission
Subjects: access to the courts, civil law, civil proceedings, commercial law, conflict of jurisdiction, trade dispute

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 19.04.2002
COM(2002) 196 final

GREEN PAPER

on alternative dispute resolution
in civil and commercial law

(presented by the Commission)

TABLE OF CONTENTS

OBJECTIVE OF THE GREEN PAPER................................................................................................ 4

SUMMARY ................................................................................................................................... 5

1.

1.1

1.2

1.3

1.4

1.5

1.6

2.

2.1

OVERVIEW .................................................................................................................... 6

Wide variation.............................................................................................................. 6

Wider access to justice ................................................................................................. 7

A political priority........................................................................................................ 9

A topical issue............................................................................................................ 10

An international dimension........................................................................................ 11

A pivotal mandate ...................................................................................................... 12

REAPING THE BENEFITS OF WORK ALREADY UNDERTAKEN ......................................... 12

In the Member States ................................................................................................. 13

2.1.1

ADRs in the context of court proceedings ................................................................. 14

2.1.2

Conventional ADRs ................................................................................................... 15

2.2

At the level of the European Union............................................................................ 16

2.2.1

Reaping the benefits of the initiatives taken in the field of consumer protection law16

2.2.2

Reaping the benefits of the initiatives taken in the field of family law ..................... 20

2.2.3

Boosting the development of ADR in the labour relations area ................................ 22

3.

3.1

3.2

GUARANTEEING THE QUALITY OF ADR ...................................................................... 23

What approach should be followed? .......................................................................... 23

Overall approach to ADR .......................................................................................... 24

3.2.1

ADR and access to justice.......................................................................................... 24

3.2.1.1 Recourse to ADR ......................................................................................................... 24

3.2.1.2 Limitation periods ........................................................................................................ 26

3.2.2 Minimum quality standards?...................................................................................... 26

3.2.2.1 Confidentiality.............................................................................................................. 28

3.2.2.2 The validity of consent ................................................................................................. 30

3.2.2.3 The effectiveness of ADRs .......................................................................................... 30

3.2.3

Should third parties be given a status?....................................................................... 32

3.2.3.1 The training of third parties.......................................................................................... 32

3.2.3.2 Accreditation of third parties........................................................................................ 33

2

3.2.3.3 The liability of third parties.......................................................................................... 33

SUMMARY OF QUESTIONS .......................................................................................................... 35

3

OBJECTIVE OF THE GREEN PAPER

The purpose of this Green Paper is to initiate a broad-based consultation of those involved in
a  certain  number  of  legal  issues  which  have  been  raised  as  regards  alternative  dispute
resolution in civil and commercial law.

Answers to  specific  questions  and  general  comments  can  be  sent,  preferably  by  15  October
2002, to the following address:

European Commission
Justice and Home Affairs Directorate-General
Unit A3 - Judicial cooperation in civil matters
Office LX 46 5/152
B-1049 Brussels
Belgium
Fax: + 32 2 299 64 57
E-mail: JAI-coop-jud-civil@cec.eu.int

The Commission intends to organise a public hearing on the subject early in 2003.

4

SUMMARY

Growing  interest  is  being  shown  in  alternative  dispute  resolution  (ADR)  in  the  European
Union, for three main reasons.

First, there has been the increasing awareness of ADR as a means of improving general access
to justice in everyday life.

Second,  ADR  has  received  close  attention  from  the  Member  States,  many  of  which  have
passed legislation encouraging it.

Third,  ADR  is  a  political  priority,  repeatedly  declared  by  the  European  Union  institutions,
whose task it is to promote these alternative techniques, to ensure an environment propitious
to  their  development  and  to  do  what  it  can  to  guarantee  quality.  This  political  priority  was
specifically asserted in the context of the information society, where the role of new on-line
dispute resolution (ODR) services has been recognised as  a form of web-based cross-border
dispute resolution.

This specific context explains the background to the political mandate for the preparation of
this Green Paper. The Council asked the Commission to prepare a Green Paper taking stock
of the current situation and launching broad consultations on the measures to be taken.

This  Green  Paper  is  an  opportunity  to  familiarise  the  broadest  possible  public  with  ADR
facilities  and  also  to  make  the  initiatives  taken  by  the  Member  States  and  the  Community
more highly visible.

The purpose of consulting the public on the Green Paper is to ascertain the general opinion of
all circles concerned and their reactions to the question put here.

These questions are primarily legal and concern the salient features of ADR processes such as
ADR  clauses  in  contracts,  limitation  periods,  confidentiality  constraints,  the  validity  of
consent given, the  effectiveness of  agreements  generated by  ADR processes, the training of
third parties, their accreditation and the rules governing their liability.

The Commission plans to consider the views expressed as input for defining the general lines
of its own policy to be conducted in the years ahead in its role as promoter of legislative and
operational initiatives.

5

1.

OVERVIEW

1.1 Wide variation

1.  In the last few  years there have been developments  in  “alternative”  means of  settling or
resolving disputes within Member States, even though it is generally agreed that they are
very old. The specific advantages of these forms of private justice and the crisis affecting
the  effectiveness  of  justice  have  led  to  renewed  interest  in  these  methods  of  dispute
resolution,  which  are  more  consensual  than  recourse  to  the  courts  or  arbitration.
Considerable  efforts  have  been  made  in  the  Community  to  regulate  their  development,
particularly  in  the  information  society  context,  in  order  to  improve  the  trust  that
consumers and small and medium-sized businesses place in electronic commerce.

2.  Alternative  methods  of  dispute  resolution,  for  the  purposes  of  this  Green  Paper,  are
defined  as  out-of-court  dispute  resolution  processes  conducted  by  a  neutral  third  party,1
excluding arbitration proper.2 The alternative methods of dispute resolution will therefore
be referred to below by the acronym that is tending to be accepted universally in practice,
i.e.  “ADR”.3  This  Green  Paper  is  concerned  only  with  ADR  in  civil  and  commercial
matters, including employment and consumer law.4

3.  Alternative  dispute  resolution  governed  by  civil  and  commercial  law  can  be  subsumed
under  various  categories  which  depend  on  specific  legal  arrangements.  An  initial
distinction must be drawn between ADRs which are conducted by the court or entrusted
by the court to a third party (“ADRs in the context of judicial proceedings”), and ADRs
used by the parties to a dispute through an out-of-court procedure (“conventional ADRs”).
A second distinction, which is equally fundamental in the view of the Commission, must

1

2

3

4

This definition results in excluding the following procedures from the scope of this Green Paper:

-

-

-

expert  opinions,  which  are  not  a  method  of  dispute  resolution,  but  a  procedure  involving
recourse to an expert in support, for example, of a judicial or arbitration procedure.

complaint handling systems made available to consumers by professionals. These procedures
are not conducted by third parties, but by one of the parties to the dispute.

“automated  negotiation  systems”,  which  do  not  involve  any  human  intervention,  which  are
offered  by  providers  of  IT  services.  These  systems  are  not  dispute  resolution  procedures
conducted  by  third  parties  but  technical  instruments  designed  to  facilitate  direct  negotiations
between the parties to the dispute.

Arbitration is closer to a quasi-judicial procedure than to an ADR as arbitrators’ awards replace judicial
decisions. Arbitration is the subject of a certain number of legislative instruments in the Member States
and at international level, such as the 1958 New York Convention on the recognition and enforcement
of foreign  arbitration  decisions  http://www.uncitral.org/en-index.htm,  or,  within  the  framework  of  the
Council  of  Europe,  the  1966  European  Convention  providing  a  Uniform  Law  on  Arbitration
http://conventions.coe.int/Treaty/EN/cadreprincipal.htm.

The notions  most commonly  used in  national practice and legislation,  i.e.  mediation  and  conciliation,
will  therefore  not  be  used  systematically  in  this  Green  Paper,  but  only  in  the  context  of  a  particular
national legislation or of specific work by an international organisation.

This Green Paper does not cover questions relating to non-negotiable rights of public policy concern,
such as certain provisions of the law of persons and the family, competition law and consumer law that
cannot be put to ADR.

6

                                                
be made between the different conventional ADRs. Following  certain ADR procedures,5
the  third  party  or  parties  responsible  for  the  procedure  can  be  called  upon  to  take  a
decision  that  is  binding  for  one  party6  or  make  a  recommendation  to  the  parties  which
they are free to follow or not.7 In other ADR procedures, the third parties do not formally
adopt a position on the possible means of resolving the dispute but simply help the parties
come to an agreement.8

4.  ADRs are not a new development but have in recent years become increasingly common
and  have  been  the  focus  of  more  and  more  attention  by  a  number  of  observers.  The
proliferation  of  grass-roots  initiatives9  and  the  plethora  of  academic  writings  are  a
precious  help  for  the  public  authorities  in  their  task  of  monitoring  and/or  developing
ADRs.

1.2 Wider access to justice

5.  One  of  the  factors  underpinning  the  development  of  ADR  is  of  a  practical  and
conjunctural  nature.  ADRs  offer  a  solution  to  the  problem  of  access  to  justice  faced  by
citizens  in  many  countries  due  to  three  factors:  the  volume  of  disputes  brought  before
courts is increasing, the proceedings are becoming more lengthy and the costs incurred by
such proceedings are increasing. And the quantity, complexity and technical obscurity of
the legislation also help to make access to justice more difficult.

6.  Cross-border  disputes  tend  to  result  in  even  more  lengthy  proceedings  and  higher  court
costs  than  domestic  disputes.10  With  the  completion  of  the  internal  market,  the
intensification of trade and the mobility of citizens, irrespective of the importance of the
issue  or  the  monetary  value  involved,  disputes  between  citizens  from  different  Member
States  and  between  persons  residing  in  different  Member  States,  amplified  by  the
expansion  of  cross-border  e-commerce,  are  steadily  increasing,  and  the  number  of
cross-border  disputes  being  brought  before  the  courts  is  increasing  correspondingly.  In
addition to the practical problem of overworked courts, these disputes often raise complex
issues which involve conflicts of laws and jurisdiction and practical difficulties of finance
and language.

5

6

7

8

9

10

These two types of ADR are the subject of Commission Recommendation 98/257/EC of 30 March 1998
concerning  the  principles  applicable  to  the  bodies  responsible  for  the  extrajudicial  resolution  of
consumer disputes, OJ L 115, 17.4.1998, p. 31. This recommendation also covers arbitration.

As it is often the case  with the Ombudsmen of clients created by certain  professional  sectors  such  as
banks  and  insurance  companies.  The  decisions  of  the  Ombudsmen  are  binding  on  the  companies
affiliated to the system.

As is the case with the Consumer Complaint Boards that operate in the Scandinavian countries.

This  type  of  procedure,  in  the  consumer  field,  is  the  subject  of  Commission  Recommendation
2001/310/EC of 4 April 2001 on the principles applicable to the extrajudicial bodies charged with the
consensual resolution of consumer disputes, OJ L 109, 19.4.2001, p. 56.

Many  of  these  date  back  a  long  time,  such  as  the  establishment  in  1994  of  a  European  Economic
Interest Grouping to network arbitration and  mediation centres  in  France,  Italy,  Spain  and  the  United
Kingdom.  This  “European  Network  for  Dispute  Resolution”  (ENDR)  enjoyed  financial  support  from
the  Community,  managed  by  the  Commission’s  Directorate-General  XXIII  (Small  and  Medium-sized
Enterprises).

On  these  questions,  see  in  particular  the  information  in  the  Commission  Green  Paper  of  9  February
2000  “Judicial  cooperation  in  civil  matters:  the  problems  confronting  the  cross-border  litigant”,
COM(2000)51 final.

7

                                                
7.  Access  to  justice  for  all  is  a  fundamental  right  enshrined  in  Article  6  of  the  European
Convention for the Protection of Human Rights and Fundamental Freedoms. The right to
valid  remedies  has  been  determined  by  the  European  Court  of  Justice  to  be  general
principle  of  Community  law11  and  proclaimed  as  such  by  Article  47  of  the  Charter  of
Fundamental  Rights  of  the  European  Union.  Access  to  justice  is  an  obligation  which  is
met  by  the  Member  States  through  the  provision  of  swift  and  inexpensive  legal
proceedings. Moreover, certain Member States have undertaken to modernise  their legal
system by simplifying referral procedures or by envisaging the possibility of taking legal
action by electronic means.12

8.  The  European  Union  is  endeavouring  to  facilitate  access  to  justice  through  a  series  of
measures such as the creation of an information system on easily accessible justice which
is maintained and updated by a network of competent national authorities.13 These efforts
complement those already undertaken with a view to creating a European area of justice
based on the principle of mutual recognition, such as the measures concerning the easing
of  exequatur  procedures,14  the  initiatives  aimed  at  doing  away  with  the  exequatur  for
uncontested  credit,  simplifying  and  accelerating  the  settlement  of    cross-border  disputes
concerning small claims.15

9.  ADRs are an integral part of the policies aimed at improving access to justice.  In effect,
they complement judicial procedures, insofar as the methods used in the context of ADRs
are often better suited to the nature of the disputes involved. ADR can help the parties to
enter  into  dialogue  where  this  was  not  possible  before,  and  to  come  to  their  own
assessment of the value of going to court.

10. It is worth highlighting the role of ADRs as a means of achieving social harmony. In the
forms of ADR in which the third parties do not take a decision, the parties do not engage

11

12

13

14

15

Case 222/84 Johnston [1986] ECR 1651 (judgment given on 15.5.1986).

This possibility, as regards small claims, is effective in Germany, Denmark, Finland and England. This
information  comes  from  the  replies  of  the  Member  States  to  a  questionnaire  sent  to  them  by  the
Commission in September 2000 on the legal procedures applicable to small claims.

Council Decision 2001/470/EC of 28 May 2001 establishing a European Judicial Network in civil and
commercial matters, OJ L 174, 27.6.2001, p. 25. Under Article 14 of this Decision, an “Internet-based
information system for the public” will be set in place and will in particular include information sheets,
some  of  which  will  concern  “alternative  dispute-settlement  possibilities,  with  an  indication  of  the
national  information  and  advice  centres  of  the  Community-wide  Network  for  the  Extra-Judicial
Settlement of Consumer Disputes”.

Commission Communication to the Council and the European Parliament “Towards greater efficiency
in obtaining and enforcing judgments in the European Union”, COM(97)609 final, 26.11.1997. Council
Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement
of  judgments  in  civil  and  commercial  matters,  OJ  L  12,  16.1.2001,  p.  1  (hereinafter  the  “Brussels  I
Regulation”). Except for Denmark, the Brussels I Regulation replaces the 1968 Brussels Convention on
jurisdiction  and  the  recognition  and  enforcement  of  judgments  in  civil  and  commercial  matters
(consolidated version in OJ C 27, 26.1.1998, p. 1).

See in particular on these questions the programme of measures of the Commission and the Council on
the implementation of the principle of mutual recognition of decisions in civil and commercial matters,
OJ C12, 15.1.2001, p. 1. The Commission intends to present during the first half of 2002 a proposal for
a regulation for the creation of a European enforcement order for uncontested claims and a Green Paper
to prepare new procedural legislation on money payments and for disputes concerning small claims. See
the  Commission  Communication  on  the  biannual  update  of  the  scoreboard  to  review  progress  on  the
creation  of  an  area  of  “freedom,  security  and  justice”  in  the  European  Union,  COM(2001)  628  final,
30.10.2001.

8

                                                
in confrontation but rather in a process of rapprochement, and they themselves choose the
means of resolving the dispute and play a more active role in this process in such a way
that they themselves endeavour to find the solution best suited to them. This  consensual
approach increases the likelihood that, once the dispute is settled, the parties will be able
to maintain their commercial or other relations.

11. ADRs are flexible, that is, in principle the parties are  free to have  recourse  to ADRs, to
decide which organisation or person will be in charge of the proceedings, to determine the
procedure  that  will  be  followed,  to  decide  whether  to  take  part  in  the  proceedings  in
person or to be represented and, finally, to decide on the outcome of the proceedings.

12. The cost  of ADRs is of course  an  essential factor that  must be taken  into  account.  As a
general rule, the cost is borne by the parties. However, the parties may not have to pay the
costs connected with ADRs. For one thing, it may be that the third parties responsible for
ADRs are not paid,16 and it may be that the operating costs of the bodies responsible for
ADR are paid by the public authorities,17 or by professional organisations,18 or one and/or
other party may be entitled to legal aid.

13. Certain Member States provide legal aid to cover the costs connected with ADRs and any
costs  for  legal  representation.19  The  Commission  has  already  taken  the  initiative  to
harmonise the legislation of the Member States on this point in its draft Council directive
on  the  approximation  of  certain  laws,  regulations  and  administrative  provisions  of  the
Member States on legal aid and other financial aspects of civil proceedings.20 Article  16
of this  draft directive  stipulates that  “Legal  aid  shall  be  granted  in  cases  where  disputes
are settled via extra-judicial procedures, if the law makes provision for such procedures or
if the parties to the dispute are ordered by the court to have recourse to them.”

1.3

A political priority

14. The  European  Council  has  repeatedly  stressed  the  importance  it  attaches  to  alternative
means of  settling  cross-border  disputes, in particular at  Vienna in December 199821  and
then  in  Tampere  in  October  1999  at  a  meeting  devoted  to  the  creation  of  an  “area  of
freedom, security and justice within the European Union”.22

16

17

18

19

20

21

22

For example, in France, the justice conciliators.

For example, in Ireland, the family mediation service.

For example, in  Sweden,  the  office  for  damage  attributable  to  road  traffic,  whose  operating  costs  are
covered by automobile insurance companies.

For  example,  in  France,  legal  aid  can  be  granted  to  pay  the  fees  of  the  lawyer  who  conducts
transactional negotiations.

Proposal presented on 18 January 2001, COM(2001) 13 final.

Paragraph  83  of  the  Presidency  Conclusions  http://ue.eu.int/en/Info/eurocouncil/index.htm:  “The
European  Council  endorses  the  Council  and  Commission  action  plan  on  how  best  to  implement  the
provisions  of  the  Treaty  of  Amsterdam  on  an  area  of  freedom,  security  and  justice”,  OJ  C  19,  23.1.
1999, p.1. Paragraph 41(b) of the action plan states: “examine the possibility of drawing up models for
non-judicial  solutions  to  disputes  with  particular  reference  to  transnational  family  conflicts.  In  this
context,  the  possibility  of  mediation  as  a  means  of  solving  family  conflicts  should  be  examined”.
Conclusions of European Councils can be consulted at  http://ue.eu.int/en/Info/eurocouncil/index.htm.

Paragraph 30 of the Presidency conclusions http://ue.eu.int/en/Info/eurocouncil/index.htm: “Alternative,
extrajudicial procedures should also be created by Member States.”

9

                                                
15. At the Lisbon European Council in March 2000 devoted specifically to “Employment and
the Information Society”, the European Council invited the “Commission and the Council
to  consider  how  to  promote  consumer  confidence  in  electronic  commerce,  in  particular
through  alternative  dispute  resolution  systems”.23  This  objective  was  reaffirmed  at  the
European Council at Santa Maria da Feira in June 2000 when the “e-Europe 2002 Action
Plan”24  was  approved.  And  in  the  employment  relations  field,  the  Brussels  (Laeken)
European Council in December 2001 “stresses the importance of preventing and resolving
social  conflicts,  and  especially  trans-national  social  conflicts,  by  means  of  voluntary
mediation mechanisms …”.25

1.4

A topical issue

16. ADRs  were  very  much  on  the  agenda  during  the  recent  legislative  debates  concerning
electronic  commerce,  in  particular  in  connection  with  certain  discussions  at  European26
and  global  27  levels  on  the  issues  raised  by  conflicts  of  jurisdiction  in  the  field  of
consumer litigation.28

17. These  debates  were  in  line  with  Article  17  of  the  Directive  on  electronic  commerce
adopted  in  June  2000,29  which  stipulates  that  “the  Member  States  should  ensure  their
legislation does not hamper the use of out-of-court schemes available under national law,
for  dispute  settlement,  including  appropriate  electronic  means”.  The  Member  States  are
also invited under the terms of this article 17 to encourage “the bodies responsible for the
out-of-court  settlement  …  to  operate  in  a  way  which  provides  adequate  procedural
guarantees for the parties concerned”.

23

24

25

26

27

28

29

Paragraph 11 of the Presidency conclusions

Paragraph 
the 
http://europa.eu.int/information_society/eeurope/action_plan/index_en.htm

conclusions 

Presidency 

and 

the 

22 

of 

eEurope 

action 

plan

Paragraph 25 of the Presidency conclusions.
Debates preceding the adoption of the above-mentioned Brussels I Regulation.

Debates in the context of the negotiations within the Hague Conference on Private International Law on
a  draft 
judgments
jurisdiction  and 
http://www.hcch.net/f/workprog/index.html

international  convention  on 

the  recognition  of  foreign 

Apart  from  questions  related  to  e-commerce,  the  role  of  ADRs  has  been  highlighted  directly  or
indirectly in a number of Community instruments. The Commission devotes considerable space to them
in  its  second  report  on  the  implementation  of  Council  Directive  85/374/EEC  (the  product  liability
Directive), COM(2000) 893 final. ADRs are expressly referred to in Article 10 of Directive 97/5/EC on
cross-border  credit  transfers  (OJ  L  43,  14.2.1997,  p.  25),  Article  11  of  Directive  97/7/EC  on  the
protection of consumers in respect of distance contracts (OJ L 144, 14.6.1997, p. 19), Article 12 of the
proposal  for  a  Directive  concerning  the  distance  marketing  of  consumer  financial  services
(COM(1998) 468  final)  and  Article  9  of  the  proposal  for  a  Directive  on  insurance  mediation
(COM(2000) 511 final. Regarding disputes between firms, see also Articles 18 and 19 of the Common
Position (EC) No 38/2001 of 17 September 2001 adopted by the Council, acting in accordance with the
procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to
adopting  a  European  Parliament  and  Council  Directive  on  a  common  regulatory  framework  for
electronic communications networks and services (Framework Directive) (OJ C337, 30.11.2001, p. 34).

Directive  2000/31/EC  of  8  June  2000  concerning  certain  judicial  aspects  of  the  services  of  the
information  society,  and  in  particular  electronic  comments,  within  the  internal  market,  OJ  L  178,
17.7.2000, p. 1. Furthermore, Article 17 encourages ADR bodies to organise a certain feedback to the
Commission. Their role would therefore extend beyond implementation to allow the public authorities,
where appropriate, to adapt their legal policy.

10

                                                
18. In  its  opinion  on  the  draft  Brussels I  Regulation  in  September  2000,  the  European
Parliament proposed  going further with  ADRs in certain conditions and  making  binding
on consumers clauses in which the consumer and the operator agree in their contract that
any  dispute  must  be  referred  to  a  system  of  extrajudicial  dispute  resolution  which  is
approved  under  the  terms  of  a  plan  approved  by  the  Commission.  Parliament  also
proposed  to  make  enforceable  the  settlements  obtained  within  the  framework  of  such
alternative dispute resolution schemes.30

19. The “Brussels I” Regulation adopted by the Council in December 2000 does not include
these amendments of Parliament. However, at the time of the adoption of this Convention,
the Council and the Commission highlighted the useful complementary role of ADRs, in
particular with regard to electronic commerce.31

1.5

An international dimension

20. The  work  being  done  in  the  Community  obviously  incorporates  the  international
dimension in that they do not regard only nationals of the Member States of the European
Union  as  potential  subjects  of  ADRs.  ADRs  are  also  on  the  agenda  of  a  number  of
intergovernmental organisations:

- The Council of Europe adopted a recommendation in 1998 on family mediation,32 and
is currently drawing up a draft recommendation on civil mediation.33 These projects,
in which the Member States and the countries applying to join the European Union are
participating,  are  being  followed  with  very  great  interest  by  the  Commission.  The
present Green Paper takes full account of these initiatives undertaken by the Council
of Europe.

- The United Nations Commission on International Trade Law, for its part, is drawing

up model legislative provisions concerning commercial conciliation.34

in 

- ADRs  (in  connection  with  electronic  commerce)  are  also  mentioned  directly  or
the  Organisation  for  European  Cooperation  and
indirectly 
Development,35  and  they  are  mentioned  in  context  with  the  negotiations  under  way
within  the  Hague  Conference  on  Private  International  Law  on  a  draft  international
convention on jurisdiction and the recognition of foreign judgments.36

the  work  of 

30

31

32

33

34

35

36

OJ C 146 of 17 May 2001, p. 94. See also the reactions of the Commission to these different points in
its amended proposal presented on 26 October 2000, COM(2000)689 final.

Joint declaration of the Council and the Commission concerning Articles 15 and 73 of the Regulation in
the  minutes  of  the  Council  meeting  of  22  December  2000  which  adopted  this  regulation.  The
Declaration can be consulted at http://europe.eu.int/comm/justice_home/unit/civil_en.htm

Recommendation n° R(98)1 http://cm.coe.int/ta/rec/1998/f98r1.htm

Work of the Committee of experts on the efficiency of justice
http://www.legal.coe.int/civilandcommercial

Work of the working group on arbitration http://www.uncitral.org/fr-index.htm

Council  Recommendation  concerning  the  guidelines  governing  the  protection  of  consumers  in  the
context of electronic commerce http://www.oecd.org

http://www.hcch.net/f/workprog/index.html

11

                                                
21. ADRs in the field of electronic commerce are the subject of recommendations issued by a
number  of  international  non-governmental  organisations  whose  work  is  being  closely
followed  by  the  Commission,  such  as  the  GBDe  (Global  Business  Dialogue  on
e-commerce37), 
the  TACD
(Transatlantic Consumer Dialogue39).

the  TABD  (Transatlantic  Business  Dialogue38)  and 

22. ADRs  (in  the  field  of  civil  and  commercial  law)  are  the  subject  of  major  projects  in  a

number of third countries:

- The  countries  applying  to  join  the  European  Union  are  just  as  keenly  aware  as  the
Member States of the importance of developing ADRs within the framework of their
own  reflections  on  ways  to  improve  access  to  justice,  as  shown  by  their  active
involvement in the above-mentioned work of the Council of Europe.

- The USA has a long and rich experience of ADRs in various forms, which have been
able  to  develop  because  they  were  supported  by  the  court  system.  Most  US  States
have adopted Mediation Acts in different areas. The plethora of such Acts adopted by
the States has prompted the National Conference of Commissioners on Uniform State
Laws to draw up a uniform Mediation Act.40

-

-

In  Canada,  work  began  in  August  2000  within  the  framework  of  the  Uniform  Law
Conference to assess the need to draw up a uniform law on mediation.41

In  Japan,  general  legislative  work  on  ADRs  is  among  the  recent  recommendations
adopted in June 2001 by the Justice System Reform Council.42

1.6

A pivotal mandate

23. This overview of ADRs highlights the need to draw up a detailed inventory of the various
initiatives and projects undertaken by the Member States and by the European Union and
to  reflect  on  the  legal  issues  raised  in  terms  of  the  quality  of  ADRs.  The  Ministers  of
Justice of  the  Fifteen have therefore decided to begin work at the level of the  European
Community on ADRs governed by civil  and  commercial  law.  In May  2000  they invited
the  Commission  to  gather  information  on  the  situation  within  the  Member  States  as
regards the alternative methods of resolving cross-border disputes governed by civil and
commercial law. Based on this information, the Commission was invited to draw up and
present a Green Paper to outline the current situation and initiate a broad consultation with
a view to laying the groundwork for practical measures.43

37

38

39

40

41

42

43

http://www.gbde.org

http://www.tabd.com

http://www.tacd.org

http://www.nccusl.org This draft uniform Act was completed on 16 August 2001.

http://www.chlc.ca/fr

 http://www.kantei.go.jp/foreign/judiciary/2001/0612report.html

Conclusions of the Justice and Home Affairs Council of 29 May 2000, http://ue.eu.int/newsroom

12

                                                
2.

REAPING THE BENEFITS OF WORK ALREADY UNDERTAKEN

24. The  Commission  was  invited  by  the  Council  to  draw  up  an  inventory  of  ADRs  in  the
Member States and in the European Union. To be effective, any analysis of ADRs should
be based on the work already undertaken. The Commission compiled the information on
this work on the basis of the replies to a questionnaire addressed to the Member States44
and studies on ADRs.45

2.1

In the Member States

25. The Member States do not have detailed framework regulations on ADRs.46 Nonetheless,
a number of general studies have been undertaken to this end in Denmark,47 in Italy,48 in
Austria49 and in Portugal50. This work might yield a definition of the status of ADRs and
lead to the introduction of the possibility of recourse to ADRs in civil procedure law.

26. Certain  Member  States  have  taken  sectoral  initiatives  to  promote  ADRs  by  creating
consultative  authorities  on  ADRs,51  by  providing  financing  for  ADR  structures,52  by

44

45

46

47

48

49

50

51

52

Questionnaire on the alternative methods of dispute resolution governed by civil and commercial law,
prepared by the Portuguese Presidency of the Council of the European Union in June 2000.

Study carried out by professional associations involved in ADRs in the commercial field who received
European financial support for this work under the Grotius programme. The description of this project –
MARC  2000  –  can  be  consulted  under  the  reference  GR/2000/136  at  the  following  address:
http://europa.eu.int/comm/justice_home/pdf/grotius2000.pdf

The Grotius programme was set up by the Council Joint Action of 28 October 1996 on a programme of
incentives  and  exchanges  for  legal  practitioners,  OJ  L  287,  8.11.1996,  p.  3.  This  programme,  which
expired  in  2000  and  was  renewed  in  2001  (Council  Regulation  of  12  February  2001,  OJ  L  43,
14.2.2001,  p.  1),  should  be  recast  for  2002-2006  (proposal  for  a  Regulation  establishing  a  general
framework for Community activities to facilitate the implementation of a European judicial area in civil
matters, OJ C 213 E, 31.7.2001, p. 271).

regional 

Some 
http://www.streitschlichtung.nrw.de

legislation  has  been  enacted, 

for 

instance 

in  North  Rhine  Westphalia:

In  Denmark,  the  Standing  Committee  on  Procedural  Law  (“Retsplejerådet”)  carries  out  work  with  a
view to a general reform of the Code of Civil Procedure. The first report, which was presented in spring
2001, includes a description of the existing extrajudicial procedures in civil matters. The Retsplejerådet
is  currently  continuing  its  work  looking  into  ways  of  improving  coordination  between  ADRs  and
procedures before the courts.

Italian  bill  drawn  up  in  spring  2000  (schema  di  disegno  di  legge  recante  norme  per  l’accesso  alla
giustizia  civile,  per  la  risoluzione  consensuale  delle  controversie  e  per  l’abbreviazione  dei  tempi  del
processo civile).

Mediation Act (Mediationgesetz) currently being discussed.

The public consultation of the Portuguese Ministry of Justice on the “resolução alternativa de litígios”
led to the Justices of the Peace and Ombudsman Act (No 78/2001 of 13 July 2001).

See  for  example  the  setting-up  in  France  by  decree  of  8  October  2001  of  the  “national  consultative
council  on  family  mediation”,  which  is  charged  with  “proposing  all  measures  that  may  be  useful  in
encouraging the organisation of family  mediation and promoting their development. To this  end,  it  is
looking  into  the  scope  of  application  of  family  mediation,  the  training  of  family  mediators  and  the
ethical  rules,  the  evaluation  of  practices  and  the  effect  of  mediation,  in  particular  on  the  need  to
maintain links within the family” http://www.justice.gouv.fr/presse/com091001.htm

For example, in the Scandinavian countries, the Consumer Complaint Boards are financed directly by
the national budget.

13

                                                
implementing vocational training programmes,53 and by disseminating information to the
general  public  on  ADRs.  Sometimes,  the  work  envisaged  consists  in  amending  national
legislation to take more account of the specific nature of ADRs.54

2.1.1 ADRs in the context of court proceedings

27. As regards ADRs conducted by a court, the Member States' codes of civil procedure allow
for  the  possibility  of  seising  a  judge  principally  concerned  with  conciliation,55  make
conciliation  the  compulsory  phase  of  the  procedure56  or  explicitly  encourage  judges  to
intervene  actively  in  the  search  for  an  agreement  between  the  parties.57  These  specific
missions entrusted to judges, which are not necessarily among their usual functions, must
therefore be accompanied by suitable training programmes.

28. ADRs entrusted by the court to a third party are the subject of general regulations or draft
regulations in most Member States. These range from the possibility of recourse to ADRs
(for example in Belgium58 and in France59) to the encouragement (in Spain,60 in Italy,61 in
Sweden62 and in England and Wales63) and even the prior obligation to have recourse to

53

54

55

56

57

58

59

60

61

62

63

For  example,  in  Portugal,  the  Ministry  of  Justice  presented  on  30  October  2001  a  protocol  on  the
training of justices of the peace and ombudsmen: http://www.mj.gov.pt

For  example,  in  Germany,  the  law  gives  advocates  a  monopoly  as  regards  the  provision  of  legal
services. A court was called upon to consider that ADRs are legal services and are under the monopoly
of the jurists. The authorities are considering a change to the texts that would mean that ADRs would no
longer be under the monopoly of the advocates.

For example, in Italy, the position of “justice of the peace”, whose jurisdiction is defined by article 322
of the Code of  Civil  Procedure.  In  Greece,  the  conciliatory  intervention  of  the  justice  of  the  peace  is
governed by article 209 of the Code of Civil Procedure. In Belgium, article 731  of  the  Judicial  Code
provides for general jurisdiction for first judges who can be seised by an application for conciliation.

For  example,  in  Finland,  in  all  civil  actions  the  judge  must  first  obtain  an  arrangement  between  the
parties.

In Germany, in accordance with section 279 ZPO (Code of Civil Procedure), the court must favour the
search for an amicable solution throughout the procedure. In France, article 21 of the new Code of Civil
Procedure stipulates that it is the responsibility of the judge to reconcile the parties.

Article 665 of the Judicial Code, introduced by the law on family mediation of 21 January 2001, allows
the judge, at the joint request of the parties or at his own initiative but with the agreement of the parties,
to appoint a mediator.

See articles 131-1 to 131-15 of the new Code of Civil Procedure on judicial mediation.

Articles 414 and 415 of Act No 1/2000, which came into force on 9 January 2001, stipulates that the
judge must intervene to invite the parties, at the start of the “ordinary” procedure, to a conciliation or
transaction once their respective claims have been expressed.

Articles  183,  185  and  350  of  the  Code  of  Civil  Procedure  stipulates  that  the  judge  must  take  all
measures to assess in practice whether the necessary conditions are present to extinguish the judgment
in hand by a document establishing the effective reconciliation of the parties.

Pursuant to chapter 42, section 17, of the Code of Procedure, the court must take all measures to allow
the dispute to be resolved amicably.

Pursuant to Rules 26.4 and 44.5 of the Civil Procedure Rules for England and Wales, which came into
force on 26 April 1999, the court may suspend a case to allow the parties to have recourse to mediation.
The courts can order the parties to make financial penalty payments if they refuse mediation.

14

                                                
ADRs under the law or by decision of the judge (for example in Germany,64 in Belgium65
and in Greece66).

29. Practical experiments have been carried out, at the initiative of the courts themselves67 or
at the initiative of the competent ministers through pilot projects68 aimed at encouraging
more widespread use of ADRs.

30. The third parties appointed by courts can be civil servants,69 citizens who are appointed by
the judicial  authorities on the basis of a  certain number of  criteria  and  who  appear  on  a
list70 or on a case-by-case basis.71

2.1.2 Conventional ADRs

31. Conventional ADRs are not the subject of any specific general regulations in the Member
States. The only provisions applied are the general provisions of contract law or specific
provisions connected with the transaction agreements to which ADRs can lead. ADRs are
based  on  the  general  principles  of  contract  law,  the  law  of  civil  procedure  and  private
international law. The level of development of the contractual practices and of the rules of
professional  ethics  of  the  third  parties  who  offer  their  services  in  the  context  of  ADRs
varies in the different Member States.

32. Sectoral  legislation  has  been  adopted  in  a  certain  number  of  Member  States  aimed  at
creating  services  responsible  for  ADRs,  for  example  in  Denmark,72  in  Ireland,73  in
Finland74 and in Sweden.75

64

65

66

67

68

69

70

71

72

73

74

Pursuant  to  a  federal  Act  of  15  December  1999,  three  Länder  ruled  that  ADR  procedure  known  as
“Schlichtung” is compulsory, stipulating that the court action is not admissible unless Schlichtung has
first been attempted. A new federal procedural law is being drafted which is designed to allow parties to
demand a date for the hearing which is reserved for  mediation and  will oblige the judge  to  begin  the
proceedings by prior mediation.

The recourse to extrajudicial procedures is compulsory, under the Judicial Code, for example, in matters
of  litigation  involving  employment  contracts  and  agricultural  leases.  A  bill  currently  being  discussed
envisages an overall reform within the framework of the Judicial Code and introducing the possibility
whereby any judge can order a mediation procedure.

Article 214 of the Code of Civil Procedure stipulates that disputes which fall within the jurisdiction of
the court of first instance cannot be heard unless there has first been an attempt at conciliation.

An experiment is being conducted in a French labour tribunal: http://www.mediationsociale.com.

Experimental project being conducted in the Netherlands: http://www.minjust.nl

In Greece, the conciliator acting pursuant to articles 13 to 16 of Act No 1876/1990 on collective labour
disputes is an official from the Ministry of Labour.

In  France,  the  legal  conciliator  must  meet  certain  conditions:  morality  (he  must  have  his  civil  and
political  rights),  qualification  (he  must  have  at  least  three  years  of  experience  in  legal  matters)  and
independence (incompatibility with elective or judicial office).

In  France,  mediators  must  meet  certain  conditions  with  regard  to  probity  (having  no  criminal,
disciplinary or administrative convictions), qualification, experience and independence.

Arbejdsmarkedets  Ankenarven  (labour  market  mediation  commission),  Huslejenaevnene  (leasing
commission), Forbrugerklagenaevn (consumer mediation commission).

Conciliation Service of the Labour Relations Commission.

Kuluttajavalituslautakunta (Office for consumer disputes).

15

                                                
33. It would appear that certain principles common to all procedures have been observed on
the ground by the public authorities.76 The parties to the dispute are free to decide whether
or  not  to  have  recourse  to  ADRs.  They  decide  themselves  whether  to  organise  the
procedure,  based  on  the  impartiality  and  fairness  of  the  third  party  in  charge  of  the
procedure. The said third party must respect the principle of confidentiality. The Member
States  are  particularly  keen  to  ensure  that  these  principles  offer  minimal  procedural
guarantees.

2.2

At the level of the European Union

34. The most important work on ADRs which has already been undertaken at the level of the
European  Union  which  might  be  used  as  a  basis  is  connected  with  consumer  protection
law, family law and labour law.

2.2.1 Reaping  the  benefits  of  the  initiatives  taken  in  the  field  of  consumer  protection

law

35. Major  projects  have  been  undertaken  in  recent  years  in  the  field  of  consumer  disputes
(domestic or cross-border, connected with the Internet or otherwise) within the framework
of a programme aimed at providing consumers with better access to justice.77 The outline
of  the  work  that  has  been  done  is  given  here  for  two  reasons:  to  take  stock  of  all  the
initiatives  taken  in  this  field  so  far  and  open  a  great  debate  in  the  context  of  a  broader
consideration  of  ADRs  so  as  to  give  a  fuller  picture  of  the  situation  in  the  European
Union.  This  sets  the  debate  in  the  more  general  context  of  the  ongoing  review  of
consumer law.

36. In the  context  of  the  programme  to  improve  consumer  access  to  justice,  Parliament  and
the Council, on a Commission proposal, adopted Directive 98/27/EC of 19 May 1998 on
injunctions for the protection of  consumer  interests.78  Under  this  Directive,  the  Member
States must enable independent public bodies and consumer organisations to bring actions
for  an  injunction  against  certain  commercial  practices.  Further  initiatives  aimed  at
safeguarding the rights of consumers have been taken in certain sectors such as transport79
and energy.80

75

76

77

78

79

80

National office for consumer claims, office for damage attributable to road traffic.

The replies of the Member States to the questionnaire on this point are particularly interesting.

See  in  particular  the  Commission  Green  Paper  of  16  November  1993  on  the  access  of  consumers  to
justice  and  the  settlement  of  consumer  disputes  within  the  single  market  (COM(93)576),  the
Commission Communication of 14 February 1996 concerning an action plan on access of consumers to
justice  and  the  settlement  of  consumer  disputes  in  the  single  market  (COM(96)13),  the  Commission
the  extrajudicial  resolution  of  consumer  disputes
Communication  of  30  March  1998  on 
(COM(1998)198) and the Commission Communication of 4 April 2001 on the  widening of  access  of
consumers to other dispute resolution systems (COM(2001)161).

OJ L 166, 11.6.1998, p. 51

The  importance  attached  by  the  Commission  to  ADR  is  stressed  in  its  White  Paper  of  12  September
2001  on  "European  transport  policy  for  2010:  time  to  decide"  (COM(2001)  370  final),  its
Communication  of  21  June  2000  on  the  protection  of  air  passengers  in  the  European  Union
(COM(2000) 365 final) and its Communication of 23 January 2002 "Towards an integrated European
railway area" (COM(2002) 18).

Proposal  for  a  Parliament  and  Council  Directive  amending  Directives  96/92/EC  and  98/30/EC
concerning common rules for the internal market in electricity and natural gas (COM)2001 125).

16

                                                                                                                                                        
37. The Commission has adopted two recommendations establishing the principles applicable
resolution  of  consumer  disputes.  These
to  out-of-court  procedures 
recommendations,  which  are  all  accompanied  by  a  Commission  communication,  have
been accompanied by the publication of the European claim form for consumers.81

the 

for 

- The  first  recommendation,  which  was  adopted  on  30  March  1998,82  relates  to  the
procedures which, no matter what they  are  called, lead to  a resolution of the dispute
through  the  active  intervention  of  a  third  party  who  formally  adopts  a  position  with
regard  to  a  solution.  This  first  recommendation,  which  sets  out  the  seven  minimum
principles for the establishment and operation of ADR facilities, does not relate to the
procedures often referred to as “mediation” procedures. The Member States have been
called  upon  to  draw  up  an  inventory  of  the  bodies  responsible  for  the  out-of-court
resolution  of  consumer  disputes  which  they  consider  to  be  in  line  with  the
Commission’s  recommendation. These national lists have been  communicated  to  the
Commission which in turn is responsible for publishing them.83

- The  second  recommendation  (of  4  April  200184)  relates  to  the  procedures  which  are
limited  to  a  simple  attempt  to  bring  the  parties  together  to  convince  them  to  find  a
solution by common consent. However, it may be that the third party is called upon to
propose a solution informally.

38. The  Commission  has  also  established  two  European  networks  of  national  bodies  both
aimed at facilitating access for consumers to out-of-court procedures for the resolution of
cross-border disputes in the event that the professional is located in a Member State other
than  the  Member  State  of  residence.  The  two  networks  pursue  the  same  objective  but
operate differently:

- The  European  Extra-Judicial  Network  “EEJ-Net”85  is  a  consumer  support  and
information structure which consists of national contact points (or “Clearing Houses”)
located in each Member State and in Iceland and Norway. Each of the contact points
relays information to the 400 bodies which the Member States consider as having met
the requirements of the two Commission recommendations concerning the principles
applicable to bodies responsible for the out-of-court resolution of consumer disputes.
This  network  was  officially  launched  on  16  October  2001.  There  will  be  a  one-year
pilot stage, and the Commission will produce a  full  report in  autumn  2002 to  record
progress and sound out those concerned as to its success;

-

“FIN-NET”  (FINancial  Services  complaints  NETwork)86  is    a  network  of    the
competent national ADR bodies which meet the requirements of the first Commission

81

82

83

84

85

86

http://europa.eu.int/comm/consumers/policy/developments/acce_just/index_en.html

OJ L 115,17.4.1998, p. 31.

list 

The 
can 
http://europa.eu.int/comm/consumers/policy/developments/acce_just/acce_just04_fr.html

consulted 

notified 

bodies 

the 

following 

be 

of 

at 

address:

OJ L 109, 19.4.2001, p. 56.

http://europa.eu.int/comm/consumers/policy/developments/acce_just/index_en.html

See  in  particular,  on  the  EEJ-Net,  Commission  working  document  SEC(2000)  405,  the  Council
Resolution of 25 May 2000, OJ C 155, 6.6.2000, p. 1, and the Own-Initiative Resolution adopted by the
European Parliament on 3 July 2001, not yet published.

http://europa.eu.int/comm/internal_market/en/finances/consumer/adr.htm

17

                                                
recommendation. By 22 February 2002 there were 37 such bodies. FIN-NET provides
consumers  who  have  problems  relating  to  financial  services  (banks,  insurance
companies, investment services) with direct access to an ADR facility. It was launched
by  the  Commission  on  1  February  2001  and  has  already  had  beneficial  effects.  A
guide to FIN-NET will be published to familiarise consumers with it in the context of
the Dialogue with Citizens and  Business that sets out to brief them on their rights in
the single market.

39. The two Commission Recommendations have had considerable influence in the Member
States. The Commission will not take new measures relating to consumers until there has
been a full evaluation of EEJ-Net and extensive consultations with all the Member States,
ADR providers and other interested parties.

40. ADRs connected with consumer disputes have been the focus of particular attention in the
field of electronic commerce,  in particular  in the  e-Europe  Action  Plan.87  This  concerns
the “traditional” alternative channels and “ODR” or “Online Dispute Resolution”, which,
moreover,  can  be  used  to  resolve  disputes  which  are  not  connected  with  electronic
commerce.  A  number of  questions relating  to ODR  will be  considered  in  a  forthcoming
Commission communication.

41. The reflections concerning ADRs surrounding consumer disputes in the field of electronic
commerce  are  also  part  and  parcel  of  the  more  general  context  of  a  policy  aimed  at
bolstering the confidence of consumers in electronic commerce. Within the framework of
the  “eEurope  2002  Action  Plan”,88  the  Commission  has  set  up  a  discussion  and
information  exchange  forum  on  the  theme  of  consumer  confidence  on  the  Internet
(“e-confidence”).89  Within  this  framework,  the  Commission  has  encouraged  the
promotion  by  the  interested  stakeholders  themselves,  representing  professionals  and
consumers, of high standards of commercial good practice.90 All these measures and their
results should be the subject of a Commission initiative in the near future.

42. Considerable efforts have been undertaken at Community level to boost the development
of  ADR  on  the  ground  in  the  field  of  electronic  commerce.  For  example,  Community
financial  support  has  been  granted  for  online  ADR  initiatives,91  quality  control  projects
for commercial sites,92 university studies and training programmes.93

87

88

89

90

91

92

See paragraph 15 of this Green Paper.
See paragraph 15 of this Green Paper.

http://econfidence.jrc.it

On 22 October 2001 the European Consumers’ Organisation (BEUC) and the Union of Industrial and
Employers’  Confederations  of  Europe  (UNICE)  presented  a  proposal  for  a  European  accreditation
system of confidence labels in electronic commerce, http://www.beuc.org, http://www.unice.org

ECODIR  (Electronic  COnsumer  DIspute  Resolution  Platform):  http://www.ecodir.org  receives
Community  financial support which is  managed by the European Commission, Health  and  Consumer
Protection Directorate-General. Online Confidence is a project supported by the Commission under its
TEN-Telecoms programme (Directorate-General for the Information Society).

Webtrader, a private international project  aimed  at  controlling  commercial  sites  and  awarding  quality
labels. This project includes consumer organisations from 10 countries, 8 of them Member States (see
for  example  http://www.budget-net.com/webtradersite/reseau_be.html).  This  project  includes  the
development  of  codes  of  conduct  and  the  setting  in  place  of  ADR  systems.  It  receives  Community
financial support which is managed by the European Commission, Enterprises Directorate-General.

18

                                                
43. ADR methods designed to resolve consumer disputes in the field of electronic commerce
raise  a  certain  number  of  legal  issues.  The  Commission  has  already  adopted  general
guidelines which reflect its concern for ADRs to follow principles which are identical to
those applied to the traditional channels of conflict resolution.94 But it is also looking into
further initiatives that reflect a number of specific features and constraints of the on-line
environment,  notably  in  technical  respects.95  Moreover,  the  Community  has  adopted  a
legal framework which guarantees the validity of virtual agreements, that is, not only the
contractual clauses defining recourse to ADRs, but also the contracts in which the parties
decide  to  submit  an  existing  dispute  to  an  ADR  procedure  and  ADR  agreements
concluded  at  the  end  of  the  procedure.  The  above-mentioned  Directive  on  electronic
commerce  stipulates  in  fact  that  the  Member  States  must  permit  electronic  contracts.96
The  Member  States  must  also  ensure  that  their  legal  system  permits  the  use  of  ADR
mechanisms by electronic means.97

44. The  Community  legislative  provisions  have  been  supplemented  by  the  adoption  of  the
Brussels  I  Regulation,  of  which  the  provisions  relating  to  choice-of-court  clauses,
including  vis-à-vis  consumers,  do  not  by  definition  affect  recourse  to  ADRs.  The  links
between  this  Regulation  and  ADRs  had  been  the  subject  of  a  political  and  legal  debate
during  the  negotiations  for  the  adoption  of  the  Regulation.  In  September  2000  the
European Parliament had in fact proposed under certain conditions the “incorporation in
consumer  contracts  of  a  clause  under  which  the  consumer  and  the  trader  agree  that  any
dispute is  to be referred  to  an  extrajudicial  dispute  resolution  system  accredited  under  a
scheme approved by the Commission”.98

45. In  its  amended  proposal,99  the  Commission  did  not  follow  the  Parliament  on  this  point,
giving  the  following  justifications:  “Parliament  proposes  a  provision  that  the  consumer
and the supplier may agree a contractual clause whereby disputes are referred, prior to any
court  action,  to  a  non-judicial  dispute-settlement  scheme.  A  number  of  conditions  are
provided  for,  including  prior  approval  of  the  scheme  by  the  Commission.  The
Commission  shares  the  concerns  underlying  this  amendment  and  Parliament’s  desire  to
consider  the  proposed  Regulation  as  one  component  of  a  package  of  legislative  and
non-legislative  measures,  including  the  establishment  of  non-judicial  dispute-settlement
schemes. It acknowledges that it is desirable for parties to be able to settle their disputes
on  an  amicable  basis  rather  than  going  straight  to  the  courts  and  that  reference  to  the
courts should be the last resort. It also observes that in practice the consumer will tend to
prefer  non-judicial  solutions  where  they  are  available.  To  this  end,  a  large  number  of

93

94

95

96

97

98

99

Work  spearheaded  by  ECLIP  (Electronic  Commerce  Legal  Issues  Platform),  a  consortium  of  five
European  research  centres  specialising  in  legislation  on  the  new  technologies,  http://www.eclip.org,
This  work  receives  the  support  of  the  European  Community,  which  is  managed  by  the  Commission,
Information  Society  Directorate-General,  under  the  IST  programme  (Information  Society  Technology
Programme) http://www.cordis.lu/ist/home.html

See  the  two  recommendations  and  the  two  above-mentioned  communications  concerning  consumer
disputes.

Forthcoming  Communication  on  the  promotion  of  ODR,  mentioned  at  paragraph  40  of  this  Green
Paper.
Article 9(1).

Article 17(1).

OJ C 146, 17.5.2001, p. 94.

Amended proposal presented on 26 October 2000, COM(2000)689 final.

19

                                                                                                                                                        
projects are in hand, both by operators and by institutions, to promote the establishment of
such alternative dispute-settlement schemes.  But in the current state of progress it is not
possible to make the options available to the consumer under the Regulation in terms of
international  jurisdiction  subject  to  an  obligation  to  go  first  to  a  non-judicial
dispute-settlement  scheme.  For  one  thing,  this  solution  could  raise  constitutional
difficulties in certain Member States. For another, the schemes that this obligation would
presuppose  are  not  yet  in  operation.  And  thirdly,  the  procedural  relationships  between
alternative  dispute-settlement  schemes  and  the  courts  (regarding  limitation  periods,  for
example)  are  highly  complex  and  need  further  study.  In  any  event  the  Commission  is
planning to pursue current initiatives on alternative consumer dispute-settlement schemes.
In the report that it is to make five years after the entry into force of the Regulation under
Article  65,  it  will  take  stock  of  the  situation  and  review  the  relevant  provisions  of  the
Regulation”.

46. The Brussels I Regulation, as adopted by the Council in December 2000, does not include
these amendments of the Parliament. When the Regulation was adopted, the Council and
the Commission stressed in a joint declaration100 the importance of ADRs: “The Council
and  the  Commission  take  the  view  that  in  general  it  is  in  the  interest  of  consumers  and
undertakings  to  try  to  settle  their  disputes  amicably  before  resorting  to  the  courts.  The
Council and the Commission stress in this connection that the purpose of the Regulation,
and in particular of Articles 15 and 17 thereof, is not to prohibit the parties from making
use  of  alternative  methods  of  dispute  settlement.  The  Council  and  the  Commission
accordingly  wish  to  reiterate  how  important  it  is  that  work  on  alternative  methods  of
dispute  settlement  in  civil  and  commercial  matters  should  continue  at  European
Community  level,  in  keeping  with  the  Council's  conclusions  of  29  May  2000.  They  are
aware  of  the  great  significance  of  this  work  and  stress  the  useful  complementary  role
represented by alternative methods of dispute settlement in civil and commercial matters,
in particular with regard to electronic commerce. Pursuant to Article 73 of the Regulation,
the Commission is to submit a report on the application of the Regulation, accompanied, if
need  be,  by  proposals  for  adaptations,  to  the  European  Parliament,  the  Council  and  the
Economic  and  Social  Committee.  The  Council  and  the  Commission  consider  that  in
preparing the report especial attention should be paid to the application of the provisions
of  the  Regulation  relating  to  consumers  and  small  and  medium-sized  undertakings,  in
particular  with  respect  to  electronic  commerce.  For  this  purpose,  the  Commission  will,
where appropriate, propose amendments to the Regulation before the expiry of the period
referred to in Article 73 of the Regulation.”

2.2.2 Reaping the benefits of the initiatives taken in the field of family law

47. At the  Vienna  European  Council  in  December  1998,  the  Heads  of  State  or  Government
gave their approval to the action plan of the Council and of the Commission concerning
the  optimum  arrangements  for  the  implementation  of  the  provisions  of  the  Treaty  of
Amsterdam on the creation of an area of freedom, security and justice.101 Paragraph 41(c)
of this action plan includes among the measures which should be taken within five years
following  the  entry  into  force  of  the  Treaty  to:  “examine  the  possibility  of  drawing  up
models  for  non-judicial  solutions  to  disputes  with  particular  reference  to  transnational

100

101

Joint Declaration of the Council and the Commission concerning articles 15 and 73 of the Convention
in the minutes of the meeting of the Council of 22 December 2000 which adopted this Regulation: 
http://europa.eu.int/comm/justice_home/unit/civil_en.htm

OJ C 19, 23.1.1999, p.1.

20

                                                
family conflicts. In this context, the possibility of mediation as a means of solving family
conflicts should be examined”.

48. The political leaders are therefore aware of the key role that ADRs can play in resolving
cross-border  family  disputes,  whether  such  disputes  involve  matters  relating  to  the
exercise of parental authority (custody rights with regard to children and rights of access
to children), the  distribution  of  family  property  or  the  setting  of  maintenance  payments.
The  parties  to  the  dispute  could  therefore  have  recourse  to  ADRs  before  they  even
envisage the possibility of seising a court, during the court proceedings or during the stage
of implementation of the judicial decisions. However, recourse to ADRs  is limited as in
this field the parties do not enjoy free disposal of their rights. The usefulness of ADRs can
in fact be questioned in the context of extreme disputes.102

49. On 29 May 2000 the Council adopted Regulation (EC) No 1347/2000 on jurisdiction and
the  recognition  and  enforcement  of  decisions  in  matrimonial  matters  and  in  matters  of
parental  responsibility  for  joint  children  (the  Brussels  II  Regulation).103  This  Regulation
represents a considerable breakthrough in that it offers the possibility of recognising and
enforcing throughout the Community decisions which are handed down according to the
jurisdiction  rules  laid  down  in  the  Regulation.  However,  the  system  set  in  place  by  the
Brussels II Regulation is based on jurisdiction criteria which can result in more than one
court  having  jurisdiction.  Under  Article  11  of  the  Regulation,  where  a  case  is  brought
before courts of different Member States, the jurisdiction first seised will be called upon
to issue a ruling on the case.104 This system could therefore tend to encourage parties to
bring their case before the jurisdiction that suits them best as quickly as possible without
prior recourse to ADR.

50. On 6 September 2001 the Commission adopted a draft Council Regulation on jurisdiction
and the recognition and enforcement of decisions in matrimonial matters and in matters of
parental responsibility (draft Brussels II bis Regulation105). This draft aims to extend the
arrangements  for  the  recognition  and  enforcement  of  the  Brussels  II  Regulation  to  all
decisions  with  regard  to  parental  responsibility.  In  its  draft,  the  Commission  sought  to
promote the use of ADR in two ways. Firstly, the draft establishes a system of jurisdiction
rules which identifies  in  each case one  single jurisdiction  which  is  competent to  decide.
Secondly, it sets in place a system of cooperation between authorities.

102

103

104

105

A  painful  lesson  can  be  drawn  from  the  dispute  connected  with  the  right  of  custody  of  children  and
right of access to children in the event of the kidnapping of a child and subsequently the decision not to
return the child. In this eventuality, it is essential to organise a right of access for the parent who is the
“victim” after this decision not to return the child, but also during the examination of the request for the
return of the child submitted by this parent and which can last several months. Using ADR to decide on
the right of access is hindered not only by the communication problems between the parents but also by
the possible reticence of the “victim” parent to accept such a solution which is reached through ADR to
establish his or her right of access. This parent could in fact regard this as a solution which prejudices
his/her attempts to achieve restored or effective right of access.

OJ  L  160,  30.6.2000  p.  19.  This  “Brussels  II”  Regulation  includes  the  content  of  the  “Brussels  II”
Convention  concerning  jurisdiction  and  the  recognition  and  enforcement  of  decisions  in  matrimonial
matters, established by Council Act of 28 May 1998, OJ C 221, 16.7.1998, p.1.

Lis pendens.

COM(2001) 505 final, OJ C 332E, 27.11.2001, p. 269.

21

                                                
51. This draft Brussels II bis Regulation is based on a system of cooperation between central
authorities who can be called upon to play an active role when it comes to guaranteeing
the  effective  exercise  of  parental  responsibility,  including  through  the  promotion  of
ADR.106 Furthermore, such a system of cross-border cooperation and promotion of ADR
in the context of family disputes was already included in the initiative presented by France
on  3  July  2000  with  a  view  to  the  adoption  of  the  Council  Regulation  on  the  mutual
enforcement of decisions concerning rights of access to children.107

2.2.3 Boosting the development of ADR in the labour relations area

52. ADRs are already a key component of dispute settlement in industrial relations in all the
Member  States.  They  have  developed  on  the  basis  of  specific  procedures  in  which  the
social  partners  (representatives  of  employers  and  employees)  predominate.  ADRs  in
industrial  relations  have  demonstrated  their  usefulness  with  regard  to  the  resolution  of
individual and collective disputes relating to interests (on the adoption or modification of
collective  agreements  that  require  the  harmonisation  of  conflicting  economic  interests)
and  conflicts  relating  to  rights  (on  the  interpretation  and  application  of  contractual  or
regulatory provisions). Most ADRs in the field of industrial relations are organised by the
social  partners  themselves.  In  the  event  of  failure  they  can  then  have  access  to  ADR
structures  offered  by  the  public  authorities.  Procedures  vary  from  one  Member  State  to
another, but they are generally voluntary  as regards both the decision to go  to  them  and
the acceptance of the outcome.

53. The fact that in most Member States these ADR facilities are available and used  where
the  social  partners  themselves  have  not  achieved  a  satisfactory  result  has  prompted  the
Union institutions to consider the possible value of establishing European ADR facilities
for  transnational  disputes.  In  its  Communication  of  28  June  2000  (“Agenda  for  Social
Policy”),108  the  Commission    in  the  context  of  modernising  the  European  social  model,
identified  the creation of tools designed to prevent and  mediate disputes as  an issue to
address. It declared its intention to “consult the social partners on the need to establish, at
European  level,  voluntary  mechanisms  on  mediation,  arbitration  and  conciliation  for
conflict  resolution”.  The  Commission  has  already  begun  preparatory  work  for  this.  It  is
financing a  study  on  the  modus  operandi  of  industrial  dispute  resolution  mechanisms  in
the Member States. The results should be available in April 2002 and will be distributed
widely.  The  Commission  is  pursuing  its  reflections  on  the  possibility  of  setting  up
European  mechanisms,  the  value  they  would  add  and  the  way  they  would  operate.  The
Council  (Employment  and  Social  Affairs)  on  3  December  2001  welcomed  the
Commission's intentions and called on it to report on the results of its consultations with

106

107

Articles 16 and 17 of this proposal stipulate that “Each Member State shall designate a central authority
to assist with the application of the Regulation...The central authorities shall cooperate on specific cases
for the purpose of ensuring the effective exercise of rights of parental responsibility over a child. To this
end,  and  in  accordance  with  their  laws,  they  shall  ...  promote  agreement  between  holders  of  parental
responsibility through mediation or other means...”.

OJ  C  234, 15.8.2000, p.  7.  Article  12  of  this  initiative  provides  for  a  system  of  cooperation  between
Member States “via the national central bodies which they designate … to ensure the effective exercise
of rights of access to children and their prompt return to the parent with custody at the end of the access
period …. In particular, either directly or through any intermediary, those bodies shall take appropriate
measures  to  …  facilitate  any  parental  agreement  on  the  exercise  of  rights  of  access  by  conciliation,
mediation or any other similar means”.

108

COM(2000)379, 28.6.2000.

22

                                                
the  social  partners  on  the  need  to  establish  European  voluntary  dispute  resolution
mechanisms.109 The Laeken European Council of 14 and 15 December 2001 stressed the
"the importance of preventing and resolving social conflicts, and especially trans-national
social  conflicts,  by  means  of  voluntary  mediation  mechanisms  concerning  which  the
Commission is requested to submit a discussion paper".110

3.

GUARANTEEING THE QUALITY OF ADR

54. All  the  political  and  legislative  endeavours,  initiatives  and  debates  to  date  at  national,
Community and international level have been aimed at preserving the quality of ADRs in
terms of accessibility, effectiveness and guarantees of good justice while maintaining their
flexibility.  In  order  to  achieve  this  twofold  objective,  we  must  decide  whether  the
approach  to  be  followed  should  be  sectoral  or  global  and  whether  the  initiatives  to  be
taken should deal differently with ODR and traditional techniques.

3.1 What approach should be followed?

55. The reactions to the present Green Paper, that is, the replies to all the questions asked and
the  general  comments,  are  geared  towards  determining  the  approach  to  be  taken  by  the
Commission  in  promoting  ADR.  These  reactions  may  determine  how  much  importance
should be given to setting in place Community-wide rules on ADR. These rules should in
any  event  complement  the  efforts  of  the  Community  institutions  which  have  been
deployed  and  those  which  will  be  deployed  in  future  with  regard  to  the  operational,
financial  and  technical  aspects  of  ADR.  The  choice  of  the  legal  basis  for  such  rules
depends on their precise content and their scope.

56. If  such  rules  are  found  to  be  useful,  their  scope,  level  and  content  should  then  be
determined.  The  appropriate  instrument  –  regulation,  directive  or  recommendation  –
should be selected  according to the nature of the measures envisaged. Any measure that
might  thus  be  implemented  in  line  with  this  Green  Paper  and  on  the  basis  of  the
consultation  should  also  respect  the  principles  of  subsidiarity  and  proportionality  as  set
out in article 5 of the EC Treaty and in the protocol on the application of the principles of
subsidiarity and proportionality.111

57. If Community regulations were not to be envisaged, to further reinforce the convergence
of  national  laws  and  practice  on  ADR,  one  solution  could  be  for  the  Commission  to
pursue its policy aimed at promoting research and cooperation with regard to comparative
law, especially between universities and legal practitioners, including judges and experts.
Such cooperation could be geared towards defining common principles in areas relevant
to  ADR,  which  may  include  the  drafting  of  specific  guidelines  or  codes  of  conduct  for
certain  types  of  ADR.  In  relation  to  e-commerce,  trade  and  consumer  associations  and
organisations  themselves  produce  codes  of  conduct  at  Community  level  to  regulate
information  society  services  inline  with  Article  16  of  the  e-commerce  Directive.112

109

110

111

112

Conclusions of the Council meeting (Employment and Social Affairs) on social mediation:
http://ue.eu.int/newsroom
Paragraph 25 of the Presidency Conclusions.
OJ C 340, 10.11.1997, p. 105. Thus, in accordance with the principle of subsidiarity, the objectives of
the  measures  should  not  be  sufficiently  achievable  by  the  Member  States  and  should  therefore  be
achievable only at Community level. Moreover, in accordance with the principle of proportionality, the
measures should not exceed what is necessary to achieve these same objectives.

See paragraph 41, of this Green Paper.

23

                                                
Consideration might be given to the possibility for the various actors in ADR of preparing
common codes of conduct applying on the regional or global levels and offering a number
of procedural guarantees in ADR schemes.

58. In the first two parts of this Green Paper (“Overview” and “Reaping the benefits of work
already  undertaken”),  the  Commission  sought  not  only  to  draw  up  an  inventory  of  the
work that has already been done but also to outline the political and legal implications of
the initiatives that might be undertaken in addition to this work. These implications can be
presented in the form of questions:

Question 1: Are there problems such as to warrant Community action on ADR?  If  so,  what
are they? What is your opinion on the general approach to ADR that should be followed by
the institutions of the European Union, and what might be the scope of such initiatives?

Question 2: Should the initiatives to be taken be confined to defining the principles applicable
to one single field (such as commercial law or family law) – field by field – and in this way
discriminate between these different fields, or should they as far as possible extend to all the
fields governed by civil and commercial law?

Question 3: Should the initiatives to be undertaken deal separately with the methods of online
dispute  resolution  (ODR)  (an  emerging  sector  which  stands  out  because  of  its  high  rate  of
innovation  and  the  rapid  pace  of  development  of  new  technologies)  and  the  traditional
methods,  or  on  the  contrary  should  they  cover  these  methods  without  making  any
differentiation?

Question 4: How might recourse to ADR practices be developed in the field of family law?

3.2

Overall approach to ADR

59. Whatever  approach  is  selected  by  the  Community,  a  number  of  questions  arise,  in
particular the requirements with regard to access to justice, the minimum quality standards
and the status of third parties.

3.2.1 ADR and access to justice

60. In the “Overview” part of the present Green Paper, the Commission sought to indicate the
role  that  ADR  can  play  in  the  general  context  of  access  to  justice  for  all.  The  actual
functioning of ADRs must also be analysed from this point of view of access to justice.
We  must  then  determine  the  scope  of  the  contractual  clauses  with  regard  to  recourse  to
ADRs,  the  limitation  periods,  confidentiality,  the  effectiveness  of  ADRs  and  the
responsibility of third parties.

3.2.1.1 Recourse to ADR

61. Certain Member States have stipulated in their legislation the obligation to have recourse
to ADR before the case is brought before a court.113 However, their legislation is limited
in  scope  and  relates  to  specific  subject  areas.  The  Member  States’  legislation  usually
provides that ADRs will be optional: either the parties accept the proposal of a judge or
one of the parties takes the initiative and the other party accepts.

113

See paragraph 28 of this Green Paper.

24

                                                
62. But contractual  clauses with regard to recourse  to  ADRs are  likely  to  affect  the right of
access to the courts as they delay or  can  hinder  the  seising  of  the  courts.114 Recourse to
ADRs  may  therefore  prevent  access  to  justice  in  the  meaning  of  Article  6(1)  of  the
European  Convention  on  Human  Rights  and  Article  47  of  the  Charter  of  Fundamental
Rights of the European Union.115

63. Recourse to ADR is in fact generally characterised by the predominance of a consensual
approach.  Freedom  of  consent  is  expressed  at  all  stages  of  its  implementation.  If  the
parties are in a contractual relationship, they can anticipate a possible dispute by inserting
in their contract a clause that obliges them in the event of any dispute connected with the
performance of this contract to embark on an ADR procedure.  If they have not included
an ADR clause in the contract, they are free to reach an agreement through ADR once the
dispute has arisen, with or without the help of a court.

64. We can therefore question the usefulness of conferring a binding character on such clauses
because it might serve no purpose to oblige someone to participate in an ADR procedure
against his will insofar as the success of the procedure depends on his will.

65. Where the parties are free to dispose of their rights, in the event of non-fulfilment of the
obligations  resulting  from  an  ADR  agreement,  the  solutions  are  to  be  found  in  the
interpretation of the will of the parties and in the recourse to contractual law. The seising
of  the  courts  indicating  a  refusal  to  participate  in  an  ADR  procedure  stipulated  in  a
contract  could  therefore  be  sanctioned  as  it  constitutes  a  violation  of  a  contractual
obligation. Such a refusal could result in the judge to whom a plea is entered relating to
the  performance  of  other  provisions  of  the  contract  declaring  this  request  to  be
inadmissible. Similarly, refusal to participate in ADR might be considered as a violation
of the obligation of good faith.

66. Finally,  the  question  arises  of  the  scope  of  such  clauses  where  there  is  an  imbalance  of
forces between the parties to the contract. The legislation of many Member States attaches
a  certain  amount  of  importance  to  the  objective  of  protecting  weak  contracting  parties,
such as salaried employees versus employers, tenants versus landlords, the insured versus
the insurer, the consumer versus the professional, the trader versus the large retailer, the
manufacturer  versus  the  purchasing  centre  and  even  the  partner  (minority  shareholder)
versus the company.

67. In this context, one might raise the question whether ADR clauses in consumer contracts
are  not  in  principle  forbidden  by  Directive  93/13/EEC  on  unfair  terms.116  According  to
this  Directive,  “a  contractual  term  which  has  not  been  individually  negotiated  shall  be
regarded  as  unfair  if,  contrary  to  the  requirement  of  good  faith,  it  causes  a  significant
imbalance in the parties’ rights and obligations arising under the contract, to the detriment
of  the  consumer”.  The  annex  to  the  directive  contains  an  indicative  and  non-exhaustive

114

115

116

The introduction of arrangements for the suspension of periods of limitation could avoid the extinction
of the action following ADR procedure, see point 3.2.1.2 below.

Article 47(1) of the Charter states: “Everyone whose rights and freedoms guaranteed by the law of the
Union  are  violated  has  the  right  to  an  effective  remedy  before  a  tribunal  in  compliance  with  the
conditions laid down in this Article”.
Council Directive 93/13/EEC of 5 April 1993 concerning abusive clauses in contracts concluded with
consumers, OJ L 95, 21.4.1993 p. 29.

25

                                                
list of clauses which can be declared unfair, inter alia “clauses … to exclude or hinder the
consumer’s right to take legal action or exercise any other legal remedy”.

Question  5:  Should  the  legislation  of  the  Member  States  be  harmonised  so  that  in  each
Member State ADR clauses have the same legal value?

Question  6:  If  so,  should  the  validity  of  such  clauses  be  generally  accepted  or  should  such
validity  be  limited  where  these  clauses  appear  in  membership  contracts  in  general  or  in
contracts with consumers in particular?

Question 7: What in any case should be the scope of such clauses?

Question 8: Should we go as far as to consider that their violation would imply that the court
has no jurisdiction to hear the dispute, for the time being at least?

3.2.1.2 Limitation periods

68. Recourse to ADR procedures is likely to affect access to justice insofar as such recourse
does not end the  limitation  periods for the seising of the courts. At the end of the ADR
procedure, and in the event of the failure of the procedure, the action of the parties could
then be extinguished or the limitation period open to them might be unjustifiably reduced.

69. Certain  Member  States  have  stipulated  in  their  legislation  that  the  recourse  to  certain
approved  ADR  bodies  entails  the  “suspension”  of  the  limitation  period  relating  to  the
request made according to ADR procedure.117 In order to promote ADR, it may therefore
be necessary to amend the civil procedure rules with regard to limitation periods, whereby
the  period  could  be  interrupted  when  ADR  procedure  begins  and  subsequently  resume
when the procedure ends without a settlement having been reached.

70. Such  a  rule  could,  however,  cause  some  problems  insofar  as  we  would  have  to  give  a
precise definition to such ADR procedures and determine the precise point at which they
begin and the precise point at which they end.

71. The case of a cross-border dispute in which the parties have unsuccessfully attempted an
ADR procedure in one Member State but which falls under the jurisdiction of the courts
of  another  Member  State  shows  the  importance  of  ensuring  that  the  same  arrangements
apply  in  all  Member  States  as  regards  the  actual  content  of  the  rule  and  as  regards  the
evidence  to  be  furnished  to  benefit  from  this  rule.  The  rules  with  regard  to  limitation
periods  applicable  to  this  dispute,  which  are  set  out  in  the  civil  procedure  law  of  the
competent court (“lex fori”), could stipulate the suspension of the periods, but in order for
the parties to be able to benefit therefrom they should  then  furnish  proof  that  they  have
effectively had recourse to an ADR procedure and that said procedure took place during
this period.

Question  9:  Should  the  legislation  of  the  Member  States  be  harmonised  so  that  in  each
Member State recourse to an ADR mechanism entails suspension of the limitation periods for
the seising of courts?

117

This is the case in Germany where ADR bodies involved are approved by the judicial administration of
the Land.

26

                                                
3.2.2 Minimum quality standards?

72. ADRs are flexible but must be based on minimum quality standards, including a number
of  guideline  principles  of  procedure.  ADRs  in  the  context  of  court  proceedings  are
regulated by the public authorities and are conducted under the supervision of the court.
Conventional  ADRs  are  based  on  procedural  principles  which  the  parties  have  freely
chosen.  For  example,  they  adhere  to  the  procedural  regulations  which  are  proposed  as
models by professional associations or via codes of conduct to which they subscribe. So
the question is how best to ensure that these principles of procedure are actually applied.
Self-regulation  initiatives  could  be  taken  along  the  lines  of  those  proposed  for  the
information society. The Commission actively supports these initiatives but is concerned
about  the  need  to  encourage  the  actors  involved  in  them  to  boost  third-party  control
facilities and establish trustmarking and certification schemes.118 Boosting self-regulation
initiatives could help to improve trust in the use of ADR while preserving their flexibility,
and thus obviate the need for more mandatory public instruments.

73. As  mentioned  earlier,  in  the  context  of  consumer  disputes  the  Commission  has  adopted
two  recommendations  on  the  principles  which  are  applicable  to  the  out-of-court  bodies
charged  with  the  task  of  resolving  consumer  disputes,  whether  they  be  national  or
transnational.119  These  recommendations  are  essentially  geared  towards  ensuring  that
ADRs  offer  the  parties  minimum  quality  guarantees  such  as  independence,  impartiality,
transparency, effectiveness and respect for the law. This therefore enhances the credibility
of the bodies that meet these criteria.

74. To  establish  these  principles,  the  Commission  has  drawn  a  distinction  depending  on
whether  the  third  party  formally  adopts  a  position  on  the  possible  resolution  of  the
dispute120  or  merely  helps  the  parties  to  reach  an  agreement.  If  the  third  party  formally
intervenes in the negotiations, he must meet certain specific requirements with regard to
his independence, and the procedure must be based on the principle of adversarial debate,
whereby  each  party  must  be  able  to  put  forward  its  point  of  view,  and  each  step  in  the
process, the submission of any exhibit, document or evidence by the opposing party must
be brought to the knowledge of the other party and freely discussed. Where the third party
has  a  less  interventionist  role,  these  requirements  can  be  made  more  flexible.  The  first
recommendation  sets  out  seven  principles:  independence,  transparency,  adversarial
principle, effectiveness, legality, liberty and representation. The second  recommendation
is based on the principles of impartiality, transparency, effectiveness and fairness.

75. The  first  of  the  Commission’s  recommendations  has  already  been  implemented  in
Member States, witness the number of bodies that are deemed to satisfy the principles of
the recommendation, notified by the Member States and meeting within the EEJ-Net. The
effectiveness  and  credibility  of  FIN-NET  proceed  from  this  recommendation  and  in
compliance  with  its  principles.  The  recommendation  is  acquiring  a  privileged  status

118

119

120

These questions will be considered in the Communication on ODR referred to at paragraph 40 of this
Green Paper.
See point 37 of this Green Paper.

It should be noted that this recommendation and the present Green Paper follow a different  approach
and do not have the same scope of application. Arbitration is covered by the recommendation but is not
covered by the Green Paper; court ADRs are covered by the  Green  Paper  but  are  not  covered  by  the
recommendation.

27

                                                
within Community legislation.121 As for the second recommendation, all observers agree
that it is very useful. The two recommendations should now be given time, therefore, to
prove  their  worth,  but  the  consultation  exercise  on  this  Green  Paper  provides  a  good
opportunity to ascertain the reactions of interested circles on their effectiveness.

76. Against the backdrop of this reinforcement of Community action and given the success on
the  ground  of  the  principles  set  out  in  the  recommendations,  one  might  consider  new
initiatives that could then extend beyond the field of consumer protection law and cover
other branches of the law. These principles confirmed in consumer law would then, given
the necessary adaptations, benefit ADRs in general. The Council in its above-mentioned
decision of 29 May 2000 had expressed the desire that the priority in the Green Paper and
subsequent  work  on  ADR  should  be  on  “the  possibility  of  establishing  basic  principles,
either in general or in specific areas, which offer the necessary guarantees to ensure that
the settlement of disputes by extrajudicial bodies enjoys the degree of reliability which the
administration of justice requires.”

77. While  ADRs  are  based  on  a  certain  number  of  minimal  procedure  guarantees,  they  can
take  the  form  of  general  principles  laid  down  at  a  legislative  level  and  can  then  be
implemented and developed at an infra-legislative level in codes of conduct. The guiding
procedural  principles  can  thus  take  the  form  of  ethical  rules.  In  reality,  the  codes  of
conduct  are  given  particular  attention  in  the  functioning  of  ADRs.  Their  development
provides  proof  of  the  efforts  of  practitioners  to  guarantee  the  quality  of  ADRs.  In  this
regard,  the  procedural  rules  which  they  lay  down  are  designed  to  guarantee  the
impartiality  of  third  parties,  to  define  precisely  the  role  of  third  parties  during  the
procedure,  to  determine  the  deadline  by  which  a  solution  must  be  found  and  to  make
proper  arrangements  for  the  agreements  to  be  concluded.  These  codes  could  thus  be  an
excellent means of enhancing the quality of ADRs.

78. Furthermore,  the  Commission  felt  it  was  essential  to  emphasise  among  the  minimum

procedural guarantees respect for the confidentiality obligation.

3.2.2.1 Confidentiality

79. In  most  cases,  the  parties  who  have  recourse  to  ADRs  wish  the  information  which  is
exchanged  in  the  course  of  the  procedure,  whether  it  be  oral  or  in  writing,  to  remain
confidential,  even  up  to  the  point  when  the  procedure  achieves  actual  results.
Confidentiality appears to be the key to the success of ADRs because it helps guarantee
the  frankness  of  the  parties  and  the  sincerity  of  the  communications  exchanged  in  the
course of the procedure. It is necessary to ensure that ADR is not abused and that a party
who has presented a document or evidence in the course of the procedure can use them in
court proceedings brought after the failure of the ADR. Confidentiality is binding both on
the parties themselves and on third parties.

121

Proposal  for  a  Parliament  and  Council  Directive  amending  Directives  96/92/EC  and  98/30/EC
concerning  common  rules  for  the  internal  market  in  electricity  and  natural  gas,  COM(2001) 125,
Annex I(f):  “Member  States  shall  ensure  that  transparent,  simple  and  inexpensive  procedures  are
available for dealing with final customer complaints. Member States shall adopt measures to ensure that
such procedures enable disputes to be settled fairly and promptly with provision, where warranted, for a
system of reimbursement and/or compensation. They should follow,  wherever possible, the principles
set out in Commission Recommendation 98/257/EC”.

28

                                                
80. The  confidentiality  obligation  is  binding  first  and  foremost  on  the  parties.  Any
information  that  may  be  exchanged  between  the  parties  in  the  course  of  the  procedure
should not be admissible as evidence in any subsequent court or arbitration procedure. A
certain  number  of  exceptions  can  be  envisaged.  For  example,  the  parties  can  decide  by
common  consent  that  all  or  part  of  the  procedure  will  not  be  confidential.  A  party  may
divulge one or other aspect of ADR procedure if it is required to do so under an applicable
law. Finally, a party may divulge the agreement that ends the dispute between the parties
if this is essential for the implementation or performance of said agreement.

81. Most  especially,  the  confidentiality  obligation  is  binding  on  third  parties.  Where  one  of
the  parties  conveys  certain  information  to  the  third  party  in  the  course  of  bilateral
discussions  (a  procedure  referred  to  as  “caucus”),  the  third  party  should  not  be  able  to
divulge  the  information  to  the  other  party.  Moreover,  this  confidentiality  obligation
provides  a  means  of  defining  more  precisely  the  role  of  the  third  party  during  the
procedure in order to guarantee fairness. Where the third party is called upon to play an
active  role  in  the  search  for  a  solution  to  the  dispute,  he  must  necessarily  respect  the
principle of adversarial debate and undertake to hear the parties separately only where the
purpose is to help bring about an agreement. The possibility of hearing one or other party
confidentially  should  be  ruled  out  if  the  third  party  is  to  take  a  decision  or  make  a
recommendation  at  the  end  of  the  ADR  process..  The  above-mentioned  Commission
Recommendation  of  4  April  2001  stipulates  in  the  chapter  on  “Fairness”  that  “if  at  any
stage, the third party suggests possible solutions for resolving the dispute, then each party
should  have  the  opportunity  to  present  their  viewpoint  and  comment  on  any  argument,
information or evidence presented by the other party”.

82. As a rule the third party should not be able to be called as a witness or to intervene as an
arbitrator within the framework of the same dispute if ADR has failed, as in the course of
the  procedure  he  may  have  had  access  to  information  which  an  arbitrator  would  not
necessarily have been able to obtain. However, the confidentiality obligation imposed on
the  third  party  can  be  waived  if  the  parties  to  ADR  procedure  allow  such  protected
information to be divulged or if the third party himself who is by virtue of his profession
required to maintain professional secrecy is obliged to divulge any such information under
the terms of the applicable law.122

Question 10: What has been the experience of applying the Commission recommendations of
1998 and 2001?

Question 11: Could the principles set out in the two recommendations apply indiscriminately
to  fields  other  than  consumer  protection  law  and  in  particular  be  extended  to  civil  and
commercial law?

Question 12: Of the principles enshrined in the recommendations, which in your view could
be incorporated in the legislation of all the Member States?

122

For  example,  the  legislation  on  suspicions  of  money  laundering,  like  the  Directive  of  19  November
2001 amending Directive 91/308/EEC on prevention of the use of the financial system for the purpose
of money laundering, which, however, exonerates notaries, independent lawyers and law firms from the
obligation  to  provide  information  on  suspicions  of  laundering  when  they  are  acting  for  their  client
before,  during  and  after  legal  proceedings  or  at  the  time  of  the  evaluation  of  the  legal  situation  of  a
client. This rule appears to benefit these professions when they act as the counsel for their clients, but
not when they act as third parties responsible for ADRs.

29

                                                
Question 13: In your opinion, should the legislation of the Member States in regulated areas
such as family law be harmonised so that common principles may be laid down with regard to
procedural guarantees?

Question 14: What initiative do you think the institutions of the European Union should take,
in  close  cooperation  with  interested  circles,  as  regards  the  ethical  rules  which  would  be
binding on third parties?

Question  15:  Should  the  legislation  of  the  Member  States  be  harmonised  so  that  the
confidentiality of ADRs is guaranteed in each Member State?

Question  16:  If  so,  how  and  to  what  extent  should  such  confidentiality  be  guaranteed?  To
what  extent  should  guarantees  of  confidentiality  apply  also  to  publication  of  the  results  of
ADRs?

3.2.2.2 The validity of consent

83. The parties’ agreement is the essential and, from a certain standpoint, the most sensitive
stage of the procedure. Indeed, care must be taken to ensure that the agreement concluded
is genuinely an  agreement.  If the final  agreement does  not reflect  the  real  wishes  of  the
parties, that is, the actual compromise which the parties are willing to accept, with all that
this implies in terms of waiver of their original wishes, ADR mechanism has not achieved
its primary objectives, i.e. the genuine resolution of the dispute and the social pacification
that ensues. Further problems can therefore be anticipated. For example, the validity of the
agreement may be disputed, the responsibility of the third parties may be set at issue on
the  grounds  that  he  “extracted”  an  unfair  agreement  from  one  of  the  parties,  etc.  In
particular,  in  the  event  of  an  economic  imbalance  between  the  parties,  the  notion  of  a
certain  protective  formalism  is  required  when  it  comes  to  concluding  and  signing  the
agreement. All steps must be taken to guarantee the validity of the  consent expressed. It
would therefore appear that there is a need for a period of reflection before the signing123
or  a  period  of  retraction  after  the  signing  of  the  agreement.124  There  is  also  the  need  to
analyse the possibility of providing  for  a  confirmation stage at  which the  validity of the
agreement is verified prior to becoming an enforceable decision. A judge or notary would
be  in  charge  of  this  proceeding,  though  specialised  bodies  such  as  Chambers  of
Commerce might take their place in specific subject areas.

123

124

The  recommendation  of  4  April  2001  stipulates  in  the  chapter  on  “Fairness”:  “prior  to  the  parties
agreeing to a suggested solution for resolving the dispute, they should be allowed a reasonable period of
time to consider this solution”.

This  legal  technique  is  well  known  in  Community  law.  See,  for  example,  Council  Directive
85/577/EEC  of  20  December  1985  concerning  the  protection  of  consumers  in  the  case  of  contracts
negotiated  outside  commercial  establishments,  OJ  L  372,  31.12.1985  p.31;  Council  Directive
90/619/EEC of 8 November 1990 on the coordination of laws, regulations and administrative provisions
relating to direct life assurance, laying down provisions to facilitate the effective exercise of freedom to
provide  services  and  amending  Directive  79/267/EEC  (second  life  insurance  Directive),  OJ  L  330,
29.11.1990, p. 50; Directive 94/47/EC of the European Parliament and the Council of 26 October 1994
on the protection of purchasers in respect of certain aspects of contracts relating to the purchase of the
right to use immovable properties on a timeshare basis, OJ L 280, 29.10.1994, p. 83; Directive 97/7/EC
of 20 May 1997 on the protection of consumers in respect of contracts negotiated at a distance, OJ L
144, 4.6.1997, p. 19.

30

                                                
3.2.2.3 The effectiveness of ADRs

84. In  the  field  of  consumer  protection  law,  the  third  party  can  be  called  upon  to  adopt  a
formal  position  on  the  solution  to  the  dispute  in  the  form  of  a  decision  which  can  be
binding on a party. This is the case for clients’ ombudsmen who were appointed by certain
professional  sectors  such  as  banks  and  insurance  companies  and  whose  decisions  are
binding on the companies who are affiliated to the scheme. In this case, the effectiveness
of  the  decision  taken  can  essentially  be  measured  in  terms  of  marketing.  If  these
professionals  do  not  in  fact  comply  with  these  decisions,  they  run  the  risk  that  this
decision  will  be  published,  or  if  they  are  affiliated  to  a  commercial  system  which,  for
example, awards quality labels, they may be excluded from this system.

85. Where ADRs lead to an agreement between the parties, one might question the scope of
such  an  agreement,  in  particular  in  the  context  of  a  cross-border  dispute.  Indeed,  the
question  of  the  legal  qualification  of  the  agreement  arising  from  ADR  mechanism  is
determining  for  the  effectiveness  of  ADRs.  However,  the  variety  of  names  used  in  the
Member  States  for  agreements  arising  from  ADR  mechanisms  makes  the  picture
particularly complex. In certain States, ADR can in fact often lead to a simple contractual
transaction,  but  it  can  also  yield  other  arrangements,  such  as  conciliation  minutes  or
mediation  minutes.  All  these  arrangements  are  in  fact  “transactions”,  whatever  name  is
applied to them. Agreements between parties can thus be implemented insofar as they are
made enforceable, either because the judge  gives his approval  and issues  an enforceable
order or the parties have recourse to an authentic deed executed before a public official,
such as a notary. Finally, in certain Member States the transactions set out in the minutes
of an approved ADR session are deemed to be enforceable.125,126 However, the transaction
does not have the same legal force in all Member States. Consequently, the question of the
validity  of  this  agreement  (and  therefore  of  its  effectiveness)  depends  on  the  law  as
dictated by the rules governing conflicts of laws.127

86. In addition, a legal settlement, within the meaning of the Brussels Convention and of the
Brussels  I  Regulation,128  is  merely  a  contract  concluded  before  the  judge  whereby  the
parties end the dispute through reciprocal concessions. Also, as the Court held in a case on
the  Brussels  Convention  of  1968,  which  the  “Brussels  I”  Regulation  replaces,129  such
settlements  do  not  constitute  “decisions”  within  the  meaning  of  Article  25  of  the
Convention, as “settlements in court are essentially contractual in that their terms depend
first  and  foremost  on  the  parties'  intention”.  In  the  event  of  any  conflict  between  a
contested  trial  and  an  agreement  resulting  from  an  alternative  dispute  resolution

125

126

127

128

129

If the court before which the transaction was concluded is recognised by the judicial administration of
the Land, in accordance with article 794, paragraph 1, of the Code of Civil Procedure.

Since 1998, article 1441-4 of the new French Code of Civil Procedure has authorised the President of
the Tribunal de Grande Instance, seised on application by a party to the settlement to  make the deed
which is presented to him enforceable. However, the legal nature of the settlement thus approved is still
under debate – is it a court decision as such or is it rather of contractual status?

Uniform  rules  on  conflicts  of  law  in  this  area  were  laid  down  at  Community  level  by  the  Rome
Convention  of  19  June  1980  on  the  law  applicable  to  contractual  obligations,  consolidated  version
published in OJ C 27, 26.1.1998, p. 36.

Article 58 of the regulation.

Case C-414/92 Solo Kleinmotoren [1994] ECR I-2237 (judgment given on 2 June 1994).

31

                                                
mechanism  having  the  same  aim  in  view,  ADR  agreement,  which  is  similar  to  a  legal
transaction, will not provide a basis for opposing the exequatur request of this judgment.

87. Moreover, authentic instruments benefit from the simplified exequatur system set in place
by the Brussels Convention  and the  Brussels  I  Regulation allowing  them to circulate  on
the  territory  of  the  European  Union.  The  Court130  reiterates,  citing  the  Jenard-Möller
report  on  the  Convention  of  Lugano,131  that  the  conditions  which  had  to  be  fulfilled  by
authentic instruments in order to be regarded as authentic are as follows: “the authenticity
of  the  instrument  should  have  been  established  by  a  public  authority;  this  authenticity
should relate to the content of the instrument and not only, for example, the signature; the
instrument has to be  enforceable  in itself  in  the  State in which  it  originates”.  The  Court
holds on this basis that “An acknowledgement of indebtedness enforceable under the law
of the State of origin whose authenticity has not been established by a public authority or
other authority empowered for that purpose by that State does not constitute an authentic
instrument  within  the  meaning  of  Article  50  of  the  [Brussels]  Convention”.  It  has  been
suggested that certain minutes of ADRs could, if they were drawn up by public authorities
and made enforceable, be considered as  authentic instruments within the meaning of the
Brussels I Regulation. Those which do not arise from the wishes of the parties and have
not received the approval of a public authority (for example a judge or a notary) could not
benefit from these rules. As a result of these considerations, there is much heterogeneity in
the  nature  of  the  agreements  arising  from  ADR  mechanisms  and  in  terms  of  their  legal
force  and  therefore  of  their  international  effectiveness  at  European  level.  Furthermore,
paradoxically  the  attempt  to  avoid  court  proceedings,  which  is  the  whole  point  of  ADR
mechanisms,  leads  to a recourse  to  the  judge  to  confer  binding  force  on  the  agreements
resulting from such mechanisms.

Question 17: In your opinion, should there be a Community rule to the effect that there is a
period of reflection following ADR procedures before the agreement is signed or a period for
withdrawal after the signing of the agreement? Should this question be instead handled within
the framework of the ethical rules to which the third parties are subject?

Question 18: Is there a need to make ADR agreements more effective in the Member States?
What is the best solution to the question recognition and enforcement of ADR agreements in
other Member States of the European Union? Should specific rules be adopted to render ADR
agreements enforceable? If so, subject to what guarantees?

3.2.3 Should third parties be given a status?

88. The third party or parties  responsible  for the  ADR procedure  are  in  fact  selected  by  the
parties.  Either  the  parties  designate  them  directly  or  they  refer  to  a  body  which  is  then
responsible  for  designating  them.  This  selection  process  is  facilitated  when  the  third
parties  offer  guarantees  resulting  from  the  ethical  rules  which  they  have  committed
themselves to respect, as mentioned earlier. In addition, the training of third parties raises
the question of their accreditation.

130

131

Case  C-260/97  Unibank  AS  v  Flemming  G.  Christensen  [1999]  ECR  I-3715  (judgment  given  on
17 June 1999).

OJ C 189, 28.7.1990, p. 57, paragraph 72.

32

                                                
3.2.3.1 The training of third parties

89. The  quality  of  ADRs  is  essentially  contingent  upon  the  jurisdiction  of  the  third  parties
who  are  responsible  for  ADR  mechanisms.  Proper  training  is  required  to  master  the
techniques involved in ADR. Vocational training therefore plays  a pivotal role, not only
with regard to the functioning of ADRs and of their quality, and therefore from the point
of view of the protection of users of ADRs, but also with a view to the free provision of
ADR services secured by Article 49 of the Treaty.

90. Judges  themselves  need  specific  training.  The  third  parties  charged  with  ADRs  in  the
context of court proceedings must always furnish proof of the necessary skill, training or
minimal experience, which is assessed on a case-by-case basis by judges or recognised in
the  form  of  an  accreditation.  However,  no  such  conditions  are  imposed  on  third  parties
responsible for conventional ADRs.

91. Whether  or  not  they  belong  to  a  regulated  profession,  third  parties  are  sometimes
members of associations. Such associations encourage their members to follow a training
course or are sometimes called upon to offer ADR training themselves and to set in place,
alongside  the  training  courses  they  provide,  a  system  of  certification,  accreditation  and
periodic  evaluation  of  their  members.  Furthermore,  these  associations  develop  ethical
codes  and  procedural  regulations.  It  might  be  important  to  establish  specific  ADR
expertise  so  that,  where  the  third  party  is  not  a  member  of  a  regulated  profession,  his
qualifications can be verified and his freedom of movement can thus be secured.

3.2.3.2 Accreditation of third parties

92. One of the tasks of the public authorities is to make sure that minimal guarantees exist to
ensure the competence of third parties. We should consider whether the public authorities
should support the efforts of the practitioners by setting in place third party accreditation
systems that should not, however, be allowed to jeopardise the flexibility and simplicity of
ADRs.132

93. Where the third parties belong to a regulated profession, the general system of recognition
of qualifications between Member States133 or the Directives to facilitate the provision of
services  and  the  right  of  establishment  for  lawyers  would  be  applicable.134  Otherwise,
difficulties are to be expected.

132

133

134

See  in  particular  the  opinion  of  the  European  Parliament  on  the  above-mentioned  draft  Brussels  I
Regulation, amendments 35 and 39, OJ C 146, 17.5.2001 p. 94.

Working document of the services of the European Commission of 21 May 2001 on the future regime
for professional recognition:
http://europa.eu.int/comm/internal_market/en/qualifications/consultation_en.pdf

Council  Directive  77/249/EEC  of  22  March  1977  to  facilitate  the  effective  exercise  by  lawyers  of
freedom to provide services, OJ L 78, 26.3.1977, p. 17; Parliament and Council Directive 98/5/EC of 16
February 1998 to facilitate practice of the profession of lawyer on a permanent basis in a Member State
other than that in  which the qualification  was obtained, OJ L 77,  14.3.1998,  p. 36;  Council  Directive
89/48/EEC of 21 December 1988 on a general system for the recognition of higher-education diplomas
awarded on completion of professional education and training of at least three years' duration, OJ L 19,
24.1.1989,  p.  16;  Council  Directive  92/51/EEC  of  18  June  1992  on  a  second  general  system  for  the
recognition  of  professional  education  and  training  to  supplement  Directive  89/48/EEC,  OJ  L  209,
24.731992,  p.  25;  Parliament  and  Council  Directive  1999/42/EC  of  7  June  1999  establishing  a
mechanism for the recognition of qualifications in respect of the professional activities covered by the

33

                                                
3.2.3.3 The liability of third parties

94. Finally, the question of the liability of third parties must also be addressed. Third parties
may be liable for the consequences of their intervention in the procedure, whether it be in
a personal capacity where they intervene as private citizens or even, in certain cases, in a
public  issue,  in  the  event  of  an  irregularity  in  ADR  process.  Examples  might  include  a
violation of the confidentiality obligation or a proven lack of impartiality which benefits
one  of  the  parties.  They  may  also  be  liable  under  common  civil  liability  law  of  the
Member  States,  even  if  the  Member  States  do  not  appear  to  have  specific  rules  on  the
liability  of  mediators  or  conciliators.135  We  might  envisage  the  creation  of  a  system  of
liability  or  at  least  specific  rules  that  determine  the  precise  role  of  third  parties  in  the
procedure (often confined to that of a catalyst). In any event, we should probably seek to
avoid blocking the wishes and initiatives of parties by excessively binding measures.

Question 19: What initiatives in your view should the Community institutions take to support
the training of third parties?

Question 20: Should support be given to initiatives to establish minimum training criteria with
a view to the accreditation of third parties?

Question 21: Should special rules be adopted with regard to the liability of third parties? If so,
which rules? What role should ethical codes play in this field?

135

Directives  on  liberalisation  and  transitional  measures  and  supplementing  the  general  systems  for  the
recognition of qualifications, OJ L 201, 31.7.1999, p. 77.
In  any  case,  this  was  not  mentioned  in  the  replies  to  the  questionnaire.  In  certain  countries  there  are
precise rules governing their appointment  and  the  required  qualifications,  and  therefore  their  removal
from office or dismissal in the event of failure to comply with their obligations must be provided for.
Thus, in France, article 3-2  of  the  decree  of  20  March  1978  concerning  justice  conciliators  stipulates
that the judicial authority can dismiss them prior to the expiry of their mandate by a reasoned decision,
having heard the interested parties.

34

                                                                                                                                                        
SUMMARY OF QUESTIONS

Question 1: Are there problems such as to warrant Community  action  on  ADR?  If so, what
are they? What is your opinion on the general approach to ADR that should be followed by
the institutions of the European Union, and what might be the scope of such initiatives?

Question 2: Should the initiatives to be taken be confined to defining the principles applicable
to one single field (such as commercial law or family law) – field by field – and in this way
discriminate between these different fields, or should they as far as possible extend to all the
fields governed by civil and commercial law?

Question 3: Should the initiatives to be undertaken deal separately with the methods of online
dispute  resolution  (ODR)  (an  emerging  sector  which  stands  out  because  of  its  high  rate  of
innovation  and  the  rapid  pace  of  development  of  new  technologies)  and  the  traditional
methods,  or  on  the  contrary  should  they  cover  these  methods  without  making  any
differentiation?

Question 4: How might recourse to ADR practices be developed in the field of family law?

Question  5:  Should  the  legislation  of  the  Member  States  be  harmonised  so  that  in  each
Member State ADR clauses have the same legal value?

Question  6:  If  so,  should  the  validity  of  such  clauses  be  generally  accepted  or  should  such
validity  be  limited  where  these  clauses  appear  in  membership  contracts  in  general  or  in
contracts with consumers in particular?

Question 7: What in any case should be the scope of such clauses?

Question 8: Should we go as far as to consider that their violation would imply that the court
has no jurisdiction to hear the dispute, for the time being at least?

Question  9:  Should  the  legislation  of  the  Member  States  be  harmonised  so  that  in  each
Member State recourse to an ADR mechanism entails suspension of the limitation periods for
the seising of courts?

Question 10: What has been the experience of applying the Commission recommendations of
1998 and 2001?

Question 11: Could the principles set out in the two recommendations apply indiscriminately
to  fields  other  than  consumer  protection  law  and  in  particular  be  extended  to  civil  and
commercial law?

Question 12: Of the principles enshrined in the recommendations, which in your view could
be incorporated in the legislation of all the Member States?

Question 13: In your opinion, should the legislation of the Member States in regulated areas
such as family law be harmonised so that common principles may be laid down with regard to
procedural guarantees?

35

Question 14: What initiative do you think the institutions of the European Union should take,
in  close  cooperation  with  interested  circles,  as  regards  the  ethical  rules  which  would  be
binding on third parties?

Question  15:  Should  the  legislation  of  the  Member  States  be  harmonised  so  that  the
confidentiality of ADRs is guaranteed in each Member State?

Question  16:  If  so,  how  and  to  what  extent  should  such  confidentiality  be  guaranteed?  To
what  extent  should  guarantees  of  confidentiality  apply  also  to  publication  of  the  results  of
ADRs?

Question 17: In your opinion, should there be a Community rule to the effect that there is a
period of reflection following ADR procedures before the agreement is signed or a period for
withdrawal after the signing of the agreement? Should this question be instead handled within
the framework of the ethical rules to which the third parties are subject?

Question 18: Is there a need to make ADR agreements more effective in the Member States?
What is the best solution to the question recognition and enforcement of ADR agreements in
other Member States of the European Union? Should specific rules be adopted to render ADR
agreements enforceable? If so, subject to what guarantees?

Question 19: What initiatives in your view should the Community institutions take to support
the training of third parties?

Question 20: Should support be given to initiatives to establish minimum training criteria with
a view to the accreditation of third parties?

Question 21: Should special rules be adopted with regard to the liability of third parties? If so,
which rules? What role should ethical codes play in this field?

36