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Unnamed: 0 | Unnamed: 1 | Unnamed: 2 | Germany: [NAME], Holters & Elsing | Germany: Prof. Dr. [NAME], [NAME] | Germany: [NAME], Schwarz Kelwing Wicke Westpfahl | Germany: [NAME], Norton Rose | Romania: Bucharest Arbitration Court | Sweden: Mannheimer Swartling Advokatbyra AB | Spain: Elisabeth de Nadal & Juan-Antonio Ruiz, Cuatrecasas Abogados S.L | Argentina: [NAME], Alfaro-Abogados | Israel: Adv. [NAME], [NAME] | Poland: [NAME], Wardynski&Partners | Poland: Piotr Bielarczyk, on behalf of Marek Furtek: .FURTEK I WSPÓLNICY KANCELARIA PRAWNICZA SP.K. | United Kingdom: [NAME][NAME], Norton Rose LLP | United Kingdom: Peter Rees & Lara Clarke, Debevoise & Plimpton | France: [NAME], Norton Rose | Netherlands: Yke/Patrice Kam, Norton Rose | Switzerland: [NAME], [NAME] | Latvia: Daiga Zivtina, Klavins & Slaidins | Indonesia: [NAME], KarimSyah Law Firm | Finland: Antti Heikinheimo, [NAME] Attorneys at Law Ltd | Italy: Gabriele Bonivento/Cristina Pagni, Norton Rose Studio Legal | USA: [NAME], Dewey Ballantine LLP | Canada: [NAME], Q.C, Borden Ladner Gervais LLP | Belgium
 | Question
1a) | In international commercial conciliation or mediation in your country how easy or difficult is it to determine the applicable statute of limitations? |  | The applicable statute of limitations is determined by the substantive law which the cause of action is subject to. In international law the applicable statute of limitations follows, pursuant to German law of conflicts, the lex causae. There are generally no major difficulties to identify which statute of limitations applies. | In Germany, the statute of limitations is considered a matter of substantive law because it limits the exercise of a substantive right rather than a legal remedy. Thus, the determination of the applicable statute of limitations will not depend on the law of the forum. Rather, the law applicable to the underlying substantive claims, which is determined primarily by a valid choice of law clause, or secondarily by German conflict of law rules, will also govern the statute of limitations for those claims. | The general rules regarding the statute of limitations relating to claims governed by German law are contained in the German Civil Code, Art 194 subs.. They have recently been harmonised and are intended to apply to most claims. However, some specific statutes of limitations apply for special subject areas. Once it is established that a claim is governed by German law which will decided according to the rules of German International Private Law it will be relatively easy to establish the applicable statute of limitation. | The applicable statute of imitation is determined by the German civil law (§§ 194 to 218 BGB). Given that according to § 202 BGB deviant agreements are admissible; the valid statute of limitations may be determined by the parties. | If there are parties from different countries the statute of limitation depends on the applicable law. In [NAME] no. 105/1992 on the international private law regulates the aspects of lex fori applicable. It is not difficult to determine the applicable statute of limitation as under Romanian law this is a matter of public order. | The applicable statute of limitations would have to be decided taking into account the law or laws applicable to the subject matter of the dispute, and the circumstances of the case. The SCC Mediation Rules do not contain any provision relating to statute of limitations. | In Spain the statute of limitations depends on the applicable law to the case.If Spanish law governs the contract, we must distinguish between statute of limitatoins and statute of expiration. The periods enacted, as well as the choice between limitation and expiration, are arbitrary and represent what the legislature deems a sufficient period in a particular kind of case. Additionaly, Spain is divided into 17 autonomous comunities, all of them with their own parliament, and there is internal law enacted by regional parliaments in which the regulation, as well as some of the terms above mentioned, change. Therefore, in some cases, in addition to the difficulties in determining the law governing the substantive case and the procedure, it is also complicated to set the statute of limitations or expiration, and the reckoning. | Pursuant to our legal system there are two main groups of liabilities: contractual and non-contractual, both with different statutory terms beyond which legal actions can not be brought: ten (10) and two (2) years. The Civil Code provides for other different terms for more specific matters, such as collection of invoices, transport contracts, etc.  But in all the cases, the terms can not be modified or replaced by the parties, since the public order is involved. Thus, if [NAME] is applicable to the process, there is no difficulty to determine in the Civil Code the applicable statute of limitations | Israeli law does not contain any provisions relating specifically to statute of limitation and conciliation and mediation proceedings. In the absence of such specific rules, a court will apply the general statute of limitations in Israel as provided for in the Prescription Law, 5718-1958 (hereinafter "the Prescription Law"), which applies to legal claims generally. Parties can always agree upon a different statute of limitation from the one determined by statute, if they do so in a separate written agreement, as discussed in the answer to question (b) hereinafter . The general rules provide that the prescription period only ceases to run when a claim is filed with a court or in arbitration, and commencement of conciliation or mediation will not stop the running of time. Therefore, parties who wish to prevent time running must ensure that specific agreement is reached on this. The general period for prescription in Israeli law is seven years (if the claim is not related to land), but a number of statutes provide for shorter periods in certain cases.  Section 79C (e) of the Courts Law (Consolidated Version), 5744-1984 (the “Courts Law“), authorizes the Court to stay proceedings for as long as it deems necessary if the parties choose to turn to the conciliation/ mediation process, which stay it may extend at the request of the parties. Section 79C (f) states that where the conciliation/ mediation process has not produced the desired results in resolving the dispute, by the end of the abovementioned period, court proceedings will resume. The proceedings can also be revived prior thereto at the request of the conciliator/mediator or either of the parties. If such conciliation/mediation efforts take place after the claim is filed in court, the statute of limitations will not run during such period. | For professionals the question of determining the statute of limitations is obvious. According to the provisions of Polish law the issue of statute of limitations belongs to substantive law and not procedural law. Therefore, if the parties decide on the choice of law, the applicable statute of limitations will be determined by the provisions of the chosen substantive law. | On condition that Polish [NAME] has been chosen, there is no distinction between commercial conciliation or mediation and non-commercial. There is only one general regulation, contained in Polish Code of Civil Procedure. In relation to the applicable statute of limitations, if such mediation is governed by Polish law, it is easy to determine the applicable statute of limitations, because in Polish Civil Code there are some provisions concerning statute of limitations (according to Article 119 of Polish Civil Code, statute of limitations can not be changed by parties – are imperative obligations). | Yes the applicable statute of limitations is relatively easy to determine.  The applicable statutes of limitations in the UK (England & Wales) are the Limitations Act 1980 (which concerns causes of action which arise in the UK) and the Foreign Limitation Periods Act 1984 (applicable where, in accordance with the rules of private international law, the laws of any other country are to be taken into account in any claim).  While there are no provisions specifically applicable to mediation or conciliation, generally for any settlement or compromise to take place there should first be an actual or potential claim between the parties.  Since the expiration of the limitation period for a cause of action provides a complete defence to a claim, which would allow the defendant to apply for a strike out of the claim for abuse of process under R. 3.4 (2)(b) of the CPR, there would be no need for mediation or conciliation once a limitation period had expired (subject to any permitted extensions of time) as the claim would be time-barred. | Yes the applicable statute of limitations is relatively easy to determine.  The applicable statutes of limitations in the UK (England & Wales) are the Limitations Act 1980 (which concerns causes of action which arise in the UK) and the Foreign Limitation Periods Act 1984 (applicable where, in accordance with the rules of private international law, the laws of any other country are to be taken into account in any claim).  While there are no provisions specifically applicable to mediation or conciliation, generally for any settlement or compromise to take place there should first be an actual or potential claim between the parties.  Since the expiration of the limitation period for a cause of action provides a complete defence to a claim, which would allow the defendant to apply for a strike out of the claim for abuse of process under R. 3.4 (2)(b) of the CPR, there would be no need for mediation or conciliation once a limitation period had expired (subject to any permitted extensions of time) as the claim would be time-barred. | Under French Law, there is no specific statute of limitations applicable to international conciliation or mediation proceedings per se. The applicability of a statute of limitation will depend on the nature of the claim as per the relevant provisions of the French Civil Code. | Once the cause of action and the applicability of Dutch law are determined in a certain case/issue, it is fairly easy to determine the statute of limitations. The limitation periods for different causes of action are mainly to be found in art. 3:306 BW (Dutch Civil Code) and further. | Preliminary remark: At the moment, there is no Swiss statutory law on a federal level with regard to national or international conciliation or mediation. Until now, among the 26 cantons, only Geneva has adopted a law on civil mediation which entered into force on 1 January 2005. There are, however, private institutions such as the Swiss Lawyers Association (FSA/SAV) or the Swiss Chamber on Commercial Mediation (SCCM) which have established guidelines and ethical codes for mediation. At the moment, the Swiss Civil Procedure Law (SCP) is being unified and modified on a federal level and is expected to become effective by 2010. The draft SCP contains to some extent provisions on ADR: conciliation, mediation and arbitration. Today, in matter of insurance, banking and travel contracts, conflicts may be referred to designated ombudsmen offices. These private institutions, however, are neither defined nor regulated by law. Statute of limitation:  With regard to contract law, limitation periods are governed by the Swiss Code of Obligation (art. 134 CO). In general, these limitation periods are suspended by initiation of court proceedings. Mediation implemented spontaneously by the parties will not suspend the limitation period; therefore, parties usually agree preliminarily on a mutual time extension and waive the right to rely on any time bar which may apply with regard to a possible claim. | Latvian law is silent on mediation and it is not practiced in Latvia | (a) Mediation under Law No. 30 of 1999. Law No. 30 of 1999 concerning Arbitration and Alternative Disputes Resolution contains provisions with respect to the time limitation for commercial conciliation or mediation, both international and national.  Under Law No. 30 of 1999, there are 3 stages of mediation: 1. Pre Mediation Process; 2. Mediation – Negotiation Process; 3. End Mediation Process.  Pursuant to Law No. 30 of 1999, the time limitation of such stages, are as follows: 1. Resolution of disputes through ADR shall be carried out through a direct meeting of the parties not later than 14 days; 2. If the disputes cannot be resolved, then it may be resolved through the assistance of one or more expert advisors or a mediator, then they can start to resolve within 14 days; 3. If the parties still fail to reach an agreement, then such parties may request an ADR institution (i.e. by the Indonesian Mediation Center) to appoint a mediator. After the appointment of the mediator by such ADR institution, the mediation process shall be commenced within 7 (seven) days; 4. The settlement reached shall be set out in a written agreement, signed by all parties concerned, within 30 days; 5. Such written agreement shall be final and binding and shall be registered in the District Court within no more than 30 days after it has been signed; 6. The agreement for resolution of the dispute shall be completely implemented within no more than 30 days after its registration.   In the rules of Indonesian Mediation Center (Pusat Mediasi Nasional, “PMN”), there are no provisions on statute limitation. The rules of PMN only provides for the guideline of mediation proceedings.  Court-Ordered Mediation. Under the Supreme Court Regulation No. 3 of 2003, any claim filed to the District Court shall be tried to be settled first by mediation. Judges are required to order for the parties to mediate within 22 days after the appointment of the mediator, if court-appointed mediator, or 30 days if a private party-appointed mediator. | The substantive law applicable to a cause of action determines the applicable statute of limi-tations. As a result, if an agreement exists regarding the substantive law applicable to a cause of action, it is easy to determine the applicable statute of limitations, because both of them can be determined on the basis of the agreement of the parties.  If no agreement exists regarding the substantive law applicable to a cause of action, the de-termination of the substantive law as well as the applicable statute of limitations becomes more complicated. In this situation, the substantive law applicable to a cause of action de-termining the statute of limitations, will be determined on the basis of the Finnish legal pro-visions relating to the choice of law.   Finland is a party to the 1980 Rome Convention on The Law Applicable to Contractual Obli-gations as well as the 1955 Hague Convention on The Law Applicable to International Sale of Goods. Consequently, parts of the Finnish legal provisions relating to the choice of law are uniform with the choice of law rules of the other European countries.   If assistance is sought from the Finnish court during the conciliation proceedings, the Finnish procedural law becomes applicable for the concerned part and may thus set some time lim-its. For example, if precautionary measures are applied for and granted by the court, the petitioner shall within one month from the issuing of the order bring an action on the main issue before the court or bring the main issue up for consideration in other proceedings that may result in a decision enforceable in accordance with the Enforcement Act. The com-mencement of a conciliation procedure is insufficient to interrupt this time limit. | Statutes of Limitation are generally provided in the Civil Code and, for specific rights, in other Acts. It is therefore generally easy to determine the applicable statute of limitation.  In principle, in case of choice of a foreign law, Italian provisions on statutes of limitation do not apply; we are not aware of any case law stating that such provisions are to be treated as “lois d’application necessaire”. | The answer to this question is contextual in light of the fact that, in the United States, the statutes of limitations that apply to a cause of action vary among the 50 states.  For instance, the statute of limitations for breach of contract in New York is six years, see N.Y. C.P.L.R. § 213(2); in California, the statute of limitations for the same cause of action is four years.  See Cal. Civ. Code Proc. § 337 (2006).  Parties to a contract can minimize any difficulties by choosing, ex ante, what state’s law will govern any disputes in connection with the contract. | In most Canadian provinces and territories, statutory limitation periods emanate from one of two sources. In most cases, the limitation period is defined by a general limitations statute adopted in the relevant jurisdiction. In other cases, the jurisdiction may have enacted special limitation provisions for particular types of claim. Where a limitation period is established by special legisation of that type, it prevails over any otherwise applicable limitation period defined in the general limitation statute.  Most Canadian jurisdictions have not established statutory limitation periods for commencing mediation. A partial exception relates to four of the jurisdictions summarized above that facilitate the use of mediation in litigation proceedings. In those jurisdictions, limitation periods have been established for the commencement of mediation. Those limitations are: • 60 days after filing the first statement of defence in British Columbia. • 90 days after the first defence has been filed in Ontario. • 3 months after the filing of the last dispute note filed in the action in Alberta. • After the close of pleadings in Saskatchewan. | The applicable statute of limitations will depend on the law applicable to the dispute according to applicable International Private Law rules.
b) | What should the mediator and the parties be aware of as regards relevant law and rules as to permitted shortening, tolling (suspending), or extending the applicable statute of limitations in general, or, if relevant, with particular reference to international commercial conciliation (including any special requirements or formalities as to dates of commencement & ending and/or positive or negative results of the process)? |  | The parties may agree to alter the statute of limitations as they wish, in particular to shorten, extend or suspend the limitation periods. German law stipulates only two restrictions to this; i) as to liability for deliberate acts the statutes of limitations may not be shortened in advance and, ii) the limitation period may not be extended to more than 30 years. Under German law the running of the limitatoin period is suspended while negotiations are pending between the parties. | The law on the limitation of actions was thoroughly revised in the Modernization of the Law of Obligations Act, which entered into force on January 1, 2002. Pursuant to § 204(1) No. 4 of the German Civil Code (BGB) (hereinafter “BGB”), the statute of limitations is tolled by notice to the obligor of the obligee’s filing an application for conciliation proceedings at a conciliation institution approved by the administration of justice of a federal state or, if the parties amicably agree to seek conciliation, at any other conciliation institution which settles disputes. The same might apply for applications to a mediator if the parties agree to seek conciliation with a mediator, though this is not certain (Palandt/Heinrichs, [NAME], § 204, para. 19 (66th ed. 2007). If notice is given shortly (cf. § 167 of the German Code of Civil Procedure Erstelldatum 15.08.2007 15:21:00 /2 12 (ZPO), hereinafter “ZPO”) after the filing of the application, the tolling of the statute is retroactive from the time of filing the application. Pursuant to § 204(2) BGB the tolling of the statute ends six months after the conciliation proceedings are terminated. In addition to the above, pursuant to § 203 BGB party negotiations with regard to a legal claim or the circumstances constituting a claim will toll the statute of limitations for that claim until one of the parties refuses to continue negotiations. Thereafter, the limitation period continues to run from where it stopped, but the respective claim will not be barred until at least three months have elapsed from the end of negotiations. This provision might also encompass mediation, since in a mediation the parties are negotiating between themselves guided by a mediator. If there is a contractual duty to mediate, the request for mediation is sufficient to toll the statute retroactively from the date the claim was first asserted (Palandt/Heinrichs, § 203, para. 2). Parties are in general free to contractually modify the statute of limitations. The statute of limitations can generally be shortened, lengthened, or otherwise modified by contractual agreement without any specific formalities, but may not be extended beyond a period of 30 years from the beginning of the statutory period. It also may not be shortened in advance for claims where liability is based on intent. | According to [NAME].  203 German Civil Code the applicable statute of limitations  is suspended if the parties have commenced negotiations on the respective claim. The term “negotiation” is interpreted broadly and it is generally accepted that conciliation procedures constitute a “negotiation” in the sense of Art. 203 German Civil Code. No specific requirements or formalities are required to trigger the suspension by such negotiations. The suspension continues until one or the other party refuses to continue the negotiations in which case the statute of limitation will only apply after a period of 3 months following the termination of negotiations. According to [NAME]. 202 German Civil Code a statute of limitation by mutual agreement can be shortened or suspended as well as extended up to 30 years. There exist no specific requirements as to the form of such an agreement. | (i) Shortening of the statutory periods of limitations is basically admissible. It is solely not allowed to abridge the applicable statute of limitations in standard business conditions (ii) It not allowed suspending the applicable statute for deliberately acting in advance. (iii) The prolongation of the statutory periods of limitations over 30 years is not possible. | The statute if limitation is especially regulated by Law-Decree no. 167/1958 which establishes special cases for suspension and interruptions, extension, waivers, commencement and ending of the right of claim (action). According to the Romanian Legal Principles, the mediator and the parties cannot shorten, toll or extend the applicable statute of limitation. | See 1a) | Generally, under Spanish law parties can not alter the period established bu law as statute of limitations or expiration, as these terms are imperative, Thus, neither a shortening nor an extension of a legally imposed period can be agreed, and parties must claim his right before the end of the deadline. Tolling is not accepted if statute of limitation applies, instead the interested party has to file a judicial claim before the ending of the deadline. If the term is one of 'statute of limitations', before the end of the deadline the party must suspend the running of the statute (by a registered letter or by any other mean showing evidence that the party is claiming his right, otherwise he loses his right to claim. Currently, the European Parliament is discussing a 'Proposal for a Directive of the European Parliament and of the Council on certain aspects of mediation in civil and commerical matters,  SEC(2004) 1314, not yet enacted. If passed, then the European Union members will have a period to adopt this regulation and modify his internal law, and the answer to this question change. | Our legal system provides two (2) different types of mediation process: oficial and private. In the fist case the term is suspended as from the filing of the petition to commence the mediation process, and will have effects on all the parties involved in the process. In the case of a private process the suspension will commence as from the date of delivery of the notice on the hearing set up by the mediator. The last case the statute of limitations apply only to the defendant.  The suspensions will never be longer than one (1) year (or a shorter term if applicable to such action pursuant to the Civil Code). In case the mediation concludes without settling their dispute, the process is formally concluded, raising the suspension on the term of the statute of limitations after twenty (20) running days after the formal termination of the mediation process.    The suspension implies that the term runs as of the occurrance of the fact that cause the suspension. Once this cause ceasses to exist, the term is renewed. | As mentioned above, if the parties have agreed to mediation, court proceedings in this matter will be stayed.  However, no Israeli legislation addresses the issue of statute of limitation in terms of conciliation.  [In addition to the aforesaid, there is not any explicit reference to commercial conciliation in Israeli legislation. The Prescription Law sets the limit on a claim to seven years. In a case of a claim relating to land, the period of prescription will be 15 years  and if the land has been registered in the land register after settlement of title in accordance with the Land (Settlement of Title) Ordinance there is no time bar.  Other statutes provide for different periods in special cases, including labour and consumer matters. The parties may, by separate written contract, agree upon a longer period of prescription then that fixed by the Prescription Law and, in the case of a claim not related to land, also upon a shorter period, so long as it is no shorter than six months.  There may be additional factors that effect the calculation of the prescription period such as the legal capacity of the parties, knowledge of the facts establishing the cause of action, etc. In addition, the Prescription Law also determines that any time spent by one of the parties in the territory of a foreign state, where the conditions under which he was placed there or the relations which existed between that state and the state of Israel prevented him or the other party from conducting the litigation, shall not be taken into account.  Furthermore, under Israeli law, in keeping with English common law principles, the time bar is a matter of procedure and not substance, the lapsing of a claim due to prescription does not extinguish the legal right, but only bars the remedy. If a party can obtain satisfaction by self-help, such as set-off of funds, it may do so even after the prescription period has passed. | Generally, according to Polish law the statute of limitations cannot be modified by the parties. Therefore, if Polish substantive law applies, this rule will also be applied. However, it must be noted that under Polish law, after recognition of a debt the limitation period starts running all over again. Waiver of the statute of limitations plea is always possible.  Commencement of the mediation proceedings interrupts the statute of limitations and sets the clock back to zero at the end of an unsuccessful mediation. Dates of commencement and ending of permitted interruptions or suspensions can be readily determined without formalities | As we have mentioned above, according to Article 119 of Polish Civil Code, statute of limitations can not be changed by parties. However, according to article 123 Polish Civil Code: “The running of the statue of limitation shall be interrupted: 1) by any act before the court or other authority entitled to hear cases or enforce claims of a given kind or before the court of arbitration, performed directly either to vindicate or to establish, or to satisfy or to secure a claim; 2) (…) 3) by the initiation of mediation” When the abovementioned proceedings are concluded, a statue of limitation shall run anew. | Generally, time will stop running for limitation period purposes on the date on which a claim form for the action is issued by the High Court (or on the date of the letter requesting the issue of a claim form is received by the High Court) (Limitation Act 1980, s. 35(1)(a); Thompson v. Brown [1981] 1 WLR 744)  (i)  Permitted shortening – there are no provisions for the shortening of the periods laid down in the statutes of limitations.  Where a claim falls outside the provisions of the Limitation Act 1980, there is no strict period of limitation.  The time for bringing such claims may, however, be restricted by analogy to s. 36 of the Limitation Act 1980 or for laches or acquiescence.   (ii) Tolling/suspending – Tolling applies in the case of a child under 18 or a person of unsound mind at the date the cause of action accrued (Limitation Act 1980, s. 28).  It can also be applied in cases involving fraud, concealment or mistake (s. 32 (1)), acknowledgment and part payments (s. 29), latent damage (ss. 14A and 14B) and judgments (s. 24(1)).  (iii) Extending time limit generally or, in particular, with reference to international commercial conciliation – the Limitation Act 1980 specifically lays down provisions for discretionary extensions of the limitation periods for judicial review (Supreme Court Act 1981, s. 31(6), defamation (Limitation Act 1980, s. 32A) or personal injury cases (Limitation Act 1980, s. 33).  These extensions are based on the grounds that it would be equitable or there are good reasons to extend the time-limit.   There is no provision for an extension of the limitation periods where alternative dispute resolution procedures are used.  In such cases, the usual course of action if the limitation period is close to expiry would be to issue a claim form and then request an adjournment or stay of the claim while the alternative dispute resolution procedures are undertaken. | Generally, time will stop running for limitation period purposes on the date on which a claim form for the action is issued by the High Court (or on the date of the letter requesting the issue of a claim form is received by the High Court) (Limitation Act 1980, s. 35(1)(a); Thompson v. Brown [1981] 1 WLR 744)  (i)  Permitted shortening – there are no provisions for the shortening of the periods laid down in the statutes of limitations.  Where a claim falls outside the provisions of the Limitation Act 1980, there is no strict period of limitation.  The time for bringing such claims may, however, be restricted by analogy to s. 36 of the Limitation Act 1980 or for laches or acquiescence.   (ii) Tolling/suspending – Tolling applies in the case of a child under 18 or a person of unsound mind at the date the cause of action accrued (Limitation Act 1980, s. 28).  It can also be applied in cases involving fraud, concealment or mistake (s. 32 (1)), acknowledgment and part payments (s. 29), latent damage (ss. 14A and 14B) and judgments (s. 24(1)).  (iii) Extending time limit generally or, in particular, with reference to international commercial conciliation – the Limitation Act 1980 specifically lays down provisions for discretionary extensions of the limitation periods for judicial review (Supreme Court Act 1981, s. 31(6), defamation (Limitation Act 1980, s. 32A) or personal injury cases (Limitation Act 1980, s. 33).  These extensions are based on the grounds that it would be equitable or there are good reasons to extend the time-limit.   There is no provision for an extension of the limitation periods where alternative dispute resolution procedures are used.  In such cases, the usual course of action if the limitation period is close to expiry would be to issue a claim form and then request an adjournment or stay of the claim while the alternative dispute resolution procedures are undertaken. | (i) Regarding shortening the applicable statute of limitations: The validity of clauses which shorten the applicable statute of limitations has been upheld by French courts , provided that such shortening does not result in the elimination of the creditor's ability to act. There are, however, some exceptions in particular in insurance matters . (ii)  Regarding the tolling of statutes of limitations: French courts have held that conciliation proceedings toll statutes of limitations, until the end of the conciliation proceedings  . A difficulty, however, may arise with regard to the determination of the commencement and the end of such proceedings. Where the conciliation process takes place outside the rules of an institution, there is no clear rule in this regard, unless the parties have agreed to how to determine the beginning and end of the proceedings in their conciliation clause or agreement. (iii) Regarding extending the applicable statute of limitations: Since, under French law, it is not possible to waive in advance a statute of limitations (see para. c) below), French courts regularly refuse to admit the validity of clauses which extend the statute of limitations, which are also considered as a form of waiver to the benefit of the statute of limitations. | In Dutch law there is a distinction between prescription terms (verjaringstermijnen) and dissolution terms (vervaltermijnen) when it comes to statutes of limitations. The main difference lies in the fact that dissolution terms are absolute and inextensible, whereas prescription terms can be extended. The general regulation on limitation periods in art. 3:306 BW and further, only deals with prescription terms as dissolution terms strongly diverge.   (i) Under Dutch law it is possible to shorten a limitation period by the contractual     agreement out of which the cause of action arises (art. 3:322 BW). (ii) Under Dutch law it is not possible to suspend a limitation period. (iii) Under Dutch law it is possible to interrupt a statute of limitation by performing a certain legal action (art. 3:316, 3:317 and 3:318 BW). By interrupting a statute of limitation, a new limitation period will commence from the day following to that interruption (art. 3:319 BW). Also, the regulation contains an exhaustive account of grounds on which a limitation period may be extended in relation to certain parties (art. 3:320 and 3:321) | As set out above (1.a), parties may agree preliminarily on a shorter statute of limitation or any tolling or extending, but have to respect the principles of good faith, particularly with regard to parties in need of protection such as consumers, employees, etc. |  | In practice, shortening, tolling or extending the applicable statutes of limitations are permitted as long as the parties agreed to it. In the Court-Ordered Mediation, the waiver to the statute of limitations shall also be approved by the presiding Judge. | The substantive law applicable to a cause of action determining the applicable statute of limitations also determines, whether it is possible to shorten, toll or extend the applicable statute of limitations. If the Finnish procedural law is applicable, the time limits set by it cannot be extended or waived by an agreement between the parties. | Provisions of Italian law on statutes of limitation may not be derogated by the parties, so no shortenings or extensions of relevant periods are permitted. The request of conciliation, however, interrupts the relevant period if meets certain requirements (it has to specify clearly the underlying claims, and it has to place the non-performing party in default). | Again, this question does not lend itself to a straightforward answer in light of the variations in state laws.  Typically, in commercial relationships, parties are able to shorten, toll, or extend the statute of limitations pursuant to a written contract.  See, e.g., New York Gen. [NAME]. [NAME].   This law is subject to certain exceptions that the mediator and the parties should be aware of.  For instance, the mediator and the parties should be aware that agreements to extend the statute of limitations indefinitely have been held to be unenforceable under New York law.  See Bayridge Air Rights, Inc. v. Blitman Constr. Corp., 80 N.Y.2d 777 (1992).  Moreover, the parties and the mediator should be aware that Section 17-103 only applies to disputes “arising out of a contract” and requires that any agreement extending the limitations period be in writing.  See, e.g., [NAME] v. Elmira City Sch. Dist., 6 A.D.3d 971 (3d Dep’t 2004). | Again, this question is relevant only in respect of the jurisdictions summarized above that facilitate the use of mediation in litigation proceedings: • In Ontario, the court has jurisdiction to extend or abridge the time limit for commencing mediation based on an evaluation of the number of parties, the state of pleadings, the complexity of the issues, the nature of the action, and whether the mediation will be more likely to succeed if an extension or abridgment is imposed. The statute of limitations can also be extended by 60 days if both parties consent. • In British Columbia, the date for commencing mediation may be extended by agreement of all the parties, or by court order. • In Saskatchewan, on application by a party, the court can postpone the mediation session. • In Alberta, the court can extend the limitation period either before or after the expiry of the period. | Part seven of the Belgian Code of Civil Procedure deals with Mediation.    Article 1730 of this Code, sets forth that a proposal made by a party by registered mail, containing a claim to a right, to have recourse to a mediation procedure, shall suspend the limitation period of the claim related to the said right during one month.
c) | If relevant, irrespective of the law and rules as to the statute of limitations as such, is there a way of eliminating any statute of limitations issue by simple waiver, for example, can the parties make a written promise not to plead the statute of limitations? |  | Yes, by simple waiver. This waiver does not eliminate any statute of limitations for good, but only causes the limitation period to begin to run anew. | The parties are free to waive the right to plead the statute of limitations by agreement. Such an agreement does not require any special formalities. An obligor can also waive by unilateral declaration his right to plead the statute of limitations (Palandt/Heinrichs, § 202, paras. 1-7). |  + Yes, please name how:  + by simple waiver (for example, can the parties make a written promise not to plead the statute of limitations), however, not exceeding 30 years  + by other mean(s), please specify: by agreeing on a suspension of the statute of limitation, an extension or a new statute of limitation period to run as of a the date at which the conciliation has failed | No | No, the time limits are especially regulated by the general law and the special laws in some commercial areas, like insurance, transport or others alike where the legal normal term of 3 years provided by Law-Decree no. 167/1958 is shorter. The parties cannot eliminate by their agreement the statute of limitation and the rules related to the statute of limitation, they can only respect the law. | See 1a) | No, parties cannot eliminate the statute of limitations, however, as a practical matter, a motion to dismiss the claim based on breach of the applicable statute of limitations can only be granted by the judges if the party specifically pleads for it. If no party makes this petition, then the judge can not grant it of his own accord (motu propio). On the contrary, dismissal of a claim based on the statute of expiration is granted by the judge with no need for the parties to plead for it. | No; Parties can not eliminate any statute of limitations. They are provided by law. | No. See the provisions above regarding shortening of the period. | Yes, by simple waiver (for example, can the parties make a written promise not to plead the statute of limitations) | After a period of limitation has passed, the claims of one party do not expire, but the other party may raise the statue of limitations’ objection. | The expiration of a limitation period is a defence which a defendant to a claim must specifically raise and will not be taken by a court of its own motion.  Theoretically (although in practice this would be unusual), if the defence of out of time is not pleaded, the claim could still be mediated by the parties.  However, it should be noted that even if the defence of out of time was not asserted, it is possible that any settlement agreement arising out of the mediation could be later challenged by a defendant for want of consideration, according to [NAME] and Practice of Compromise. | The expiration of a limitation period is a defence which a defendant to a claim must specifically raise and will not be taken by a court of its own motion.  Theoretically (although in practice this would be unusual), if the defence of out of time is not pleaded, the claim could still be mediated by the parties.  However, it should be noted that even if the defence of out of time was not asserted, it is possible that any settlement agreement arising out of the mediation could be later challenged by a defendant for want of consideration, according to [NAME] and Practice of Compromise. | No, Article 2220 of the French Civil Code provides that “it is not possible to waive, in advance, to the statute of limitations”. Consequently, any provision to such an effect inserted in a conciliation clause or agreement will be considered as null and void.  Article 2220, however, provides that a party, who may invoke the benefit of a statute of limitations which has lapsed, may agree to a waiver of same | No, according to art. 3:322 sub 3 BW this is not possible until the           limitation period has elapsed. | Yes, by simple waiver (for example, can the parties make a written promise not to plead the statute of limitations), by other mean(s), please specify: Parties have to be aware of procedural time limits which may not be eliminated or amended (see para 1.d). |  | Yes. By agreement between the parties. In Court-Ordered Mediation, also by the approval of the Presiding Judge. | The parties are not free to agree on the time limits set by the procedural law on their own, so the elimination of the procedural time limits is not possible on the basis of an agreement of the parties.   The parties’ possibility to eliminate the time limits set by the substantive law depends on the provision setting the time limit. If the provision setting the time limit belongs to the non-mandatory provisions of the legislation, the parties are free to agree on whether to ad-here to the time limit set by a non-mandatory provision. However, if the provision of the substantive law setting the time limit is mandatory, the parties are obliged to adhere to the given time limit. (The presumption is that legal provisions are mandatory unless otherwise stipulated.) | Yes, please name how: The parties may waive their right to avail themselves of the relevant statute of limitation only once that the relevant period of time has expired (and never before). | While parties cannot “eliminate” a statute of limitations, they generally have the freedom to enter into a contract that extends, shortens, or tolls the statute of limitations.  Moreover, since the statute of limitations is a defense to an action, the party who would be able to assert the defense may waive it -- intentionally or unintentionally -- by failing to raise the defense at the appropriate time, usually in a responsive pleading such as an answer to a complaint.  See, e.g., Fed. [NAME]. P. 12(h); Chimblo v. Comm’r, 177 F.3d 119, 125 (2d Cir. 1999) (“[statute of limitations defense] may be waived by a party who fails to raise it at the appropriate time”). | Some Canadian limitation statutes expressly confirm the ability of parties to contract out of the legislated limitation period. In jurisdictions with such legislation, the ability of parties to opt out of the statutory limitation period is clear. Most Canadian limitation statutes, though, are silent as to the parties’ ability to opt out. In jurisdictions in which the limitation statute is silent on this question, the ability of parties to opt out is more controversial. On one view, the law should recognize the primacy of private ordering with respect to statutory limitation periods. On that view, parties would be able to waive limitation periods if their waiver is made explicit. A contrary view holds that it offends public policy to permit parties to opt out of the statutory limitations scheme. On that view, any attempt to contract out of any statutory limitation period would be void as against public body and the statutory period would prevail. | Article 7131 sets forth the suspending of the statute of limitations for the whole duration of the mediation, if some conditions are met (enclosed a translation of article 1731).
d) | Does your country make a distinction between a statute of limitations as such and a condition precedent attaching to a right, which provides a shorter time, without reference to the statue of limitations, in which to commence an action? |  | German [NAME] distringuishes between the statute of limitations and preclusion periods, which stipulate, as a matter of substantive (not procedural) law, that a certain act may only be carried out within a certain period of time. It is necessary that the parties either contractually extend these preclusion periods for the duration of the mediation, or that the claimant files - by mutual agreement - an action for the sole purpose of interrupting the preclusion period. | Under German law, parties may contractually agree on an option to be exercised within a certain agreed upon time frame. Apart from that, German law provides for cut-off periods which have to be distinguished from the statute of limitations. A right or a claim subject to a cut-off period extinguishes with the lapse of time, whereas the statute of limitations only gives the obligor the right to refuse fulfillment (see § 214(1) BGB), Palandt/Heinrichs, Überbl v § 194 para. 13 et seq.). However, the cut-off period will also be tolled by filing an application for conciliation or by party negotiations as set forth supra at 1(b). | Conditions precedent agreed between the parties are seen to be different from a statute of limitations. The stipulations provided for in Art. 194 subs. of the German Civil Code do not automatically extend to conditions precedent. The parties to an international conciliation, however, could agree on an extension of the period for the condition precedent to occur or a suspension of such period for an agreed upon time. It is widely assumed that the suspensive effect of negotiations on the statute of limitation provided for by Art. 203 German Civil Code by way of analogy can also be applied to conditions precedent. | There are several preclusion periods destined for several rights (e.g. §§ 121, 124, 148, 532, 626, 1944 BGB). Certain periods of time for commencing an action are only designated on the field of public law. | The Romanian legal system does not apply distinction between the statute of limitation and other conditions precedent. One should anyhow mention the forfeiture term which refers to the time limit within which one can actually fill a claim to protect or ask for certain rights otherwise such claim would be rejected. This forfeiture term refers to the right itself (as merit) differently from the limitation which refers only to the right (as procedural way). | See 1a) | Yes, this distinction exists, as mentioned in the answer to the first question. In a case in which statute of expiration applies, the cause of action has a built-in deadline for exercising the action beofre the court. If failed, the plaintiff loses his right to claim. | There is no distinction in our legal system bewteen a statute of limitations as such and a conditon precedent attaching to a right as indicated in the question. | Subjected to the aforesaid, the country of Israel makes no distinction between a statute of limitations as such and a condition precedent attaching to a right. | Yes. In some cases specified by substantive law (for instance in labour law and warranty claims). | After a period of limitation has passed, the claims of one party do not expire, but the other party may raise the statue of limitations’ objection. | [Not sure on this one – could you make agreement to shorten limitation period?] No – unless the action is of a category which falls outside the scope of the Limitation Act 1980 or limitation period that is set down in a specific statute (Limitation Act 1980, s. 39). | [Not sure on this one – could you make agreement to shorten limitation period?] No – unless the action is of a category which falls outside the scope of the Limitation Act 1980 or limitation period that is set down in a specific statute (Limitation Act 1980, s. 39). | French law indeed makes a distinction between statutes of limitations and so-called "prefix-deadlines" which are essentially a condition precedent attaching to a right. Prefix-deadlines typically provide that an action must be brought within a (usually) short period of time as from, for example, the discovery of a fact which creates the basis for the cause of action.In practice, a claim can therefore be dismissed notwithstanding the fact that the statute of limitations is still running, because the action was not commenced prior to the applicable "prefix-deadline". | Not specifically in relation to the statute of limitations. There are however some regulations that may have the same effect. E.g., in the specific case of a purchase agreement, a shortened limitation period of two years applies (art. 7:23 sub 2 BW). However, in order for a purchaser to appeal to non-conformity within the limitation period, he must have informed the seller about the deficiency within a reasonable time of two months after he has discovered or should have discovered the deficiency. If the purchaser fails to do so, he will lose his ability to plead non-conformity. | Yes, in addition to the afore-mentioned statute of limitations, there exist special time limits for certain types of civil claims, such as an action to contest a resolution of a shareholders’ meeting or the annulement of a last will.  When these limits have elapsed, the claim is dismissed on the merits rather than on procedural grounds. These time limits, other than the statute of limitations, cannot be extended by an agreement between the parties. In any event, further conditions precedent may apply, such as the duty to provide explanations in an insurance claim, may have an effect on the parties’ position in later court proceedings (e.g. the burden of proof). |  | No. | In Finland, a distinction is made between a statute of limitations as such and a condition precedent attaching to a right.   Regarding the time limits set by a statute of limitations, the parties have no possibility to extend, suspend, eliminate or otherwise modify these time limits, unless otherwise stipu-lated. On the contrary, regarding the time limits provided by a condition precedent attaching to a right, the parties are always free to agree on whether to adhere to these time limits.   Because the time limits provided by a condition precedent attaching to a right are based on the agreement of the parties, these time limits are not as unconditional as the time limits set by a statute of limitations. As a result, a fail to observe the time limit provided by a con-dition precedent attaching to a right does not necessarily lead to a forfeiture of a right, as would happen, if the limit was set by a mandatory legal provision. | Yes, Italian law provides that certain causes of action must necessarily be exercised (i.e. the related claim must be brought to court or arbitration) within a certain period of time (termine di decadenza) set by the law or by the parties (normally shorter than those provided for statutes of limitation). Such limitation may subsequently be derogated by the agreement of the parties, provided that they may freely dispose of the underlying rights. | The differences and variations between the 50 States’s laws, their respective common law, and Federal legislation and federal case law make answering this question impracticable]. | Canadian law does distinguish between a statute of limitations and a condition precedent attaching to a right. A condition precedent makes the creation of a right contingent upon fulfilling a set of circumstances, whereas a statute of limitations serves only to extinguish a right after a specified period of time.
2a) | Are there statutory or common law provisions of general application as to confidentiality with respect to an international commercial conciliation which are sufficient to safeguard the desired degree of legal protection against unwanted disclosure expressed in MLICC Article 9, or is it necessary to refer to, or to await, some special legislation or rules of procedure? |  | Yes/No, Presently, there is no statutory law provision of general application obliging the parties to presreve confidentiality. Therefore, it is general practice in Germany that the parties enter into confidentiality agreements amongst each other and in relation to the mediator. | Although German lawyers are subject to professional codes of conduct regarding confidentiality, no German statute provides for confidentiality in mediation or conciliation proceedings or for mediators in their capacity as a mediator. | Yes, A solicitor and a notary public acting as conciliator is obliged to maintain confidentiality (§ 43 a BRAO and § 18 BNotO) and is entitled to refuse to testify in a following court proceeding. Only in case the conciliator learns about certain planned criminal acts of a very major nature he/she will be obliged to break the confidentiality obligation.  Members of other professions acting as conciliators will generally be less safe from having to testify on the content or the outcome of a conciliation procedure. The parties to an international conciliation, however, are not held to keep confidentiality by any specific provision of the law.  If confidentiality is agreed between the parties (and the conciliator) the evidence of facts or witnesses the knowledge of which was obtained in the conciliation procedure would not be admitted in civil court proceedings. Such a confidentiality agreement will be interpreted as an ex parte contract regarding procedural aspects and will be adhered to by the judge. However, there is some uncertainty as to whether and to what extent the judge could still order ex officio to have the respective pieces of testimony or witnesses introduced into the court proceedings. | No | The confidentiality matter is stated in the applicable laws. Although there is no need for special rules, the Romanian legal system does not contain provisions of general application that sufficient to safeguard a certain degree of legal protection against unwanted disclosure as expressed in MLICC art. 9. It is also necessary to refer to Commercial legislation and Civil Procedure. Furthermore, if it is a special matter the parties want to specify supplementary in their contractual agreement they can stipulate more. Therefore, it is sufficient assurance in Romania that confidential subject matter related to an international conciliation or mediation will be protected and that what was said or disclosed in a mediation will not be evidenced in any subesquent proceeding save for the case when the parties agreed upon or the law requested so. | Confidentiality requires an agreement to that efect as between the parties. Article 3 of the SCC Mediation Rules contains a duty for the conciliator, the SCC Mediation Institute and the parties to respect the confidentiality of the mediation. In addition, article 3 stipulates that the need for appropriate confidentiality undertakings should be taken into consideration. | No, In Spain there is no statute regulating business mediation. There are several regional laws regulating mediation for family matters or for labor law conflicts, but no statute has been enacted to deal with commercial litigation. Therefore, there is no statutory provision regulating business mediation stating that 'all information relating to the concilliation proceedings shall be kept confidential, except where disclosure is required under the law or for the purpose of implementation or enforcement of a settlement agreement', in the sense mentioned in MLICC Article 9. To this extent there is on sufficient assurance that confidential subject matter related to an international conciliation or mediation be protected. The parties could potentially agree about the confidentiality issues in the agreement for the mediation, and this agreement would be enforceable against the party on breach, as any other agreement. But nothing can asure that the evidence will not be used in the subsequent proceeding. | Yes, please provide reference: Both the Mediation and [NAME] and its ruling Decree provides that confidentiality is the rule applicable to the process. For purposes of guarantying said rule, the mediator and the parties may also request the execution of written confidential compromise mandatory for all the parties involved in the process. Likewise, confidentiality is a duty that all the parties (including the mediator) shall follow as an “obligation of not-to-do” as defined in the Civil Code, with the effects that said violation are provided therein. | In Israel, it is necessary to refer to special legislation that specifically addresses unwanted disclosure regarding the conciliation/ mediation process. Section 79C(d) of the Courts Law states that "Matters submitted in the course of the mediation process will not serve as evidence in civil proceedings". Regulation 5 (d) of Courts Regulations (Mediation), 5753- 1993 (hereinafter, the "Mediation Regulations") states that a mediator is forbidden to use any of the information revealed to him during the mediation process, other than for the mediation itself except for information he could discover by other means through reasonable efforts. In addition, the Mediation Regulations forbids a mediator to disclose any information revealed to him during the mediation process other than to the parties to the mediation . Furthermore, if one of the parties reveals information to the mediator subject to the specific condition that it be kept confidential, the mediator must not reveal it to any other party involved in the mediation, unless the disclosing party waives confidentiality . Thus, if the mediator wants to consult a colleague on a case before him, he must either receive the parties' consent or disguise any of the parties' identifying details. However, neither primary nor secondary legislation in Israel deals with the parties' obligations to secrecy. Therefore the best solution is to include a secrecy provision within the mediation agreement itself that will oblige the parties to the same degree of confidentiality as the mediator is bound to by law, including sanctions that will deter the parties from violating confidentiality. Any such confidentiality agreements are not subject to the court's consent, but only to general contract law. In addition, according to the Mediation Regulations, if parties decide to turn to mediation in Israel, unless they agree otherwise in writing, the Model Mediation Agreement in the Schedule of the Mediation Regulations shall apply to the mediation process and serve as their mediation agreement. | No, The parties are free to choose any procedural rules they wish. They do it either by indicating these rules or by indicating a particular institution as a mediator, who applies its own rules. Moreover, Polish Code of Civil Procedure includes special provisions concerning mediation that can be applied in absence of such choice, however, they are of a very general nature and state that the proceedings are confidential and the mediator is under an obligation not to disclose the information he gathered during the proceedings. | Yes, Polish Civil Procedure Code contains a provision stating that conciliation is confidential, mediator is obliged not to disclose any information obtained during the conciliation proceedings or related thereto, unless parties agreed otherwise,  and it is ineffective to invoke in court or arbitration proceedings proposals or information obtained from other party during conciliation proceedings. | Mediation is private and confidential.  It is confidential in two ways:  (1) Internally.  The first relates to the separate meetings between the mediators and the parties.  The parties can expressly or impliedly waive their rights to confidentiality in whole or in part during the course of the mediation.  (2) Externally.  The second relates to the whole of the mediation process. Nothing said in the course of the mediation can be discussed outside the mediation nor made known to any third party.  This is normally expressly provided for in the mediation agreement and confidentiality is usually a standard term in mediation agreements.   Confidentiality in relation to the second limb may also be implied.  In Instance v Denny Bros Printing & Others [2000] LS Gaz R 35, the court considered that without prejudice material that was not subject to any express agreement governing confidentiality, may be so governed by an implied agreement that it would not be used in any litigation between the same or related parties. | Yes. Mediation is private and confidential.  It is confidential in two ways:  (1) Internally.  The first relates to the separate meetings between the mediators and the parties.  The parties can expressly or impliedly waive their rights to confidentiality in whole or in part during the course of the mediation.  (2) Externally.  The second relates to the whole of the mediation process. Nothing said in the course of the mediation can be discussed outside the mediation nor made known to any third party.  This is normally expressly provided for in the mediation agreement and confidentiality is usually a standard term in mediation agreements.   Confidentiality in relation to the second limb may also be implied.  In Instance v Denny Bros Printing & Others [2000] LS Gaz R 35, the court considered that without prejudice material that was not subject to any express agreement governing confidentiality, may be so governed by an implied agreement that it would not be used in any litigation between the same or related parties. | Under French law, there is no legal provision which specifically relates to the confidentiality of contractual conciliation proceedings, notwithstanding the fact that confidentiality is considered by French practitioners as being an essential component of conciliation.  The provisions under French law applicable to judicial mediation (i.e. mediation ordered by a judge), however, specifically provide that: “The mediator [is] bound by the obligation of confidentiality towards third parties. The observations of the mediator and the declarations that he gathered cannot be referred to before the judge in charge of the dispute, except with the parties’ consent. They cannot be used in other proceedings (…).” .  French courts have extended this rule to contractual conciliation proceedings, ruling that “by its very nature, aiming at favouring amicable settlement of a dispute, the judicial or contractual conciliation implies that each party can confide in the mediator in a free manner, and that, except unanimous agreement, the confidentiality is kept on information, proposals or concessions received by the latter” .  Since there is no special legislation or rule of procedure that can be referred to in order to secure the confidentiality of contractual conciliation proceedings, and notwithstanding the case law referred to above, it is advisable to include appropriate confidentiality clauses in any agreement providing for conciliation. | No, it is necessary to refer to special legislation or rules of procedure | No, The Geneva civil procedure and law on organization of judiciary (GCP/GOJ) obliges the mediator to keep secret all the facts he learned as a result of mediation process and any action he took, participated in or witnessed. The parties may not reveal anything that was said before the mediator.  In all the other cantons, however, the duty of confidentiality can be stated in a preliminary agreement to the mediation. But, the enforceability of this duty by the Court is not assured. Please note that members of the Swiss Lawyers Association (FSA/SAV) or the Swiss Chamber on Commercial Mediation (SCCM) are subject to the guidelines and ethical codes of conduct for conventional mediation; these guidelines do state respective confidentiality provisions. |  | The Rules of PMN provides that all parties shall maintain the confidentiality of the mediation process. This confidentiality provisions shall form a part of the Agreement to mediate. In the Court-Ordered Mediation, mediation is open and public can have access to the information disclosed in the mediation process… | There exist no general applicable legal provisions prohibiting the parties to disclose the in-formation relating to the conciliation proceedings to third parties. If confidentiality is re-quired, a separate agreement has to be made. | No | Yes, MLICC Article IX provides a general, blanket prohibition against disclosure.  Typically, rules governing disclosure are determined by the parties’ private contract.  To the extent that the parties agree that the mediation proceedings are confidential, and agree to keep those proceedings confidential, they are bound by that contract.  Contracts prohibiting disclosure are common and are enforceable in courts.  See, e.g., [NAME], 93 Misc. 2d 201 (N.Y. Sup. Ct. 1977).  Court rules often specify that when parties participate in a court-sponsored mediation, the parties must sign a confidentiality agreement.  See, e.g., S.D.N.Y. L.R. 83.11.  Recently, many states have adopted the Uniform Mediation Act (“UMA”), drafted by the National Conference of Commissioners on Uniform State Law, in collaboration with the American Bar Association’s Section on Dispute Resolution.  Section 8 of the UMA, “Confidentiality,” is patterned after MLICC Article IX and provides: “Unless subject to the [insert statutory references to open meetings act and open records act], mediation communications are confidential to the extent agreed by the parties or provided by other law or rule of this State.”  So far, the UMA has been adopted, with subtle variations, by the following states: Illinois, see 710 ILCS 35; Iowa, see Iowa Code § 679C.1; Nebraska, see Neb. Rev. Stat. [NAME]. § 25-2930; New Jersey, see [NAME]. [NAME]. § 2A:23C-1; see Ohio, O.R.C. § 2710; Utah, see [NAME]. [NAME]. § 78-31c-101; Vermont, Vt. Stat. [NAME]. tit. 12 § 5712; Washington, see Wash. Rev. Code § 7.07; as well as the District of Columbia, see [NAME]. § 16-4201. | The “without prejudice” privilege will apply in most mediations. It will apply regardless of whether or not it is referred to by the parties, provided the common law requirements are satisfied. At common law, the “without prejudice” privilege applies to: • admissions; • made in good faith; • orally or in writing; and • to settle disputes in a situation in which settlement is not actually reached. | Article 1728 § 1 of the Belgian Code of Civil Procedure sets forth : Art. 1728 - § 1.  All documents and communications made during and for the purpose of a mediation process are confidential. They may not be used during any judicial, administrative or arbitral procedure or in any other dispute resolution procedure and they are not admissible as evidence, not even as an out-of-court confession.  The duty of confidentiality can only be lifted with the consent of the parties with a view to allowing inter alia a Court to homologate settlement agreements.   If this duty of confidentiality is violated by one of the parties, the Court or Arbitral Tribunal decides whether any damages may be granted. Any confidential documents that are nevertheless communicated or which are relied upon by a party in violation of the duty of confidentiality are ex officio excluded from the proceedings.   Without prejudice to the requirements of the law, the mediator may not disclose the facts with which he becomes acquainted as a result of his function. He may not be called upon by the parties as a witness in civil or administrative proceedings relating to the facts with which he has become acquainted in the course of the mediation.  Article 458 of the Criminal Code is applicable to the mediator.
b) | Are there nevertheless statutory requirements or rules of court which would oblige a party or mediator or witness to disclose confidential information in certain situations with the result that MLICC Article 9 offers only a relative protection? |  | Yes, There is a variety of disclosure obligations under corporate and business law, under criminal law or under family law which could be said to constrain the confidentiality obligation. As to court rulings, parties to a confidentiality agreement are obliged to exercise their rights to refuse to give evidence, but such rights only exist in limited circumstances. | No, apart from certain exceptions under criminal law or dealing with money laundering or securities disclosure obligations for listed companies such us the obligation pursuant to § 15 Securities Trading Act (Wertpapierhandelsgesetz). | Yes, If confidentiality has been agreed upon between the parties to an international conciliation and a court nevertheless orders a party, a mediator or a witness to testify they would have to disclose the confidential information as witnesses or as a testifying party. The information received by such testimony, however, would have to be disregarded by the court in coming to its decision. For the possibility of the judge to order testimony ex officio see answer to lit (a) above | No, The applicable regulations on mediation (§ 1042 para. 3 ZPO) offers total freedom of scope to the parties of a conciliation or mediation. Some German mediators provide regulations, which include equivalent regulations. | The confidentiality matter is not treated so strictly, but the law makes the difference between the mediator possibly acting as witness, expert or interpreter, but only with the parties' approval or under a public order. The claims as to confidentiality may be avoided by showing a waiver, or a pre-existing or prospective public availability without breach of any relevant agreement. The witness quality prevails in cases the mediator knew about the issues before obtaining the mediator quality  (art. 37 Mediation Law). This has also a correspondent in the legal provisions regulating various other professional activities such as lawyers, public notaries, etc. However it is to be emphasised that in cases of money laundering procedures or protections against terrorism confidentiality cannot be accepted and individuals in knowledge of aspects related to such areas must report them to competent authorities. | An undertaking of confidentiality does not entail that a conciliator is precluded from testifying in court as a witness. However, according to the Swedish Code of Judicial Procedure, members of the Swedish Bar Association, who are obliged to observe confidentiality under the Code of Conduct of members of the Swedish Bar Association, may not testify concerning matters entrusted to, or discovered by, them in their professional capacity unless such disclosure is mandatory or the person for whose benefit the duty of secrecy is imposed consents thereto. | No, the general rules is that parties have the right to call as a witness any person with relevant knowledge about the controversial facts discussed in the claim (s. 360 Spanish Civil Procedure Act). However, the witness can appear in front of the civil court and state that he has a duty of secrecy due to ihs profession or state. If the civil judge considers justified the reasons given by the witness, then he will release the witness of the obligation to declare. Of course, in the case of criminal conduct, the mediator would be obliged to disclose the confidential information. | Yes, please provide reference: Pursuant to section 4 of the Standard Confidentiality Agreement, the basic principle of any mediation process contains two (2) exceptions: (a) the existence of a criminal offense, and (b) violence against a minor citizen. Under these two circumstances, the confidentiality duty is released. | The mediator's obligation to confidentiality imposed by the Mediation Regulations is not absolute.  The mediator may be required to disclose information revealed in mediation to the court or to a third party under certain circumstances. Such disclosure will be carried out in accordance with the Mediation Regulations or general provisions of the law that require such disclosure. According to the Mediation Regulations, a mediator may only disclose confidential infprmation to the court [or to experts with whom he has consulted for the purposes of the mediation itself if the prties accepted the Model Mediation Agreement to enter mediation which is located in the Mediation Regulation Schedule], and only regarding certain information, in the following cases: (a) a mediator's announcement to the court that the parties have not yet reached agreement and the subsequent application for a further stay of proceedings;  (b) where the parties have agreed that the mediator give the court his opinion regarding the dispute at the end of the mediation procedure ; and (c) in the case of dispute regarding the mediator's fees, the mediator may disclose any relevant information to the court in order to settle the matter. The mediator is permitted to announce to the court his decision to stop the mediation proceedings, but may not disclose the reasons for doing so . The mediator must inform the court of the mediation settlement signed by the parties, and may serve the court with a copy of such agreement if the parties wish to incorporate it into a judgment.  In addition, since the secrecy and confidentiality of the mediation proceedings are dealt with in regulations rather than in primary legislation, any provisions of primary legislation prevail in the case of conflict and there are thus certain exceptions to the confidentiality of the mediation procedure.  First, if there is reasonable concern that an offence endangering life or health, sexual offence, abandoning or neglecting, assaulting or abusing a minor or invalid by his or her guardian has been committed (section 368D (a) of the Penal Law, 5737-1977). Second, if  the mediator or a party to the mediation procedure learns during the mediation that a person is about to commit a crime, they are obligated to take all the necessary and reasonable means to prevent the person from executing the crime or completing it (section 262 of the Penal Law, 5737-1977), which may include disclosure of information revealed in the mediation. As to the parties to mediation, there are not any specific references, and therefore it is highly recommended, as aforesaid, to include a secrecy provision within the mediation agreement that will oblige the parties. | Yes, According to the provisions of the Polish Code of Civil Procedure the parties cannot refer before the court to the statements and proposals made during the mediation proceedings. | Yes, The §10 of the Ordinance of Minister of Justice concerning the mediatory proceedings in criminal cases states that: The mediator obtains only the item of information about the case that is essential to conduct the mediatory proceedings.  In certain situations, on mediator’s request, court or prosecutor can make some information available for the mediator. Such information covers evidence material concerning: suspected, defendant, aggrieved and offence which are connected with mediatory proceedings.  However, information relating to the suspected or defendant’s health, opinion about him, details about his criminal liability cannot be released under any circumstances.  The same regulation covers any information representing the state or official secret. | Yes.  The test as to whether a party or mediator or witness may under any circumstances be freed from the duty of confidentiality must be whether the public interest justifies the disclosure of confidential information (W. v Egdell [1990] Ch. 359).  The confidential information will not be prevented from being disclosed where there is a just cause for such disclosure (Fraser v Evans [1969] 1 Q.B. 349).  In each case, it is a balancing exercise as to whether the nature of the just cause overrides the duty of confidentiality. | Yes.  The test as to whether a party or mediator or witness may under any circumstances be freed from the duty of confidentiality must be whether the public interest justifies the disclosure of confidential information (W. v Egdell [1990] Ch. 359).  The confidential information will not be prevented from being disclosed where there is a just cause for such disclosure (Fraser v Evans [1969] 1 Q.B. 349).  In each case, it is a balancing exercise as to whether the nature of the just cause overrides the duty of confidentiality. | Yes, Pursuant to Article 10 of the French Civil Code and Article 11 of the French Code of Civil Procedure, each person is held to support the judiciary’s purpose to establish the truth in any one case. Consequently, a judge can order a party to provide documents, information which are considered necessary to the manifestation of truth, subject to of fine or daily penalty, in the event of a failure to comply with the order.  The judge’s power is only limited by the existence of a legitimate ground, which can either be the respect of privacy or professional confidentiality. | Yes, please provide reference:   Judgment by the court of first instance in Utrecht, 2 February 2005, LJN: AS5144. A confidentiality clause must be considered to be an agreement of documentary evidence in the sense of art. 153 Rv, which means that a judge in principal may not hear witnesses with regard to any information considered to be confidential in accordance with the confidentiality clause. However, art. 21 [NAME] contains the obligation for parties to be truthful and exhaustive about all facts that might be relevant to a judgment. Only in exceptional circumstances will a judge order a conciliating party to disclose confidential information. This may only be the case when the need for truth prevails over the prejudice that might be suffered by a personal disclosure. Furthermore, it is imaginable in some cases that a mediator has a statutory duty to testify. This might be the case when a third party who is not bound to the confidentiality clause (art. 191 Rv) summons the mediator as a witness, or when the mediator is summoned to testify in a criminal case (art. 213 Sv) Unlike some professions, a mediator does not have a right of non-disclosure or legal privilege in such case. | Yes, please provide reference: The mediator’s contractual duty of confidentiality may conflict with a statutory duty to testify. There is no statutory provision expressly enabling mediators to refuse to testify on the basis of a duty of confidentiality. The judge may in general excuse a witness from testifying if (a) the witness exercises a profession which is subject to a secrecy obligation under the Swiss Criminal Code or (b) if the witness is subject to a particular relationship of trust and confidence.  This rule, however, only applies when other protective measures are not available and when the interest of the witness in keeping the information confidential prevails over the interest of the party seeking to put the confidential information into evidence.  Mediators may be regarded as subject to a “particular relationship of trust and confidence“, such that it might be possible for them to refrain from testifying. |  | In Court or Arbitration proceedings, parties have the right to disclose the information. However, the Rules of PMN provides that the parties shall waive the right to use as evidence of the followings, (i) Opinions or suggestions made by any party or the Mediator concerning alternative solutions to the matter in dispute; (ii) Proposals, summaries, and any other notes presented during the mediation process; (iii) Any statement by any party to the Mediator that a proposal is accepted or rejected; (iv) All documents drafted and prepared in connection with the mediation process. | In the procedure before a court, the presumption is that a person called as a witness can-not refuse to testify or answer a question. Nevertheless, a party to the case may not be heard as a witness before the court, thus the parties have no obligation to give a testi-mony regarding the confidential information.  There are also some special provisions allowing the witnesses to refuse to testify, e.g. an attorney or a counsel shall not testify regarding the matters which the client has entrusted to him/her for the pursuit of the case, unless the client consents to such testimony.  A wit-ness may also refuse to give a statement which would reveal a business or professional secret unless very important reasons require the witness to be heard thereon. | Yes, please provide reference: As a general principle, if a person involved in a mediation process is called to render a witness, he/she has the duty to do so, and he/she is not excused by the fact that he/she assumed a non-disclosure obligation. However, he/she may refuse to render witnesses if he/she may invoke a professional secret (as for lawyers in their client relationships) or a secret of a similar nature. | Yes, Article IX is clear that its protections do not apply where “disclosure is required under the law.” so to the extent that any statutory requirements or rules of court compel disclosure, then they would not be in conflict with Article IX.  Certain states compel disclosure in connection with “public records” laws.  See, e.g., [NAME]. Dist. v. Anchorage Daily News, 779 P.2d 1191 (Alaska 1989); Pierce v. St. Vrain Valley Sch. Dist., 944 P.2d 646 (Colo. Ct. App. 1997).  Other states have recognized a public policy requiring disclosure in order to prevent death or substantial bodily harm.  See, e.g., Tarasoff v. Regents of Univ. of Cal., 551 P.2d 334 (Cal. 1976).  One court has compelled disclosure of communications during civil mediation in connection with criminal grand jury proceedings.  See In re: 1994 -- Special Grand Jury Proceedings, 870 F. Supp. 1170 (S.D. Ind. 1995); but see State v. [NAME], 877 A.2d 1258 (N.J. 2005) (criminal defendant’s constitutional right to present complete defense using testimony from mediator in related mediation did not outweigh policy interest in preserving mediation confidentiality when evidence was otherwise available). | No | Refer to Article 1728 § 1 of the Belgian Code of Civil Procedure (as above)
c) | Does your country follow the rule in MLICC Article 8 as to the need for a party to specify that information being given ex parte to a mediator is confidential? |  | No, unless explicitly approved by the party concerned, the mediator is - on the basis of a conclusive mediator contract - not allowed to disclose information received in a one-to-one interview with this party to the other party. However, this question is in dispute. | Yes. Since there are no specific rules in German law on confidentiality in mediation or on the duties of mediators, confidentiality obligations must be specified and agreed to by the parties. | No, The answer to this question depends on the extent of the confidentiality provision agreed between the parties. It can be agreed that only those information expressly specified as being confidential should fall under the confidentiality obligation or that all information received during the conciliation procedure has to be kept secret. Lawyers as mediators will have to keep any and all information obtained during the conciliation procedure confidential irrespective of any ex parte specification. | See above, (b); e.g. rule 4.1. of the rules of procedure of the Bundesverband Mediation in Wirtschaft und Arbeitswelt e.v. | Yes, art. 53 of the Mediation Law provides that confidentiality is one of the characteristics of the mediation procedure in Romanian legal system. | The SCC Mediation Rules do not contrain any provision relating to this issue. | So far there is no legal rule in Spain to this respect. However, the practice follows this non written rule, and the mediation agreement usually contains a clause specifiying that everything said of given to the mediator shall be kept confidential except otherwise mentioned. Notice that if the information given by one of the parties to the mediator was on the public domain, no confidentiality can be alleged. | No, please provide reference: As indicated above, confidentiality is the rule in any mediation process. Thus, all the information obtained within a mediation process is confidential –unless already public or an express release of the party granted in this respect. | In Israel, Regulation 5(f) of the Mediation Regulations  offer a similar solution to the one that is suggested in article 8 of the MLICC, stating that "If a party reveals information to the mediator on the condition  that it be kept confidential, the mediator is bound to keep it secret from any other party, unless the party that disclosed the information waives its right to secrecy". | No, The general provisions on mediation do not refer to this issue. | Yes, Article 1834 of Polish Civil Code stipulates that: “Mediator is obliged to keep confidential all the information concerning the dispute, unless the parties release him from this obligation.” | Yes | Yes. | Yes, French practitioners would expect to see such a rule in a well-drafted conciliation agreement.  But there is no provision for such a rule in the French Civil Code and the French Code of Civil Procedure. | No, please provide reference:  There is no statutory provision under Dutch law that obliges a mediator to keep information that has been given to him ex parte, disclosed from the other party. However, it is a rule of procedure that is commonly inserted in mediation regulations and therefore generally applied. [for example article 7.5 of the NMI (Netherlands Mediation Institute) regulations and article 12.1 of the ACB (ADR Centrum voor het [NAME]) regulations] | No, please provide reference:  See above (2.a, b). |  | See 2 (a) above | If an agreement exists which regulates that all the information given ex parte during the conciliation proceedings is confidential, there is no need to specify the information as confi-dential in order to keep it secret.   However, if no agreement regarding the confidentiality exists, the parties usually have no obligation to keep the given information secret, although the given information would have been specified as confidential by one party.  Nevertheless, the substantive law applicable to a cause of action may include some provisions regarding the confidentiality requiring some information to be kept secret if specified, for example, as a business secret.   If a witness refuses to testify in the court regarding some matter he/she is allowed to keep secret according to the Finnish Code of Judicial Procedure, at the same time, he/she has to mention the grounds for the refusal and show a plausible reason for it. So in the court, the witness has to specify that the information falls under some given category to be allowed to keep it secret. | No, please provide reference: In Italy out-of-court mediation / conciliation procedures are not regulated by the law, so there is no general duty of confidentiality upon parties /mediators.  Please note, however, that Mediation Rules issued by ADR Institutions in Italy usually provide for such a duty (but this has only the nature of a contractual obligation). | No, This is the common practice, although there are not necessarily general rules that dictate this result.  See, e.g., [NAME] (requiring parties to indicate to mediator where ex parte communications should remain confidential); ICPR Mediation Procedure, Rule 9, “Confidentiality.” |  Yes: the Nova Scotia provisions regarding use of mediation in litigation proceedings follow this rule, but the other jurisdictions’ provisions are silent on this subject. | The Belgian Code of Civil Procedure does not contain a specific rule on ex parte given information. Therefore such an information may not be disclosed to the other parties without the prior consent of the disclosing party. The Code sets forth that before the mediation starts, parties and mediator should sign a mediation “protocole”. In this document the rules of confidentiality are confirmed in detail.
d) | Is the very fact that a mediation has commenced or ended, with or without a resolution, confidential per se or is an agreement necessary between parties, mediator, and/or a service provider such as ICC or AAA? |  | Agreement necessary to ensure confidentiality, however, such agreement will be deemed to have been entered into implicitly in most cases. | Agreement is necessary to ensure confidentiality. | Mediation per se confidential: for lawyers and notaries public as mediators  + Agreement necessary to ensure confidentiality for parties involved and third parties | Mediation per se confidential X Agreement necessary to ensure confidentiality | Nothing special needed more than the above. At any time confidentiality is a mandatory clause of the mediation contract concluded between the parties and the mediator subject to certain exemption such as money laundering or terrorism when they do not apply. | As a general rule, confidentiatliy requires an agreement. Art. 3 of the SCC Mediation Rules, governing the confidentiality of the mediation, stipulates tat the mediator, the parties and the SCC Mediation Institute shall respect the confidentiality of the Mediation. In the practice of the SCC Mediation Insitute, this means that the Institute will neither deny nor confirm or in any other way comment or respond to a question whether a certain party is or is not involved in conciliation under the auspices of the SCC Mediation Institute. | Neither of the above, so far there is no legal rules in Spain to this respect, and the practice varies. There is no legal rules stating that mediation is confidential per se. If parties want to keep it confidential, then they include this obligation in the mediation agreement. | Mediation is confidential per se, and thus it is not strictly necessary to agree among all the parties on the terms and conditions of said duty. However, parties may execute a standard confidential agreement but such agreement can not condition in any way the duty assumed by the parties just by entering into a mediation process. Likewise, the confidentiality rule is not affected by the existence or not of a resolution / settlement that terminates the process. | In this matter, the Israeli legislator had not yet expressed its view, although it appears that the very fact that a mediation has commenced or ended is not confidential per se. If the parties are interested in concealing the fact that they have turned to a mediator and are participating in mediation, there appears to be no legal provision to bar them from signing an agreement to that effect between themselves, the mediator and/or the service provider, accompanied with deterring sanctions if so desired. If the court has referred the parties to mediation, this fact will appear in the transcript of the court proceedings, which are accessible to the public, unless the parties ask the court to hold the hearing in camera. | Agreement necessary to ensure confidentiality | Fact of the mediation is not confidential “per se” (however there are some discussions in literature), unless parties agreed otherwise. If parties came to terms during mediation proceedings, mediator is obliged to lodge in competent court conciliatory record (disclose the fact of the mediation). | Mediation per se confidential. | Mediation per se confidential | Mediation per se confidential, Agreement necessary to ensure confidentiality. While the very foundation of the mediation process is confidentiality, in the absence of specific provisions under French law, it is nevertheless recommended to contractually reiterate that confidentiality applies both to the content of the mediation, but also to the very existence of the mediation. | Agreement necessary to ensure confidentiality | Agreement necessary to ensure confidentiality   See above (2.a, b). |  | See 2 (a) above | Agreement is necessary to ensure confidentiality | Agreement necessary to ensure confidentiality | Again, the extent of the confidentiality can be determined by the parties’ contract.  Most state mediation privileges, however, only apply to “communications;”  accordingly, the mere fact that a person attended the mediation or that a mediation existed is, in most instances, not a “communication” protected from disclosure. |  An agreement is necessary to ensure confidentiality: The law is silent on this matter. As such, parties may presumably agree to maintain confidentiality with resepct to the commencement or conclusion of mediations. | The very fact that mediation has commenced or ended is not confidential per se.
e) | To what extent may the parties agree upon consequences in the event of a breach of confidentiality, for example, liquidated damages, contractual penalties, or contempt proceedings, or, for example, in anticipation of a disclosure, provide for an expedited injunction proceeding, the right to intervene in an action or other requirements such as the posting of a bond? |  | In the event of a breach of confidentiality, liquidated damages and contractual penalties. To force compliance with the confidentiality agreement, a party can obtain inunctive relief under the general conditions of the German civil procedure law. | The prevailing opinion is that parties are free to contractually agree not to name certain witnesses or not to rely on certain evidence in a subsequent civil trial or arbitration (“Prozessvertrag”) (Zöller/Greger, Zivilprozessordnung, Vor § 284, para. 2b ([NAME]. 2007)). Such an agreement would give the right to object to any introduction of evidence in breach of the agreement and lead the court to reject such evidence as inadmissible. Otherwise, in the event of a breach of a confidentiality agreement compensatory damages are available or the parties can agree on liquidated damages or contractual penalties. If the parties are not merchants, the amount of a contractual penalty is subject to the court’s examination and reduction; It is possible for the parties to agree on certain security measures in the event of a breach of confidentiality, such as the posting of a bond or a bank guarantee. The other party may also be prevented from disclosing confidential information by filing an interim injunction pursuant to § 935 ZPO. The parties may also execute an enforceable deed with a notary (§ 794(1) No. 5 ZPO) which facilitates immediate enforcement under § 890 ZPO, provided that it is clearly stated which information is confidential and not to be disclosed. | the event of a breach of confidentiality   + liquidated damages  + contractual penalties      in anticipation of a disclosure     + the right to intervene in an action  + the posting of a bond  + other(s), please specify: claim for damages | see_above, 2 (a) | The parties are free to agree even in the contract signed between them and the mediators about certain consequences related to an eventual breach of confidentiality of the mediation, depending also on the specifics of the case and the type and status of the information disclosed during mediation, as in any other commercial agreement. The consequences mught be liquidated damages or contractual penalties; they refer to general contractual liability for breach of an obligation. Under court proceedings, one party might ask also for an injunction preventing the other party from disclosing confidential information provided during mediation, as an ad interim measure until the contractual claim for damages. | As a general rules, parties are free to agree on the above. A confidentiality agreement however does not preclude a duty to testify as a witness beofre a court. The SCC Mediation Rules do not contacin any provision which specifically relates to these issues. | Liquidated damages, contractual penalties and others. Parties can agree in several remedies to apply in case of breach of confidentiality. A liquidated damages clause is the mos used, and parties ex ante agree the amount of damages recoverable in the event of a specified breach. Parties can also agree in a penalty clause to punish the party on breach, although Spoanish law allows the judge to equitably moderate the agreed penalty if hte breach is only partial. If the party on breach does not voluntarily fulfill its payment obligation, then civil judicial proceedings will be needed to declare the breach of contract and the obligation to pay damages and penalties. Contempt proceedings, other than the civil proceeding for enforcing the agreement mentioned above, are not usually agreed. Parties can also agree in other remedies. In spain there is neither disclosure nor discovery in the sense of the common law, so parties do not have the need to agree on these points. Spanish procedural rules allow only the disclosure of a particular document or a particular category of documents. | The violation of the confidentiality duty triggers the sanctions provided by the Civil Code (sections 1067 and 1068) and the Criminal Law Code (sections 156 of the Code and 244 of the Criminal Proceeding Code) since both legislations protect the interest of the confident party. The legislation admits any kind of agreement between parties in relation to the liquidation of the damages and in general on the effects of said breach. The legislation does not rule specifically on this matter. As in any other judicial process parties may agree on any of these guarantees in anticipation of a disclosure, but actually they are not an alterative used within a mediation process. | Due to the absence of legislation on this matter, already discussed above, it is recommended that the parties sign an agreement, whether separately or as part of  their agreement to participate in mediation or the final mediation settlement itself, that will determine sanctions in the event of a breach of confidentiality (not necessarily during a legal procedure), such as payment of compensation by the breaching party or that any such breach constitutes a fundamental breach of the mediation settlement thus making the agreement to mediate void or voidable. The more detailed, relevant and reasonable the secrecy provisions and sanctions are, the more likely they will be enforced by the court, even when balanced against the importance of the public interest in the "discovery of truth", that constitutes another part of the courts discretion.  In addition, when the parties are private individuals, a party can sue the person who disclosed the information according to Protection of Privacy Law, 5741-1981, if relevant.  As to liquidated damages, if the parties have agreed on such compensation for breach of confidentiality, they will be determind pursuant to the Contract (Remedies for Breach of Contract) Law, 5731-1970. The meaning of choosing this option is that the plaintiff is not obliged to prove damages. However, the law authorizes the court not to approve liquidated damages if they are not reasonable, i.e., if the amount is disproportionate to the possible damages that may be suffered by the breach of the agreement. Contempt proceedings would only be possible if the agreement to mediate was given the status of a court decision, which can be done if the parties so agree. In such case, breach of the agreement would also constitute breach of the court's ruling and this could form the basis for a contempt claim. | i) liquidated damages, contractual penalties, ii) provide for an expedited injunction proceeding, the right to intervene in an action |  liquidated damages  contractual penalties  contempt proceedings (ex lege) | There is nothing specific in the texts which stipulates that a party may agree to the consequence of a breach of confidentiality or disclosure conditions.  However, presumably the parties are able to agree on the appropriate damages on a contractual basis.  It should be noted that contempt proceedings would apply if the confidentiality agreement was incorporated into a judgment or was made by [NAME] and the judgment or order was breached. | the event of a breach of confidentiality? There is nothing specific in the texts which stipulates that a party may agree to the consequence of a breach of confidentiality or disclosure conditions.  However, presumably the parties are able to agree on the appropriate damages on a contractual basis.  It should be noted that contempt proceedings would apply if the confidentiality agreement was incorporated into a judgment or was made by [NAME] and the judgment or order was breached. in anticipation of a disclosure? See above | in the event of a breach of confidentiality, liquidated damages, contractual penalties.  in anticipation of a disclosure, provide for an expedited injunction proceeding, the right to intervene in an action, the posting of a bond. | the event of a breach of confidentiality; liquidated damages, contractual penalties,  contempt proceedings. in anticipation of a disclosure; provide for an expedited injunction proceeding, the right to intervene in an action | the event of a breach of confidentiality; liquidated damages, contractual penalties, in anticipation of a disclosure; provide for an expedited injunction proceeding |  | A party may file a claim to the Court against the party breaching the confidentiality. | the event of a breach of confidentialityliquidated damages, contractual penalties. in anticipation of a disclosure: There is no remedy available for the anticipation of a disclosure that is based solely on the agreement of the parties.  Although, if a confidentiality agreement is made, a precautionary measure can be applied for the court, in which the court prohibits the other party, under threat of fine, not to dis-close the information agreed to be kept secret in the confidentiality agreement. The prereq-uisite for the court’s order is that the petitioner can establish a probability that he/she has an enforceable right to have the information to be kept secret and that there is a danger that the other party discloses this confidential information. | the event of a breach of confidentiality, Others. Please provide reference: The only possible consequence under Italian law of a breach of a confidentiality agreement is the payment of damages. Parties may agree upon liquidated damages but Courts will always have the power to reduce the liquidated damages to a sum that they deem equitable. in anticipation of a disclosure; There is no typical remedy under Italian law for such a situation, but the interested party may, in principle, ask the Court to issue an interim order preventing the other party from disclosing to third parties the relevant information (however we are not aware of any specific case law addressing this issue); application, however, may only be uphold if the disclosure would cause an irreparable damage (i.e. a damage which cannot be fully compensated by monetary payment). | Again, the agreement to submit a dispute to conciliation is by contract or court order.  So whatever the agreement or the local rules of court provide is what controls.  (It is unlikely, however, that a court would enforce an agreement that bound it to hold a party in contempt.) in anticipation of a disclosure;  Although some courts are split with respect to the availability of provisional relief in aid of an arbitration, this issue does not appear to come up with any frequency in the context of a mediation.  Compare Borden, Inc. v. [NAME]., 919 F.2d 822, 826 (2d Cir. 1990) (upholding grant of preliminary injunction in aid of arbitration); PMS Distrib. Co. v. [NAME]., Inc., 863 F.2d 639, 641-42 (9th Cir. 1988) (holding that court had authority to issue writ of possession pending outcome of arbitration), with McCreary Tire & Rubber Co. v. CEAT SpA, 501 F.2d 1032 (3d Cir. 1974) (holding that court does not have authority to grant provisional relief in aid of arbitration). | the event of a breach of confidentiality Most agreements to mediate contain confidentiality clauses and remedial provisions for breach of confidentiality. These provisions have not yet been considered in Canadian courts.        in anticipation of a disclosure  See above. No Canadian judicial consideration. | Parties are free to agree upon the consequences in the event of a breach of confidentiality. This can be done in the mediation “protocol”.
f) | Are there laws or rules of general application, sufficient to satisfy MLICC Article 10, as to the admissibility or use in a court or in an arbitration of information obtained in a conciliation, including any specific “privileged” communications in the nature of or conceptually similar to attorney-client privilege, or is a special law or regime necessary? |  | No, Failing an agreement and unless special rules governing certain professions are applicable which provide for confidentiality, there are no regulations which prevent any participant of the conciliation proceedings from acting as set forth in Article 10 para 1 MLICC. | A party to a German lawsuit is generally not required to disclose any information in the course of the proceedings. There are no “discovery” rules such as in the U.S. There are also no rules of general application protecting information obtained in a mediation or conciliation beyond those of the professional privilege, which include the attorney-client privilege. Attorneys are bound by professional duties of confidentiality, and violations are punishable both under criminal law and under rules of professional conduct. The attorney-client privilege covers all information concerning the professional relationship between the client and the attorney, including the existence of such relationship, and all information which became known to the attorney in his capacity as an advisor. An attorney or other professional advisor, as well as every member of his staff, has the duty to exercise his privilege with regard to all matters and all information falling within the scope of the duty of confidentiality. This privilege may be waived only by the client. Exceptions to the attorney-client privilege apply only in very limited circumstances, such as when the attorney is under an obligation to report certain facts to public authorities under criminal or money laundering laws. However, if information falling within the attorney-client privilege becomes known to the opponent or to the court by other means, such as through public records, the court may take such information into account regardless of the privilege | No, please provide reference:  There are no express provisions, however, agreements as to procedural issues such as keeping of confidentiality as to specific issues are acknowledged and will be respected by the courts (see above) | Special law or regime is necessary. Please provide details, if any:    See above, 2 (b); e.g. rule 4.3. of the rules of procedure of the Bundesverband Mediation in Wirtschaft und Arbeitswelt e.v. | Art 53 of the Mediation law states that, as a matter of principle, it is not possible to use during arbitral, judicial or similar proceedings, except for the case when parties so agree or law expressly provides so, as it might be the case when the judges in State court consider that the information is needed for the settlement of the case and obliges the party to provide it in the court. | According to Art 3(4) of the SCC Mediation Rules, a partu may not introduce as evidence in any judicial or arbitration proceedings any views expressed or statements made in the course of the mediation. No laws exist which correspond to MLICC Article 10. On the contrary, an agreement containing restrictions on the introduction of evidence as described in MLICC Article 10 does not prevent a Swedish court from admiting such evidence. Swedish procedural law contains very few rules on the admissibility of evidence; nearly all evidence may be admissibile and objections focus on probative value. The fact that a party may be in breach of an undertaking of confidentiality when presenting evidence does not make evidence inadmissible. | No, a special law or regime is necessary. Further to section 2(a) above, there is no rule protecting what has been said or disclosed in an international mediation to be used as evidence in any subsequent proceedings. It is necessary to await some special legislation or rules of procedure. For further detail see article 6 of 'Proposal for a Directive if the European Parliament and of the Council on certain aspects of mediation in civil and commercial matters'. | Yes; Information obtained within a mediation process is precluded to be relied on within a subsequent litigation proceeding, even in the case that any of the parties pleads that the settlement reached from a mediation process is null and void.  Confidentiality is a duty provided by law that supports the credibility of the mediation as a valid alternative dispute resolution method. | The relevant Israeli legal arrangement is different from the one detailed in Article 10 of the MLICC. Section 79C (d) of the Courts Law states that "Matters submitted in the course of the mediation process will not serve as evidence in civil proceedings." Further, the confidentiality of the mediation procedure prevents the parties from disclosing information in a judicial procedure regarding the mediation. If a party tries to use such information as evidence, it will not be admissible in court in order to ensure that a mediation procedure will not affect the outcome of any court proceedings, as mentioned in section 3(b) to the Mediation Regulations. Regulations 2 and 2A of the Mediation Regulations Schedule (Model Mediation Agreement) state that parties who have agreed to mediation may not summon the mediator to testify in court or present any documents to the court in any matter related - directly or indirectly - to the mediation proceedings. The privilege of the mediation belongs to the mediation procedure itself and not to the parties, thus, evidence that originates in the mediation will not be admissible per se. However, this privilege applies, according to the law, only to court-directed mediation procedures, as apposed to mediations unconnected to any court proceedings, although it may be assume that the courts will apply the privilege to such cases as well.  Moreover, the privilege applies only in civil procedures, rather than criminal cases, where evidence revealed in the course of mediation will be admissible in court. Although the privilege is supposedly absolute, and the law is unequivocal, it is reasonable to assume that the court would acknowledge some exceptions : (i) information that was known to the parties/ mediator before the mediation will not be confidential in order to prevent exploitation of the privilege; (ii) in case where a party sues the mediator regarding his unfit behavior or a breach of obligation on his part (similarly to the attorney-client privilege); and (iii) in case where the mediator sues the parties regarding fees. The question whether to deviate from the privilege when a party requests the annulment of a mediation settlement on the grounds of deception, forgery, fraud, etc., has not yet been clarified, but may be in the future. | Yes | Yes | Yes. It remains to be definitively stated by the English courts or legislature whether there is a separate concept of “mediation privilege” in existence, but mediation is viewed as being without prejudice and existing without prejudice rules apply.  The Court of Appeal recognised in [NAME] v Prime Meridian Ltd [2006] EWCA Civ 1866 that nothing created solely for the purpose of the mediation and anything said during the course of the mediation is privileged and cannot be referred to or relied upon in subsequent court proceedings in the event that no settlement is reached.    However, whilst privilege can be claimed by the parties to the negotiations and their lawyers, it cannot be claimed  by third parties.  This means that a mediator may be compelled to give evidence if the parties agree and the parties may extend the privilege to the mediator by including a contractual confidentiality provision in the mediation agreement.   Also see response to (g) below. | Yes. It remains to be definitively stated by the English courts or legislature whether there is a separate concept of “mediation privilege” in existence, but mediation is viewed as being without prejudice and existing without prejudice rules apply.  The Court of Appeal recognised in [NAME] v Prime Meridian Ltd [2006] EWCA Civ 1866 that nothing created solely for the purpose of the mediation and anything said during the course of the mediation is privileged and cannot be referred to or relied upon in subsequent court proceedings in the event that no settlement is reached.    However, whilst privilege can be claimed by the parties to the negotiations and their lawyers, it cannot be claimed  by third parties.  This means that a mediator may be compelled to give evidence if the parties agree and the parties may extend the privilege to the mediator by including a contractual confidentiality provision in the mediation agreement.   Also see response to (g) below. | Here again, there are no specific provisions relating to the admissibility/use of information obtained in contractual conciliation proceedings, under French law. However, one would expect that, on the basis of the general principle of confidentiality, that all information obtained during the conciliation proceedings is confidential and therefore, that the subsequent use of any such information be declared inadmissible before a court of law.  French courts have confirmed the scope of this principle to the admissibility or use of information in other proceedings, considering that the principle of confidentiality applied "necessarily not only to the purely technical information communicated by the parties to the mediator, but also to all the proposals made by each one of them in view of a settlement agreement. This confidentiality also obviously applies to the minutes of the mediation, whose content, in principle covered by confidentiality, can only be released within the limits and conditions agreed by the parties and the mediator (…). When there has been no agreement on said use, the telling, in the subsequent writ of summons of one of the parties, of facts observed or of information received by the mediator in carrying out his mission is likely to constitute a breach of the duty of confidentiality imposes on all the actors of mediation (…)"   . In the case of a judicial mediation, the French Supreme Court has held that the observations of a mediator and the statements made by the parties, could not be used as a basis for criminal liability unless the parties had in fact consented that their statements could be subsequently produced before a judge . | No, please provide reference:   There are no statutory provisions that prohibit the use of information obtained in conciliation for the purposes of other proceedings. The parties have to explicitly agree on this in a confidentiality clause. However, it is a rule of procedure that is commonly included in mediation regulations and therefore generally applied. [for example articles 7.1 and 7.2 of the NMI-regulations and articles 12.2 and 12.3 of the ACB-regulations] | No, please provide reference:   See above (2.a, b). |  | (f) See 2 (b) above | There exist no general applicable laws nor rules which would safeguard the information ob-tained in conciliation proceedings and prohibit the use of the information received during the conciliation proceedings in arbitral, judicial or similar proceedings on the basis that the in-formation has been obtained in the conciliation proceedings.   The information obtained in the conciliation proceedings can be confidential only on the ba-sis of an agreement or if the information falls under the scope of some special legal provi-sion requiring certain kind of information to be kept secret. | No, please provide reference: No, in Italy there is no law of general application regulating out-of-court mediation / conciliation processes | To the extent that the parties agree that the mediation proceedings are confidential, and agree to keep those proceedings confidential, they are bound by that contract.    Pursuant to Federal Rule of Evidence (“FRE”) 408, parties may not introduce evidence concerning (1) the offer or acceptance of consideration in order to settle a claim or (2) conduct or statements made in settlement discussions in order to “provide liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction[.]”  The confidentiality protections offered by Rule 408 are not as broad as the protections offered by MLICC Article IX.  Article IX only permits disclosure where “required under law or for the purposes of implementation or enforcement of a settlement agreement.”  In contrast, Rule 408 does not prohibit a party from introducing -- or a court from admitting -- evidence concerning conduct or statements made in settlement discussions in order to prove bias or prejudice, or to negate a contention of undue delay, or to prove an effort to obstruct a criminal investigation or prosecution.  See FRE 408(b).  Courts have found that the protections of Rule 408 are inapplicable when evidence of settlement communications are offered for purposes other than to prove the validity, invalidity, or amount of a disputed claim.     Some federal courts have crafted a federal common-law privilege for mediation communications under FRE 501.  See, e.g., Folb v. Motion Picture Indus. Pension & Health Plans, 16 F. Supp. 2d 1164 (C.D. Cal. 1998); U.S. Fidelity & Guaranty Co. v. Dick Corp., 215 F.R.D. 503 (W.D. Pa. 2003).  These courts have held that communications made during a mediation are subject to the same protections as other privileges, such as the attorney-client privilege.  Courts are split, however, with respect to the existence of such a privilege and as to the scope.    Other courts, however, have adopted the similar positions as Article IX and will allow parties to introduce mediation communications in order to enforce or defend against the enforcement of a mediated agreement.  See, e.g., FDIC v. White, 76 F. Supp. 2d 736 ([NAME]. 1999). | Mediations are generally considered analogous to “without prejudice” settlement negotiations. As such, information obtained in mediation is not admissible in arbitral or judicial proceedings. | See (a)
g) | In view of the answer to (f) above, what can a party, mediator, witness or other relevant third party testify to or introduce in a later proceeding, whether the conciliation was successful or unsuccessful? |  | Unless contractually agreed upon and unless special professional law applies, there are no restrictions. | If not bound by the attorney-client privilege or other privilege, a party, mediator, witness or other third party can testify to or introduce in a later proceeding any relevant information obtained in mediation or conciliation. | Lawyer conciliator may not testify at all unless permission is given by all parties involved. As to the parties it will depend on the scope of the confidentiality provision; witnesses, if called to testify by the judge, will have to testify; whether their testimony can be used by the judge in coming to a decision will again depend on how broad the confidentiality provision is drafted. | There is no effect of such regulation in the rules of procedure on the obligations of the parties in later proceedings. | As detailed above, the remedy for breach of confidentiality is merely contractual, but depending on a case by case basis and the type of information, parties can either agree or be obliged to disclose the confidential information at a later stage of the proceedings in front of State courts or arbitration. In the latter case, confidentiality is ensured since arbitration is also a confidential procedure as a matter of principle and unless parties do not intend to challenge the award in State courts. | There are no general restrictions, unless the rule on attorney-client privelege applies (see (b)) | As mentioned above, any person having direct knowledge of the controversial facts discussed in the trial and called by the judge as a party or witness is obliged to appear before the court and answer to the questions formulated in examination unless a duty of secrecy can be alleged. | The law provides a general principle which mandates that any document, information or activity brought to the parties as a consequence of a mediation process is confidential. The breach of such duty within a litigation proceeding in court brings two (2) consequences: (i) delete the references to said confidential document / information / activity indicated in a judicial writ, and (ii) dispense said confidential evidence based on document / information / activity. | As already mentioned, and regardless of the success of the mediation process, there are obligations or exceptions that will superceed any duty of confidentiality imposed on the mediation process, which are not inmposed by statute but are recognized by the courts. | As mentioned above, according to the provisions of the Polish Code of Civil Procedure the parties cannot refer before the court to the statements and proposals made during the mediation proceedings. However, they can present all the materials that were previously presented to the mediator. | The fact of the mediation, unless parties agreed otherwise. | In the Unilever case (Unilever plc v The Proctor & Gamble Co [2000] 1 WLR 2436, [NAME] set out the most important instances in which the without prejudice rule would not prevent the admission into evidence of what one or both of the parties said or wrote:  (1) “Except as to costs” - communication specifically marked “without prejudice save as to costs” (see for example, CPR r.3619(1) and [NAME] [1984] Ch 290, CA).  (2) Proof of an agreed settlement - in the recent case of Brown v Rice [2007] All ER (D) 252 (Mar) the court considered a confidentiality clause in a mediation agreement and held that whilst it “bolster[ed] the without prejudice nature of what transpires at a mediation”, it could not prevent the court from applying the exception to the without prejudice rule which arose in that case.  The judge held that communications during the mediation process could by exception be admitted as evidence to establish whether or not a settlement had been reached.  The without privilege communications cannot, however, be used for any other purpose.  (3) Unambiguous impropriety - if the exclusion of evidence of what the parties said or wrote in without prejudice discussions would act as a cloak for perjury, blackmail, or other “unambiguous impropriety”.  The courts have indicated that this exception is to apply only in the clearest cases of abuse of privilege involving something “oppressive dishonest or dishonourable” ([NAME] in Unilever).  (4) Misrepresentation, fraud, or undue influence - evidence as to how an agreement was concluded should be set aside on these grounds (see [NAME] (1912) 4 DLR 66).  (5) Estoppel - the relevant without prejudice evidence may be examined even if no concluded settlement is reached, where one party is intended to and does in fact act following a clear statement made by the other party in the negotiations giving rise to an estoppel (see Hodgkinson v Corby Ltd v Wards Mobility Services Ltd [1997] FSR 178)  (6) Reasonableness of mitigating steps - if there is an issue as to whether a party has acted reasonably to mitigate his loss and conclusion of negotiations for a settlement.  (7) Delay - the court may examine the content of negotiations to determine the reasons for delay. | In the Unilever case (Unilever plc v The Proctor & Gamble Co [2000] 1 WLR 2436, [NAME] set out the most important instances in which the without prejudice rule would not prevent the admission into evidence of what one or both of the parties said or wrote:  (1) “Except as to costs” - communication specifically marked “without prejudice save as to costs” (see for example, CPR r.3619(1) and [NAME] [1984] Ch 290, CA).  (2) Proof of an agreed settlement - in the recent case of Brown v Rice [2007] All ER (D) 252 (Mar) the court considered a confidentiality clause in a mediation agreement and held that whilst it “bolster[ed] the without prejudice nature of what transpires at a mediation”, it could not prevent the court from applying the exception to the without prejudice rule which arose in that case.  The judge held that communications during the mediation process could by exception be admitted as evidence to establish whether or not a settlement had been reached.  The without privilege communications cannot, however, be used for any other purpose.  (3) Unambiguous impropriety - if the exclusion of evidence of what the parties said or wrote in without prejudice discussions would act as a cloak for perjury, blackmail, or other “unambiguous impropriety”.  The courts have indicated that this exception is to apply only in the clearest cases of abuse of privilege involving something “oppressive dishonest or dishonourable” ([NAME] in Unilever).  (4) Misrepresentation, fraud, or undue influence - evidence as to how an agreement was concluded should be set aside on these grounds (see [NAME] (1912) 4 DLR 66).  (5) Estoppel - the relevant without prejudice evidence may be examined even if no concluded settlement is reached, where one party is intended to and does in fact act following a clear statement made by the other party in the negotiations giving rise to an estoppel (see Hodgkinson v Corby Ltd v Wards Mobility Services Ltd [1997] FSR 178)  (6) Reasonableness of mitigating steps - if there is an issue as to whether a party has acted reasonably to mitigate his loss and conclusion of negotiations for a settlement.  (7) Delay - the court may examine the content of negotiations to determine the reasons for delay. | As illustrated above (see 2 f), a party, a mediator, a witness or any other relevant third party cannot testify to or introduce in subsequent proceedings, unless this has been expressly agreed by the parties. | Since there are no statutory provisions under Dutch law on the subject, the boundaries as to what information may be disclosed depends on what parties have agreed on in the confidentiality clause. A rule of procedure that is commonly included in mediation regulations is that any information that a party had to its disposal (or could have had to its disposal) apart from the conciliation proceedings, may be disclosed by the parties. [for example article 7.2 of the NMI-regulations] | There are no restrictions by Swiss statutory law in this regard. |  | (f) See 2 (b) above | As mentioned above in clause 2b, the presumption is that a person called as witness be-fore a court shall not refuse to testify or answer a question if no special provisions exist giving a witness a right to refuse to testify. The existence of the conciliation proceedings is not a sufficient ground on its own to create a right to refuse to testify.  Nevertheless, according to the Finnish procedural law, a party to the case may not be heard as a witness before the court, thus the parties have no obligation to testify in the judicial proceedings regarding the conciliation proceedings.   An attorney or a counsel may also, although heard as a witness, refuse to testify in re-spect of the matters the client has entrusted to him/her. Persons like public officials, phy-sicians and pharmacists may as well refuse to testify in respect of some matters enumer-ated in the Finnish Code of Judicial Procedure chapter 17, section 23.  In addition, a per-son called as a witness may also refuse to give a statement which would reveal a business or professional secret unless very important reasons require the witness to be heard thereon. It is not possible to hear witnesses under an oath in an arbitration held in Finland in accor-dance with the Finnish Arbitration Act. As a result, the persons heard by the arbitral tribu-nal have no obligation to give a testimony regarding the prior conciliation proceedings. On the other hand, the persons heard by the arbitral tribunal have either no obligation to re-fuse to give a testimony regarding the prior conciliation proceedings, if no confidentiality agreement exists. | In principle, unless they can invoke a professional or similar secret, the parties, the mediator, and the persons intervened in the mediation proceedings must (if called to do so) testify. The parties however may agree to renounce to their right to call them as witnesses in litigation proceedings. | The answer to this question also depends on the context and the jurisdiction.  If there is an action to enforce a mediated agreement, and one party attempts to raise a common-law contract defense, such as duress or fraud, then a court will usually permit the party to do so.  See, e.g., FDIC v. White, 76 F. Supp. 2d 736 ([NAME]. 1999).  In another case, one party attempted to enforce an oral agreement reached during a telephonic mediation conference.  The court refused to admit evidence about these communications.  See, e.g., Microsoft Corp. v. Suncrest Enters., No. C-03-5424-JF(HRL), 2005 WL 3555721 (N.D. Cal. Dec. 28, 2005). | Where mediation is regulated by statute, information disclosed during a mediation is not admissible in any subsequent proceedings. The without prejudice privilege will generally apply in jurisdictions that do not have mediation legislation. | - a mediator nothing, except in a procedure concerning his liability as    mediator, or  with prior consent of all parties  - the parties or any relevant third party : only with consent of all parties (see article 1728)
h) | Is there any rule that arguments as to admissibility and/or privilege are waived if a document or communication is relied on in litigation and does it make any difference if such a reliance was made in the context of a prior conciliation solely to facilitate a possible settlement? |  | No, No such rules exists. Inadmissibility may only be effected by a procedural contract. | If a party refers to a document as a means of evidence in its submissions to the court, that party is deemed to have waived all privileges with regards to such document. If a party makes privileged communications or documents containing privileged information available to the opposing party, privileges in relation to such communications or documents are deemed waived. A court order for a party to produce information is not enforceable. The court may, however, draw negative inferences from a party’s refusal to comply. |  + Yes, it could probably be argued that if a party itself introduces a document into court proceedings it can not later on argue that it was not admissible as this would be deemed to be contradictory. The other party, however, could still insist on the inadmissibility of that document. | Yes, See above, 2 (b); e.g. 4.5. of the rules of procedure of the Bundesverband Mediation in Wirtschaft und [NAME] | There are non specific rules as regards these issues related to admissability and or priveleged  information but nevertheless this is an issue to be assessed only on a case by case basis and depends very much on the type of litigation, position of the judge/arbitrator and nevertheless the information to be relied upon. |  | No, In Spain any communication between a lawyer and his client containing informaiton about a case is considered priveleged and confidential, as it is also any communication between lawyers discussing points of the case. To use these documents in a subsequent trial, lawyers are obliged to ask for permissoin to the BAR Association, and wait until this permit arrives. If they act without this permit the only consequence is a possible administrative sanction imposed by the BAR Association. But these are internal rules affecting the lawyers. THe admissability of these documents as evidence by the courts is not affected by the fact the document is priveleged or confidential, or the lawyer obtained the permit from the BAR association. The document can be accepted in any case. | No, please provide reference: There is no such rule under our legal system, disregarding if was made in the context of a prior conciliation solely to facilitate a possible settlement. Once within a mediation process said document or communication becomes confidential. That is the reason parties are generally very reluctant to disclose documentation within a mediation process. However, parties who are seeking for a settlement generally disclose certain documents and information informally and out of the mediation process. | As discussed above, the mediation privilege belongs to the mediation procedure and not to the parties, and therefore they cannot waive it in any way, either explicitly or implicitly, directly or indirectly (as apposed to the attorney-client privilege, which the client can waive). Evidence existing prior to the mediation is, of course, not included in the privilege. If the parties agree, the parties may ask the mediator to give his opinion regarding the mediation to the court. Otherwise, nothing revealed in mediation will be admissible in court. This is an absolute rule and the court has not been granted any discretionary powers in the matter. This policy was implemented in order to guarantee the confidentiality of those who turn to mediation. Since one of the most important ingredients to the success of mediation is that the parties tell the truth, confidentiality encourages the parties to do so. | Again, according to the provisions of the Polish Code of Civil Procedure the parties can present all the documents that were previously presented to the mediator but cannot refer before the court to the statements and proposals made during the mediation proceedings. |  | Yes  If party A introduces without prejudice material at trial, party B is entitled to rely on the other without prejudice material which came into existence as part of the same without prejudice process (see Somatra Ltd v Sinclair Roche & Temperley [2000] 1 WLR 529, CA).  In Smiths Group plc v Weiss & Others (Chancery Division, 22 March 2002), a case concerning inadvertent disclosure of notes of witness interviews prepared for a mediation, the court found that the without prejudice status of the documents is not necessarily altered by the inclusion of the documents in a disclosure list.  The court confirmed that the “without prejudice” protection afforded to documents provided for mediation should only be waived in clear and unequivocal circumstances.     In addition, just because a normally unprivileged document emerges for the first time at a mediation, it does not attract privilege.  The Australian case of AWA v Daniels is a direct authority for that proposition. If the documents are disclosable, for example under the Civil Procedure Rules (CPR), it is not possible to render them immune from disclosure simply because they were referred to in mediation.  For example, under Civil Procedure Rules R. 35.8, instructions given to a single expert, whose evidence is relied on in the proceedings, are disclosable to the opponents in the litigation and disclosure can not be avoided by claiming that those instructions had been referred to in a mediation.  In Aird and Aird v Prime Meridian Ltd [2006] EWHC (TCC) 2338, in order to assist the mediation process, the Court ordered that the parties' architectural experts should meet on a without prejudice basis and prepare a statement of issues upon which they are agreed and not agreed.  The mediation was unsuccessful and the court decided that the joint statement following the experts’ without prejudice meeting was disclosable by virtue of CPR Part 35.12.   Just because it was produced for the first time at the mediation did not clothe it with any privilege. | Yes  If party A introduces without prejudice material at trial, party B is entitled to rely on the other without prejudice material which came into existence as part of the same without prejudice process (see Somatra Ltd v Sinclair Roche & Temperley [2000] 1 WLR 529, CA).  In Smiths Group plc v Weiss & Others (Chancery Division, 22 March 2002), a case concerning inadvertent disclosure of notes of witness interviews prepared for a mediation, the court found that the without prejudice status of the documents is not necessarily altered by the inclusion of the documents in a disclosure list.  The court confirmed that the “without prejudice” protection afforded to documents provided for mediation should only be waived in clear and unequivocal circumstances.     In addition, just because a normally unprivileged document emerges for the first time at a mediation, it does not attract privilege.  The Australian case of AWA v Daniels is a direct authority for that proposition. If the documents are disclosable, for example under the Civil Procedure Rules (CPR), it is not possible to render them immune from disclosure simply because they were referred to in mediation.  For example, under Civil Procedure Rules R. 35.8, instructions given to a single expert, whose evidence is relied on in the proceedings, are disclosable to the opponents in the litigation and disclosure can not be avoided by claiming that those instructions had been referred to in a mediation.  In Aird and Aird v Prime Meridian Ltd [2006] EWHC (TCC) 2338, in order to assist the mediation process, the Court ordered that the parties' architectural experts should meet on a without prejudice basis and prepare a statement of issues upon which they are agreed and not agreed.  The mediation was unsuccessful and the court decided that the joint statement following the experts’ without prejudice meeting was disclosable by virtue of CPR Part 35.12.   Just because it was produced for the first time at the mediation did not clothe it with any privilege. | French courts will declare inadmissible documents obtained in conciliation proceedings sealed by confidentiality, without the consent of the parties. It does not make a difference whether the documents were relied on solely to facilitate settlement or not. | No, please provide reference:   There is no statutory provision regarding this subject. The answer to this question will depend on what parties have agreed on in the confidentiality clause and whether this clause contains a specific exception with regards to the admissibility and / or privilege of documents or communication in litigation. | No, please provide reference:   Under Swiss law, the concept of privilege is not known. Therefore, there is no  statutory rule in this regard. Documents and information once revealed in  mediation may be subject to only limited confidentiality in litigation. |  | (f) See 2 (b) above | No rule exists stipulating that the right to rely on a document or communication in litigation would be waived if the document or communication has been relied on in conciliation pro-ceedings. The only way to prevent that the document or communication relied on in concilia-tion proceedings will not be relied on in subsequent litigation is to make an agreement pro-hibiting the use of material relied on in conciliation proceedings in the subsequent proceed-ings. | No, please provide reference: In principle, documents filed in conciliation proceedings are not subject to any privilege; the parties may however agree in advance that they may not be used in litigation (usually this is specified on copies of the documents too). | The question is not altogether clear.  If what is intended is to ask whether a party can rely on a document in litigation, and then claim it is privileged, the answer would generally be that a party cannot.  Note though that if a document is prepared for the sole purpose of a mediation, then it is usually not discoverable.  See, e.g., Folb v. Motion Picture Indus. Pension & Health Plans, 16 F. Supp. 2d 1164 (C.D. Cal. 1998) (P could not discover mediation brief prepared in connection with prior mediation between D and 3rd Party).  As a general rule, however, evidence that is otherwise admissible in arbitral or judicial or similar proceedings does not become inadmissible as a consequence of having been used in a conciliation. |  Yes – evidentiary principles dictate that privilege is waived if a document or communication is relied on in litigation | Documents disclosed during the mediation but that the other party could have obtained without the mediation, are not confidential.
i) | To what extent does the answer to (e) above as to a penalty or injunction for a breach in respect of confidential information protected by MLICC Article 8 apply to use or admission of the categories of information protected by MLICC Article 10 in a court proceeding or an arbitration? |  | Unless a specific procedural contract is agreed upon, the forfeiture of a penalty as such has no influence on the use or admission of confidential information in a court proceeding or an arbitration. Also, an injunction prohibiting such disclosures would not oblige the court or arbitral tribunal not to accept or consider this evidence; only the party would have to bear the consequences set forth in the injunction. | Parties are free to agree upon liquidated damages or contractual penalties in the event of a breach of a confidentiality agreement. Apart from certain legal obligations under criminal law or securities disclosure requirements for listed companies such us the obligation pursuant to § 15 Securities Trading Act, the parties are free to determine the scope of information not to be disclosed. Thus, the parties may determine when there will be a claim for confidentiality which could be enforced by an interim injunction. | This will again depend on the broadness of the confidentiality provision and whether or not it extends beyond facts, witnesses and pieces of evidence learned of in the course of the conciliation procedure. If the wording is broad enough penalties can also be agreed to protect against an introduction of the information addressed in Art. 10. Exorbitant penalties may get reduced by a judge if no real harm can be proven. | There is no effect of such arrangements on court proceedings or arbitration. | Breach of the obligation to keep confidentiality of information triggers the responsibility  as damages towards the party which suffered it, either as penalty or as injunction during court or arbitration proceedings. | It would not prevent the use of the categories of information protected by Article 10 in a court proceeding, unless te rules on attorney-client privelege applies | To its full extent. Parties can agree not to use a document as evidence, and in case of breach, a penalty clause, or liquidated damages, can be imposed to the party on breach. | Mediation process is confidential. Section 360 bis of the Federal Procedural Code provides that parties can not be interrogated on the facts discussed during the mediation hearing.  The confidential characteristic of the mediation process determines that mediators are compelled not to reveal to the court or third parties any fact or information obtained during the process. Likewise, mediators can not testified within a subsequent process or submit their personal notes on the facts revealed during the mediation hearings. | The legal arrangement in Israel, regarding this issue is very general and not detailed enough. However, it can be determined that the mediator's obligation not to disclose information received from one of the parties who requested absolute confidentiality, is an absolute obligation. Therefore, the mediator cannot disclose this information in any judicial or arbitral procedures, subject only to the limited and essential exceptions abovementioned that originate in primary legislation. If a mediator discloses such information without any legal justification, he may be accused of negligence or breach of statutory duty according to the Torts Ordinance (New Version) and even invasion of privacy according to the Privacy Law, 5741-1981. The admissibility of any such evidence depends on whether the information is absolutely necessary in order to clarify one of the exceptions to the privilege. | Pursuant to the provisions of the Polish Code of Civil Procedure the use of the protected informations has no effect before the court. |  | [Not sure about what the question is getting at] | [Not sure about what the question is getting at] | In the event of a breach of confidentiality during subsequent court or arbitration proceedings, a party could claim for liquidated damages or for contractual penalties if such remedies had been previously agreed by the parties. | Both types of shortcomings in respect of confidential information may be considered to be a breach (wanprestatie). The penalties mentioned in 2e apply to both. | Such penalty agreed upon by the parties does not prevent the presentation and use of such information in court proceedings or arbitration. But, such breach will trigger the respective penalty.  Further, a party restricted by some kind of penalty when revealing documents or information in litigation may try to claim the violation of its constitutional right to assert a claim. |  | No provision in Indonesian [NAME] on this matter. | The consequences mentioned in clause 2e above are not available regarding the breach of confidentiality concerning the information or material protected by the MLICC Article 10, if no agreement exists that the information or material enumerated in the MLICC Article 10 is confidential, and the breach of this confidentiality leads to the aforementioned conse-quences. | In order to prevent a party from using in litigation proceedings documents / witnesses that it was agreed that they could not be used, the interested party should file a petition for their exclusion in the same litigation proceedings.  The answer to (2e) only applies to disclosure of the relevant information to third parties (not in litigation proceedings between the same parties). | Some courts have imposed sanctions for similar breaches.  For instance, in [NAME], Inc., 901 F. Supp. 778 (S.D.N.Y. 1995) (court imposed sanctions on party where it ignored court order that mediation communications, including the name of the mediator, are to remain confidential -- party disclosed settlement offers, communications made by defendant, and the name of the mediator). | As previously noted, parties may agree upon the consequences of breaching confidentiality. These agreements have not been considered in Canadian courts. | Same rule, as above.
j) | To the extent not otherwise addressed above, if a settlement agreement is made following an international conciliation, can a court or arbitrator or subsequent mediator hear witnesses or receive documents which are otherwise subject to a restriction arising out of the prior conciliation as being non-admissible and/or confidential, and in particular in order to (i) understand what the parties intended, (ii) implement the agreement, or (iii) enforce the agreement |  | Witnesses or documents excluded in a prior concilliation cannot be taken as evidence by a court or arbitrator. The same applies to subsequent mediation even though it is not subject to civil procedure law. Therefore it is necessary to provide for exemptions as to the implmentation or enforcement of the settlement agreement. | In principle, it is for the parties to determine what evidence they want to submit to the court in civil proceedings, so that confidential evidence supplied by one of the parties will be inadmissible. It is, however, not certain whether a court has the power to introduce such evidence ex officio by using its discretionary powers pursuant to §§ 142 - 144, 273 ZPO. However, those provisions do not relate to witness examinations and are only applicable if the facts are contested. | A lawyer mediator could again not be heard as a witness. Otherwise it will again depend on the extent of the wording of the confidentiality clause. | A court may to full extend give access to the evidence which is subject to a restriction arising out of the prior conciliation. | Again, there are no specific rules except for the general principal of confidentiality of the mediation procedures and documentation disclosed thereon but, however, it all depends on issue to be assessed only on a case by case basis and depends very much on the type of litigation, position of the judge/arbitrator and nevertheless the informaiton to be relied upon. | This has been addressed under (b), (f) and (g). | Yes, they can. As mentioned before, any evidence relevant to the case may be brought forward by the parties, and the judge or the arbitrator will later decide if this evidence must be accepted or rejected. The party on breach of any confidentilaity agreement will be liable for its breach. | A mediation process conducted in Argentina will impede any of the parties to such process to testify as a witness on the information obtained during the process, or any court to receive any document obtained from a mediation process. This rule applies even in the cases where the party alleges that said admission pretends (i) to evidence the understanding of what the parties intended, (ii) to implement the agreement. However, parties can file the settlement agreement in order to enforce it in case a party to the mediation fails to honour it. | The legal arrangement in Israel, regarding this issue is very general and not detailed enough. However, it can be determined that the mediator's obligation not to disclose information received from one of the parties who requested absolute confidentiality, is an absolute obligation. Therefore, the mediator cannot disclose this information in any judicial or arbitral procedures, subject only to the limited and essential exceptions abovementioned that originate in primary legislation. If a mediator discloses such information without any legal justification, he may be accused of negligence or breach of statutory duty according to the Torts Ordinance (New Version) and even invasion of privacy according to the Privacy Law, 5741-1981. The admissibility of any such evidence depends on whether the information is absolutely necessary in order to clarify one of the exceptions to the privilege. | A court or arbitrator or subsequent mediator has powers to analyse the case within the scope necessary for the enforcement of the settlement agreement. They also need to have sufficient access to the documents allowing them to assess conformity of the settlement agreement with the basic rules of the Polish law (public order clause). |  | Without prejudice evidence is admissible to establish whether a settlement has been concluded (Brown v Rice [2007] All ER (D) 252 (Mar)).   There may be exceptional circumstances when the courts will need to look at the conduct of mediation, however it was made clear in Hall v Pertemps Group Ltd [2005] ADR LR 11/01 that the kind of event the courts will look into would be irrelevant to the underlying dispute.  It is unlikely that any event that is directly relevant to the underlying dispute would not be considered as being without prejudice by the courts. | Without prejudice evidence is admissible to establish whether a settlement has been concluded (Brown v Rice [2007] All ER (D) 252 (Mar)).   There may be exceptional circumstances when the courts will need to look at the conduct of mediation, however it was made clear in Hall v Pertemps Group Ltd [2005] ADR LR 11/01 that the kind of event the courts will look into would be irrelevant to the underlying dispute.  It is unlikely that any event that is directly relevant to the underlying dispute would not be considered as being without prejudice by the courts. | If the parties provided for such a clause in their settlement agreement, it may be possible. Otherwise, the information will be kept strictly confidential. | There is no statutory provision regarding this subject. However, parties may agree to disclose confidential information to a court, arbitrator or mediator for the purposes as mentioned above. The NMI-regulations for example contain the rule in art. 15, that the signed settlement agreement may be disclosed to a mediator, arbitrator or judge in case of a dispute regarding the compliance with the said agreement. | See above (2.a, b). |  | See 2 (b) above | As already stated, the existence of the conciliation proceedings on its own is not a sufficient ground to create an obligation to keep the material relating to the conciliation proceedings secret.   However, if an agreement regarding the confidentiality is made, the parties are bound by it.  Thus if the confidentiality agreement prohibits the parties to rely on some material obtained in the conciliation proceedings in the possible subsequent proceedings, the parties are not allowed to produce this material in the subsequent proceedings.  As a result, the court, the arbitral tribunal or a subsequent mediator should not receive from the parties any confiden-tial material that is agreed to be kept secret. | The court/arbitrator could only hear the witnesses and receive the documents requested / filed by the parties. The parties who agreed to keep the information confidential, however, could not legitimately use them in the above described context unless the same parties explicitly or implicitly waived their rights to the restriction. | If the parties agree, then usually permissible.  The agreement is a contract, so when the dispute relates specifically to the contract, courts will generally admit mediation communications.  FDIC v. White, 76 F. Supp. 2d 736 ([NAME]. 1999); Olam v. Congress Mortgage Co., 68 F. Supp. 2d 1110 (N.D. Cal. 1999).  In [NAME], the court identified an additional wrinkle in the analysis when it recognized that (i) the parties themselves can hold the privilege and (ii) the mediator may hold an independent privilege that prevents disclosure.  Ultimately, the [NAME] court found that the policy interests in compelling testimony from the mediator to protect the party resisting enforcement of the agreement outweighed the policy in consistent application of the mediation privilege.  See [NAME], 68 F. Supp. 2d at 1137-38 (construing California law). | Among the jurisdictions summarized above that facilitate the use of mediation in litigation proceedings: • In Nova Scotia, disclosure of relevant information is permitted for the purposes of carrying out or enforcing a settlement agreement. • In British Columbia, confidentiality does not extend to any fee declaration, agreement to mediate or settlement document made in anticipation of, during or in connection with a mediation session. • In Alberta, the confidentiality rule does not apply to anything contained in the mediated agreement, or to factual evidence relating to the cause of action that would be otherwise admissible. | No, they can’t except with the consent of all parties in the scope of an homologation of the agreement by the Court (to get enforcement).
k) | How would an “offer of settlement” be treated in the context of an unsuccessful conciliation when a party obtains less in a litigation or arbitration than it was offered by its adversary during the conciliation? |  | Such an offer would be of no relevance, since it is, according to German law, nothing else than an offer to enter into a settlement contract that has simply not been accepted by the other party. | A settlement agreement pursuant to § 779 BGB is governed by general contract principles. Therefore, an offer of settlement is only valid und thus can only be accepted within a time specified by the offeror or a reasonable time (cf. § 147 BGB). If the offer is not accepted within that time or if the offer is rejected, it ceases to exist so that no obligations can arise out of it (Palandt/Heinrichs, § 146 para.2). Hence, it would have no effect in subsequent litigation or arbitration. | This would not have any influence on the court’s decision about who will have to bear the cost of the proceedings. At present German law does not provide for the possibility to have an unreasonable party bear more costs than it would have to bear under the general rule that the costs of court proceedings will be borne by the parties in accordance with their respective prevailing or loosing. | An offer of settlement has no effect, if after litigation has been carried out (cp § 146 BGB) | The 'offer for settlement' is to be treated as such by the addressee in accordance with its intersts at the moment when it is received. There are on rules in this respect imposed by law or practice, all such practical issues related to the settlement either proposed by mediator or by one of the parties within or outside the mediation procedure is left at parties' will. | It is admissable under Swedish Procedural Law to introduce as evidence information on a previous 'offer of settlement'. Members of the Swedish Bar may not, according to the Code of Conduct of members of the Swedish Bar Association, rely upon an 'offer of settlement' from an opposing party unless that party consents thereto. To become inadmissible as evidence, however, the information must meet the standards of Chapter 36, Section 5 of the Swedish Procedural Code. | Different to what happens in the US (Rule 68 of the Federal Rules of Civil Procedure), or what in a similar way happened in the UK (Dunnett v Railtrack [2002] EWCA Civ 302, where the Court of Appeals refused to award the prevailing party the costs of the appeal because she rejected to take part in a mediation process), in Spain there is no impact or consequence at all. | Is a standard practice in Argentina that parties to a settlement agreement do not admit facts or rights for the benefit of the counterparty. Settlements are entered into just for the purpose of terminating the dispute. Thus, any offer made within the mediation process should not be considered by the court when ruling on the case, since it was made just to settle the dispute. | Whether the mediation was unsuccessful and the dispute is returned to the competent court, or the dispute arrives in court for the first time after an unsuccessful mediation, there will not be any discussion of the offers of settlement that were made during the mediation or of any matter regarding the mediation procedure that are subject to the confidentiality of the mediation mentioned in Regulation 3(b) of the Mediation Regulations. This regulaion also requires the court to explain to the parties that matters submitted in the course of the mediation process shall not serve as evidence in civil proceedings and that neither their refusal to commence mediation proceedings or their decision to halt such proceedings will affect the outcome of any court proceedings, so they will feel comfortable and not be inhibited telling the truth or making offers, in order to encourage the success of the mediation. | The offers made during the mediation proceedings have no impact whatsoever on further proceedings before the court or arbitral tribunal. In particular the offers cannot be treated as recognition of debts | Such “offer of settlement” from conciliation can not be invoked as an argument / evidence in a litigation (upon the Article 1834 § 3 of Polish Civil Procedure Code). | Under CPR R. 44.3 (4) (c), when deciding on costs the court must have regard to any admissible offer to settle made by a party which is drawn to the court’s attention, whether or not this is made in accordance with Part 36 of the CPR or not.  However, any offer made “without prejudice” may not be admissable on any issue as to costs without the consent of both parties (Corny v. [NAME] (1830) 4C.3P.462).  Thus, if the offer made in the conciliation is not made “without prejudice” or is made “without prejudice save as to costs”, the court may take the amount offered into consideration when determining what costs the parties will pay.  If such offer is made “without prejudice” it will be inadmissible, unless both parties agree to its admission. | Under CPR R. 44.3 (4) (c), when deciding on costs the court must have regard to any admissible offer to settle made by a party which is drawn to the court’s attention, whether or not this is made in accordance with Part 36 of the CPR or not.  However, any offer made “without prejudice” may not be admissable on any issue as to costs without the consent of both parties (Corny v. [NAME] (1830) 4C.3P.462).  Thus, if the offer made in the conciliation is not made “without prejudice” or is made “without prejudice save as to costs”, the court may take the amount offered into consideration when determining what costs the parties will pay.  If such offer is made “without prejudice” it will be inadmissible, unless both parties agree to its admission. | In principle, any offer of settlement made in the context of conciliation proceedings is confidential and therefore cannot be disclosed by any party. In the event, however, that the parties had agreed to waive confidentiality over the content of the conciliation proceedings, an offer of settlement subsequently produced before a court or an arbitral tribunal could influence the latter especially because a negative finding could be drawn against the party that refused the offer and decided to initiate the court or arbitral proceedings (e.g. abuse of process). | Parties in conciliation generally agree to consider an “offer of settlement” made during conciliation proceedings as confidential information. As this confidentiality clause is to be considered an agreement of documentary evidence in the sense of article 153 RV, a party, after an unsuccessful conciliation, may not disclose such information in a subsequent litigation or arbitration procedure. Nevertheless, when a party should disclose the “offer of settlement”, the judge or arbitrator might take this information into account. The disadvantaged party may then impose one of the  penalties as mentioned above upon the disclosing party. | Such offer may not be regarded as binding since it was made in the context of settlement negotiations. Further, there are no consequences as to costs unless provided for in the mediation agreement. |  | When a party obtains less in arbitration than in the offer of settlement in an unsuccessful conciliation, the party cannot do anything since the award obtained in arbitration shall be final and binding. While in a litigation, a dissatisfied party can appeal to the High Court, then to the Supreme Court, and finally appeal for the Judicial Review to the Supreme Court. | According to the Finnish Rules of proper professional conduct for advocates, section 39, an advocate may not, without the consent of the opposing party, at trial invoke a proposal for settlement made by that party.   This provision reflects the general attitude regarding how an offer of settlement made dur-ing the conciliation proceedings should be treated in a subsequent litigation or arbitration. Generally, it is not even appropriate to rely on a prior offer of settlement made in the con-text of an unsuccessful conciliation during the following proceedings. However, if a reference to the prior offer of settlement is made, the court or the arbitral tribunal will usually give no importance to this kind of reference. | A non-accepted offer of settlement loses any force and effect. All rights and obligations of the parties would thus be regulated by the judgement / award. | Rule 68 of the Federal Rules of Civil Procedure provides that if a party makes a pre-trial settlement offer and the other party rejects it, “if the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer.”  A large number states follow similar rules with respect to settlement offers made in connection with litigation.  See, e.g., [NAME]. P. 68; [NAME]. Civ. Proc. Code § 998; Conn. Gen. [NAME]. [NAME]. [NAME] 52-192a; [NAME]. [NAME]. [NAME] 768.79; Hawaii R. Civ. P. 68; Mass. [NAME]. P. 68; Mich. C.R. 2.405; Wis. Stat. [NAME]. § 807.01(3). | While formal offers to settle made in the context of settlement negotiations can trigger outcome-based cost consequences, offers to settle made during mediation are confidential and cannot. | Such an offer of settlement is confidential.
3a) | How are settlement agreements generally arrived at and enforced following an international conciliation in your country --- such as by ordinary contract or agreement and/or by some exceptional regime including specialized courts and procedures? |  | By ordinary contract or by agreement. | A settlement agreement reached in the course of mediation is a compromise according to § 779 BGB. In substance, this is a contract whereby the dispute or the uncertainty of the parties concerning a legal relationship is resolved by way of mutual concession. Any content is permissible as long as it is within the limits of general contract law, and no particular form is necessary unless required by the content of the agreement (e.g., notarization is required if the agreement contains an obligation to transfer ownership of real estate). If a party fails to properly perform its obligations under a settlement agreement, German law provides for specific performance of damages. Additionally, the parties may contractually agree upon consequences, such as the loss of specific rights, or on penalties or liquidated damages (§ 339 BGB). |  + by ordinary contract, or  + by agreement, and / or  + by some exceptional regime including specialised courts and procedures a settlement signed by lawyers for each side it which a party has agreed to an immediate enforceability can be made enforceable by depositing it with the local court. Enforceability is then declared by the court which would be competent to hear the case. Enforceability can also be obtained by depositing such a settlement agreement with a notary public who will then be competent to declare the enforceability. Another possibility is to have the settlement containing a clause providing for immediate enforceability be notarised by a notary public; the provision of a bank guarantee or a letter of credit or the agreement of a contractual penalty in case of non-performance of the settlement | by agreement | These aspects are specially regulated by the Mediation Law in art. 63, as desribed above in the introduction. As a matter of principle, only settlement acknowledged in a court decision or in a notarial deed could be enforced (these being under the laws of Romania considered as enforceable titles) otherwise enforcement of the settlement proposed is to be made by parties' agreement and no other procedures or tactics are to be implemented. | A settlement agreement is no different from any other commercial agreement. To be enforced, a settlement agreement would have to be confirmed by court or by an arbitral tribunal in the form of a final award. Swedish procedural Code, Chapter 17, Section 6: 'If the parties agree on a settlement of the dispute, the court, upon request of both parties, shall enter a judgment confirming the settlement'. Swedish arbitration act Section 27(2): 'Where the parties ener into a settlement agreement, the arbitrators may, at the request of the parties, confirm the settlement agreement in a arbitral award.' According to Article 12 of the SCC Mediation Rules, upon reaching a settlement agreement the parties may, subject to the approval of the mediator, agree to appoint the mediator as an arbitrator and request him or her to confirm the settlement agreement an arbitral award | By ordinary contract, or by agreement. Under Spanish law, the usual way to settle a case after an international conciliation is by drafting and signing an agreement in which the parties reflect the conflict and the final outcome. See s. 1809 and ff. of Spanish Civil Code, and s.19 and related of the Spanish Civil Procedure Act and Article 5 of the 'Proposal for a Directive of the European Parliament and of the Council on certain aspects of mediation in civil and commercial matters'. | By agreement: Settlements are generally arrived by an agreement where parties, without admitting facts or rights of the counterparty, assume certain obligations for the sole purpose of terminating the dispute. However, since the settlements are also executed by the mediators, the latter certifies the signature of the parties and thus said certification entitles the plaintiff to follow a summary proceeding also provided by the Procedural Code for other specific enforcements (e.g. banking checks, promissory notes, etc.). | Unless the agreement is incorporated into a judgment, the court will address an international mediation settelments as a regular contract and will subject its interpretation and enforcement to contract law. If the agreement has already been incorporated into a foreign judgment or arbitration award, it will be enforced according to the Foreign Judgments Enforcement Law, 5718-1958 or the Arbitration Law, 5728-1968, as applicable. There are not any relevant or similar provisions regarding the enforcement of a mediation settlments. | Any other, please specify: The settlement agreement itself is conluded in writing without any particular formalities. However, to gain a status of a court order it has to be approved by a court | There are two procedures: (1) for settlements reached before the foreign national court and (2) for settlements reached before the foreign arbitral court. According to article 1152 of Polish Code of Civil Procedure, a settlement reached before the foreign national court is, according to principle of reciprocity,  a enforceable title, if is capable in the country where that settlement has taken a place. According to article 1215 §1 of Polish Code of Civil Procedure, the national court shall decide on recognition or enforcement of a foreign settlement reached before the arbitral court after the hearing. According to article 1214 §3 of Polish Code of Civil Procedure, recognition or enforcement of settlement reached before the arbitral court shall be refused by the national court if: 1) the dispute was not capable of submission to arbitration under the law; 2) the recognition of enforcement of the settlement reached before the arbitral court would be contrary to fundamental public policy rules of the Republic of Poland (the public order clause). In article 1215 §2 of Polish Code of Civil Procedure, there are additional circumstances when the national court, on request of a party, shall refuse recognition or enforcement of the foreign settlement reached before the arbitral court, if a party furnishes proof that, i.e., there was no arbitration agreement or the agreement is not valid (the entire list is available in article 1215 §2). | Settlement agreements are generally concluded as written and signed agreements, which are binding between the parties under the principles of contract and may be enforced in the courts as such. | Settlement agreements are generally concluded as written and signed agreements, which are binding between the parties under the principles of contract and may be enforced in the courts as such. | by ordinary contract, or by agreement | by ordinary contract, or by agreement. According to article 87 Rv, parties can request a judge to order the emergence of parties in a court session in order to come to a settlement. If a settlement is reached and upon the request of a party, an official report containing the parties’ engagements under the settlement may be drafted. Such a report is to be considered an enforceable award (art. 87 subsection 3). It is also possible to record a settlement agreement by means of an arbitral award (art. 1069 Rv). | by ordinary contract, or; by agreement |  | Under Law No. 30 of 1999, after settlement is reached, the outcome shall be set out in a written agreement. Such agreement, to be enforceable, shall be registered in the District Court within no more than 30 days after it has been signed. In the Court-Ordered Mediation, settlement agreement can be incorporated in a Judge decision. | by agreement,   If the other party refuses to voluntarily follow the agreement made regarding the settlement, the enforcement of the settlement agreement can be applied for the court. | by ordinary contract, or by agreement, and / or | [What is the difference between a contract or an agreement?  It would be either of these, or if it is court ordxered, the third option may be in play, depending on the jurisdiction.] | In the Nova Scotia, Ontario, and Alberta provisions facilitating the use of mediation in litigation proceedings, parties must file settlement agreements with the court. | As a general rule, settlement agreement arrives at by written agreement.  Article 1733 of the Belgian Code of Civil procedures, sets forth that each party can, under certain conditions, apply for homologation by the competent Court. The homologation decision can be enforced as a regular judgment.
b) | In addition, are there special agreements, procedures or tactics which can enhance recognition and enforcement --- such as by bonds, letters or credit or security agreements, deeds, summary proceedings, incorporation in a judgment or as an arbitral award made with the consent of the parties, or is there some other sui generis system of expedited enforcement? |  | Security agreements, deeds, as an arbitral award made with the consent of the parties, or some but other sui generis system of expedited enforcement. A settlement itself is enforceable in the following cases: deed drawn up by a German notary or an enforceable attorney's settlement, if the debtor agreed to immediate execution, a settlement before a state approved conciliatory center or if court proceedings are pending, a court-recorded settlement. | There exist several special procedures which can enhance recognition and enforcement of a settlement agreement. The parties could have a deed drawn up by a German notary public, which creates an enforceable entitlement if the obligor specifically agrees to immediate execution in the document. The deed then becomes enforceable within the EU. Another alternative is an attorney’s settlement, which is a settlement agreement concluded by attorneys on behalf and with the authority of their clients the parties. At the request of a party a court may declare the settlement agreement enforceable if the following requirements are met: (i) the obligor has specifically agreed to immediate execution of the agreement, (ii) the settlement has been deposited at the local court at which one of the parties could be sued according to rules of general jurisdiction at the time when the settlement was concluded, and Erstelldatum 15.08.2007 15:21:00 /10 12 (iii) the agreement states the date on which it was signed (§ 796a ZPO). With the consent of the parties, the settlement can also be declared enforceable by a notary and placed in his custody as long as the notary has seat in the district of a court at the residence of one of the parties (§ 796c ZPO). If court proceedings are already pending, the parties may record the settlement agreement with the court (§ 794(1) No. 1 ZPO). The record of the declarations by the parties in the minutes of the court hearing substitutes for the authentication through a notary and meets the necessary form requirements. The recognition and enforcement of court settlements within the EU is facilitated by Article 58 of EC Regulation No. 44/2001. Once parties have settled their dispute in mediation proceedings, they may choose to appoint the mediator as arbitrator. The arbitrator may in turn transform the settlement into an arbitration award on agreed terms (§ 1053(1) No. 2 ZPO). Such an award is enforceable practically worldwide, since most countries regard an award on agreed terms to be within the scope of the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“New York Convention”). However, whether this procedure results in a valid award on agreed terms under German law has not yet been decided by a court. | by bonds  + letters of credit   + security agreements  + deeds notarized by a notary public (see above)  summary proceedings  incorporation in a judgment  + as an arbitral award made with the consent of the parties: this is being discussed as a possibility, exact requirements are still under debate  + Or, some but other sui generis system of expedited enforcement, please specify:  Nothing specific for mediation/conciliation procedures, otherwise see under (a) above | deeds X summary proceedings, as an arbitral award made with the consent of the parties | See 3a | Incorporation in a judgment or arbitral award is necessary for enforcement. | Incorporation in a judgment, as explained above, the best way to assure recognition and enforcement by court is by incorporating the agreement in a court order. There are other means to ensure fulfillment of the obligations and rights in the scope of the settlement agreement: bank warranties, bonds, etc. Most are commericla instruments ensureing payment obligations. | summary proceedings: The execution of the settlement within a mediation process entitles the parties to enforce it through a summary proceeding. No further procedures are required to obtain a valid document to enforce a right granted in mediation. | The parties may always elect to secure performance of a settlement agreement, such as by provision of a bond, letter of credit or other security. A written agreement for payment of a fixed or determinable sum may also be sued upon in summary procedure. In addition to the aforesaid, if the mediation settlement has been incorporated into a judgment by the court, this will enhance recognition and enforcement, as a party may immediately proceed to execution (in the case of a domestic mediation or conciliation) or to enforcement under the Foreign Judgments Enforcement Law 1958, in the case of a foreign judgment, which will then be treated as a domestic judgment. | incorporation in a judgment, as an arbitral award made with the consent of the parties | No | The following procedures may also be used to enhance the recognition and enforcement of settlement agreements:  • Incorporation into a judgment; • Incorporation into an arbitral award; • Consent orders; [NAME] orders (which have the  effect of staying the proceedings save for the purpose of carrying out any terms set out in a schedule to the order); and/or [NAME]. | The following procedures may also be used to enhance the recognition and enforcement of settlement agreements:  • Incorporation into a judgment; • Incorporation into an arbitral award; • Consent orders; [NAME] orders (which have the  effect of staying the proceedings save for the purpose of carrying out any terms set out in a schedule to the order); and/or [NAME]. | In France, a settlement agreement is granted enforcement by way of approval from the District court (tribunal de grande instance), upon a party's request . As part of the courts' homologation review, the court only checks the apparent regularity of the settlement agreement, in particular, that it does not run foul of French public order. | deeds, a notarial deed in which the settlement agreement is incorporated is enforceable. [[NAME], p. 169], incorporation in a judgment, as an arbitral award made with the consent of the parties | security agreements, incorporation in a judgment (provided that proceedings are pending), as an arbitral award made with the consent of the parties   (provided that proceedings are pending) |  | Incorporation in a Judgment | as an arbitral award made with the consent of the parties | letters of credit  security agreements deeds Or, some but other sui generis system of expedited enforcement, please specify: If the conciliation occurred in the context of court proceedings, the minutes of the agreement may be enforced like a judgement. In labour matters, the minutes of the settlement reached before dedicated conciliation committees have the same effect. | [“Special agreements?”  As a general rule, the “agreements, procedures or tactics” used to enhance recognition and enforcement of contracts in general apply to contracts reached pursuant to a settlement or conciliation.  In the United States, a party can confirm an arbitral award into a judgment; so to the extent that the parties consent to memorialize their settlement agreement in an arbitral award, they can avail themselves of the same procedures for recognition that are available to parties to an arbitration (e.g., confirmation, pre- and post-judgment interest).] | Most agreements regarding enforcement will be contemplated by the parties in the agreement to mediate, offering a wide range of remedial options. | Not specified
c) | Are there any defenses ordinarily or exceptionally available against enforcement of post-conciliation settlement agreements? |  | The debtor may avail itself of the ordinary procedural defenses, in particular of an action against enforcement by which it may, principally, assert only such objections against the claim, following from the settlement, that came into existence after the settlement agreement. | Usual contract defenses apply to a settlement agreement, such as incapacity, mutual mistake or lack of agency. In addition, a further defense is available pursuant to § 779 BGB (error on the factual basis of the settlement agreement). | According to [NAME]. 779 German Civil Code a settlement agreement is invalid if according to the settlement agreement both parties wrongly assumed certain facts and if the dispute would not have arisen had they known the true facts. Otherwise settlement agreements can be invalid for the same reasons as any other agreement including wilful deceit by one party of the other party. There exist no specific rules based on which a party could claim the invalidity of a post-mediation settlement agreement due to an undue conciliation procedure. |  | Nothing special, other than the general principles which govern the enforcement of agreements, and in the case of an international mediation the principles set out in the Law no. 105/1992 on private international law. Such defences may refer to public order principles or breach of the procedural aspects agreed between the parties and mediator. | According to Chapter 3, Section 13 of the Swedish Enforcement Code, a settlement that is confirmed by a court is enforced as a judgment that has entered into final legal force, unless otherwise ordered as a result of an action against the judgment or an action for a declaration of invalidity of the settlement agreement. | The available defenses are the same used in the general law of contracts. Parties can allege that the agreement is null and void because:  (i) was signed by mistake, under threat or violence, or false pretense, or relying on false documentation (§§ 1817, 1818, 1262-1270 Spanish Civil Code),  (ii) violates the Spanish public order. (iii) its object is illegal (§§ 1271-1276 Spanish Civil Code). (iv) The other party has breached the obligations incumbent on it under the conciliation agreement. | Basically no, since the settlement simple indicate the obligations assumed by the parties. It could be argued that the enforcement is improper since there is no breach of the settlement, but no other ordinary defenses are available against enforcements. | Since Israeli law sees the mediation settlement as a contract, a party to the settlement may argue against in on the basis of one of the causes for declaring a contract void or voidable, such as fraud, forgery, deception, etc., that are located in the Contracts (General Part) [NAME], 5733-1973, if  the party has succeeded in proving all the conditions according to the law. Additionally, a party may defend enforcement on the ground of breach of contract. If the settlement agreement has been incorporated in a court decision, the party must first seek to overturn such decision, by terminating the agreement and obtaining a court order that the agreement is no longer enforceable. | The means of attacking the settlement agreements approved by the court are the same as under the Uncitral Model Law on Arbitration | No | If the settlement agreement was recorded in writing and signed by the parties, the defences available against the enforcement of post-conciliation settlement agreements, are those defences available against the enforcement of a contract under general contract law, which include lack of consideration, incapacity, illegality, mistake, misrepresentation, duress and undue influence. | If the settlement agreement was recorded in writing and signed by the parties, the defences available against the enforcement of post-conciliation settlement agreements, are those defences available against the enforcement of a contract under general contract law, which include lack of consideration, incapacity, illegality, mistake, misrepresentation, duress and undue influence | Under French law, there are no specific defences for post conciliation settlement agreements. The defences against these agreements are the same as the defences against any "normal" settlement agreement. Pursuant to Article 2044 of the French Civil Code, for a settlement agreement to be valid, it must settle the dispute between the parties or prevent any forthcoming dispute, and contain reciprocal concessions. Therefore, should there remain some issues unresolved by the settlement agreement, or should only one of the parties make a concession, the validity of the settlement agreement could be challenged. Furthermore, a settlement agreement can be rescinded: -  when there was an error on the person or on the subject of the dispute ; -  in case of fraud or in case of violence ; -  when it was entered into on the basis of a title which is null and void . It can be declared null and void: - when it was entered into on the basis of documents which have been declared to be false;  - when it was entered into, whereas the parties or one of them ignored a court decision having res judicata authority, which had already settled the dispute . - when title documents are discovered after the settlement agreement, relating to the subject matter of the settlement agreement, which establish that one of the parties had no right on the concerned title .  It is however not possible to challenge a settlement agreement on the ground of error of law (erreur de droit) or in case of financial prejudice caused to a party (lésion) . | A post-conciliation settlement agreement is a settlement agreement in the sense of art. 7:900 BW. According to art. 7:902 settlement agreements on the subject of property rights may even be adverse to imperative law, unless the contents or purpose of the agreement are also adverse to public order or good morals. For example, it is customary in the Netherlands to exclude the possibility for parties to appeal to ‘mistake’ in concluding a settlement agreement.   A post-conciliation settlement agreement may be (partially) void if in violation with public order or good morals (art. 3:40 subsection 1 BW). Also a said agreement may be voidable if concluded fraudulently, under duress or under undue influence (art. 3:44 BW). There are no exceptional defences available against enforcement of post-conciliation settlement agreements. | The settlement agreement is an ordinary contractual agreement between the parties. Therefore, it may be subject to any contractual argument such as fraud and wilful deception. |  | A post-mediation settlement agreement which has been incorporated in a Judgment shall be final and binding. | The enforcement of post-conciliation settlement agreements can be prevented on the same basis as the enforcement of the ordinary agreements. The party objecting the enforcement may claim for example that the agreement is invalid because of duress, fraudulent induce-ment or a misrepresentation, or that the enforcement of the agreement would lead to an unfair result which could lead to the agreement being declared terminated. | Only ordinary defences available against private agreements, such as annullement of the agreement for fraud of one of the parties. | Parties can raise common-law contract defenses against enforcement of post-conciliation settlement agreements, such as duress.  See, e.g., FDIC v. White, 76 F. Supp. 2d 736 ([NAME]. 1999).  The availability of these defenses is dependent on the applicable state law where the party is attempting to enforce the agreement. | Equitable principles such as unconscionability or undue influence may apply to bar enforcement of post-conciliation settlement agreements. | In commercial matters only public order.
d) | What law or rules apply as to such items as costs, interest and attorney fees in the enforcement of a settlement agreement? |  | Settlement agreements are enforced in accordance with the ordinary provisions of the 8th book of the ZPO, pursuant to which the debtor has to pay the 'necessary costs of the enforcement'. Included are, inter alia, the fees and expenses of the forced execution, including attorney's fees. Interests on the principal claim can only be collected if the settlement agreement so provides. | There are no specific rules governing costs in the enforcement of a settlement agreement. If enforcement is pursued through litigation, under German law the unsuccessful party generally bears the full court costs and must reimburse the statutory attorney fees incurred by the successful party in the proceedings (regardless of any negotiated attorney fee arrangements). Court fees are governed by the Court Fees Act (Gerichtskostengesetz) and depend on the value of the matter in dispute. The court also charges for other expenses, such as costs for courtappointed experts, service of process, or translation. Statutory attorney fees are governed by the Federal Attorney Remuneration Act (Rechtsanwaltsvergütungsgesetz), which entered into force on July 1, 2004. Fees under that act are primarily calculated on the basis of the value of the matter in dispute. Negotiated fees are frequent but must be explicitly agreed to. Larger law firms in particular often charge by hourly rates or will enter into negotiated fee arrangements. Currently contingency fees are not permissible, but the Federal Constitutional Court has recently held that the German legislature must amend the law prohibiting contingency fees to allow an exception for their availability by the end of June 2008. Interest on costs accrued in the course of legal proceedings is generally not awarded. However, interest on costs accrued after the judgment has been entered can be awarded. In the proceedings on costs, which follow the main proceedings, the applicant can request that interest be awarded from the time the court receives the application. The legal rate of interest on costs is 5 percentage points above the base interest rate set by the European Central Bank (§ 288 BGB). | Absent any contractual stipulations and subject to any higher actual damage  interest will be due at 8% over and above the basic interest rate. Costs and attorney fees have to be borne by the party refusing to fulfil its obligations when due. | The general rules of German civil law do apply. | The rules of lex fori are able to be applied to the enforcement of a settlement agreement to costs, interest and attorney fees. In Romania the general principles of civil procedure and enforcement of agreements/decision/settlements should apply. As regarrds the costs, there are certain enforcement fees due to the special enforcing officer in charge as well as some small court fees, all these theoretically being added to the amounts to be recovered under the settlement. Beside this, if parties have an attorney, such costs, in reasonable amounts assessed on local practice by the courts, may be added. | General Rules of enforcement apply. | The same rule that applies to general litigation. As established in § 394 Spanish Civil Procedure Act, the legal fees, expenses and costs must be paid by the losing party, except if the case was dubious. In this case, the judge has the possibility to decide not to impose the costs on the losing party. Thus, if the claim is entirely granted, then the defendant bears all costs and expenses. If entirely dismissed, the plaintiff is in charge of it. If partially granted or dismissed, each party bears their own costs. | Mediation law provides the fees to be accrued by the mediator which are in strict relation with the amount of the settlement. But there is a minimum of U$ 50.- and a cap of U$ 200.-  There is no reference to the professional fees of legal counsels who assisted the parties within the process. Thus, in case of enforcement courts should rely on the general rules to determine the amount of the fees, notwithstanding any agreement entered into by the party and its counsel (“pacto de cuota litis”). | Israeli law does not explicitly address this matter. However, it seems that the court will award costs based on its best judgment and what is reasonable under the particular circumstances.  Israeli courts award costs in favour of the successful party, but the amount of costs is in the court's discretion and typically is significantly less than the actual costs incurred by a party. | If the settlement is to be enforced in Poland, Polish procedural rules will be applied. | provisions of Polish Code of Civil Procedure and respective decrees | Unless specific provision has been made in the settlement agreement as to costs, interest and attorneys fees, the usual rules on costs in civil proceedings will apply under CPR 43. | Unless specific provision has been made in the settlement agreement as to costs, interest and attorneys fees, the usual rules on costs in civil proceedings will apply under CPR 43. | Under French law, there are no specific rules applicable to enforcement of settlement agreement regarding costs, interest and attorney fees.  Therefore, unless otherwise agreed by the parties, the general provisions of civil procedure should apply. | When a settlement agreement is enforced, it is at the discretion of the judge or arbitrator to decide which party shall bear the costs, interest and attorney fees. Generally the party at loss will be condemned to bear the costs, interest and fees. | In order to enforce the agreement, parties may file a claim for performance. The respective cantonal procedural law and rulings will apply as to costs, interest and attorney fees. |  | Obligation to bear costs, interest and attorney fees in the enforcement of a settlement agreement can be agreed between the parties. | Usually an agreement regarding the allocation of the costs, interest and attorney fees is in-cluded in the settlement agreement. If no agreement regarding the legal expenses exists, the court may, when enforcing the settlement, give a decision regarding the allocation of the legal expenses on the basis of the request of the parties. However, if no request is made, the court will not treat the matter on its own initiative, and the parties have to bear their own legal expenses. | No specific rules exist; the related obligations are of a purely contractual nature. | Parties to a settlement agreement can work out these terms in connection with the agreement.  For the remainder the answer depends on the law of the various jurisdictions/50 States. | In the jurisdictions that have enacted provisions to facilitate the use of mediation in litigation proceedings, if a party must pursue a court action to enforce an agreement, legal costs may follow the event. | Not specified