英国诉前替代争端解决机制执行问题条款的最近进展

原文始发于微信公众号(瑞中法协):英国诉前替代争端解决机制执行问题条款的最近进展


英国诉前替代争端解决机制执行问题条款的最近进展
英国诉前替代争端解决机制执行问题条款的最近进展




《欧洲联盟跨界调解指令》(2008/52/EC)的出台,有助于提高调解作为解决欧洲国际争端手段的地位。当事双方可以通过在合同中插入 “步骤条款 “或 “升级条款 “来强制使用调解。这要求各方在诉诸仲裁或诉讼之前,先进行调解或其他形式的替代性争议解决方式。本文分析了英国诉前替代性争端解决机制的代表案例。


本文作者Robert Rhodes QC是英国Outer Temple Chambers 御用大律师,也是瑞中法律协会会员。本文合作作者Andrew Maguire是Littleton Chambers的大律师。本文发表于《瑞中法律评论》第三期,瑞中法律协会版权所有。点击“阅读原文”查看瑞中法律协会网站。





英国诉前替代争端解决机制执行问题条款的最近进展
英国诉前替代争端解决机制执行问题条款的最近进展



Enforcing ADR Escalation Clauses in the UK: The latest developments 


英国诉前替代争端解决机制执行问题条款的最近进展

图片授权:crbellette 

The introduction of the European Union Cross Border Mediation Directive (2008/52/EC) has helped to augment mediation’s status as a means of resolving international disputes in Europe.

The use of mediation can be enforced by inserting a “step-clause” or “escalation clause” into a contract. This requires parties to embark on mediation or other forms of Alternative Dispute Resolution (ADR) before resorting to arbitration or litigation.

In England and Wales, courts have demonstrated their willingness to enforce these provisions. Thus in Ohpen Operations UK Ltd v Invesco Fund Managers Ltd [2019] EWHC 2246 (TCC), [2020] 1 All ER (Comm) 786, the High Court held that, on a plain and natural reading of the clause,  the relevant contract contained an enforceable obligation to engage in ADR before starting proceedings. That obligation had survived the termination of the contract as a condition precedent. It was, therefore, appropriate to stay proceedings that had been commenced in breach of that obligation until mediation had taken place.

The Ohpen case, presented a set of tests for when a party can try to stay proceedings to ensure than an ADR clause is observed. Anyone planning to include such terms in a contact would do well to study this ruling.

Firstly, must require parties to use ADR in an enforceable manner. Secondly, if the parties reach litigation or arbitration, it must be made clear that this requirement is a condition precedent. Thirdly, they must be able to agree on a mediator and other required procedures without any additional negotiations or confusion, although the ADR process itself can be informal. Finally, the court noted that it approves of parties enforcing ADR provisions and avoiding litigation. Furthermore, it stressed that if proceedings were begun despite a dispute resolution agreement, it can force parties to first exhaust all other ADR avenues before returning to court.[1]

Any agreement reached at mediation needs to be recorded carefully, and arrangements need to be made to implement the agreement in a manner that reflects the outcome intended to be agreed between the parties. This involves consideration of all aspects relating to implementation, such as the impact of any local taxation provisions that may arise during implementation or any local requirements for the form of written agreement.

[1] See also the authors’ article Have the Risks of ADR Escalation Clauses Reduced?”, Arbitration vol 82 no.1 p.16.


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