Access to justice within the European judicial area is an imperative reflected in the increasing role of mediation as a means of alternative dispute resolution.[1] Through a wider prism, the Stockholm Programme places the focus of judicial cooperation in civil matters on the free movement of judicial decisions (including all other acts equated with judicial decisions), and, to that end, effective cross-border enforcement should be achieved by the abolition of exequatur.[2] If we join these two propositions, the rationale of European legislators is evident: a) that disputes are resolved faster, more efficiently and with less cost by means of the mediation process, and b) that the outcome of a peaceful settlement of a dispute is suitable for unrestricted enforcement in any Member State of the European Union.
The key European legislative act of mediation was adopted in 2008 in the form of a Directive on certain aspects of mediation in civil and commercial matters,[3] imposing an obligation on Member States to apply the provisions of this Directive to their respective national legislation. By implementing the Directive, the Member States should accomplish its objectives and purpose in a manner deemed acceptable to the relevant national legal order.[4] While adopting the new Mediation Act of 2011, Croatia was guided by the need for harmonization with EU law. We should therefore address the nomotechnical solution of that Act, as adopted by the Croatian legislators. Specifically, we should emphasize that, although the scope of the Mediation Directive ratione materiae refers to "cross-border civil and commercial disputes", Member States are free to extend the application of its provisions to domestic (national) procedures.[5] The importance of such a solution was reflected earlier in the Draft Act on Amendments to the Mediation Act of 2003: "[a] general attitude of the legal system of the European Union is that a dual legal system (one for cross-border and the other for other disputes) would not provide equal rights and obligations for both domestic and foreign natural and legal persons, but on the contrary, it would cause legal uncertainty; the concept of a uniform legal system for domestic and cross-border disputes in relation to mediation is a more favorable option for the Republic of Croatia".[6] This attitude was used later in the Strategic study of the development of mediation in civil and commercial proceedings in the Republic of Croatia[7] and the new Mediation Act.[8] It may be noted here that, to some extent, this monistic model may thwart the efforts of the European model when it comes to cross-border enforcement itself.
Given the increasing number of mediation processes and the concomitant interest in mediation and its legal effects,[9] enforcement of settlement agreements resulting from the mediation process should reflect the fundamental postulates of mediation, i.e., confidentiality and speed. In its recital (19), the Mediation Directive itself stresses that "mediation should not be regarded as a poorer alternative to judicial proceedings in the sense that compliance with agreements resulting from mediation would depend on the good will of the parties."
However, uniform rules on enforcement are not contained in the Mediation Directive itself.[10] Enforcement is left to enforcement mechanisms in a particular Member State, following which the agreement should be "made enforceable by a court or other competent authority in a judgment or decision or in an authentic instrument in accordance with the law of the member state." Bearing in mind that, in the adoption of the Mediation Act of 2011, the Croatian legislature was guided by the need to comply with the EU acquis communautaire, we examine whether it managed to achieve the ratio legis of the European legislation regarding enforcement of mediated settlement agreements.
In 2002, the Green Paper on alternative dispute resolution in civil and commercial matters[11]
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marked the beginning of the standardization of mediation at the EU level.[12] The importance of effective enforcement of mediation agreements was immediately highlighted by the European Parliament suggesting that EU legislation should provide for the possibility of verifying the validity of mediation agreements by a judge or notary public.[13] Article 6 of the Mediation Directive provides that Member States shall ensure efficiency of the mediation instrument, but it is left up to the discretion of the national systems to prescribe the conditions under which the agreement resulting from mediation will have such effect.[14]
Enforcement of an agreement resulting from mediation is again emphasized by the European Parliament which "is convinced that speedy and inexpensive enforcement of agreements resulting from ADR is indispensable, including cross-border; and calls for legislative measures to this end."[15] The far-reaching importance of efficiency in enforcing agreements resulting from mediation is clearly indicated by arguments that enforcement would strengthen the confidence of citizens in the common market and thus stimulate the economy in the European Union.[16] In particular, the enforceability of mediation agreements in family proceedings promotes the dominant principle of the best interest of the child.[17]
The Mediation Directive is only one of the acts of EU secondary legislation in the field of judicial cooperation in civil matters, to which it is inextricably linked and from which it is functionally indivisible. Also inseparable from the rest of the acquis is the segment of the Mediation Directive, by which the agreement resulting from mediation may be recognized and made enforceable in other Member States because that procedure is carried out under other communitarian rules.[18] Additionally, recital (21) in the preamble to the Mediation Directive is also unambiguous.[19] Thus, once an agreement resulting from mediation is made enforceable under domestic law, it can be enforced in other Member States. More specifically, in the case of uncontested claims, enforcement in another Member State shall be carried out pursuant to the rules of Regulation No 805/2004 on a European Enforcement Order. This Regulation defines (inter alia) a notion of a court settlement and an authentic (public) instrument.[20] Only documents that meet this definition are eligible for unrestricted crossborder enforcement.[21]
Furthermore, a settlement agreement resulting from mediation can be enforced in other Member States under the rules of Regulation No 44/2001 (1215/2012),[22] in particular Article 58 thereof in the case of a court settlement, or Article 57 thereof in the case of an authentic document. If claim from the mediation agreement can be deemed "uncontested" and refers to payment of specific sum of money, it should be enforced under the provisions of Art. 25 of the Regulation 805/2004 (as European enforcement order for uncontested claims). Likewise, in the field of family law proceedings, a mediation agreement in matters relating to support obligations and matters of parental responsibility shall be enforced under the rules of Regulation No 4/2009[23] and Regulation No 2201/2003,[24] respectively.
If a settlement is actually contained in the arbitral award (on agreed terms) enforcement abroad would be assessed under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958.[25] However, there are differing views.[26] At this point we shall only indicate that all EU regulations which deal with the recognition and enforcement of judgments and other instruments rendered in civil and commercial matters expressly indicate that they are not applicable to arbitration.
Mediation, as a form of dispute resolution, was initially regulated by the Mediation Act of 2003.[27] Under that Act, the mediation procedure was defined as any process, regardless of its name, in which the parties try to resolve their dispute in a mutually agreeable way with the assistance of one or more mediators who help the parties reach a settlement without the authority imposing an obligatory resolution.[28] A conceptual definition of mediation was slightly amended[29] in 2009,[30] and an entirely new legislative act was adopted in 2011.[31]
According to the original text of the Mediation Act of 2003 a settlement in the mediation process could be enforceable if the signatures of the parties were certified by a notary public.[32]
However, the amendments of 2009 provide for a completely different approach to solving this issue, to wit, by referring to the need to harmonize the Mediation Act with the provisions of the Enforcement Act and the Public Notaries Act. Pursuant to Article 9 of the Act on Amendments to the Mediation Act, an enforceable settlement agreement must contain an "enforceability clause".[33] One could conclude (by quite a liberal interpretation) that the legislature actually intended to re-
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quire that a settlement in the mediation process shall contain a declaration provided for in Article 54 of the Notaries Public Act[34] and that the signatures of the parties simply certified by the notary public would not suffice - it would be necessary to have the title verified by a notary public.[35] Of course, different interpretations are also possible, and one might also reasonably conclude that a declaration provided for in Article 54(1) of the Notaries Public Act, without having to take any notarial act, is legally sufficient.
The new Mediation Act of 2011 governs this matter in a completely different way. The provision of its Article 13 reads:
(1) The settlement agreement concluded in a mediation process shall be binding on the parties to the settlement. If specific obligations have been assumed by parties under a settlement agreement, the parties shall be obliged to meet such obligations in a timely manner.
(2) A settlement agreement resulting from a mediation process shall serve as an enforcement title provided it stipulates a specific act to perform on which parties may reach a settlement and provided it contains the party's authorisation for direct enforcement (enforceability clause).
(3) By the enforceability clause, the party expressly agrees that enforcement of settlement may be levied directly on agreed terms after the obligation becomes due. The enforceability clause may be contained in a separate document.
(4) Enforcement of the settlement agreement referred to in paragraph (2) above shall be rejected if:
- the conclusion of the settlement agreement is not permitted;
- the settlement is contrary to the public order;
- the content of the settlement agreement is unenforceable or impossible to enforce.
(5) The parties may agree for the settlement agreement to be formulated as a notarial deed, a court settlement or an arbitral award on agreed terms.[36]
Given the precise wording of Article 13 and the lack of any textual explanation, one must conclude that no notarial deeds are required to make a settlement resulting from mediation an enforcement title. Such a conclusion can also be drawn from its section 5 which provides for the possibility of concluding a settlement in form of a notarial deed, court settlement or arbitral award (an award on agreed terms because the Croatian Arbitration Act does not provide for any institute similar to a court settlement but rather passing the award on agreed terms).[37]
Pursuant to the Mediation Act of 2011, a settlement agreement, even if not confirmed (solemnized) by a notary public would constitute an enforcement title under Croatian law as provided by the currently applicable provisions of the Enforcement Act,[38] as well as by previously existing acts governing these issues (1996-2012). However, if the mediation agreement is not made as a notarial deed or a court settlement, its effects would be limited to the Croatian territory and could not be extendable abroad - not even to the EU because such a document is not "authentic", to wit, as it is not in compliance with the assumptions that must exist in order to be certified as a European enforcement title (order).[39] Enforcement would require a notarial deed, confirmation by a notary public, or conclusion of a court settlement.
Mediation should find its place in our legal system pursuant to the new Family Act of 2015.[40] Under that Act, the basic principles that govern family relationships are, inter alia, a mutually agreeable resolution of family disputes and the invaluable role of[41] family mediation. Mutually agreed dispute settlements are encouraged by numerous provisions, and reference is made to achieve enforceability of such agreements. For example, in a dispute involving parental responsibility or support, an agreement would be part of the joint custody parenting plan pursuant to Article 106 of this Act. In order to become an enforcement title, the joint custody parenting plan must be submitted to the court in a non-litigation proceeding for the purpose of examining the content and approving the plan.[42] Court approval in non-litigation proceedings is also required in cases involving spousal support.[43]
Because the legislators refer to the application of the general rule,[44] as defined by the Mediation Act on a cross-border "European dispute",[45] specific solutions of the 2015 Family Act would be more suitable for cross-border enforcement. The Act provides for the agreement to be confirmed by court, and such a decision on support or parental responsibility is undoubtedly within the framework of Regulations No 4/2009 and No 2201/2003 and can be easily enforced within the EU.[46]
The fact that the most attractive part of the Mediation Directive, i.e., smooth enforcement of agreements across the EU, is dependent on other com-
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munitarian acts, is largely ignored in our nations's Mediation Act of 2011. The fact that several of the provisions on cross-border disputes actually refer to general provisions leads to a situation where rules applicable under Article 13(1)-(3) also apply to the agreement originating from a European dispute. Consequently, an agreement valid under the Croatian law, for which the parties reasonably believe that it shall also produce effects in the European judicial area, would not be enforceable in other EU Member States under applicable European regulations.
Lack of awareness within the immediate and the wider professional community in relation to the interconnectedness of communitarian acts and national legislation implementing the Mediation Directive is particularly emphasized by the European Parliament in its Resolution of 2011.[47]
It should be emphasized that the Mediation Directive introduces only minimum standards, beyond which national implementing regulations can be developed. This means that the provision of Article 13(5) of the 2011 Mediation Act reached the minimum required by this Directive. Given the monistic solution to mediation in Croatia (both domestic and cross-border), by reference to national standards of the Public Notaries Act, certain parts of Article 13 of the 2011 Mediation Act may thwart the potential scope of this regulation, thus calling into question one of the key imperatives in the implementation of alternative dispute resolution, i.e., "efficiency".[48] Because the Mediation Act of 2011 did not set a time limit in which the activity referred to in its Article 13(5) may take place, mediation agreements that do not satisfy the requirements for European cross-border enforcement must be brought subsequently to the court or a notary public for the appropriate certificate.
Blazevic Borislav, Zakon o mirenju s komentarom, Informator No 5968-5969, 2011. ■
NOTES
[1] X.E. Kramer,C.H. van Rhee (eds.), Civil Litigation in a Globalising World, Springer 2012, pp. 280-284.
[2] "The main policy objective in the area of civil procedural law is that borders between Member States should not constitute an obstacle either to the settlement of civil matters or to initiating court proceedings, or to the enforcement of decisions in civil matters." The Stockholm Programme - An open and secure Europe serving and protecting citizens, OJ C 115, 4.5.2010, p. 15.
[3] Directive 2008/52/EZ of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters, OJL 136/3.
[4] Paul Craig, Gráinne de Búrca: EU Law: Text, Cases and Materials, Oxford University Press, 2011.
[5] See recital (8) in the preamble to the Directive on Mediation.
[6] Draft Act on Amendments to the Mediation Act, PZE 371.
[7] Decision of the Government of the Republic of Croatia of 14 May 2009.
[8] See Article 1, in relation to Articles 21, 22 and 27.
[9] Giuseppe De Palo, Mary B. Trevor, Introduction, in: Giuseppe de Palo, Mary B. Trevor (eds.), EU Mediation Law and Practice, Oxford 2012.
[10] For more information about such efforts in terms of UNICITRAL, see: Ellen E. Deason, Procedural Rules for Complimentary Systems of Litigation and Mediation - Worldwide, 80 Notre Dame L. Rev. 553 (2005).
[11] Green Paper on alternative dispute resolution in civil and commercial law, COM (2002) 196 final.
[12] Jasnica Garaąič, Uvod u europsko gradansko procesno pravo, in: Jasnica Garaąič (ed.), Europsko gradansko procesno pravo - izabrane teme, Narodne novine 2013, pp. 25-26.
[13] See point K in the preamble to the European Parliament resolution on the Commission's Green Paper on alternative dispute resolution in civil and commercial law (COM(2002) 196-C5-0284/2002 - 2002/2144(COS)).
[14] R. Jagtenberg A. De Roo, Enforcing mediated settlements in Europe, in: C.H. Van Rhee and A. Uzelac (eds.), Enforcement and enforceability, 2010, p. 285.
[15] See point 17 of the European Parliament resolution of 25 October 2011 on alternative dispute resolution in civil, commercial and family matters, (2011/2117(INI)).
[16] See point G in the preamble to the European Parliament resolution of 2011.
[17] Rhona Schuz, The Hague Child Abduction Convention, Hart Publishing, Oxford etc. 2013, p. 409.
[18] Elena D'Alessandro, Enforcing Agreements Resulting from Mediation within the European Judicial Area: A Comparative Overview from an Italian Perspective (October 1, 2011). Available at SSRN: http://ssrn.com/abstract=1950988 or http://dx.doi.org/10.2139/ssrn.1950988
[19] See recital (21) of the same Directive. "The content of an agreement resulting from mediation which has been made enforceable in a Member State should be recognised and declared enforceable in the other Member States in accordance with applicable Community or national law. This could, for example, be on the basis of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (1) or Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (2)." (22) This Directive should not affect the rules in the Member States concerning enforcement of agreements resulting from mediation.
[20] For more information on publication and relevant definitions, see note 39 infra.
[21] For more information, see: Jasnica Garaąič, Uvod u europsko gradansko procesno pravo, op.cit., pp. 19-20; Eduard Kunątek, Pretpostavke za izdavanje potvrde o europskom ovrąnom nalogu, Zbornik radova Pravnog fakulteta Sveučiliąta u Rijeci (1330-349X) 28 (2007), 1; 441-493.
[22] As of 10 January 2015, this Regulation is replaced by Regulation (EC) 1215/2012 ("Recast Regulation").
[23] Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations, OJ L 7/1, 10.1.2009.
[24] Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of
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parental responsibility, repealing Regulation (EC) No 1347/2000, OJ L 338, 23.12.2003.
[25] Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958). For more information, see: Brette L. Steele, Enforcing International Commercial Mediation Agreements Arbitral Awards under the New York Convention, 54 UCLA L. Rev. 1385 (2007).
[26] J. Fitchen, Authentic Instruments and European Private International Law in Civil and Commercial Matters: is now the Time to Break New Ground?, Journal of Private International Law, 33 (2011).
[27] Official Gazette, 163/2003.
[28] See Article 2(1)(a).
[29] See Article 2:
..."mediation is any process, whereby parties attempt to resolve a dispute in an amicable manner with the assistance of one or more mediators who help the disputants reach an amicable settlement without being authorised to impose an obligatory resolution ..."
[30] Official Gazette 79/2009.
[31] Official Gazette, 18/2011. See the first indent of paragraph 1 of Article 3:
... "mediation is any process, whether conducted in court, by a mediation organisation or out of court, whereby parties attempt to resolve a dispute in an amicable manner with the assistance of one or more mediators who help the disputants reach an amicable settlement without being authorised to impose an obligatory resolution ."
[32] See Article 10(2):
"A settlement agreement concluded in the mediation process shall be an enforcement title if the signatures of the parties thereto are certified by a notary public."
[33] See Article 9:
Article 10(1) and (2) shall be amended as follows:
"(1) At the request of the parties, the mediator may draw up a settlement agreement."
(2) A settlement agreement concluded in the mediation process is an enforcement title if it contains the enforceability clause."
See also the explanatory notes in the Draft Act on Amendments to the Mediation Act (PZE 371 of 2009):
"The provisions of paragraph 1 of this article made nomotechnical and linguistic improvements in Article 10 of the Mediation Act.
The provision of paragraph 2 harmonised paragraph 2 of Article 10 of the Mediation Act with the provisions of the Enforcement Act and the Notaries Public Act."
The Act was entirely unnecessarily adopted under an urgent procedure at the 11[th] session of the Croatian Parliament on 24 June 2009.
[34] Official Gazette 78/1993, 29/1994, 16/2007 and 75/2009. See Article 54(1):
The Notaries Public Act is an enforcement title provided it stipulates a specific liability to perform on which parties may reach a settlement and provided it contains the liable party' s authorisation expressing that enforcement for settlement of the liability to perform may be levied directly after the liability becomes due.
[35] See the Act on Amendments to the Notaries Public Act (Official Gazette, 16/2007), Article 27:
Article 54(4) is amended as follows:
"(4) If the liability is dependent on the condition or term that is not defined in calendar, for enforceability of a notarial deed, unless otherwise agreed by the parties to that notarial deed, it is necessary, by virtue of a public instrument or an instrument containing the creditor's certified signature, or, if not possible, by the final judgment rendered in a civil procedure, to determine that the condition has occurred or that the deadline has expired."
Paragraph 6 is amended as follows:
"(6) The private document which is confirmed (solemnised) by a notary public shall have the same effect as the instruments referred to in paragraph 1 of this Article. If a private document does not contain a declaration of the liable party referred to in paragraph 1 of this Article or if it is unclear, such a declaration, at the request of the liable party, further in the text of the private document, under which the liable party will put his signature and before solemnisation, can also be entered by a notary public."
[36] This legislative intervention was implemented in an expedited procedure and adopted at the 22[nd] session of the Croatian Parliament on 28 January 2011. See the Draft Act PZE 680, commentary on Article 13: Article 13 is one of the most important articles. It regulates the effect of a settlement agreement concluded in the mediation process, or prescribes conditions under which the concluded agreement may be enforced. It stipulates that the agreement works between the parties and creates an obligation that parties are required to meet in a timely manner and that the mediation settlement agreement functions as an enforcement title that can be enforced directly if it contains an explicit clause authorising enforcement (the enforceability clause), by which the liable party unconditionally allows enforcement upon the maturity claim. Alternatively, the parties may agree that, if it suits their needs, to rewrite the settlement agreement in another form that will provide immediate enforceability thereof (paragraph 2).
[37] See Arbitration Act, Official Gazette 88/2001, Article 29:
(1) If the parties settle the dispute during arbitral proceedings, the arbitral tribunal shall terminate the proceedings upon their request, unless the parties request to record the settlement in the form of an arbitral award on agreed terms.
(2) The arbitral tribunal shall, upon the request of the parties, record the settlement in form of an arbitral award on agreed terms, unless it finds that its content violates the public order of the Republic of Croatia.
(3) An award on agreed terms shall be made in accordance with the provisions of Article 30 of this Act and shall have the legal force and effects of the award (Article 31 of this Act).
[38] Official Gazette, 112/2012, 25/2013, 93/2014, 55/2016, Article 23:
Enforcement title documents are:
(1) an enforceable court decision and an enforceable judicial settlement;
(2) an enforceable arbitral award;
(3) an enforceable decision rendered in the administrative procedure and an enforceable settlement reached in the administrative procedure if they are related to the satisfaction of a monetary obligation, unless provided otherwise by law,
(4) an enforceable notarial decision and an enforcement notarial deed;
(5) a settlement reached in procedures before courts of honour with various chambers in the Republic of Croatia;
(6) any other deed regulated as an enforcement title document by law.
[39] See Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims, Official Journal No L 143, 30/04/2004, pp. 15-39 and L 97, 15/04/2005
(Corrigendum). Article 4 Definitions
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For the purposes of this Regulation, the following definitions shall apply:
1. "judgment": any judgment given by a court or tribunal of a Member State, whatever the judgment may be called, including a decree, order, decision or enforcement title, as well as the determination of costs or expenses by an officer of the court;
2. "claim": a claim for payment of a specific sum of money that has fallen due or for which the due date is indicated in the judgment, court settlement or authentic instrument;
3. "authentic instrument":
(a) a document which has been formally drawn up or registered as an authentic instrument, and the authenticity of which:
(i) relates to the signature and the content of the instrument; and
(ii) has been established by a public authority or other authority empowered for that purpose by the Member State in which it originates; or
b) an arrangement relating to maintenance obligations concluded with administrative authorities or authenticated by them;
4. "Member State of origin": the Member State in which the judgment has been given, the court settlement has been approved or concluded or the authentic instrument has been drawn up or registered, and is to be certified as a European Enforcement Order;
5. "Member State of enforcement": the Member State in which enforcement of the judgment, court settlement or authentic instrument certified as a European Enforcement Order is sought;
6. "court of origin": the court or tribunal seized of the proceedings at the time of fulfilment of the conditions set out in Article 3(1)(a), (b) or (c);
7. in Sweden, in summary proceedings concerning orders to pay (betalningsföreläggande), the expression "court" includes the Swedish enforcement service (kronofogdemyndighet).
[40] Official Gazette, 103/15.
[41] See Articles 9 and 10.
[42] See Articles 107 and 336.
[43] See Articles 52 and 302.
[44] Article 333.
[45] See Article 22; for more information, see Blaľevič Borislav, Zakon o mirenju s komentarom, Informator No 5968-5969, 2011.
[46] See Article 2(1)(1)-(3) of Regulation No 4/2009, Article 2(1) and (4) of Regulation No 2201/2003.
[47] "40. Calls on the Commission, at the same time, to take immediate steps to ensure that consumers and businesses are made more aware of existing legislative instruments, such as Regulation (EC) No 861/2007 establishing a European Small Claims Procedure, Directive 2008/52/EC on certain aspects of mediation in civil and commercial matters and Regulation (EC) No 805/2004 creating a European Enforcement Order for uncontested claims; with that aim in view, proposes that national authorities, courts, bar associations and chambers of commerce, consumer advice bureaux, legal expenses insurers and other competent organisations should be involved in a comprehensive information campaign; calls for financial support to be provided for European and national campaigns of this kind;... "
[48] Commission Recommendation on the principles applicable to the bodies responsible for out-of-court settlement of consumer disputes (98/257/EC).
Lábjegyzetek:
[1] The Author is University of Rijeka Faculty of Law, Republic of Croatia.
[2] The Author is Josip Juraj Strossmayer University of Osijek, Faculty of Law, Republic of Croatia.
[3] The Author is Josip Juraj Strossmayer University of Osijek, Faculty of Law, Republic of Croatia.
Visszaugrás
