1 Mediation in civil
and commercial matters
| (26068)
13852/04
+ ADD 1
COM(04) 718
| Draft Directive on certain aspects of mediation in civil and commercial matters
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| Legal base | Article 61(c) EC; co-decision; QMV
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| Department | Constitutional Affairs
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| Basis of consideration | Minister's letter of 25 April 2007
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| Previous Committee Report | HC 41 xvi (2006-07), para 3 (28 March 2007); HC 34-xi (2005-06), para 2 (23 November 2005); HC 34-x (2005-06), para 4 (16 November 2005); HC 34-v (2004-05), para 10 (12 October 2005); HC 38-ix (2004-05), para 2 (23 February 2005): HC 38-i (2004-05), para 6 (1 December 2004)
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| To be discussed in Council | No date set
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| Committee's assessment | Legally and politically important
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| Committee's decision | Not cleared; information on progress awaited
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Background
1.1 We considered this proposal on the mediation of civil and
commercial disputes most recently on 28 March 2007. We noted that
the informal Justice and Home Affairs Council in Newcastle in
September 2005 had agreed that proposals under Article 65 EC[1]
(of which this was one) should be limited to cross-border disputes.
We agreed with the Minister about the benefits of mediation and
alternative dispute resolution, but we noted that the question
of defining what constituted a cross-border dispute remained in
issue.
1.2 We had no further questions of principle to raise
on the substance of the proposal, but remained concerned about
the use of Article 65 EC to propose measures which would affect
matters which were purely internal to a Member State. We
thought it essential that the scope of the proposal should not
include purely internal cases, but should apply only to those
having cross-border implications and then only to the extent necessary
for the proper functioning of the internal market.
1.3 We noted the Minister's concern that a definition
of the cross-border restriction might be more difficult than one
for court-based procedures, since parties could agree to conduct
a mediation anywhere without being bound by rules on jurisdiction.
We were less concerned than the Minister about the situation where
parties chose a place for mediation which had the effect of causing
the Directive not to apply, since in our view this was a consequence
of party autonomy, which was particularly important in a process
which is essentially consensual at all stages. However, we agreed
with the Minister that the Directive should not apply to mediations
conducted in third countries, even where the parties might be
domiciled or habitually resident in the Member States, and we
agreed with the proposed definition, based on a reference to domicile
or habitual residence of the parties, which the UK would seek
to advance in order to limit the scope of the proposal as required
by Article 65 EC. We supported this approach, and agreed that,
whilst possibly giving rise to the occasional anomaly, it would
nevertheless produce a clear and simple rule for the generality
of cases.
The Minister's letter
1.4 In her letter of 25 April 2007 the Parliamentary
Under-Secretary of State at the Home Office (Baroness Ashton of
Upholland) informs us of the European Parliament's opinion on
the proposal and of the consideration of the opinion by the relevant
Council working group. The Minister explains that the proposed
definition of the cross-border element of mediation suggested
by the European Parliament "is very much in line with our
preferred approach". The proposed amendment would cause the
Directive to apply if, at the date when the parties agree to mediate,
at least one of them is domiciled or habitually resident in a
Member State other than the Member State of any other party.
1.5 The Minister further explains that a majority
of Member States supported this amendment or thought it a good
basis for further discussion. Some Member States wished to consider
ways of widening the definition, but there was no consensus as
to how this might be done. The Minister reports that the Commission
conceded that it was prepared to accept a general limitation to
cross-border disputes, but could not accept the proposed definition
which it considered too narrow and adds that only a small number
of Member States supported the Commission.
1.6 The Minister gives a detailed account of other
changes suggested by the European Parliament, but comments that
many of these have aligned the Parliament's opinion with the Council
text on which a common understanding was agreed in the Council
in December 2005. The Minister informs us that she does not yet
know how the Presidency plans to proceed with the negotiations
on this proposal, but undertakes to inform us of future developments.
Conclusion
1.7 We thank the Minister for her letter. We welcome
the progress which has been made towards agreeing an acceptable
form of limitation to ensure that the Directive will not apply
to mediations which are internal to a Member State. As we have
stated before, we think a definition based on domicile or habitual
residence of the parties is the most likely to provide a clear
and simple rule for the generality of cases.
1.8 We look forward to a further account, in due
course, of further progress towards agreement on this issue, and
will hold the document under scrutiny in the meantime.
1 Article 65 EC provides for the adoption of measures
in the field of judicial cooperation in civil matters 'having
cross-border implications and in so far as necessary for the
proper functioning of the internal market'. Back
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