Settlement of international and Russian domestic disputes at the Panel of Mediators of the Russian Chamber of Commerce and Industry Dmitry Davydenko, Dr. of Law (cand. of legal sciences, Russian Federation), Vice-Chairman of Panel of mediators at the Russian CCI, Director of CIS Arbitration Forum

Definition of Mediation STATUTORY DEFINITION Art. 2(2) Mediation Law (Federal Law on Alternative Dispute Resolution Procedure Involving a Mediator [Mediation Procedure]): ‘mediation procedure is a method of dispute settlement with the assistance of a mediator on the basis of the parties’ voluntary consent aimed at reaching a solution mutually acceptable for them’.

Legal Framework STATE REGULATION Mediation Law Art. 1(2) – Mediation Law governs different aspects pertaining to the mediation of disputes arising from civil, commercial, labour and family law matters. Commercial Procedure Code; Civil Procedure Code; Labour Code; Federal Law On Arbitration in the Russian Federation; Civil Code. PRIVATE REGULATION including model agreements to mediate.

Mediation Procedure Commencement of Mediation Agreement to Mediate – an agreement between the parties, which may be a mediation clause in a contract – mediation clause. Mediation procedure formally begins with the date on which the parties enter into a specific agreement to mediate. Appointment of the Mediator Mediation Procedure The parties may specify the procedure in their agreement; The Mediation Law does not establish particular duties of the mediating parties, except for preserving confidentiality. Conclusion of the Mediation Settlement a mediated agreement; claim withdrawal. Follow-up

Mediators. Professional skills Art. 16(1) Mediation Law: To become a professional mediator it is necessary: to be at least 25 years old; have a university degree; successfully complete a special mediation training programme as established by the Russian government. Currently there are no official lists of mediators – any person who satisfies the above-mentioned requirements of may conduct mediation on a professional basis.

Types of Mediation Private Mediation Article 7(1) Mediation Law provides that mediation shall be carried out on the basis of a written agreement between the parties (issues (scope), time limit, mediator, fee payment, organisation of procedure). Court-Annexed Mediation Conciliation Rooms (state commercial courts, IP Court). More judges now proactively encourage settlement and mediation.

Mediation and Arbitration Art. 4(1) Mediation Law: if the parties have entered into an agreement promising to refrain for a specified period from applying at court … to allow for mediation …, the court or arbitral tribunal shall respect this obligation until the terms are performed, save where either of the parties has to protect their rights. “to protect their rights” means where limitation period elapses soon. Arbitral awards on agreed terms. ! Settlement terms shall not exceed the subject of the claim.

Implementation of UNCITRAL Model Law on International Conciliation Many of the Mediation Law provisions are actually based on the UNCITRAL Model Law and have the same practical meaning. Important differences: under Art. 1(5) Mediation Law, if a dispute ‘affect[s], or can affect’ public interests, then it may not be mediated; the Mediation Law, unlike the UNCITRAL Model Law, distinguishes between professional and non-professional mediators; the Mediation Law introduces a notion of mediated agreement (mediativnoe soglashenie), thus distinguishing it from other settlement agreements, albeit without practical implications at the moment; the Mediation Law has a wider scope: governs some issues not covered by the UNCITRAL Model Law, such as self-regulating organisations of mediators.

Panel of mediators at the Russian Chamber of Commerce and Industry Established in May 2006 Chairperson: Julia Shiryaeva Website: http://mediation.tpprf.ru/ Main activities: settlement of business disputes, training of mediators, assistance to local mediators’ centers in Russian regional Chambers of Commerce (more than 60 such centers), development of ADR in Russia. Workshop in Commercial court of Moscow on 6 October 2017. Registration fee: 6000 RUR (c. 100 USD). Mediation fee depends on the amount of claim, but less than 5000 USD (subject to amendment in future). Subject of disputes (examples): lease, construction, land use, shareholder, supply of agricultural and other goods, housing and communal services.

Recent examples of settled cases Krokus International (Russia) vs. Great Wall Co Ltd (China). Re: exhibition of chinese goods in Russia. Fosforit Industrial Group vs. Russian Railways re payment of transportation fee Commercial court of Moscow, claimants withdrew their claims. Out-of-court settlement agreement because the settlement terms exceeded the subject of the claims. Terms confidential. 45 court cases settled by one mediated agreement. Russian Railways vs. RosterminalUgol Commercial court of Saint-Petersburg. 8 court cases settled by one mediated agreement. Skolkovo Foundation vs. Sberbank (without recourse to court) In total more than 140 court cases mediated and settled in 2017.

Procedural issues Usually parties mediate during litigation, not before. Court check compliance with law and third parties’ rights. Frequently scope of settlement exceeds the subject of claim or jurisdiction of the court (e.g. in family business). Or parties settle subject to a condition precedent. => Courts refuse to approve the settlement. => Out-of-court agreement + withdrawal of claim. Where claim withdrawn, courts return the judicial fee. Where settlement agreement, fee reduced 50%. No known cases of challenging mediated settlement agreements (the Panel monitors fulfilment of terms).

Conciliation bench in Rostov-on-the Don park (not court)

Additional information Panel of mediators at the Russian CCI http://mediation.tpprf.ru/ru/practice_mediation/ CIS Arbitration Forum – mediation section http://www.cisarbitration.com/category/mediation/ Books on mediation in Russia and beyond: