ARBITRATION - MEDIATION - ARBITRATION (Arb – Med – Arb)
The Arbitration – Mediation – Arbitration Protocol is especially designed to support and encourage parties to mediate and enforce the settlement agreement, as well as provide the parties with a backup plan in case mediation attempt fails. The special trait of this Protocol is the cooperation mechanism between VIAC’s Secretariat and VMC’s Secretariat while arbitration and mediation are conducted independently and simultaneously.
In terms of procedure, the arbitration and mediation proceedings are conducted independently and simultaneously by VIAC’s Secretariat and VMC’s Secretariat. In particular, during mediation, the existence of an arbitral proceedings “standing by” and the time pressure (agreed time-limit spent on mediation) helps urge the parties to cooperate at their best effort to resolve the dispute in a timely manner. On the other hand, the parties are assured that in the worst scenario that the mediation is unsuccessful, arbitration stands as a backup plan, in which the statute of limitation is ensured and there is no extra time “wasting” on the initial procedures such as payment of fees and constitution of the Arbitral Tribunal.
In terms of result, the Protocol guarantees that in any event, whether the mediation is successful (partly or entirely) or not, the dispute will still be resolved completely. When at the end of this procedure, parties will have a Mediated Settlement Agreement or a Decision recognising their agreement, or an Arbitral Award. The Decision recognising parties’ agreement from mediation bears similar legal effect to that of an Arbitral Award and can be recognised and enforced in foreign countries pursuant to 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.
In terms of time, as the arbitration and mediation are conducted simultaneously, some basic steps will take place simultaneously, the parties can save a significant amount of time compared with separated arbitration and mediation procedures.
In terms of cost, in all cases, parties shall enjoy a certain refund of cost, including mediation cost and/or arbitration cost.
The commencement of arbitration is followed by the commencement of mediation. Upon commencement, the arbitration and mediation are conducted independently and simultaneously by VIAC’s Secretariat and VMC’s Secretariat respectively.
At the end of the process, VMC/VIAC shall refund mediation cost and/or arbitration cost in specific circumstances depending on the result, in particular: