The Uncitral Conciliation Model Law And Its Development In Latin AmericaThe use of alternative dispute resolution (ADR) mechanisms is rapidly expanding within the countries’ domestic legislations and in the international arena. Some of the main reasons for the expansion of ADR mechanisms at the domestic level are high litigation costs; length of legal processes; and judicial jam. These reasons could be equally applicable to explain the increasing use of ADR mechanisms in international transactions in addition to distance, and fear to foreign judicial systems.
E-commerce and the globalization of the economy entail transaction between merchants from different countries that may, as transactions between domestic merchants, end up in legal disputes. Litigation between merchants from different countries may prove complicated if their laws are not analogous, as it may be the case of e-commerce laws around the world. Even though, many governments around the world are still adapting their laws to the e-commerce reality, e-commerce transactions are taking place every day. Thus, ADR mechanisms are considered the best option to solve legal disputes arising from e-transactions.
Most Latin American countries have already adopted ADR mechanisms in their domestic legislations, which are successfully solving great number of domestic e-commerce disputes. Additionally, a good number of Latin American countries, as United Nations members, have adopted the UNCITRAL model laws on Arbitration. Only during 2002, the UNCITRAL approved the “Conciliation Model Law.” Since the Conciliation Model Law is relatively recent, there is no report about its implementation in Latin America but it is probable that it would be implemented soon as most of the UNCITRAL Arbitration laws. Conciliation, or Mediation as called in the United States, is not a dispute resolution mechanism as popular as arbitration. Yet, e-commerce entrepreneurs may want to acknowledge its potential as the fastest and less expensive method to resolve disputes between merchants from different countries. Following is a brief of the UNCITRAL Model Law on Conciliation (MLC) from 2002.
The following questions have been addressed in this article:How does the MLC define the term conciliation?
When does the conciliation start?
Are the proofs and facts revealed during the conciliation process admissible in arbitration or court proceedings?
When does the conciliation end?
Could a conciliator participate as arbitrator in a later arbitration proceeding?