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You are at: A translation
of an article by Oscar Franco.
On December 15, 1999, the Venezuelan people, by means of referendum, approved a new Constitution, which even changed the name of the country, from Republic of Venezuela to Bolivarian Republic of Venezuela. The Constitution also establishes "The law will promote arbitration, conciliation, mediation and any other alternative means for the solution of conflicts", recognizing definitively these procedures in our country and separating conciliation and mediation, thus accepting that even though they have very similar elements, are different in reality.
The brand new Constitution
also contemplates, "The law
will regulate the justice of peace in the communities". It is necessary to
point out that arbitration, conciliation and justice of peace, were already
part of the legal codification of the
country. Arbitration was regulated
in the Code of Civil Procedure, and it was object of a special law promulgated
in 1998, denominated Commercial Arbitration Act. Likewise, conciliation is
established in different legal acts, such as, the Code of Civil Procedure,
in which it is contemplated as one of the means of the parties to voluntarily
terminate court litigation. It is also found in the Code of Commerce, in
the
Labor Law, in the Organic Law of Penal
Procedure. Being used in the latter as means to achieve restitution
agreements, a form of monetary compensation by the aggravating party to the
aggravated one in criminal acts such as robbery, putting an end to the criminal
procedure. Conciliation is also
addressed in the Organic Law of Justice of Peace that establishes courts
and judges of peace, in order to solve community conflicts.
Mediation, however, is not
a very well known procedure in Venezuela. Nevertheless in the last months
the interest has increased. professional mediators, coming from Colombia,
Spain and the United States of America, as well as Venezuelan mediators trained
in the U.S.A., have given lectures and training seminars. Next January 2001,
a 4 days international judicial forum, dedicated exclusively to the study
of alternative dispute resolution, will be held in the city of Barquisimeto.
In Venezuela, the Center for Arbitration and Mediation of the Chamber of
Commerce of Caracas, has received funds from the Interamerican Bank of
Development, to promote alternative dispute resolution. The American Venezuelan
Chamber (VenAmCham) recently inaugurated the Center for Arbitration and
Conciliation. The goal of both centers is to do institutional arbitration,
mediation and conciliation. Also, the Venezuelan Center of Mediation and
Conciliation was established this year and its main objective is to offer
its private and services to the public in general by independent mediators..
The Venezuelan Commercial
Arbitration Act is extremely modern. Arbitration may be institutional or
independent. Institutional arbitration is conducted through the arbitration
centers. Independent arbitration is any such regulated by the parties without
the participation of the arbitration centers. An arbitration agreement may
be in the form of an arbitration clause in a contract or in the form of a
separate agreement. Under the
arbitration agreement the parties bind themselves to submit their disputes
to the resolution of arbitrators and therefore waive their right to judicial
relief. Arbitration agreements exclude remedy from ordinary jurisdiction.
Arbitration may be conducted at law or in equity. The former must observe
legal provisions in order to issue the awards. The latter shall proceed freely,
according to the convenience and interests of the parties, mainly with regard
to equity. Should the parties fail to indicate the type of arbitration, the
Arbitrators will be deemed Arbitrators at law.
The parties are free to
agree on the place of arbitration. Failing such agreement, the arbitral tribunal
taking into account the circumstances of the case, including the convenience
of the parties, shall determine the place of arbitration. The parties are
free to agree on the language or languages to be used in the arbitral
proceedings. The parties shall determine the number of Arbitrators, to be
uneven in every case. Failing such determination, the number of Arbitrators
shall be three (3). The only appeal possible against the award is the action
to have it declared void; there are several causes to do it. For instance
when the party against whom it is invoked was not given proper notice of
the appointment of an arbitrator, or of the arbitration proceedings that
so require notification, or was otherwise unable to present his
case.
An arbitral award, regardless
of the country of its rendition, shall be recognized by the Venezuelan ordinary
jurisdiction as binding and unappealable, and upon application in writing
to the competent Court of First Instance, shall be mandatory, enforced by
the latter without need of an exequatur, pursuant to the rules established
by the Code of Civil Procedure regarding the mandatory enforcement of
judgements. Institutional
arbitration has not been used much. independent arbitration is more popular.
Private arbitrators decide a good number of contracts that contemplate
arbitration for dispute resolution. All the contracts subscribed by the oil
industry, vital for Venezuela since it represents the main source of the
country's revenues, contain arbitration
clauses. However, it is considered
that mediation and conciliation are more flexible, informal, brief and economic
than arbitration,. and expected to be used more frequently by lawyers and
general public, once they familiarize themselves with these procedures. A
special law is needed to regulate them; just as it does in practically all
the Latin American countries. It is considered that a law is necessary to
guarantee compliance of the agreement. It has already been mentioned that
conciliation is included in the Code of Civil Procedure. A judge, at any
stage of the trial, before rendering the decision, can order the parties
to a conciliation act; the judge takes part as mediator/conciliator. However,
alternative dispute resolution has been used very little, perhaps because
the judges are educated to pass their decision and the lawyers are educated
to litigate. Therefore, it is difficult for them to take advantage of the
opportunity to reach a satisfactory agreement.
In the XXXVI Conference
of the Inter-American Bar Association, held in Panama last June, it was resolved
to urge Law Schools to include alternative dispute resolution in their
curricula. In order to train
the new generations of lawyers and judges, making them understand the benefits
of these processes so they can use them as a valid tool to solve
conflicts. It is necessary to emphasize that these means are alternative,
and not meant to substitute ordinary justice, inevitably there will be disputes
that will have to be litigated and decided by a third party, be it a judge
or an arbitrator.
It is important to highlight
that in the new Venezuelan Constitution, it is said that resolutions that
are adopted within the country's integration treaties, are considered part
of the Venezuelan effective legal system and with direct and preferable
application to the internal legislation. Most of the international treaties
use mediation and arbitration as alternative means of conflict resolution.
Therefore making even more important, teaching of the appropriate use of
these means, so that the representatives of the countries can use them positively
to achieve satisfactory agreements.
Author. Dr. Oscar J. Franco
O. Is a Venezuelan Lawyer, Mediator and Arbitrator certified by the Supreme
Court of Florida, United States of America. President of the Venezuelan Center
of Conciliation and Mediation. Mediator of the Center of Arbitration and
Mediation of the Chamber of Commerce of Caracas. Member of Spidr, its
International Sector and the Latin American ADR Subcommittee. Florida Academy
of Professional Mediators Mediators, Broward Association of County Mediators
and Mediators on Line.
Telephone.58-2-7626658
7627775
Fax 7630454
Email: mediacion@cantv.net
For more essays, in Spanish, visit:
Camara Boletin de Derecho -- A Mediation Law
Journal
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