Performance of Mediation Agreements in the Border Dispute Between Italy And Spain

In the current international context, the mediation is undoubtedly an effective method for resolving cross-border disputes.

In that frame even predicting a “reinforcement” mechanism that allows the execution of the agreements reached by the parties, is an important element to allow the application of this alternative method of dispute resolution.

In this article refers to the “reinforcement” as enforcement of mediation agreements reached in cross-border disputes (Spain – Italy), in civil and commercial matters (excluding family matters and consumption), and to implementation.

The need of that “strengthening” is recognized by the EC Directive which provides that:

• consideration 19) “Mediation should not be regarded as a poorer alternative to judicial proceedings in the sense that compliance with agreements resulting from mediation would depend on the good will of the parties”;
• consideration 20) “The content of an agreement resulting from mediation made enforceable in a Member State should be recognized and declared enforceable in other Member States in accordance with Community law or national law”.

Given that above, and then need to determine when a mediation agreement, reached in Italy or Spain, acquires enforceability, in pursuance of the provisions of the respective national laws.

Italy

1. Agreements approved by the President of Court.- L ‘article 12 of the Italian Law provides that a mediation agreement in a cross-border dispute acquires enforceable when it is approved by the President of the Court, at the request of either party.
2. Mediation agreements signed by the lawyers of the parties who intervened in proceedings. The aforementioned Article 12 also provides that the agreement becomes enforceable when signed by all the lawyers of the parties that attest and certify the conformity to impreative standards and public order.

Spain

1. Mediation agreement drawn up in Public Act. Article 25 of the Spanish law provides that the mediation agreement acquires the value of enforceable when it is raised to the Notary Public Act.
2. Mediation Agreement reached within a judicial – proceedings The parties may require homologous to judge based on the provisions of the Spanish Civil Procedure Code (art. 25.4).

Once you obtained the enforcement orders in the manner stated above, with regard to their execution may experience the following two situations:

1. The agreement must be put into effect in the same state in which it was reached, so as regards the implementing rules and the competent Court will be necessary to refer to the internal legislation of that State.

• Article. 26 of the Spanish Law states that:

a) the execution of a mediation agreement begins when it was already in progress a legal proceeding, in front of the Court with the same agreement;

b) in the case of mediation agreements reached as a result of a mediation process will be competent the 1st Instance of the country where it was signed the agreement, according to the provisions in the 2nd paragraph of Article 454 of the Code of Practice civil Spanish.

Than it will be necessary to refer to the rules on strict competence to determine if it is the competence of the Civil Court or of the Commercial Court;

• Article 12 of the Italian law provides that: in cross-border disputes the agreement is approved by the President of the Court within whose jurisdiction should be initiated execution. In order to determine that area it is therefore makes it necessary to refer to the procedural rules relating to territorial jurisdiction and objective.

2.  The agreement must be enforced in the State other than that in which it was reached. EC Directive 52/2008 does not establish a new mechanism for performing of this agreements, although in his account 20) ensures that the mediation agreement that has acquired enforceable in a Member State must be recognized and declared enforceable in other Member States.

It is therefore necessary to determine what are the European legislative instruments that allow the circulation of an executive title in the European judicial area:

• EC Regulation 44/2001 ⁴, recast of EC Regulation 1215/2012, which will enter into force as of January 2015.- They expect the conditions, requirements and formalities thanks ally such as a court resolution, a public document with executive force or court settlement, adopted or formalized in one Member State can be recognized or made enforceable in another Member State.
• EC Regulation nº 805/2004⁵ – Refers to the judicial resolutions, judicial and public documents transactions enforceable on uncontested and contested that are certified as European Enforcement Orders.

In my personal opinion the above regulations do not apply in the event that the mediation agreement has acquired enforceable in Italy by the signature of the parties’ lawyers, because:

1) The act does not meet the objective of judicial resolution requirements of an authentic instrument or court settlement, unique conditions in virtue of which the regulations in question recognize the movement of an enforcement order by a Member State to another;

2) Lawyers do not meet the subjective judicial or competent body requirements under state regulations to be taken by the act (art. 6.2. Of the EC Directive).

If, as in this case, we refer to mediation agreements reached in Italy that have to be made enforceable in Spain, the opinion of the above is also supported by the fact that Article. 27, paragraph 1, of the Spanish law provides that: “(sic) … . a mediation agreement that had already executive power in one Member State only parties can be rendered enforceable in Spain when called executive power derives from the intervention of a competent authority carries out functions equivalent to those performed the Spanish authorities. “

Paola Vitali, Lawyer and legal intermendiant (Barcelona – Spain)