Representation of insured and Alternative Dispute Resolution Dispute resolution in national and cross-border conflicts Dra. Isabel Mendes Cabeçadas Warsaw,

Representation of insured and Alternative Dispute Resolution

“Dispute resolution in national and

cross-border conflicts”

Dra. Isabel Mendes Cabeçadas

Warsaw, 24 October 2007

Trader or supplier contacted

Invitation sent

Accepted

Declined

Mediation

InformationComplaint

Conflict

Attempt at Conciliation

Agreement Reached

No Agreement Adhesion

HomologatedAgreement

Arbitration (award)

No adhesion from trader or provider

Justice of peace

Civil Court Sentence not complied with

Case filed

STRUCTURE

• The Centre is composed of an Arbitration Tribunal and a Legal Advice Service. The latter gives support and supplies information to consumers and traders and tries to solve the conflict via Mediation phase (with sucess in 70% of the cases)

• The Legal Service also prepares the complaint processes that will go through to the Mediation, Conciliation and Arbitration phases.

STATISTICAL DATA

2006

Total number of complaints 3.167

Information (In person, Written or by phone) 2.191 (69%)

Cases prepared Total 976(*) (31%)

Cases solved (Mediation, Conciliation and Arbitration) 887 (91%)

Awards 217 (22%)

THE PARTICIPATION OF BUSINESS IN CONFLICT RESOLUTION

Collaboration 887

Non Collaboration 48 (5%)

Adhesions 1.014

(*) 189 - Financial Services (Banks, Insurance and Credit)

COMPETENCE:The legal service separates cases in accordance

with the tribunal’s competence which only considers a claim as a consumer conflict, if:

• 1st - it arises out of the supplying services on the part of providers to consumers according to the framework of law;

• 2nd - the value at stake does not exceed €5,000.00;

• 3rd - the conflict has its origin in the acquisition of services purchased in the Metropolitan Area of Lisbon (19 towns)

PROCEDUREThe simplified procedure of arbitration used by the

Centre is due to some characteristics of Law 31/86 on Institutionalised the access of consumer conflicts to

rapid, effective and free-of-charge justice

• Celerity - Due to the procedures used which dispense with almost all Judicial Court formalities, the average time between the admission of the complaint to the Centre and the solution of the conflict is 20 to 30 days.

• Effectiveness - The judgments of the Arbitration Tribunal have the same legal force as judgments pronounced by Judicial Court.

• Free-of-charge - The financial support of the several national state bodies involved, has made it possible to dispense with costs throughout the process. This includes the enforcement phase, if needed at the Judicial Court.

Expertise - is paid by parties with some support from the Traders’ Union

RESULTS 2006

Information

Mediation

Awards

Non collaboration ofBusiness (not solved)In progress

69%

69%

22%

5% 9%

Cases SolvedMediation, Conciliation and Arbitration

0

100

200

300

400

500

600

700

800

900

1989/90 1993 1996 1999 2002 2005

• 1989/90 Statistics - November 20, 1989 to December 31, 1990• 1991 to 2006 Statistics relevant from January 1 to December 31 of each year

PRINCIPLESThe procedure used by the Centre fully complies with the principles laid out in EC Recommendation of 30

March 1998:

Principle of IndependencePrinciple of TransparencyAdversarial PrinciplePrinciple of EffectivenessPrinciple of LegalityPrinciple of LibertyPrinciple of Representation

and the principles of equality of all parties and material truthand the principles of equality of all parties and material truth

• The Principle of Independence:

the Arbiter-Judge is a magistrate nominated by the High Council of the Judiciary;

the competence and experience gained as a magistrate guarantees the degree of impartiality necessary for arbitration work, in such a way as to gain the complete confidence of the parties along with consumers and traders.

The Principle of Transparency:

whenever so requested, the Lisbon Centre will always provide information on the types of cases which can be submitted to the Arbitration Tribunal;

the nature and form of the Arbitration Tribunal cases are in the public domain (sentences and statistics).

• The Adversarial and Oral Principle:

the defendant receives a copy of the complaint as soon as possible, to enable him to contest it either in writing or orally in front of the Judge;

the Judge hears both parties before making a final decision, thus guaranteeing strict observance of the principle of contradiction

The Principle of Effectiveness and Enforcement:

according to the Law of Voluntary Arbitration, the decisions of the arbitration tribunal have the same legal value as judgments by a court of law.

The Principle of Legality:

the decisions of the arbitration tribunal are based on the law, namely on the legislation on communitarian directives on consumers' rights.

• The Principle of Equality of all Parties:

both parties are assured of equal status and treatment throughout the procedure;

this is in real terms and not merely formal, and covers the parties’ exercising of their faculties, the use of means of defence, evidence, presenting witnesses, etc.

Principle of Material Truth:

because the arbiter may know the real matter, unlike what happens sometimes in judicial courts.

What is FIN-NET?

• FIN-NET is an out-of-court financial complaints network in the European Economic Area.

• Linking existing ADRs with national competence.

• In the area of financial services.

•Banking•Insurance•Credit

How does it work ?

consumer

financial provider

nearest scheme

Information foreign scheme

contactdecision

Co-operation

financial dispute

competent scheme

“The Arbitration Centre is a

Court that is closer to people”

Prof. Jean Calais-AuloyMagistrates Formation Course, Paris, Out/92