Letter dated May from Lord Grenfell to the Rt Hon Baroness Ashton of Upholland Parliamentary Under Secretary of State Department for Constitutional Affairs by Parliament


									From: THE LORD GRENFELL Chairman of the Select Committee on the European Union

Tel: 020 7219 6083 Fax: 020 7219 6715

10 May 2007

Doc 13852/04: Proposed Directive on certain aspects of mediation in civil and commercial matters Thank you for providing a copy of the text of the European Parliament’s Opinion and for setting out the reactions of the Government of other Member States to it. Your letter was considered by Sub-Committee E (Law and Institutions) at its meeting on 9 May. The Committee was interested to see the new Article 1(A) (Scope) proposed by the Parliament and to learn the reactions of the Commission and other Member States. Limiting the proposal to genuine cross-border cases is a matter of mutual interest and concern for the Committee and the Government. We have been content to agree the approach of the Government so far and we would hope that any attempt by the Commission or other party to widen the scope of the Directive will be strenuously resisted. As regards the other amendments proposed we are generally content with the position being taken by the Government. We agree that any attempts to extend the substantive scope of the proposal (for example, on such matters as certification on national mediation bodies and on confidentiality) should be resisted. As to confidentiality, the European Parliament's proposal imposes an obligation of confidentiality even on the parties, and the qualification in clause (b) of "disclosure …. necessary in order to implement or enforce the agreement resulting from the mediation" means on its face implementation or enforcement of the agreement between the parties. The proposal would thus preclude one party A (unless the other party B agreed otherwise) from giving evidence or information about a mediation, when such evidence might be important in proceedings between A and a third party C, to explain the mediation and its outcome - for example if C was A's subcontractor from whom A was claiming damages in the amount payable under the mediation to B, or if C was A's insurer, co-surety or partner from whom A was claiming an indemnity or for some other reason. Compare the numerous cases on confidentiality in the parallel arbitral context, an area so difficult that the Arbitration Act 1996 deliberately did not address it: see the Report of the Departmental Advisory Committee on Arbitration, chaired by Lord Justice Saville, dated February 1996, para. 11. We also agree that any decision on the need and desirability of future Community legislation on prescription and limitation periods should be firmly resisted. The Committee decided to retain the proposal under scrutiny.

I am copying this letter to Michael Connarty MP, Chairman of the Commons European Scrutiny Committee; and to Alistair Doherty, Clerk to the Commons Committee; Michael Carpenter, Legal Adviser to the Commons Committee; Les Saunders (Cabinet Office); and Deirdre Boylan, Departmental Scrutiny Co-ordinator.


Rt Hon Baroness Ashton of Upholland Parliamentary Under Secretary of State Department for Constitutional Affairs Selborne House 54 Victoria Street London SW1E 6QW

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