Elena Tonkacheva: Arbitral courts should develop in Belarus

Arbitral courts and mediation is a positive practice that alongside with proper respect to referees and experienced mediators should be developed in Belarus.

This opinion was expressed by Elena Tonkacheva, the head of the Legal Transformation Centre “Lawtrend”, to the EuroBelarus Information Service.

An arbitral court settles civil disputes on the ground of arbitration agreement. This is one of the types of alternative dispute settlement.

Arbitral courts allow confidential resolving of disputes and provide the possibility to choose referees who will be considering the complaint. The drawbacks of the practice are the high cost of arbitration proceedings in comparison with a trial in a state court and also potential problems with appeal of an arbitral court decision.

The process has already been initiated. More than 17 arbitral courts were created in Belarus, including a specialized sports one. Specialization of an arbitral court can be very different. According to Victar Kamenkou, the chairman of Belarusan Republican Union of Lawyers who at the same time is the head of Supreme Economic Court of the Republic of Belarus, the creation of arbitral courts on labor and financial disputes is of current interest in Belarus.

In Soviet time labor disputes were actively resolved through the system of arbitral courts. But this practice can be implemented effectively only if there are serious trade unions, Elena Tonkacheva assumes. “Under the present socio-political circumstances, when union activity in Belarus leaves much to be desired, the high quality settlement of labor disputes by arbitration between employers and employees is unlikely to be trusted”, - she believes.

Elena Tonkacheva recalls that Supreme Economic Court of the Republic of Belarus systematically and for a long time was making the way for creation of the arbitral courts system, inside of the Association of Independent Lawyers (legal counsels on economic law) as well. According to the head of “Lawtrend” the development of the arbitral courts system in Belarus will allow not to charge economic courts with the disputes which can be settled on an out-of-court basis.

- The idea of arbitral courts resonated at the time, - Elena Tonkacheva says. – The Association of Independent Lawyers has been preparing a mediation bill for several years; the bill presupposes the appearance of separate professionals in economic proceedings who would work as mediators in the settlement of disputes on an out-of-court basis.

Mediation in law is one of the alternative methods to resolve the disputes with participation of the third, neutral and impartial side – of the mediator who helps the sides to come to an agreement, and at the same time the sides fully control the process of decision making and the terms of the settlement.

Among the spheres where mediation can be implemented are banking, insurance, labor, family, copyright and intellectual property spheres, the sphere of intercultural conflicts etc.

The agreement which is reached during the mediation process is taken willingly by the sides and is implemented not judicially but as a result of the agreement between the sides.

At the moment the work is being done over the mediation bill, which was adopted by the members of the Parliament in the first reading.