CC BY
5912.00.03-Civil law. Business law. Family right.
International private law. Rustambekov Islambek,
Deputy Rector at Tashkent State University of Law,
Doctor of Sciences in Law (DSc), ORCID: 0000-0002-8869-8399 E-mail: [email protected]
GENESIS OF ALTERNATIVE DISPUTE RESOLUTION MECHANISMS IN
_THE REPUBLIC OF UZBEKISTAN_
A R T I C L E A B S T R A C T I N F O _
In the article, the author analyzes the formation and development of alternative dispute resolution mechanisms in Uzbekistan. The author systematically examines alternative ways of resolving disputes in Uzbekistan, dividing them into domestic and international arbitration, mediation and appellate committees. The author shows that in the Republic of Uzbekistan, the ADR system began to develop relatively late. The author described all stages of the development of ADR mechanisms and their legal bases and practice in the country, the main of which is domestic arbitration, mediation, and international arbitration. The author gives a brief excurse of the legislation, in particular, to the laws and bylaws regulating the ADR. Such newly established centers as Tashkent International Arbitration Center and Tashkent Mediation Center are also provided with the main legal base for their activity. It is shown that during the last two years, Uzbekistan began to develop and promote ADR actively.
In conclusion, the author comes to the opinion that the development of methods of alternative dispute
Keywords:
alternative
dispute
resolution,
arbitration,
international
arbitration,
mediation,
conciliation,
negotiation,
dispute
settlement.
resolution in Uzbekistan creates a favorable business environment. However, in national regulation and practice, there is a need to establish such mechanisms of ADR as conciliation and adjudication, which are not known in the practice of Uzbekistan and need to be analyzed and developed in laws and law enforcement practice of the country.
Introduction
One of the priority areas of legal reform in Uzbekistan at the present stage of development is to improve the system of alternative dispute resolution mechanisms and their practical use, designed to effectively and promptly resolve disputes arising in civil law and related spheres of society in the process of building a democratic rule of law.
This issue is relevant for all countries of the world, which, to a greater or lesser extent, are transforming the systems of civil court proceedings for different periods of time. In this regard, it is evident that, to date, both developed and developing countries have formed and accumulated significant experience in reforming this area, which can form the basis for similar
transformations in Uzbekistan and significantly facilitate the ongoing reforms.
Result and discussion
In the modern world, ADR is most common in commercial law, but in a number of countries, its mechanisms are also used in civil proceedings. ADR is a less formal procedure in comparison with the procedure for considering cases in court, allowing to significantly relieve the burden on the judicial system while resolving the conflict that has arisen. The main prerequisites for the use of ADR are:
- the parties involved in a conflict have a desire to preserve the existing relations between them, resolving the dispute through negotiations;
- the legal framework for settling a conflict does not make it possible to resolve it in
such a way that the solution is final and satisfactory for all parties;
- there is a need to resolve a conflict using the least painful means due to the necessity of maintaining or terminating long-term relationships (for example, in family disputes, conflicts with neighbors and partnerships);
- there are multiple procedures between the parties to the conflict or the conflict is complex;
- The situation requires a high level of confidentiality or separate discussion between the parties;
- the conflict affects the interests of a larger number of participants than only the direct parties to the conflict in the judicial process;
- the need to reduce the costs of resolving a dispute;
- the parties wish to resolve a conflict less formally;
- the parties want to resolve a conflict quickly.
Among the advantages of ADR at the present time, in addition to those indicated above, there are also:
- an opportunity to save time and money,
- a return to the parties of control over the conflict situation,
- avoiding litigation that would destroy the relationship between the parties,
- informality,
- flexibility,
- an additional opportunity for the parties to resolve the conflict within the framework of justice, including without the need to enforce a decision to settle it.
In the Republic of Uzbekistan, the ADR system began to develop relatively late. In particular, the first stage was the adoption of the Law of the Republic of Uzbekistan "On Arbitration" on October 16, 2006 [2]. According to the Law, Arbitration is a non-state body resolving disputes arising from civil legal relations, including economic disputes arising between business entities.
At the same time, the Civil Code of the Republic of Uzbekistan, which is in force since 1997, provides judicial protection of civil rights. In
accordance with Article 10 of Ministry of Justice, the
the Civil Code, legal entities Supreme Economic Court, and
and individuals in case of the Chamber of Commerce and
violation of their rights can Industry of the Republic of
claim to the civil court, the Uzbekistan to submit to the
economic court, and also the Parliament of the Republic of
arbitration [1]. But before the Uzbekistan the draft Law on
adoption of the Law of the Arbitration. By this time, the
Republic of Uzbekistan "On interested organizations have
Arbitration" organizations and already done some work on the
citizens did not have the development of this draft Law.
opportunity to claim to The Law was adopted by
arbitration, as provided by the the Legislative Chamber of the
Civil Code. Oliy Majlis (Parliament) of the
The need to create Republic of Uzbekistan on
arbitration courts was noted in February 8, 2006, approved by
the Decree of the President of the Senate of the Oliy Majlis of
the Republic of Uzbekistan No. the Republic of Uzbekistan on
DP-3619 dated June 14, 2005 August 25, 2006, approved by
"On measures to further the President of the Republic of
improve the system of legal Uzbekistan on October 16,
protection of business entities" 2006, numbered LRU-64 and
[6], which provided for the entered into force on January 1,
creation of arbitration courts by 2007.
entrepreneurs themselves and The adoption of the Law of
their associations. The the Republic of Uzbekistan "On
establishment of arbitration Arbitration" was the basis for
courts is an essential direction the formation of permanent and
in reforming the system for temporary arbitration courts in
protecting the rights and Uzbekistan. From the first days
legitimate interests of after adopting the Law,
entrepreneurs. The decree arbitration courts were
assigned the responsibility to established at the Chamber of
the Cabinet of Ministers, the Commerce and Industry of the
Republic of Uzbekistan and its Regulation on the Arbitration
territorial offices. Court regulates the legal status
The Law is the main of the Arbitration Court, the
normative legal act in the field organization, the procedure for
of creation and functioning of the operation of the relationship
arbitration courts. It contains of the Arbitration Court with the
the rules governing the status legal entity that formed the
of the arbitration court, the Arbitration Court and other legal
formation of the composition of entities. The Rules of the
the arbitral tribunal, the Arbitration Court contain the
requirements for the arbitrator, rules of arbitration.
the drafting of the arbitration After the entry into force of
agreement, the rules of the Law of the Republic of
arbitration, the drafting and Uzbekistan "On Arbitration" on
filing of a statement of claim, August 1, 2007, corresponding
the costs associated with changes were made to other
resolving the dispute in the legislative acts. The
arbitral tribunal, the amendments, in particular, to
participation of the parties in the procedural codes were due
the courtroom, ways of sending to the need to regulate relations
documents, taking measures to regarding the cancellation and
secure a claim, making a compulsory execution of the
decision, executing the decision arbitral award. Indeed, prior to
of the arbitral tribunal and the the introduction of these
possibility of its compulsory amendments, the codes did not
execution, challenging the contain norms that judges
decision of the arbitral tribunal would refer to when considering
and others. applications for cancellation of
In permanent arbitration the arbitral tribunal's decision
courts, the organization that and issuing a writ of execution
formed such courts adopts the for the compulsory execution of
Regulation on the Arbitration the arbitral tribunal's decision.
Court and the Rules of the It should be noted that in
Arbitration Court. The order to develop and support
arbitration courts, the citizens. So, only the arbitration
Association of Arbitration courts, which are part of the
Courts of Uzbekistan was system of the Chamber of
established in 2009. The main Commerce and Industry of the
goals of the Association are to Republic of Uzbekistan, have
develop and facilitate the considered more than a
creation of arbitration courts in thousand disputes thus far. the Republic of Uzbekistan and At the same time, the
to protect their rights and development of international
interests. The objectives of the arbitration in Uzbekistan was
Association are the very passive. Thus, the Law
establishment of a system of "On Arbitration" does not meet
arbitration courts in the the requirements and
Republic of Uzbekistan, the conditions of international
development of arbitration arbitration. In particular, this law
courts and their legal does not provide for the
protection, admission of other possibility of resolving disputes
arbitration courts to the with the participation of foreign
Association, provision of legal, enterprises or investors and
economic, and other assistance also limits the possibility of
to the members of the appointing a foreign citizen as
Association, assistance to the an arbitrator. In accordance
members of the Association in with the above, at a later
providing the necessary legal, period, the process of
methodological and other development of international
literature on the activities of arbitration in Uzbekistan began. arbitration courts. In accordance with the
Thus, a legislative basis Decree of the President of the
has been formed for the Republic of Uzbekistan dated
formation and functioning of June 19, 2017, No. DP-5087
arbitration courts in Uzbekistan "On measures to radically
to date. As practice shows, improve the system of state
arbitration courts have won the protection of the legitimate
trust of entrepreneurs and interests of business and the
further development of including foreign investors,
entrepreneurial activity" [7], a disputes related to investments,
set of measures was envisaged intellectual property, and
to create an international blockchain technologies; commercial arbitration. b) developing and
In order to implement the improving dispute resolution
above, the Resolution of the mechanisms through
President of the Republic of international arbitration and
Uzbekistan "On the other alternative methods of
establishment of the Tashkent dispute resolution; International Arbitration Center c) establishing cooperation
(TIAC) at the Chamber of with leading foreign arbitration
Commerce and Industry of the tribunals, exchanging
Republic of Uzbekistan" dated experience in the field of
November 5, 2018, No. RP- dispute resolution through
4001 was adopted. According international arbitration, as well
to this resolution [4], the as involving foreign arbitrators
Tashkent International in resolving disputes at the
Arbitration Center was Center; established under the Chamber d) participating in the
of Commerce and Industry of implementation of measures for
the Republic of Uzbekistan training and advanced training
(hereinafter referred to as the of specialists in the field of
Center) with the status of a international arbitration and out-
non-governmental, non-profit of-court settlement of disputes,
organization. Its main tasks including those related to
were defined as follows: investments, as well as the
a) organizing through organization of research in this
international arbitration the area;
settlement of disputes arising e) providing consulting
from contractual and other civil services for domestic and
law relations arising between foreign economic entities,
commercial organizations including foreign investors, in
located in different states, the prevention of disputes
related to investments, the Law of the Republic of
including one of the parties to Uzbekistan "On Mediation" was
which is the state. adopted [2], which entered into
It should be noted that force on January 1, 2019. The
international experts are Law applies to relations related
involved in the activities of the to the application of mediation
Center, who are engaged in its in disputes arising from civil
formation and development. In legal relations, also in
particular, a Supervisory Board connection with the
was formed from among the implementation of
leading international experts in entrepreneurial activities, and
the field of arbitration and individual labor disputes and
arbitrators of recognized conflicts arising from family
arbitration centers of the world legal relations unless otherwise
in order to assist in the provided by law. implementation of international It was an innovation in the
standards in the activities of the national system of out-of-court
Center [9]. dispute settlement, i.e.,
According to forecasts, previously, only civil and
this Center is promising to economic disputes between attract the resolution of business entities were resolved
arbitration disputes arising, by alternative methods of
particularly in the CIS countries dispute settlement, however,
and Central Asia. this method can now resolve
In Uzbekistan, activities individual labor disputes and
are also underway to create a disputes arising from family
comprehensively substantiated legal relations. national legal framework for the Another feature of
conduct of international mediation is that it can also be
commercial arbitration. applied in the process of
In addition to the above, considering a dispute in court
special attention is paid to the before the court is moved to a development of the institution of separate (deliberative) room for
mediation. So, on July 3, 2018, the adoption of an award [8].
The law determines that the authorized state body may, after postponing the proceedings, set a time limit for the mediation procedure. At the same time, the direct intervention of a state body is prohibited, which allows taking into account the interests of both parties when concluding a mediation agreement.
Consequently, the
mediation agreement reached by the parties during the mediation procedure, during the trial, during the consideration of the dispute in the authorized state body is immediately sent to the court or to the authorized state body, which is in charge of the relevant case.
So the mediation can be applied out of court, in the process of considering a dispute in court, before the court is moved to a separate (deliberative) room for the adoption of a judicial act, as well as in the process of considering a dispute in an arbitration court before a decision is made by the arbitral tribunal.
An agreement on the use of mediation is concluded in writing in the form of a clause, which is an integral part of the contract or in the form of a separate agreement.
The mediation procedure begins from the day the parties conclude an agreement on the mediation proceedings. The agreement on the mediation procedure is drawn up in writing and must contain information about the parties; on the subject of the dispute; on the procedure for carrying out the mediation procedure, the mediator, the obligations agreed by the parties, the conditions and terms of their implementation; the language, place, and date of the mediation procedure; on the timing of the mediation procedure.
The mediation procedure is voluntary. Each party can refuse to participate in it at any time.
For the parties who have resolved the dispute in the mediation procedure, the possibility of refunding the state
fee paid by them when applying point in resolving disputes
to the court is provided. through the use of alternative
A mediation agreement is methods.
binding on the parties who have The law enables mediators
entered into it and is performed to carry out activities both on a
by them voluntarily in the professional and non-
manner and within the time professional basis. Article 12 of
frame provided for in it. If the the Law sets out the
mediation agreement is not requirements for mediators.
fulfilled, the parties have the Thus, a person who has
right to apply to the court for the completed a special training
protection of their rights. The course under the mediator
consequences of non-execution training program approved by
of the mediation agreement can the Ministry of Justice of the
be established by the parties in Republic of Uzbekistan, as well
the same agreement. as entered in the Register of
The mediation agreement Professional Mediators, can
reached by the parties during carry out the activities of a
the mediation procedure, during mediator on a professional
the trial, during the basis. A person who has
consideration of the dispute in reached the age of twenty-five
the authorized state body, is years and who has agreed to
immediately sent to the court or perform the duties of a mediator
to the authorized state body, can carry out the activity of a
which is in charge of the mediator on a non-professional
relevant case. basis. At the same time, he can
The law establishes the undergo a special training
return of the paid state fee in course according to the training
the event of a dispute resolved program for mediators,
by a mediation agreement in approved by the Ministry of
the mediation procedure and Justice of the Republic of
suspends the statute of Uzbekistan.
limitations during the mediation The law also defines a list
procedure, which is a crucial of persons who cannot be
mediators. These include It should be noted that in
persons: authorized to perform order to develop alternative
state functions or those methods of resolving disputes,
equivalent to them; in respect of on June 17, 2020, the
whom there is a court decision Resolution of the President of
that has entered into legal force the Republic of Uzbekistan "On
recognizing them as partially measures to further improve
capable or incompetent; having mechanisms for alternative
an outstanding or unexpended dispute resolution" No. RP-
criminal record; in respect of 4754 was adopted [5].
which criminal prosecution is By this resolution,
carried out. Appellate Councils for the pre-
These requirements are trial settlement of disputes
necessary due to the fact that between individuals and legal
when resolving disputes, the entities and state bodies
mediator must have the (hereinafter referred to as the
appropriate knowledge, skills, Appeal Council) were created
professional and life under the State Customs
experience, objectivity, and Committee, the State
personal reputation are also Committee for Land Resources,
important [8]. Geodesy, Cartography and
The law determines that State Cadaster, the Extra-
the activity of a mediator on a budgetary Pension Fund under
professional basis can be the Ministry of Finance of the
carried out for a fee or free of Republic of Uzbekistan, as well
charge, and a mediator on a as Khokimiyats (mayor's office)
non-professional basis can be of Namangan, Bukhara and
performed free of charge. A Tashkent regions.
non-professional mediator may The main tasks of the
be reimbursed for expenses Board of Appeal were
incurred in connection with the determined as follows:
mediation procedure, including a) taking measures to
travel expenses, resolve disputes arising
accommodation, and meals. between individuals and legal
entities and a state body, - conducting proceedings
through pre-trial consideration on the basis of the principle of
and adoption of conclusions; non-interference in activities
b) taking measures to related to the consideration of organize, in accordance with cases in mediation, arbitration the established procedure, the courts, and international official interpretation of arbitrations;
legislative norms in case of - organizing training
discrepancies or incorrect or courses for training and
contradictory practice of their advanced training of specialists
application when considering in the field of mediation,
applications; arbitration courts and
c) making proposals to international arbitration. At the eliminate gaps in the legislation same time, mediators are identified during consideration trained in training courses not of applications. exceeding 72 hours, with the
The resolution also issuance of a certificate to
determines that it is allowed to students who have successfully
create and operate as a non- completed these courses;
governmental non-profit - assisting in the
organization for mediation development and widespread
centers and centers for dispute dissemination of mediation and
resolution using alternative other methods of alternative
methods. dispute resolution with the
The tasks of such centers organization of seminars,
are defined as follows: training and conferences in this
- creating conditions for area.
the introduction of dispute The most interesting thing
resolution procedures by about this resolution is that it
alternative methods in establishes the Tashkent
mediation, the activities of Mediation Center founding by
arbitration courts, and the Tashkent State University of
international arbitration; Law and the Center for
Advanced Training of Lawyers,
and this Center will become the first mediation center in Uzbekistan.
Conclusion
All of the above shows the active development of methods of alternative dispute resolution in Uzbekistan, which is aimed at creating a favorable business environment, convenient and fast methods for resolving disputes, which provide the parties to the dispute with the
choice and achievement of dispute resolution by extrajudicial means. However, there is much work on developing the ADR mechanisms in Uzbekistan and making them more popular. Also, such mechanisms as conciliation and adjudication are not established, even not known in the practice of Uzbekistan, and need to be analyzed and developed in laws and law enforcement practice of the country
References:
1. Civil Code of the Republic of Uzbekistan. T .: Adolat, 2019.
2. Law of the Republic of Uzbekistan "On Arbitration" dated October 16, 2006, No. LRU-64.
3. Law of the Republic of Uzbekistan "On Mediation" dated July 3, 2018, No. LRU-482.
4. Decree of the President of the Republic of Uzbekistan "On the establishment of the Tashkent International Arbitration Center (TIAC) at the Chamber of Commerce and Industry of the Republic of Uzbekistan" dated November 5, 2018, No. DP-4001.
5. Resolution of the President of the Republic of Uzbekistan "On measures to further improve mechanisms for alternative dispute resolution" dated June 17, 2020, No. DP-4754.
6. Decree of the President of the Republic of Uzbekistan "On measures to further improve the system of legal protection of business entities" No. DP-3619 dated June 14, 2005.
7. Decree of the President of the Republic of Uzbekistan "On measures to radically improve the system of state protection of the legitimate interests of business and the further development of entrepreneurial activity" dated June 19, 2017, No. DP-5087.
8. Rustambekov I. "Mediatsiya: posobiye dlya mediatorov" [Mediation: a guide for mediators.] Tashkent: Baktria press. p.144.
9. Islambek Rustambekov, Diana Tsutieva. Contemporary Reforms in the Development of the Institute of International Arbitration in the Republic of Uzbekistan. ABA Section of International Law. Eurasia / Russia Committee Newsletter. January - March 2019. -P.2-3.
