CLAUSES MED / ARB ASSURANCE SYSTEM OF JUSTICE CIUDADANIZACIÓN

Abstract

Schemes and models of conflict resolution need to be approved modernize and global criteria and indicators, this involves observing best practices in various legal systems, which usually are reflected in conventions and model laws, such as arbitration and mediation or conciliation. They are perhaps the two best methods to resolve conflicts between people, with a high sense of justice and equity, since they are the ones who solve their problems by themselves based on their potestas, this scheme has been called ciudadanización of justice, since under the law, people solve their problems so binding.

However, even they are both the best systems do together a synergy, both act independently, this is perhaps because of the lack of recognition binding the principle of autonomy of the parties in mediation, since a mediation clause is not entirely convincing, because it produces the plea that the judge, as the agreement occurred during the procedure requires an approval, and will not equate to an enforceable and thus to a judgment, a contrario of what happens with the arbitration, that apart from the three previous budgets, is that of the rebuttable presumption of legality, which then results in a lack of respect the principle pacta sun servanda in mediation.

This lack of legal assertiveness is what has produced this mixed model of MEDARB clauses, so that the livelihood of one is the paragon of the other, and then give you full functionality and secure the only participation of the parties in resolving their conflicts, therefore this will be the foundation of ciudadanización of justice in its most purely civilian aspects.

We observe in the course of this article the legal basis and as international practice gives reason to this combination of alternative methods as is assumed, as is the case with the Arbitration Center of the Construction Industry CAIC, which provides in clause conciliation: "When, arising from a dispute arising from this contract or in connection therewith, the parties wish to seek an amicable settlement through conciliation, it should take place in accordance with the Conciliation Rules of the Arbitration Center Industry the construction. Should the parties fail to reach an agreement within the time agreed in writing by the parties at the beginning of the conciliation procedure, the dispute shall be finally settled under the Rules of Arbitration of the Arbitration Center of the Construction Industry. The venue will be [_____] and the law applicable to the dispute shall [________] ". 

Understanding it as a MEDARB clause, under the concept of the model law conciliation unify the meaning of mediation and conciliation in the latter, so well could also be called "CONARB" with the same force and legal support.

We study about its legal status, its legal framework and its elements of existence, such as consent, object and solemnity; will focus on its validity and form elements, noting that the clause will have to be written as the main requirement for expression of the will of the parties to submit to an alternate method, similarly analyze the ability of the parties and their scope and legal effects it produces or may produce MEDARB clause.