The Constitutional Court of the Republic of Belarus comprising the Presiding Officer – Chairman P.P. Miklashevich, Deputy Chairperson N.A. Karpovich, judges A.N. Bodak, T.S. Boiko, T.V. Voronovich, S.Y. Danilyuk, L.G. Kozyreva, V.N. Ryabtsev, L.M. Ryabtsev, O.G. Sergeeva, A.G. Tikovenko, S.P. Chigrinov

on the basis of Article 116.1 of the Constitution of the Republic of Belarus, Article 22.3.2 of the Code of the Republic of Belarus on Judicial System and Status of Judges, Article 98 and Article 101.1 of the Law of the Republic of Belarus “On the Constitutional Proceedings”

in the exercise of obligatory preliminary review considered the constitutionality of the Law of the Republic of Belarus “On Amending the Laws on Mediation Issues” in open court session.

Having heard the reporting judge V.N. Ryabtsev, having analysed the provisions of the Constitution of the Republic of Belarus (hereinafter – the Constitution), the Law of the Republic of Belarus “On Amending the Laws on Mediation Issues” and other legislative acts of the Republic of Belarus, the Constitutional Court of the Republic of Belarus found the following.

The Law of the Republic of Belarus “On Amending the Laws on Mediation Issues” (hereinafter – the Law) was adopted by the House of Representatives of the National Assembly of the Republic of Belarus on 18 December 2020, approved by the Council of the Republic of the National Assembly of the Republic of Belarus on 18 December 2020 and submitted to the President of the Republic of Belarus for signing.

The Law was adopted in order to implement in national legislation the provisions of the Convention on International Settlement Agreements Resulting from Mediation, adopted by the UN General Assembly on 20 December 2018 (ratified by the Law of the Republic of Belarus of 25 June 2020) (hereinafter – the Convention) with a view of applying mediation as a way of settling international commercial disputes, creating a legal mechanism for recognising and enforcing international settlement agreements in the territory of the country resulting from the extrajudicial mediation procedure, expanding the possibilities of economic entities in choosing means of settling disputes to ensure their rights and legitimate interests in international economic relations.

1. The Constitutional Court, within its powers to exercise obligatory preliminary review of the constitutionality of laws, considers the present Law based on the following provisions of the Constitution:

the Republic of Belarus shall be bound by the principle of supremacy of law; the State and all the bodies and officials thereof shall operate within the confines of the Constitution and acts of legislation adopted in accordance therewith (Articles 7.1 and 7.2);

the Republic of Belarus shall recognise the supremacy of the generally recognised principles of international law and shall ensure the compliance of laws therewith (Article 8.1);

the State shall guarantee the rights and freedoms of citizens of Belarus that are enshrined in the Constitution and laws, and specified by the State's international obligations (Article 21.3);

all shall be equal before the law and have the right to equal protection of their rights and legitimate interests without any discrimination (Article 22);

the State shall take all measures at its disposal to establish the domestic and international order necessary for the full exercise of the rights and freedoms of the citizens of the Republic of Belarus that are specified by the Constitution (Article 59.1);

everyone shall be guaranteed protection of his rights and freedoms by a competent, independent and impartial court within the time limits specified by law (Article 60.1).

Guided by Article 54.1 of the Law “On the Constitutional Proceedings” the Constitutional Court considers the constitutionality of the Law and determines whether the contents of its provisions, its form, delineation of competencies between state bodies and the procedure for its adoption are conforming to the Constitution, international legal instruments, ratified by the Republic of Belarus.

2. Within the powers stipulated by the Constitution (Articles 97.1.2 and 98.1.1) to consider draft laws, including those on the main content and principles of exercising the rights, freedoms and duties of citizens, on legal proceedings, the legislator, in order to improve legal mechanisms for out-of-court dispute resolution, amends the Economic Procedure Code of the Republic of Belarus (hereinafter – the EPC) and the Law of the Republic of Belarus “On Mediation”.

2.1. The Law of the Republic of Belarus “On Mediation” is amended by adding Article 15¹, which determines an international mediation agreement as an agreement resulting from a process whereby parties reach a settlement of their dispute with the assistance of a third person (or persons) lacking the authority to propose a solution to the parties in dispute, irrespective of the expression used for the process or the persons, subject to the following conditions:

at the time of its conclusion in writing at least two parties to the settlement agreement have their places of business in different states, or the state in which the parties have their places of business is different from either the state in which a substantial part of the obligations under the settlement agreement is performed, or the state with which the subject matter of the settlement agreement is most closely connected;

the agreement is not concluded to resolve a dispute arising from transactions engaged in for personal, family or household purposes, and does not relate to marriage and family, inheritance or employment law (Article 2.3 of the Law).

Under the above Article of the Law “On Mediation” international mediation agreements shall be recognised and enforced in accordance with the economic procedural law of the Republic of Belarus and the Convention on International Settlement Agreements Resulting from Mediation of 20 December 2018. The requirements of this Law do not apply to the process whereby international mediation agreements are concluded.

The Convention recognises the value for international trade of mediation as a method for settling commercial disputes in which the parties in dispute request a third person or persons to assist them in their attempt to settle the dispute amicably. The parties to the Convention have agreed in order to contribute to the development of harmonious international economic relations by the establishment of a framework for international settlement agreements resulting from mediation that is acceptable to states with different legal, social and economic systems (preamble).

The Convention (Article 1) defines the scope of its application, as well as the instances where it does not apply. Thus, this Convention does not apply to settlement agreements that have been approved by a court or concluded in the course of proceedings before a court and that are enforceable as a judgment in the state of that court as well as to settlement agreements that have been recorded and are enforceable as an arbitral award.

The Constitutional Court finds that the established legal regulation favours the systemic improvement of existing legal mechanisms in the field of mediation, promotes this institution as a way to settle disputes, and thus is consistent with the provisions of the Constitution under which the Republic of Belarus is a state based on the rule of law (Article 1.1); the Republic of Belarus shall be bound by the principle of supremacy of law; the State and all the bodies and officials thereof shall operate within the confines of the Constitution and acts of legislation adopted in accordance therewith (Articles 7.1 and 7.2); the Republic of Belarus shall recognise the supremacy of the generally recognised principles of international law and shall ensure the compliance of laws therewith (Article 8.1). That is all in line with the provisions of the Convention.

When examining the constitutionality of these provisions of the Law the Constitutional Court has taken into account its legal position set forth in the decision of 8 July 2013 No. D-841/2013. According to it the provisions of the Constitution, in light of the goals of the Republic of Belarus as a state based on the rule of law where it is necessary to guarantee everyone’s right to judicial protection, do not rule out the possibility of, on certain conditions, alternative dispute resolution. Mediation as an alternative dispute resolution tool does not substitute the existing jurisdictions, but does enrich them and provides business entities with more options to settle arising disputes.

2.2 The Law amends the EPC by extending the jurisdiction of the courts considering economic cases. It envisages the procedure for recognition and enforcement of international mediation agreements in the Republic of Belarus.

Article 1 of the Law provides that the court considering economic cases shall hear cases on issuance of enforceable titles that international mediation agreements be enforced (paragraph 2). At the request of the parties, who are in the process to settle their dispute through the international mediation agreement, the court is entitled to take interim measures so as to provide the subject matter of the agreement (paragraph 5). It also prescribes the requirements to the form and content of the application for enforceable titles that the international mediation agreement be enforced; it establishes the list of the required documents to be attached and the procedure for considering them (paragraphs 6 and 7).

According to the Convention, Each Party to the Convention shall enforce a settlement agreement in accordance with its rules of procedure and under the conditions laid down in this Convention (Article 3.1).

The Constitutional Court finds that the ongoing legal regulation, providing for issuance by a court of enforceable titles that an international mediation agreement be enforced, creates a legal mechanism for recognition and enforcement of international mediation agreements in the territory of the Republic of Belarus, as well as ensures the lawfulness and validity of such mediation agreements. Thus, it is consistent with the provisions of the Constitution according to which the Republic of Belarus is a state based on the rule of law; the Republic of Belarus shall safeguard lawfulness (Articles 1.1 and 1.3); the Republic of Belarus shall be bound by the principle of supremacy of law (Article 7.1); everyone shall be guaranteed protection of his rights and freedoms by a competent, independent and impartial court within the time limits specified by law (Article 60.1). And it also complies with the provisions of the Convention.

2.3. The Law amends the EPC by defining the grounds for refusal to issue enforceable titles that an international mediation agreement be enforced.

The new wording of Article 262³ of the EPC stipulates that the court considering economic cases shall refuse to issue enforceable titles if it finds that the enforcement of an international mediation agreement would contradict the public order of the Republic of Belarus; that under the legislation of the Republic of Belarus the subject matter of a dispute may not be settled through mediation; that the obligations enshrined in the international mediation agreement have been performed or are not clear; that the enforcement of the international mediation agreement will contradict its terms, etc. At the same time, Article 262³ establishes that the refusal to issue enforceable titles that an international mediation agreement be enforced does not prevent from filing a lawsuit in court considering economic cases seeking to settle a dispute according to the rules established by the EPC (Article 1.8 of the Law).

 The Constitutional Court finds that the court’s refusal to issue enforceable titles that an international mediation agreement be enforced, the grounds of which are specified in Article 262³ of the EPC, safeguards the lawfulness of the international mediation agreement concluded by the parties, helps to protect their rights and legitimate interests; provides a fair balance of public and private law; protects the interests of society and the state; ensures the economic stability of the Republic of Belarus; prevents from enforcement in the territory of the Republic of Belarus of international mediation agreements that do not meet the requirements of the Law. All of this complies with the rules of the Constitution according to which the State ensures on its territory the rule of law, lawfulness and law and order, the rights and freedoms of citizens of the Republic of Belarus.

The Constitutional Court notes that the cited provisions of the Law correspond to the provisions of Article 5 of the Convention, which provides for the grounds for refusing to grant relief.

Thus, the Law, regulating the relations in mediation for the settlement of international commercial disputes, establishes the legal mechanism for the recognition and enforcement of international mediation agreements, ensures the application by the courts of the Convention rules, develops the institution of mediation in the Republic of Belarus and thereby extends international dispute resolution tools in order to ensure the rights and legitimate interests of the parties in dispute. The Law also contributes to maintenance and development of business relations, facilitates settlement procedures and cost savings, that is consistent with the rules and principles of the Constitution.

The law was adopted by the House of Representatives of the National Assembly of the Republic of Belarus and approved by the Council of the Republic of the National Assembly of the Republic of Belarus within the powers in accordance with Articles 97.1.2 and 98.1.1 of the Constitution.

In view of the foregoing the Constitutional Court concludes that the Law is in conformity with the Constitution as regards the contents of its rules, form of the act, procedure of its adoption and delineation of competence between state bodies.

Guided by Articles 116.1 and 116.7 of the Constitution of the Republic of Belarus, Article 24.2 of the Code of the Republic of Belarus on Judicial System and Status of Judges, Articles 103–105 of the Law of the Republic of Belarus “On the Constitutional Proceedings” the Constitutional Court of the Republic of Belarus

RULED:

1. To recognise the Law of the Republic of Belarus “On Amending the Laws on Mediation Issues” to be conforming to the Constitution of the Republic of Belarus.
2. The present Decision shall come into force from the date of adoption.
3. To publish the present Decision in accordance with legislative acts.

Presiding Officer –

Petr Miklashevich,

Chairman

Constitutional Court

Republic of Belarus