2011 RESOLUTION GUIDELINES - World Bank

1 ALTERNATIVE DISPUTE. 2011. RESOLUTION GUIDELINES . Investment Climate Advisory Services of the World Bank Group With funding from FIAS, the multi-donor investment climate advisory service in partnership with Alternative Dispute RESOLUTION GUIDELINES Investment Climate Advisory Services of the World Bank Group With funding from FIAS, the multi-donor investment climate advisory service in partnership with 2011 The World Bank Group 1818 H Street, , Washington , 20433. All rights reserved First Printing: June 2011. This information, while based on sources that the World Bank Group considers to be reliable, is not guaranteed as to accuracy and does not purport to be complete.

2 The findings, interpretations, and conclusions expressed in this work are those of the authors and do not necessarily reflect the views of the Board of Executive Directors of the World Bank or the governments of the countries which they represent. The information in this work is not intended to serve as legal advice. The World Bank Group does not guarantee the accuracy of the data included in this work and accepts no respon- sibility for any consequences of the use of such data. The denominations and geographical names in this publication are used solely for the convenience of the reader and do not imply the expression of any opinion whatsoever on the part of the International Finance Corporation, the World Bank, or other affiliates concerning the legal status of any country, territory, city, area, or its authorities, or concerning the delimitation of its boundaries or national affiliation.

3 Rights and Permissions The material in this publication is copyrighted. Copying and/or transmitting portions or all of this work without permission may be a violation of applicable law. The World Bank Group encourages dissemination of its work and will normally grant permission to reproduce portions of the work promptly. For permission to photocopy or reprint any part of this work, please send a request with complete information to the Copyright Clearance Center Inc., 222 Rosewood Drive, Danvers, MA 01923, USA; telephone: 978 750 . 8400; fax: 978 750 4470; online at: About the Investment Climate Advisory Services of the World Bank Group The Investment Climate Advisory Services of the World Bank Group helps governments implement reforms to improve their business environments and encourage and retain investment, thus fostering competitive markets, growth, and job creation.

4 Funding is provided by the World Bank Group (IFC, MIGA, and the World Bank) and over 15 donor partners working through the multidonor FIAS platform). Cover photo credits: (left to right): Dmitriy Shironosov/Shutterstock, OtnaYdur/Shutterstock, corepics/Shutterstock, Eric Miller/ World Bank. iii Acknowledgments The publication of these GUIDELINES was made possible due to generous support of the Government of Luxembourg through its contribution to the trust fund supporting the activities of the World Bank Group's Investment Climate Advisory Services. The development of the GUIDELINES was done in partnership with the Center for Effective Dispute RESOLUTION and Conflict Management International, both based in London.

5 The primary authors of these GUIDELINES are Carl Mackie, James South, William Marsh, Nadja Alexander, Oliver Lorenz and Gina Lee Barbieri. The preparation of the publication was led by Lada Busevac and coordinated by Rita Maria Benitez from the World Bank Group. We are also grateful to the following individuals for their feedback and guidance on the content of the publication: Donna Stienstra (Federal Judicial Center), Markham Ball (University of Pennsylvania Law School), Akvile Gropper (CIC ADR Global team, WBG), Nina Pavlova Mocheva (CIC ADR Global team, WBG), Marie-Laurence Guy (CSBGF, WBG), Laura Anne Watson (CSABI, WBG), Sonali Hedditch (CIC, WBG), Soneath Hor (CIC, WBG), Navin Salim Merchant (CIC ADR Global team), Igor Matijevic (CIC ADR Global team), Scott Adams (CCAVP, WBG), Karen Sarah Cuttaree (Doing Business Project, WBG), Heike Gramckow (LEGJR, WBG), and Marialisa Motta (CICRA, WBG).

6 The GUIDELINES were edited by Grace Morsberger. Patricia Ellen Steele provided priceless input on the content preparation, editing, and production throughout the process. Datapage and District Creative Printing Inc. (DCP). were in charge of production, including typesetting and printing, respectively. iv Abbreviations ADR Alternative dispute RESOLUTION AFCR Albanian Foundation for Conflict RESOLUTION and Reconciliation of Disputes AoM Association of Mediators of Bosnia and Herzegovina CAMC-O Commercial Arbitration, Mediation, and Conciliation Center of Ouagadougou (Burkina Faso).

7 CAM Santiago Santiago Chamber of Commerce CCMA Commission for Conciliation, Mediation, and Arbitration (South Africa). CEDR Centre for Effective Dispute RESOLUTION CEMA Euro-Mediterranean Mediation and Arbitration Center (Morocco). CIMAT Tangiers International Mediation and Arbitration Center CPC Code of Civil Procedure CRCICA Cairo Regional Center for International Commercial Arbitration (Egypt). CTO Commonwealth Telecommunications Organization EC European Commission FIAS Facility for Investment Climate Advisory Services ICC International Chamber of Commerce ICSID International Centre for Settlement of Investment Disputes IFC International Finance Corporation ILO International Labor Organization KCDR Karachi Center for Dispute RESOLUTION MIGA Multilateral Investment Guarantee Agency NGO Nongovernmental organization OECD Organization for Economic Co-operation and Development SEED Southeast Europe Enterprise Development program SPB State Bank of

8 Pakistan UNCITRAL United Nations Commission on International Trade Law WIPO World Intellectual Property Organization v Using the GUIDELINES Many countries in which the IFC provides advisory services rank poorly in the areas of contract enforcement and an efficient judicial system. This has a negative effect on the business climate and increases the risks for businesses. A number of studies and assessments (Doing Business, Investment Climate Assessments, Enterprise Surveys, and other analytical studies) have shown that efficient access to justice is key to the investment climate agenda for emerging market economies.

9 ADR has proven to be an effective approach to enhancing access to justice. ADR is also embedded in the day-to-day operations of the World Bank Group's institutions: the International Centre for Settlement of Investment Disputes (ICSID), the IFC, the Multilateral Investment Guarantee Agency (MIGA), and the International Bank for Reconstruction and Development (IBRD, World Bank). IFC and World Bank credit agree- ments contain clauses that refer to the amicable RESOLUTION of disputes and promote the use of mediation in all investment-related disputes. Against this background, as part of its strategy to improve the business environment in the Balkans, IFC began to implement commercial ADR in response to demand from client countries in that region.

10 Recent successful IFC ADR. projects in many other regions provide an encouraging basis on which to further develop a common methodology and core approach to IFC ADR interventions. Hence these GUIDELINES , which may be used by various stakeholders, from IFC staff looking to implement an ADR project to stakeholders partnering with IFC. In designing these guide- lines, a balance was sought between providing sufficient detail and background for the concepts being discussed, and offering a usable diagnostic tool for ADR project managers. Throughout this publication, criteria and indicators are set out to help readers answer key questions pertaining to the use of ADR in their countries.