Published: 12th June 2017
During the AFCC Annual Conference in Boston, USA, leading international family lawyers David Hodson and Professor Patrick Parkinson announced that there is to be a new scheme to help international families.
The introduction of the new arbitration scheme
The ‘International Family Law Arbitration Scheme’ (IFLAS) has been designed to avoid long and expensive forum litigation, as well as helping couples to work out where a family dispute should be resolved, particularly by determining which country they are most closely connected to. The new scheme is to be initiated on 4 September 2017 during the Australian Family Law Conference in Fiji, alongside the launch of its interactive website.
Co-founder of the scheme, David Hodson, said:‘ This new initiative is exciting for two reasons. By using arbitration, with an arbitrator from a country with which neither couple have any connection, using a worldwide common law and closest connection criteria, a couple can more quickly, more cheaply and more satisfactorily resolve differences. Secondly it is fairer. Currently when a couple have connections with more than one country there can be a dispute about which country will resolve any differences. This forum dispute is decided in, and by the law of, one of the two countries. This is perceived as an unfair advantage to one of the parties. Some countries around the world are perceived as more likely to say that proceedings should be in their country. This scheme produces a mutually satisfactory outcome.’
What is family arbitration?
First and foremost, arbitration is a particular method that is used to resolve disputes surrounding finances once a relationship has come to an end. The arbitrator is responsible for considering facts and relevant pieces of evidence, as well as the opinions of all parties involved, for them to then make an informed decision on the evidence that they have for the case. Family arbitration is considered as an alternative to court proceedings, with couples using it to resolve financial disputes when a mutual agreement cannot be reached.
Arbitration, the out-of-court resolution system that is often known as private judging, is set to be used within the IFLAS. This will see retired or part-time judges adjudicate and resolve problems, and all arbitrators will be experienced lawyers that are used to dealing with such international family law disputes.
Introducing arbitration would carry a number of benefits, including the fact that parties can choose anarbitrator that is appropriate for their dispute;the arbitrator will deal with the proceedings until the end;parties can dictate what the arbitrator will decide upon;and finally, there is extra privacy and confidentiality without the risk of any media coverage. As countries such as England and Wales already use arbitration for family matters, IFLAS is the perfect scheme to ensure that countries throughout the world are introduced to arbitration, keeping them up to date with current and emerging ways to resolve conflict among separating couples.
The use of arbitration within the scheme
The arbitrators would consider many different factors and connections to the family in question, with the country that the family has the closest connection to being the main criterion.
The co-founder of the scheme, Patrick Parkinson, said: ‘The use of an arbitrator from a third country is a key part of the Scheme. At the moment, forum disputes are heavily skewed to whichever party is able to manoeuvre the forum dispute to be heard in their country. Having a third country arbitrator is like having an umpire in a sports event who is not from either of the competing countries. This is impossible under any national justice system, but for the first time is possible with IFLAS.’
The scheme will set up the arbitration, with an arbitrator arranged as required, and the parties involved within an individual case will agree to refrain from pursuing any other court cases during the proceedings leading up to the resolution of the arbitration, and they are to abide by the outcome.
There is an online questionnaire for the parties to complete which is designed to determine all of the relevant facts for a specific dispute, helping the arbitrator to find the closest connection. It is thought that the arbitration process is to be enhanced by digital technology, ensuring that the process is completed with speed, ease and at a much lower cost.
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