Customs disputes resolution through mediation: international practices

Abstract

Based on the studies of foreign rules and regulations concerning mediation of disputes arising from customs and other administrative activities, the article defines that a significant number of developed foreign countries adhere to the vision that customs disputes should be resolved through a mediator, or allows resolving any public law dispute through a mediation procedure. It is noted that the settlement of a customs dispute via mediation is allowed only in cases where the subject is an administrative act of the customs authority adopted within its discretion, or if there is an issue of compensation for damages by decisions, actions or omissions of customs authorities (China, Macedonia). The article represents the American provisions on mediation in the public sphere, which are stated to be particularly progressive in their part establishing specific circumstances under which the settlement of public disputes through mediation is excluded, including the need for final and authoritative resolution of the issue forming legal precedent, the significant impact of the case on the rights and obligations of individuals or legal entities that are not parties to the case; particular importance of the consistency in approaches to resolving relevant issues, so it is impractical to increase variations in individual cases; importance of publicity of means and procedures of decision-making in the case, etc. The author highlights the legislative provisions detailing the exclusive reasons for exemption from the obligation to respect the confidentiality of mediation, which include, inter alia, the prior disclosure of information, the need to use information to establish the existence or content of a mediation agreement or to enforce it or a judgment regulating the dispute settlement, a court decision on disclosure of information to prevent harm to public health and safety of appropriate severity, etc. (USA, Georgia). Moreover, the author argues that some sound legislative measures are of a particular value, for instance those determining the contractual nature of mediation solution, as well as setting out the possibility of resolving the issue of its enforcement within a simplified procedure (Kazakhstan) and establishing special rules for timeframes for addressing a court for protection with claims in disputes in which private mediation has been initiated (Georgia).