By Gianna Huesch
Families with family law matters which involve parties in different countries have often struggled to find a fair resolution of their conflict via litigation, thanks to issues over which country has or should have jurisdiction in the dispute.
Currently, when there is an international family law dispute, it is decided in one of the countries in which one of the parties resides, giving that party an unfair advantage. Certain countries are also perceived as more likely to require that court proceedings be held in their jurisdiction.
But now, leading international family lawyers have come together to design a brand new international arbitration scheme which will involve utilising an arbitrator from a neutral third country with which neither party has any connection.
Revealed by international family law experts Professor Patrick Parkinson and David Hodson, ‘The International Family Law Arbitration Scheme’ (IFLAS) will go live in early September and will offer a fairer and cheaper way to resolve international disputes, avoiding lengthy, costly forum litigation.
Arbitration is an out-of-court resolution system, sometimes called private judging. Arbitrators, often former judges, are trained to resolve and adjudicate on disputes and issue binding arbitration decisions. Parties using arbitration agree not to pursue any other court proceedings pending resolution of the arbitration and to abide by the outcome.
IFLAS arbitrators will be lawyers experienced in international family law disputes. Couples will be assisted to work out where any family differences should be resolved by ascertaining with which country they have the closest mutual connection. Based on answers given by each party to a questionnaire created to elicit all the relevant facts for forum dispute, the arbitrator will consider which country has the closest mutual connection with the couple or family using worldwide common law and criteria established by international family law experts.
Australia’s Professor Patrick Parkinson, co-founder of the new scheme, 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.”
Arbitration as an alternate form of dispute resolution has many advantages over pursuing legal action through the family court system. Users retain far more control over their matter, for example, they may choose their preferred arbitrator. The process is faster, less adversarial, less costly, and offers complete privacy and confidentiality.
To discuss whether arbitration may be the best way forward in your family law matter, or if you have a matter involving international issues, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400 for confidential advice.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance to arrange a free first conference.