Angola
In your jurisdiction, are there any formal ADR procedures available for resolving commercial disputes other than litigating (or arbitrating) to a final hearing?
Yes. Article 174 of the Constitution of the Republic of Angola establishes the law that regulates the means and forms of extrajudicial settlement of disputes, as well as their creation, organization, jurisdiction, and functioning. Law No. 12/16 of 12 August provides, alongside the formal system of administration of justice in force, two alternative dispute resolution mechanisms, namely, mediation and conciliation.
Mediation is an alternative dispute resolution method, conducted by public or private entities, through which two or more parties in dispute voluntarily seek to reach an agreement with the assistance of a conflict mediator, without the latter, however, proposing solutions to them.
Mediation may be applied to disputes in civil, commercial, labor, family, and criminal matters, provided that they concern disposable rights.
Mediation may take place in criminal proceedings whose prosecution depends on a complaint or private accusation in cases of crimes that depend solely on a complaint, and only when they concern crimes against persons or crimes against property. Regardless of the nature of the crime, mediation in criminal proceedings may not take place in the following cases:
(a) The legal classification of the crime provides for a maximum prison sentence of more than 5 years;
(b) The case concerns crimes against sexual freedom or self-determination;
(c) The case concerns crimes of embezzlement, corruption, or influence peddling;
(d) The victim is under 16 years of age;
(e) A summary proceeding is applicable.
Conciliation is an alternative dispute resolution method, conducted by public or private entities, through which two or more parties in dispute voluntarily seek to obtain a solution, with the assistance of a conflict conciliator, who proposes solutions to them.
Does engaging in ADR have any effect on potential or existing litigation or arbitration?
Yes, a defendant may, during the pleadings stage, request the suspension of the proceedings and the referral of the case to mediation when an action is brought in respect of a matter covered by a mediation agreement. Furthermore, recourse to mediation suspends the limitation and prescription periods from the date on which the mediation agreement is signed or, in the case of mediation conducted at public mediation centers, from the date on which all parties agree to proceed with mediation.
It should also be noted that the referral of a case to criminal mediation results in the suspension of the maximum time limits for the preliminary investigation phase, as provided for in the criminal procedure legislation.
Is ADR compulsory and if so are there any consequences if a party fails to engage in ADR? If it is not compulsory are there any plans for this to change?
Recourse to the mediation procedure is voluntary and requires the prior informed and explicit consent of the litigating parties for the conduct of the mediation. The litigating parties may, at any stage of the procedure, revoke the consent previously given for their participation.
Can the parties agree, in advance of any potential dispute, to engage in ADR?
Yes, the parties may, prior to bringing any dispute before a court, resort to mediation for the resolution of disputes. The parties may enter into a mediation agreement regarding a specific dispute, agreement, or situation. This mediation agreement can also be included as a clause within a contract, providing that any disputes arising from or related to that contract will first be resolved through mediation before other legal remedies are pursued. Such clauses are not frequently incorporated into contracts. In Angola, it has become more common for parties to agree on arbitration as the chosen dispute resolution mechanism, typically preceded by an attempt to settle the matter amicably before commencing arbitral proceedings.
When does ADR generally take place?
Alternative dispute resolution usually takes place in cases of low complexity, in which the parties agree to have a Mediator or a Conciliator assist in resolving the disagreements. These mechanisms aim to avoid court costs and the delays inherent in judicial proceedings. As mentioned, they are common in commercial, labor, and consumer disputes.
It is not very common to resort to mediation during the course of legal proceedings; however, it is common for the parties, with the support of the judge, to reach a settlement while the case is pending.
Is ADR subject to without prejudice privilege and/or confidential? If not, is there any other means to protect confidential information?
Yes, the mediation procedure is confidential, and the mediator must maintain absolute secrecy regarding all information that they have or may come to have knowledge of in the context of the said procedure, and such information may not be used for their own benefit or that of others.
Information provided confidentially to the mediator by one of the litigating parties may not be disclosed or shared, without their consent, with the other parties involved in the procedure.
All participants in the mediation procedure are bound by the principle of confidentiality. The duty of confidentiality regarding information relating to the content of the mediation may only cease for reasons of public order, strictly to the extent necessary to:
(a) ensure the protection of a higher public interest, when the protection of the physical or psychological integrity of any person is at stake;
(b) enable the enforcement or execution of the agreement reached through mediation.
Except in the situations provided for above, or with the agreement of the parties, the content of the mediation sessions may not be admitted as evidence in court or in arbitration proceedings.
Does the output from ADR create precedents?
No. Although the final agreement reached by the parties has enforceable effect without the need for judicial ratification, it does not create precedents nor establish case law, binding only the parties involved and not third parties. The Angolan legal system (Civil Law) does not recognize binding precedents as in Common Law.
Who bears the costs of ADR?
The costs of the mediation procedure are borne jointly by the parties, unless otherwise agreed. The remuneration is agreed between the parties and the mediator and is set out in the mediation agreement executed at the beginning of each procedure.
Public Mediation Centers or Private Mediators may establish the respective fees or charges, which must be included in the mediation agreement, in accordance with the provisions set out in their respective constitutive or regulatory acts, which also provide for any possible exemptions or reductions of such fees or charges.
Is your jurisdiction subject to any specific rules for cross border ADR?
No, in Angola there are no specific rules for International Mediation, nor are there simplified mechanisms to recognize international mediation agreements, since Angola has not acceded to the Singapore Convention.
The possible enforcement of a foreign agreement resulting from mediation must follow the procedure for the review and confirmation of foreign judgments, as provided for in the Angolan Code of Civil Procedure.
Are there any particularly unusual features of ADR in your jurisdiction that you are aware are different to other jurisdictions?
As Angola is a jurisdiction based (in addition to the Law) on Customs, Usages, and Traditional Authorities (“Sobas” as Traditional Authority), mediation and conciliation of disputes must take into account the customs and practices of the communities, provided that they are not contrary to the Constitution and do not violate human dignity.
Contacts
© Eversheds Sutherland. All rights reserved. Eversheds Sutherland is a global provider of legal and other services operating through various separate and distinct legal entities. Eversheds Sutherland is the name and brand under which the members of Eversheds Sutherland Limited (Eversheds Sutherland (International) LLP and Eversheds Sutherland (US) LLP) and their respective controlled, managed and affiliated firms and the members of Eversheds Sutherland (Europe) Limited (each an "Eversheds Sutherland Entity" and together the "Eversheds Sutherland Entities") provide legal or other services to clients around the world. Eversheds Sutherland Entities are constituted and regulated in accordance with relevant local regulatory and legal requirements and operate in accordance with their locally registered names. The use of the name Eversheds Sutherland, is for description purposes only and does not imply that the Eversheds Sutherland Entities are in a partnership or are part of a global LLP. The responsibility for the provision of services to the client is defined in the terms of engagement between the instructed firm and the client.