Category: DR Insights

In the Statute of Limitation report created by the LNI Dispute Resolution Group we consider the question ‘which are the effects of the expiry of the limitation period?’

The report discusses the Statute of Limitation rules applicable in the various jurisdictions of its members, providing a high-level comparison of the Statute of Limitation (prescription) rules applicable in a number of jurisdictions around the world and considers some key questions.

You can read the full report here: LNI Statute of Limitation Report

Which are the effects of the expiry of the limitation period?

The overall principle, with a few nuances, is that the expiry of the limitation period has no impact on the existence of the obligation as such, but the obligation may no longer be enforced (provided the obligor/debtor raises the defence of the expiry of the limitation period).

For more details, please refer to the Country Reports in the full report:

Statute of limitation: A multi-jurisdiction comparative study

The report which outlines the main trends and variations on the statute of limitation also includes country reports from the members in the LNI Dispute Resolution Group in Australia, Belgium, Brazil, Bulgaria, China, England and Wales, France, Germany, India, Luxembourg, Netherlands, Serbia, Spain, Sweden, Switzerland, and Turkey.

Specific queries should be addressed to the relevant LNI Members in the respective jurisdictions.

In the Statute of Limitation report created by the LNI Dispute Resolution Group we consider the question ‘may a party decide to waive the application of the statute of limitation?’

The report discusses the Statute of Limitation rules applicable in the various jurisdictions of its members. providing a high-level comparison of the Statute of Limitation (prescription) rules applicable in a number of jurisdictions around the world and considers some key questions.

You can read the full report here: LNI Statute of Limitation Report

May a party decide to waive the application of the statute of limitation?

Each country has its own specificities or exceptions where a waiver is possible or not (please refer to the Country Reports for more details). The general rules are represented in the table below:

WAIVER OF THE STATUTE OF LIMITATION
Jurisdiction:	Anticipatory waiver	Waiver after the occurrence
Austria, Belgium, Bulgaria, France, Luxembourg, Netherlands, Serbia, Sweden	Not possible	Possible
Brazil, England and Wales, Germany, Spain, Switzerland	Possible	Possible
China, India, Turkey	Not possible	Not possible

For more details, please refer to the Country Reports in the full report: 
Statute of limitation: A multi-jurisdiction comparative study

The report which outlines the main trends and variations on the statute of limitation also includes country reports from the members in the LNI Dispute Resolution Group in Australia, Belgium, Brazil, Bulgaria, China, England and Wales, France, Germany, India, Luxembourg, Netherlands, Serbia, Spain, Sweden, Switzerland, and Turkey.

Specific queries should be addressed to the relevant LNI Members in the respective jurisdictions.

In the Statute of Limitation report created by the LNI Dispute Resolution Group we consider the question ‘which elements cause an interruption of the statute of limitation?’

The report discusses the Statute of Limitation rules applicable in the various jurisdictions of its members. providing a high-level comparison of the Statute of Limitation (prescription) rules applicable in a number of jurisdictions around the world and considers some key questions.

You can read the full report here: LNI Statute of Limitation Report

Which elements cause an interruption of the statute of limitation?

The interruption of the prescription ignores the time elapsed until the date of the interruption, and a new limitation period (in general with equal duration) starts to run as from that date.

The most common causes of interruption are ■ the acknowledgment / formal recognition of the obligation by the obligor / debtor and ■ taking judicial action against the obligor / debtor, sometimes completed by ■ other acts revealing the obligee’s / creditor’s intention to enforce his claim. Other causes of interruption are mentioned in the following table.

MAIN CAUSES OF INTERRUPTION
Jurisdiction:	Acknowledgment by the obligor	Filing a claim in court	Enforcement of the claim	Other
Austria	X	X
Belgium	X	X	X	Formal notice sent by registered mail (under certain conditions)
Brazil	X	X	X
Bulgaria	X	X	X
China	X	X		Obligee formally requests the obligor to fulfil its obligations
England and Wales				Generally not possible to argue interruption, only to agree time can “stand still”
France	X	X	X
Germany	X	X	X
India				Death of the obligee Good cause (discretion of the courts)
Luxembourg	X	X	X
Netherlands	X	X	X	Obligee requests the obligor to fulfil its obligations in writing
Serbia	X	X	X
Spain	X	X		Out of court claim received by the addressee
Sweden	X	X	X	Obligee requests the obligor to fulfil its obligations in writing
Switzerland	X	X	X
Turkey	X	X	X

For more details, please refer to the Country Reports in the full report: 
Statute of limitation: A multi-jurisdiction comparative study

The report which outlines the main trends and variations on the statute of limitation also includes country reports from the members in the LNI Dispute Resolution Group in Australia, Belgium, Brazil, Bulgaria, China, England and Wales, France, Germany, India, Luxembourg, Netherlands, Serbia, Spain, Sweden, Switzerland, and Turkey.

Specific queries should be addressed to the relevant LNI Members in the respective jurisdictions.

In the Statute of Limitation report created by the LNI Dispute Resolution Group we consider the question ‘which elements suspend limitation period?’

The report discusses the Statute of Limitation rules applicable in the various jurisdictions of its members. providing a high-level comparison of the Statute of Limitation (prescription) rules applicable in a number of jurisdictions around the world and considers some key questions.

You can read the full report here: LNI Statute of Limitation Report

Which elements suspend limitation period?

The suspension of the prescription implies that once the cause of suspension has disappeared, the period of limitation will start running again where it had stopped.

Several countries allow for different causes of suspension of the limitation period, which are then mainly defined by law, sometimes completed by other situations admitted by case law: Austria, Belgium, Bulgaria, China, France, Luxembourg, Netherlands, Serbia and Switzerland.

Other jurisdictions appear to be more restrictive and allow a suspension only in limited cases:

• Brazil: very few possibilities of suspension and mostly related to family law.
• Germany: only in case serious negotiations take place between parties.
• Sweden: only under very special circumstances.

In England & Wales, there are no legal grounds for suspension, but the parties can agree on a standstill agreement.

Finally, some countries exclude, as a general rule, suspensions of the statute of limitations (with minor exceptions): India, Spain and Turkey.

For more details, please refer to the Country Reports in the full report: 
Statute of limitation: A multi-jurisdiction comparative study

The report which outlines the main trends and variations on the statute of limitation also includes country reports from the members in the LNI Dispute Resolution Group in Australia, Belgium, Brazil, Bulgaria, China, England and Wales, France, Germany, India, Luxembourg, Netherlands, Serbia, Spain, Sweden, Switzerland, and Turkey.

Specific queries should be addressed to the relevant LNI Members in the respective jurisdictions.

In the Statute of Limitation report created by the LNI Dispute Resolution Group we consider the question ‘when is a claim considered time-barred?’

The report discusses the Statute of Limitation rules applicable in the various jurisdictions of its members. providing a high-level comparison of the Statute of Limitation (prescription) rules applicable in a number of jurisdictions around the world and considers some key questions.

You can read the full report here: LNI Statute of Limitation Report

When is a claim considered time-barred?

This table provides a general overview of the main limitation periods applicable in the various jurisdictions. Special attention needs however to be paid to the starting date of the period. In lots of jurisdictions, if such starting date is linked to subjective factors (e.g. knowledge), a maximum duration since the occurrence of the event is foreseen.

MAIN LIMITATION PERIODS
Jurisdiction:	General rule (if no specific limitation period applies)	Contracts	Torts	Unjust enrichment
Austria	30 years	30 years if no shorter period is foreseen	Generally 3 years	Generally 30 years
Belgium	30 years	5 years	10 years	10 years
Brazil	10 years	10 years	3 years	3 years
Bulgaria		5 years if no shorter limitation provided by law	5 years	5 years
China	3 years unless otherwise provided by law	3 years unless otherwise provided by law	3 years unless otherwise provided by law	3 years unless otherwise provided by law
England & Wales		6 years unless otherwise provided by law	6 years (3 years for personal injury) unless otherwise provided by law	6 years unless otherwise provided by law
France	5 years	5 years	10 years	5 years
Germany	3 years	3 years	10 years (30 years in case of body injuries)	3 years
India	3 years	3 years	1 to 3 years
Luxembourg	30 years	30 years (10 years in commercial matters)	30 years	30 years
Netherlands	20 years	5 years	5 years	5 years
Serbia		10 years (3 years in commercial matters)	3 years	10 years
Spain	5 years	5 years	1 year	5 years
Sweden	10 years	10 years (3 years for claims against consumers)	10 years	10 years
Switzerland	10 years	10 years	3 years	3 years
Turkey	10 years	10 years	2 years	2 years

For more details, please refer to the Country Reports in the full report: 
Statute of limitation: A multi-jurisdiction comparative study

The report which outlines the main trends and variations on the statute of limitation also includes country reports from the members in the LNI Dispute Resolution Group in Australia, Belgium, Brazil, Bulgaria, China, England and Wales, France, Germany, India, Luxembourg, Netherlands, Serbia, Spain, Sweden, Switzerland, and Turkey.

Specific queries should be addressed to the relevant LNI Members in the respective jurisdictions.

This statute of limitation report provides a high-level comparison of the statute of limitation (prescription) rules applicable in a number of jurisdictions around the world.

Read the report: Statute of limitation: A multi-jurisdiction comparative study

The report is based on the findings of the Dispute Resolution Group within Legal Network International (LNI) who have gathered and discussed the statute of limitation rules applicable in the various jurisdictions of its members.

The report which outlines the main trends and variations on the statute of limitation seeks to answer the following questions;

• What is the legal nature of prescription?
• Which statute of limitation rules are applicable if a local judge has to apply foreign law to a dispute?
• May a party decide to waive the application of the statute of limitation?
• When is a claim considered time-barred?
• Which elements suspend limitation period?
• Which elements cause an interruption of the statute of limitation?
• Which are the effects of the expiry of the limitation period?
• Is the setting off of a time-barred claim still possible?

It also includes country reports from members in the LNI  Dispute Resolution Group in Australia, Belgium, Brazil, Bulgaria, China, England and Wales, France, Germany, India, Luxembourg, Netherlands, Serbia, Spain, Sweden, Switzerland, and Turkey.

Specific queries should be addressed to the relevant LNI Members in the respective jurisdictions.

Read the report: Statute of limitation: A multi-jurisdiction comparative study

 

When a dispute arises, it is easy to get consumed with the contentious elements and to forget that the “resolution” in Dispute Resolution should always be the goal.

Achieving a “resolution” for a dispute is so much more than going through formal proceedings which can be costly and of course, time consuming.

Hamlins Dispute Resolution team usually views formal proceedings as the last resort. Where possible, the parties should take advantage of the pre-action phase to narrow down the issues in dispute and ultimately try to settle outside of formal proceedings.

Here are a few of the ways in which disputes can be resolved without recourse to formal proceedings:

 

Negotiation via informal correspondence or without prejudice meetings

Informal or off the record negotiation is the simplest and cheapest way to resolve a dispute as it often only requires the parties involved. Before a dispute gets escalated to corresponding through lawyers, experts etc., it is often sensible for the two disputing parties to try to have a full and frank commercial discussion about the issues and to reach a compromise as to the way forward. Commercial contracts between parties often suggest this as the first step of a dispute resolution procedure. Agreements reached through negotiation can be formalised in contracts or by an exchange of emails that record the agreement reached. If disputes lawyers are involved early enough, we can advise behind the scenes on points of law and strategy that can strengthen a position or indeed highlight weaknesses in a position. This insight can then go on to facilitate genuine negotiations before incurring the costs of more formal steps.

 

Mediation

Mediation can be seen as an extension of negotiation. It is essentially a meeting at which the parties discuss their disputes with the assistance of an impartial third person who assists them in reaching a settlement. The cost of this process will vary depending on how the parties want to prepare for and conduct the mediation. The parties will share the cost of the mediator’s involvement and it is preferable to have legal representation present. Mediation often takes all day (or sometimes longer depending on the parties) but if a settlement can be reached and at an early stage, it is frequently cheaper than formal proceedings and worthwhile pursuing. The mediation and resulting settlement agreement is private and confidential.

Expert Determination

This process is similar to mediation in that the parties appoint an independent third party, usually an expert in the relevant industry of the dispute, to assist in resolving the dispute. However, the expert goes further than a mediator and will actually assess the dispute and make a decision as to what they think the outcome should be. The parties will then, depending on whether or not they have agreed to be bound by the outcome of the determination: i) take the expert’s findings into account going forwards in resolving the dispute another way; or ii) be bound by the findings of the expert. Expert determinations are useful in disputes where specialist knowledge is required. They can be quick and the parties know the dispute is being decided by someone who knows their industry well.

These methods are not just reserved for the pre-action phase of a dispute and can be deployed at various times throughout the life of a dispute, even when formal proceedings have been issued. In those scenarios, disputes lawyers will be key in determining the methods to deploy to achieve the best results – but – the “resolution” is always down to the parties.

Get in touch to find out more about the Hamlins Dispute Resolution team  and how we can help you.