论仲裁员面临的欺诈问题(英文)

通过仲裁程序来洗钱和进行其他形式的欺诈在仲裁中鲜有发生,但一旦出现将为仲裁员带来一大难题。研究这个领域的学者是极少的,本文将分析他们关于仲裁员调查欺诈的方法以及当欺诈被发现时仲裁员应如何处理的建议。这些学者着眼于若干个独立的关键问题。然而,笔者认为如果能够合并审视这些问题,并据此形成足供仲裁员于面临仲裁中欺诈时的参考,如此整合式的思考,应是更好解决此一难题的方法。本文将关注以下重点:仲裁员的义务、仲裁员处理欺诈的方法、当欺诈被觉察时的处理方法,以及向有关机关汇报欺诈和保密义务的遵守之间的关联。本文将据此作出结论:当一个仲裁员发现当事人有利用仲裁程序来洗钱或者其他形式欺诈的嫌疑时,他应即进行调查,而不应该将问题留待司法机构依照司法程序解决;仲裁员在欺诈发生时,有义务即时调查处理。然而,有些仲裁员对其是否应就仲裁中欺诈即时调查处理,并不确定。因此确定此义务的存在,有助于釐清仲裁员的疑问。笔者认为,当一个仲裁员确信欺诈切实发生时,他应暂停据此协议而为之仲裁程序,并且即时将相关信息通知有关当局。     

To Disclose or not to Disclose? That is the Question in Collaborative Law

Collaborative Law (CL) is a dispute resolution process increasingly used in family law and divorce designed to encourage problem solving negotiations by parties represented by counsel. Many states have adapted legislation to authorize and facilitate CL and thousands of lawyers have been trained in the CL process. CL lawyers and participants sign a Participation Agreement in which they agree that the lawyers will be disqualified if the CL process terminates without settlement. They also promise full and voluntary disclosure of information. The extent of the obligation of disclosure is, however, unclear. Through analysis of an extended hypothetical divorce settlement negotiation, this article advocates that CL lawyers and clients should assume an obligation to disclose material facts without a request from the other side. Traditional legal ethics, based on an adversarial framework, requires only disclosure of information when requested by another party. In addition, in traditional legal ethics, a lawyer cannot disclose information obtained in the course of the lawyer‐client relationship without the client's consent even if material to the negotiation. Some authority regulating CL, however, suggests that CL participants and counsel should disclose material information without a specific request even if a client does not want the information disclosed. In that situation, the CL lawyer should encourage the client to disclose the information but if the client refuses to do so, withdraw from the representation. This Article reviews the arguments for and against an obligation of affirmative disclosure in CL. It suggests that affirmative disclosure obligations should be the subject of discussion between CL participants and lawyers and that CL Participation Agreements should be drafted to establish a clear obligation. Finally, this article identifies key areas for further discussion and research on CL disclosure obligations.     

The Protection of Confidentiality in Australian Family Law

This paper identifies and discusses the legislative provisions which protect confidentiality in family law proceedings in Australia. The purpose of discussing these protections is two‐fold: firstly, to identify the scope and operation of these protections for Australian legal practitioners; secondly, to allow comparison of Australian protections to those offered in other jurisdictions. This paper will consider duties of confidentiality and evidential privileges in the context of settlement negotiation, mediation, arbitration, lawyer‐client relationships and medical, counselling and other therapeutic relationships. The rationale for the protection of confidentiality in some of these relationships and circumstances, but not in others, will also be considered in an attempt to understand why it is so.     

Confidentiality and Privilege for Family and Child Protection Mediation: A Roadmap for Navigating the Innovation,Inconsistency and Confusion

This article will identify the inconsistency and confusion in mediation regarding the definition of mediation, the role of the mediator, and the difference between mediation confidentiality and privilege. Further, it will discuss the confusion and inconsistency in the protection of mediation communication, specifically regarding the definition of mediation communication, the time frame for protected communication, waiver of the protections and exceptions to protected mediation communication. It will provide a roadmap and fact pattern for determining whether mediation communications are protected and if so, the protection they are afforded. Lastly, it will offer recommendations so parties, professionals and the courts may better understand and reap the benefits of mediation.     

The right of caregivers to access health information of relatives with mental illness

This article reviews the legal, ethical and practical challenges of complying with the Ontario Personal Health Information Protection Act (PHIPA) within the context of a Canadian mental health system that is overburdened and under resourced. The advent of deinstitutionalization has placed significantly increased responsibilities on the families of mentally ill individuals. While research evidences that involving family members in the care of their mentally ill relatives improves treatment outcomes, mental health practitioners constantly face the challenge of engaging family caregivers while also complying with privacy laws. The authors propose an Ontario Caregiver Recognition Act (OCRA) to formally recognize family caregivers as informal health information custodians based on the practice of other jurisdictions which incorporate the rights of family members actively engaged in providing care to their mentally ill relatives.