The "Mandatory Third Party Decision" or "TDO" is a method of preventing or resolving conflicts highlighted by the French Bar Association of Brussels, whereby the parties mandate, upon the intervention of the President of the Bar, a third party (the Third Party Decision Maker) who is neither an arbitrator nor a judge, to give a ruling on one or more disputed points of a legal or technical nature.

In other words, the parties entrust a third party with the power to make a decision for them, in order to complete their contract or to settle all or part of a dispute, without setting up an arbitration procedure.

This alternative dispute resolution method has many advantages, including

• a certain flexibility: the parties determine the legal and, if necessary, technical points that they intend to settle by TDO, with the possibility of amending, clarifying or completing the mission of the Third Party Decider during the process, in agreement with the latter;

• a certain speed: unless otherwise agreed between the parties and the Third-Party Decider, the decision must be taken within six months from the beginning of the Third-Party Decider's mission and this period can only be extended by mutual agreement or by the President of the Bar for compelling reasons. Also, the TDO process may not include any hearing of witnesses, nor any investigative measures;

• guarantees of discretion, competence and impartiality: neither the TDO process nor the decision is published. The Third Party Deciders are lawyers approved as such by their Bar Association, bound by an obligation of confidentiality. They can only accept or carry out their mission if they are able to do so, sufficiently available and independent of the parties;

• a certain predictability of cost: on the one hand, the administrative costs of the Order are fixed (currently 300€). On the other hand, the Third-Party Decider must inform the parties, as soon as he is appointed, of the method of calculation of his costs and fees. Unless otherwise agreed between the parties and the Third-Party Decider, these consist of either a fixed fee or a percentage of the financial stakes of the case or the dispute.

When issued, the TDO constitutes a contract between the parties which they undertake to apply or perform in good faith. The decision is therefore not res judicata and as such does not constitute an enforceable title. The parties, or one of them, may, however, ask the judge to take note of the TDO and to attach the necessary judicial consequences to it in a judgment. Similarly, in the event of non-performance, the more diligent party will apply to a court to have the TDO sanctioned and enforced.

The TDO may lose its binding character only on one of the following grounds, to be assessed by the judge seized of the dispute: (a) if it is contrary to public policy; (b) if the TDO procedure is vitiated by fraud; (c) if the third-party decision-maker has exceeded the powers granted to him or her by the TDO agreement; or (d) if the third-party decision-maker has failed to comply with the procedure provided for.

At CEW & Partners, we favour, whenever possible, the amicable resolution of disputes and alternative dispute resolution methods such as conciliation and mediation. Several of our partners are also active in arbitration.

Two of our partners - Me Sadri ELLOUZE and Me Marc-David WEINBERGER - have been approved as Third Party Deciders by the French Bar Association of Brussels and can intervene to settle disputes in contract law, liability law, real estate law and banking and financial law.

Mr. Sadri Ellouze has been a member of the Brussels Bar since November 2000. His main areas of practice are leases and commercial leases, construction law, contract and distribution law, expropriation for public utility purposes and real rights.

Marc-David Weinberger has been a member of the Brussels Bar since October 2001. His main areas of practice are company law, contract and distribution law, banking and credit law (specialisation) and financial law (specialisation)

For more information, you can contact them at the following addresses sadri.ellouze@cew-law.be and md.weinberger@cew-law.be