Contents
GENERAL ASSEMBLY RESOLUTION 35/52
UNCITRAL CONCILIATION RULES
Article 1: Application of the rules
Article 2: Commencement of
conciliation proceedings
Article 3: Number
of conciliators
Article 4: Appointment of
conciliators
Article 5: Submission of statements
to conciliator
Article 6: Representation and
assistance
Article 7: Role of conciliator
Article 8: Administrative
assistance
Article 9: Communication between
conciliator and parties
Article 10: Disclosure of
information
Article 11: Co-operation of
parties with conciliator
Article 12: Suggestions by parties
for settlement of dispute
Article 13: Settlement agreement
Article 14: Confidentiality
Article 15: Termination of
conciliation proceedings
Article 16: Resort to arbitral or
judicial proceedings
Article 17: Costs
Article 18:
Deposits
Article 19: Role of conciliator in
other proceedings
Article 20:
Admissibility of evidence in other proceedings
Model Conciliation Clause
RESOLUTION 35/52 ADOPTED BY
THE GENERAL ASSEMBLY ON 4 DECEMBER 1980
35/52. Conciliation Rules of the United Nations
Commission on International Trade Law
The General Assembly,
Recognizing the value of conciliation as a
method of amicably settling disputes arising in the context of international
commercial relations,
Convinced that the establishment of
conciliation rules that are acceptable in countries with different legal,
social and economic systems would significantly contribute to the development
of harmonious international economic relations,
Noting that the Conciliation Rules of the
United Nations Commission on International Trade Law were adopted by the
Commission at its thirteenth session1 after consideration of the
observations of Governments and interested organizations,
1. Recommends the use of the Conciliation
Rules of the United Nations Commission on International Trade Law in cases
where a dispute arises in the context of international commercial relations and
the parties seek an amicable settlement of that dispute by recourse to
conciliation;
2. Requests the Secretary-General to arrange
for the widest possible distribution of the Conciliation Rules.
____________________
1 Official Records of the General
Assembly, Thirty-fifth Session, Supplement No. 17 (A/35/17), paras. 105 and
106
UNCITRAL
CONCILIATION RULES
APPLICATION OF THE RULES
Article 1
(1) These Rules apply to conciliation of disputes
arising out of or relating to a contractual or other legal relationship where
the parties seeking an amicable settlement of their dispute have agreed that
the UNCITRAL Conciliation Rules apply.
(2) The parties may agree to exclude or vary any of
these Rules at any time.
(3) Where any of these Rules is in conflict with a
provision of law from which the parties cannot derogate, that provision
prevails.
COMMENCEMENT OF CONCILIATION
PROCEEDINGS
Article 2
(1) The party initiating conciliation sends to the
other party a written invitation to conciliate under these Rules, briefly
identifying the subject of the dispute.
(2) Conciliation proceedings commence when the other
party accepts the invitation to conciliate. If the acceptance is made orally,
it is advisable that it be confirmed in writing.
(3) If the other party rejects the invitation, there
will be no conciliation proceedings.
(4) If the party initiating conciliation does not
receive a reply within thirty days from the date on which he sends the
invitation, or within such other period of time as specified in the invitation,
he may elect to treat this as a rejection of the invitation to conciliate. If
he so elects, he informs the other party accordingly.
NUMBER OF CONCILIATORS
Article 3
There shall be one conciliator unless the parties
agree that there shall be two or three conciliators. Where there is more than
one conciliator, they ought, as a general rule, to act jointly.
APPOINTMENT OF CONCILIATORS
Article 4
(1) (a) In conciliation proceedings with one
conciliator, the parties shall endeavour to reach agreement on the name of a
sole conciliator;
(b) In conciliation proceedings with two
conciliators, each party appoints one conciliator;
(c) In conciliation proceedings with three
conciliators, each party appoints one conciliator. The parties shall endeavour
to reach agreement on the name of the third conciliator.
(2) Parties may enlist the assistance of an
appropriate institution or person in connexion with the appointment of
conciliators. In particular,
(a) A party may request such an institution
or person to recommend the names of suitable individuals to act as conciliator;
or
(b) The parties may agree that the
appointment of one or more conciliators be made directly by such an institution
or person.
In recommending or appointing individuals to act as
conciliator, the institution or person shall have regard to such considerations
as are likely to secure the appointment of an independent and impartial
conciliator and, with respect to a sole or third conciliator, shall take into
account the advisability of appointing a conciliator of a nationality other
than the nationalities of the parties.
SUBMISSION OF STATEMENTS TO
CONCILIATOR
Article 5
(1) The conciliator,* upon his appointment, requests
each party to submit to him a brief written statement describing the general
nature of the dispute and the points at issue. Each party sends a copy of his
statement to the other party.
(2) The conciliator may request each party to submit
to him a further written statement of his position and the facts and grounds in
support thereof, supplemented by any documents and other evidence that such
party deems appropriate. The party sends a copy of his statement to the other
party.
(3) At any stage of the conciliation proceedings the
conciliator may request a party to submit to him such additional information as
he deems appropriate.
__________________
*In this and all following articles, the term
"conciliator" applies to a sole conciliator, two or three conciliators, as the
case may be.
REPRESENTATION AND ASSISTANCE
Article 6
The parties may be represented or assisted by
persons of their choice. The names and addresses of such persons are to be
communicated in writing to the other party and to the conciliator; such
communication is to specify whether the appointment is made for purposes of
representation or of assistance.
ROLE OF CONCILIATOR
Article 7
(1) The conciliator assists the parties in an
independent and impartial manner in their attempt to reach an amicable
settlement of their dispute.
(2) The conciliator will be guided by principles of
objectivity, fairness and justice, giving consideration to, among other things,
the rights and obligations of the parties, the usages of the trade concerned
and the circumstances surrounding the dispute, including any previous business
practices between the parties.
(3) The conciliator may conduct the conciliation
proceedings in such a manner as he considers appropriate, taking into account
the circumstances of the case, the wishes the parties may express, including
any request by a party that the conciliator hear oral statements, and the need
for a speedy settlement of the dispute.
(4) The conciliator may, at any stage of the
conciliation proceedings, make proposals for a settlement of the dispute. Such
proposals need not be in writing and need not be accompanied by a statement of
the reasons therefor.
ADMINISTRATIVE ASSISTANCE
Article 8
In order to facilitate the conduct of the
conciliation proceedings, the parties, or the conciliator with the consent of
the parties, may arrange for administrative assistance by a suitable
institution or person.
COMMUNICATION BETWEEN CONCILIATOR AND
PARTIES
Article 9
(1) The conciliator may invite the parties to meet
with him or may communicate with them orally or in writing. He may meet or
communicate with the parties together or with each of them separately.
(2) Unless the parties have agreed upon the place
where meetings with the conciliator are to be held, such place will be
determined by the conciliator, after consultation with the parties, having
regard to the circumstances of the conciliation proceedings.
DISCLOSURE OF INFORMATION
Article 10
When the conciliator receives factual information
concerning the dispute from a party, he discloses the substance of that
information to the other party in order that the other party may have the
opportunity to present any explanation which he considers appropriate. However,
when a party gives any information to the conciliator subject to a specific
condition that it be kept confidential, the conciliator does not disclose that
information to the other party.
CO-OPERATION OF PARTIES WITH
CONCILIATOR
Article 11
The parties will in good faith co-operate with the
conciliator and, in particular, will endeavour to comply with requests by the
conciliator to submit written materials, provide evidence and attend meetings.
SUGGESTIONS BY PARTIES FOR
SETTLEMENT OF DISPUTE
Article 12
Each party may, on his own initiative or at the
invitation of the conciliator, submit to the conciliator suggestions for the
settlement of the dispute.
SETTLEMENT AGREEMENT
Article 13
(1) When it appears to the conciliator that there
exist elements of a settlement which would be acceptable to the parties, he
formulates the terms of a possible settlement and submits them to the parties
for their observations. After receiving the observations of the parties, the
conciliator may reformulate the terms of a possible settlement in the light of
such observations.
(2) If the parties reach agreement on a settlement
of the dispute, they draw up and sign a written settlement agreement.** If
requested by the parties, the conciliator draws up, or assists the parties in
drawing up, the settlement agreement.
(3) The parties by signing the settlement agreement
put an end to the dispute and are bound by the agreement.
__________________
**The parties may wish to consider including in the
settlement agreement a clause that any dispute arising out of or relating to
the settlement agreement shall be submitted to arbitration.
CONFIDENTIALITY
Article 14
The conciliator and the parties must
keep confidential all matters relating to the conciliation proceedings.
Confidentiality extends also the settlement agreement, except where its
disclosure is necessary for purposes of implementation and enforcement.
TERMINATION OF CONCILIATION
PROCEEDINGS
Article 15
The conciliation proceedings are terminated:
(a) By the signing of the settlement
agreement by the parties, on the date of the agreement; or
(b) By a written declaration of the
conciliator, after consultation with the parties, to the effect that further
efforts at conciliation are no longer justified, on the date of the
declaration; or
(c) By a written declaration of the parties
addressed to the conciliator to the effect that the conciliation proceedings
are terminated, on the date of the declaration; or
(d) By a written declaration of a party to
the other party and the conciliator, if appointed, to the effect that the
conciliation proceedings are terminated, on the date of the declaration.
RESORT TO ARBITRAL OR JUDICIAL
PROCEEDINGS
Article 16
The parties undertake not to initiate, during the
conciliation proceedings, any arbitral or judicial proceedings in respect of a
dispute that is the subject of the conciliation proceedings, except that a
party may initiate arbitral or judicial proceedings where, in his opinion, such
proceedings are necessary for preserving his rights.
COSTS
Article 17
(1) Upon termination of the conciliation
proceedings, the conciliator fixes the costs of the conciliation and gives
written notice thereof to the parties. The term "costs" includes only:
(a) The fee of the conciliator which shall
be reasonable in amount;
(b) The travel and other expenses of the
conciliator;
(c) The travel and other expenses of
witnesses requested by the conciliator with the consent of the parties;
(d) The cost of any expert advice requested
by the conciliator with the consent of the parties;
(e) The cost of any assistance provided
pursuant to articles 4, paragraph (2)(b), and 8 of these Rules.
(2) The costs, as defined above, are borne equally
by the parties unless the settlement agreement provides for a different
apportionment. All other expenses incurred by a party are borne by that party.
DEPOSITS
Article 18
(1) The conciliator, upon his
appointment, may request each party to deposit an equal amount as an advance
for the costs referred to in article 17, paragraph (1) which he expects will be
incurred.
(2) During the course of the conciliation
proceedings the conciliator may request supplementary deposits in an equal
amount from each party.
(3) If the required deposits under paragraphs (1)
and (2) of this article are not paid in full by both parties within thirty
days, the conciliator may suspend the proceedings or may make a written
declaration of termination to the parties, effective on the date of that
declaration.
(4) Upon termination of the conciliation
proceedings, the conciliator renders an accounting to the parties of the
deposits received and returns any unexpended balance to the parties.
ROLE OF CONCILIATOR IN OTHER
PROCEEDINGS
Article 19
The parties and the conciliator undertake that the
conciliator will not act as an arbitrator or as a representative or counsel of
a party in any arbitral or judicial proceedings in respect of a dispute that is
the subject of the conciliation proceedings. The parties also undertake that
they will not present the conciliator as a witness in any such proceedings.
ADMISSIBILITY OF EVIDENCE IN OTHER
PROCEEDINGS
Article 20
The parties undertake not to rely on
or introduce as evidence in arbitral or judicial proceedings, whether or not
such proceedings relate to the dispute that is the subject of the conciliation
proceedings;
(a) Views expressed or suggestions made by
the other party in respect of a possible settlement of the dispute;
(b) Admissions made by the other party in
the course of the conciliation proceedings;
(c) Proposals made by the conciliator;
(d) The fact that the other party had
indicated his willingness to accept a proposal for settlement made by the
conciliator.
MODEL
CONCILIATION CLAUSE
Where, in the event of a dispute arising out of or
relating to this contract, the parties wish to seek an amicable settlement of
that dispute by conciliation, the conciliation shall take place in accordance
with the UNCITRAL Conciliation Rules as at present in force.
(The parties may agree on other conciliation
clauses.)
* * *
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