Rules of Optional Conciliation of the International Chamber of Commerce

Rules of Optional Conciliation of the International Chamber of Commerce

FOREWORD

The current ICC Rules of Conciliation came into force on 1 January 1988. Conciliation is a process independent of arbitration. It remains entirely optional unless the parties have otherwise agreed. The ICC Rules of Arbitration do not require the parties to attempt conciliation prior to commencing an arbitration. So, too, the Rules of Optional Conciliation permit conciliation to be attempted without requiring that the dispute be referred to arbitration thereafter if the conciliation effort is unsuccessful.

ICC RULES OF OPTIONAL CONCILIATION
(in force as from 1 January 1988)

Preamble
Settlement is a desirable solution for business disputes of an international character. The International Chamber of Commerce therefore sets out these Rules of Optional Conciliation in order to facilitate the amicable settlement of such disputes.

Article 1
All business disputes of an international character may be submitted to conciliation by a sole conciliator appointed by the International Chamber of Commerce.

Article 2
The party requesting conciliation shall apply to the Secretariat of the International Court of Arbitration of the International Chamber of Commerce setting out succinctly the purpose of the request and accompanying it with the fee required to open the file, as set out in the Appendix hereto.

Article 3
The Secretariat of the International Court of Arbitration shall, as soon as possible, inform the other party of the request for conciliation. That party will be given a period of 15 days to inform the Secretariat whether it agrees or declines to participate in the attempt to conciliate.

If the other party agrees to participate in the attempt to conciliate it shall so inform the Secretariat within such period.

In the absence of any reply within such period or in the case of a negative reply the request for conciliation shall be deemed to have been declined. The Secretariat shall, as soon as possible, so inform the party which had requested conciliation.

Article 4
Upon receipt of an agreement to attempt conciliation, the Secretary General of the International Court of Arbitration shall appoint a conciliator as soon as possible. The conciliator shall inform the parties of his appointment and set a time limit for the parties to present their respective arguments to him.

Article 5
The conciliator shall conduct the conciliation process as he thinks fit, guided by the principles of impartiality, equity and justice.

With the agreement of the parties, the conciliator shall fix the place for conciliation.

The conciliator may at any time during the conciliation process request a party to submit to him such additional information as he deems necessary.

The parties may, if they so wish, be assisted by counsel of their choice.

Article 6
The confidential nature of the conciliation process shall be respected by every person who is involved in it in whatever capacity.

Article 7
The conciliation process shall come to an end:
(a) Upon the parties signing an agreement. The parties shall be bound by such agreement. The agreement shall remain confidential unless and to the extent that its execution or application require disclosure.
(b) Upon the production by the conciliator of a report recording that the attempt to conciliate has not been successful. Such report shall not contain reasons.
(c) Upon notification to the conciliator by one or more parties at any time during the conciliation process of an intention no longer to pursue the conciliation process.

Article 8
Upon termination of the conciliation, the conciliator shall provide the Secretariat of the International Court of Arbitration with the settlement agreement signed by the parties or with his report of lack of success or with a notice from one or more parties of the intention no longer to pursue the conciliation process.

Article 9
Upon the file being opened, the Secretariat of the International Court of Arbitration shall fix the sum required to permit the process to proceed, taking into consideration the nature and importance of the dispute. Such sum shall be paid in equal shares by the parties.

This sum shall cover the estimated fees of the conciliator, expenses of the conciliation, and the administrative expenses as set out in the Appendix hereto.

In any case where, in the course of the conciliation process, the Secretariat of the Court shall decide that the sum originally paid is insufficient to cover the likely costs of the conciliation, the Secretariat shall require the provision of an additional amount which shall be paid in equal shares by the parties.

Upon termination of the conciliation, the Secretariat shall settle the total costs of the process and advise the parties in writing.

All above costs shall be borne in equal shares by the parties except and insofar as a settlement agreement provides otherwise.

A party’s other expenditures shall remain the responsibility of that party.

Article 10
Unless the parties agree otherwise, a conciliator shall not act in any judicial or arbitration proceeding relating to the dispute which has been the subject of the conciliation process whether as an arbitrator, representative or counsel of a party.

The parties mutually undertake not to call the conciliator as a witness in any such proceedings, unless otherwise agreed between them.

Article 11
The parties agree not to introduce in any judicial or arbitration proceeding as evidence or in any manner whatsoever:
(a) any views expressed or suggestions made by any party with regard to the possible settlement of the dispute;
(b) any proposals put forward by the conciliator;
(c) the fact that a party had indicated that it was ready to accept some proposal for a settlement put forward by the conciliator.

APPENDIX
SCHEDULE OF CONCILIATION COSTS

(a) Each party to a dispute submitted to conciliation under the ICC Rules of Optional Conciliation is required to make an advance payment of US $500 on the administrative expenses. No request for conciliation shall be entertained unless accompanied by the appropriate payment. This payment is not recoverable and becomes the property of the ICC. Such payment by a party shall be credited to the portion of the administrative expenses for the conciliation of such party.

(b) The administrative expenses for a conciliation procedure shall be fixed at one-quarter of the amount calculated in accordance with the scale of administrative expenses as set out in Appendix III of the ICC Rules of Arbitration. Where the sum in dispute in a conciliation procedure is not stated, the Secretary General of the International Court of Arbitration (the “Court”) shall fix the administrative expenses at his discretion.

(c) The fee of the conciliator to be paid by the parties shall be fixed by the Secretary General of the Court. Such fee shall be reasonable in amount, taking into consideration the time spent, the complexity of the dispute and any other relevant circumstances.

(d) Amounts paid to the conciliator do not include any possible value-added taxes (VAT) or other taxes or charges and imposts applicable to the conciliator’s fees. Parties are expected to pay any such taxes or charges; however, the recovery of any such charges or taxes is a matter solely between the conciliator and the parties.

Appendix III of the ICC Rules of arbitration

Request

The party requesting conciliation shall apply to the Secretariat of the International Court of Arbitration of the International Chamber of Commerce setting out succinctly the purpose of the request and accompanying it with the filing fee amounting to US$ 500.

The Request for conciliation should be sent to:

The Secretariat of the International Court of Arbitration
38, Cours Albert 1er
75008
Paris France

Tel. +33 1 49 53 28 28
Fax +33 1 49 53 29 33

Banking instructions are as follows:

– by cheque to the order of the INTERNATIONAL CHAMBER OF COMMERCE

or

– By wire transfer to our account no. 25047-0-30-01 at:

BANK SARASIN & CIE

Elisabethenstrasse 62
CH-4002 Basel
Switzerland

(Please identify creditor)

Process

Features of the ICC conciliation are simplicity, flexibility, confidentiality and rapidity. From beginning to end, the process is voluntary. After receiving the request for conciliation, the Secretariat of the International Court of Arbitration informs the other party of the request. The other party is free to agree or to decline to participate in the attempt to conciliate within a period of 15 days (Article 3). Upon receipt of the agreement, the Secretary General of the International Court of Arbitration appoints a conciliator as soon as possible (Article 4). Apart from the requirement that the conciliator must be “guided by the principles of impartiality, equity and justice”, he conducts the conciliation process as he thinks fit (Article 5). The process comes to an end upon signature by the parties of an agreement, upon a conciliator’s report recording that “the attempt to conciliate has not been successful”, or upon the notification to the conciliator by one or more parties of the “intention no longer to pursue the conciliation process” (Article 7). The process is governed by confidentiality (Articles 6) and this duty remains after the end of the process because the agreement is confidential (Article7) and the conciliator, unless the parties agree otherwise, “shall not act in any judicial or arbitration proceedings relating to the dispute” (Articles 10 and 11).

Costs

The filing fee amounts to US$ 500 and is an advance on administrative expenses. Such payment by a party shall be credited to the portion of the administrative expenses for the Conciliation of such party. The ICC administrative expenses shall be fixed at one-quarter of the amount applicable in an arbitration as set out in Appendix III of ICC Rules of arbitration ansd shall be borne in equal shares by the parties.The Secretary General fixes the conciliator’s remuneration. Its fee is fixed in a “reasonable amount, taking into consideration the time spent, the complexity of the dispute and any other relevant circumstances” (Appendix to the ICC Rules of Optional Conciliation).

Source: ICC