GOVERNING LAW – ARBITRATION & CONCILIATION ACT 1996 Till 24th Jan 1996, the law of Arbitration was contained in the Arbitration Act 1940. The Arbit Arbitra ratio tion n (Proto (Protocol col and and Conven Conventio tion) n) Act Act and the Foreig Foreign n Award Awards s (Recog (Recognit nition ion and enforcement) Act 1961. Recently, the law of Arbitration Arbitration has been consolidated and amended on the lines of UNCITRAL Model Law of International Commercial Arbitration and UNCITRAL Conciliation Rules, under the new Arbitration & Conciliation Act 1996, which came into force w.e.f. 25th Jan 1996. Act has repealed the aforesaid three enactments though the pending arbitral proceedings would continue to be governed by the repealed enactments, unless otherwise agreed by the parties. The Act apart from providing the domestic as well as international commercial arbitration provides for greater autonomy in the arbitral process while at the same time limits the role of judiciary. The law on arbitration places the country’s dispute resolving mechanism mechanism at par with internal community to do more business with India. The Act has eliminated court intervention in arbitration proceedings and the final award, by narro narrowin wing g the scope scope for challe challengi nging ng arbitr arbitrat ation ion procee proceedin dings gs and and the final final award award,, by narro narrowin wing g the scope scope for chall challeng enging ing arbit arbitra ratio tion n and and by obviat obviating ing the requi requirem rement ent for ratification of arbitral awards. The new law arbitration applies to the whole of India. To the State of Jammu and Kashmir, while the provisions relating to enforcement of foreign awards apply in full other provisions apply insofar as they relate to international international commercial arbitration.
DOMESTIC ARBITRATION Arbitration – Meaning Arbitration is a mode of settling disputes, by referring them to a nominated person who decides the issue in a quasi-judicial manner after hearing both sides. For instance, reference of a dispute of ‘Panch” or ‘Panchayat’ is a prevalent form of Arbitration. Thus, Arbitration is the means by which parties to a dispute get the same settled through the intervention of a third person, but without having recourse to a court of law. Arbitration Agreement / Clause When the parties to a present dispute make an agreement that instead of going to the court, they shall refer the dispute to Arbitration, the agreement is called “Arbitration Agreement”. The The parti parties es may also also agree agree in antic anticipa ipatio tion n of all ‘Arbi ‘Arbitra tratio tion n claus clause’ e’ in a contra contract. ct. For instance in a contract of partnership, or sale of goods, or insurance, or carriage of goods, etc., the parties may agree to and include an Arbitration Clause. Specimen of Arbitration Clause “Any dispute arising out of this agreement, or as to interpretation operation or enforcement of the terms terms of this…A this…Agr greem eement ent,, betwee between n the partie parties s or their their legal legal repr represe esenta ntativ tives, es, assignees, nominees or heirs, as the caser may be, shall be referred for adjudication to the arbit arbitra rator tors s to be appoi appointe nted d by each each party party to the dispute, dispute, and and the proceedi proceeding ngs s of such such appointed by each party to the dispute, and the proceedings of such Arbitration shall be governed by the provisions of the Arbitration and Conciliation Act, 1996, or any statutory modification or re-enactment thereof for the time being in force, and the award or awards of such Arbitration Arbitration or the umpire, as the case case may be, shall shall be binding on the parties to the said dispute”. Effects of Arbitration Clause: Where an Arbitration clause is included in a contract, and the contract contract is avoided avoided due to misrepre misrepresent sentation ation or fraud, fraud, the Arbitration Arbitration clause clause may still still continue to be binding. Where, however, there was no contract at all between the parties or contract was void ab initio, the Arbitration clause cannot be enforced. Form of Agreement: An Arbitration agreement/clause agreement/clause must be in writing. Although no formal document is prescribed, however, it must be clear from the document that the parties had agreed to the settlement of dispute through arbitration. Where the Arbitration agreement or clause is contained in a document, the document must be signed by the parties. Besides, the Arbitration agreement may be established by – a) An exchange exchange of letters, telex, telegram telegram or other means of telecommunication; telecommunication; or b) An exchange exchange of statement statement of claim claim and defenses defenses in which the agreem agreement ent is alleged alleged by one party and is not by the other. Advantages of Arbitration Arbitration Arbitration has the following advantages over a lawsuit 1. Arbitra Arbitration tion is less less costly costly than a suit in in a court court of law. law. 2. It is very simple simple and more more expeditiou expeditious, s, and serves serves the parties parties form form waste of time time and the irritation caused thereby. 3. Its proceedings proceedings are are conducted conducted in closed closed doors doors and thus the dispute is is not publicized. 4. The award award is generally generally final final since appeal is permitted only only in certain certain cases. cases. No suit lied in case of Arbitration Agreement. Agreement.
When the parties have entered into an Arbitration agreement, they cannot file a suit in court of law in respect of any matter covered by the agreement, otherwise the very purpose of Arbitration Arbitration will be frustrated. The court will not intervene except under specified cases. However, if any party disregards the agreement and files a suit, the other party may apply to the court for referring the dispute to Arbitration. Arbitration. The application should be made not later than the submission of the first statement on the substance of the dispute and should be accompanied by the original Arbitration agreement or duly certified copy thereof. The court shall then refer the matter to Arbitration. An arbitration may be commenced or continued and an award made even when the application as aforesaid is pending, provided there is a pre-existing Arbitration agreement. If there is no pre-existing Arbitration agreement when a suit is filed no reference to Arbitration can be made even if. After the filing of the suit, the parties agree to a reference being made to Arbitration. Why may refer to Arbitration? An arbitration agreement is a contract and thus, any party to such an agreement must have the capacity to contract. Primarily, any person competent to contract may enter into an arbitration agreement with the other party to the dispute and may refer the dispute to Arbitration. Besides, the Karta or Manager of and on behalf of a Joint Hindu family, an agent duly authorized by his principal, an attorney or consult having the requisite authority from his client, a partner with specific authority from all other partners, a trustee of a trust, an Official Assignee or receiver, and a guardian or minor or lunatic, may also refer a dispute to Arbitration. What Dispute may be referred? As per Section 7, parties to an Arbitration Arbitration agreement may refer to Arbitration, a dispute – 1. Which Which is arise arisen n or which which may may arise arise betwe between en them them 2. In respect respect of defined defined legal legal relations relationship, hip, whethe whetherr contracte contracted d or not. Thus, all matters of civil nature whether they relate to present or future disputes may form the subject matters of civil nature whether they relate to present or future disputes may legal relationship. The legal relationship arises out of an obligation, the preference of which is duty duty under under the law law and and for its breach breach a remedy remedy is provid provided. ed. The legal relatio relationsh nship, ip, howeve however, r, need need not necess necessar arily ily be contr contract actual ual.. Thus Thus dis disput putes es such such as infrin infringem gement ent of intellectual intellectual property rights shall also be covered.
1. 2. 3. 4. 5. 6. 7.
What Disputes cannot be referred? The following disputes cannot be referred to Arbitration: Insolvency proceedings Lunacy proceedings Proc Procee eedi ding ngs s for for appo appoin intm tmen entt of of a guar guardi dian an to a min minor or Quest Question ion of genu genuine inenes ness s or otherw otherwis ise e of a wil willl or matter matter relati relating ng to to issue issue of prob probate ate Matters of of cr criminal na nature Matt Matter ers s conc concer erni ning ng Publ Public ic Char Charit itab able le Trus Trusts ts Disp Disput utes es aris arisin ing g from from and and fou found nded ed on an ille illega gall cont contra ract ct.. Waiver of Right to Object to Arbitration If a party has not complied with a provision of the Act or with some requirement of the Arbitration agreement, and the other party who has knowledge of such non-compliance, does not object at the earliest, he will be deemed to have waived the objection and cannot raise raise it at a later later stage. stage. In other other words, words, once a party party has has parti particip cipate ated d in Arbit Arbitra ratio tion n proceedings, despite some illegality, which would otherwise render the proceedings invalid, the proceedings cannot be challenged later on the ground of such illegality. illegality. Appointment of an Arbitrator An Arbitrator is the person appointed, with or with out mutual consent of the contending parties parties for the purpose of investig investigatio ation n and settlement settlement of a differen difference ce of dispute dispute referred to him. The arbitral tribunal may be constituted by one or more arbitrators. arbitrators.
Who may be appointed? The arbitrator is an extra judicial court or the parties’ own choice. There are no hard a fast rules as to the qualifications of an arbitrator. Thus, the parties may appoint as arbitrator, whomsoever they please, however incompetent or unfit, to arbitrate on their dispute. However, it is in the interest of all the parties that the arbitrator is person of integrity and intelligence, intelligence, known for his impartial behavior, rational judgment and competence. Number of Arbitrators The reference may be made either to a single arbitrator arbitrator or a panel of odd number (i.e. 3,5,7 etc) of arbitrators. The parties are free to fix the number of arbitrators by agreement. If there is no agreement, the reference shall be made a sole arbitrator. Nationality of Arbitrators Unless otherwise agreed by the parties, arbitrator may be of any nationality. In case of an international commercial arbitration, where the parties belong to different nationalities, the Chief Justice of India may appoint an arbitrator of a nationality other than that of the parties. Disqualifications A person is disqualified from being appointed as an arbitrator if he has a personal interest in the matter to be referred for arbitration. It is the duty or the person being appointed as an Arbitrator, to disclose in writing any circumstances likely to give rise to justifiable doubts as to his independence or impartiality, so that each party may have opportunity of considering whethe whetherr the refer referenc ence e to that that parti particul cular ar indivi individua duall should should or should should not be made. made. Any fraudulent concealment of interest shall invalidate the arbitral award. Appointment by Agreement The parties are free to agree on a procedure for appointing the arbitrator or arbitrators. If ther there e is an agre agreem emen ent, t, the the appo appoin intm tmen entt has has to be made made in acco accord rdan ance ce with with it. it. The The agreement may provide for number of arbitrators, qualifications or arbitrator, procedure of appointme appointment, nt, procedur procedure e of challeng challenging ing the appointme appointment, nt, terminat termination ion of appointme appointment, nt, procedure to be followed by arbitrator(s), interim measures that may be ordered by the arbitrator, arbitrator, place of arbitration, language etc. Appointment of sole arbitrator by agreement shall obviously be made by mutual consent of the parties. The name of the arbitrator arbitrator shall be proposed by one of the parties, which should be accepted by the other party within 30 days of receipt, which the appointment shall be made by the Chief Justice. In arbitration with three arbitrators, unless otherwise agreed, each party shall appoint one arbitrator, and the two appointed arbitrators shall appoint the third arbitrator, who shall act as the presiding arbitrator. Appointment by the Chief Justice The appointment of arbitrator(s), shall be made by the Chief Justice of the High Court having jurisdiction, jurisdiction, in the following cases: 1. When the the parties parties fail to agree agree on the the sole arbitr arbitrator ator,, within within 30 days 2. When a party party fails fails to appoi appoint nt an arbitra arbitrator tor within within 30 days days 3. When the two appointed appointed arbitrators arbitrators fail to agree on the third third arbitrator arbitrator within 30 days of their appointment 4. When a part part fails to act as required required under under the agreed agreed procedur procedure e for appointment appointment 5. When When the the part partie ies, s, or the the two two appo appoin inte ted d arbi arbitr trat ator ors, s, fail fail to reac reach h an agre agreem emen entt expected of them under the agreed procedure; or 6. When When a person person,, includ including ing an ins instit tituti ution, on, fails fails to perform perform any any functi function on entru entruste sted d to him or it under the agreed procedure. procedure. The appointment shall be made on a request being made by the party and the decision of the chief chief Justic Justice e shall shall be final. final. In case case of an intern internat ation ional al commer commercia ciall arbitr arbitrat ation ion,, the
appointme appointment nt of an arbitrator arbitrator in the aforesaid aforesaid circumst circumstances ances shall be made made by the Chief Justice of India. Challenging Appointment of an Arbitrator: The appointment of an arbitrator may be challenged by a party, if – a) Circum Circumsta stance nces s exist exist that give give rise rise to jus justif tifia iable ble doubts doubts as to his indepe independe ndence nce or impartially, impartially, or b) He does not not possess possess the qualifi qualificati cations ons agreed agreed to by the parties parties.. The appointment can be challenged only those reasons, which the party became aware after the appointment of the arbitrator. The appointment cannot be challenged on reasons, which were known to the party at or before the time of appointment. The parties are free to agree on a procedure to be followed for challenging the appointment of an arbitrator. If there is no such agreed procedure the party intending to challenge the appointment of arbitrator shall send a written statement of the reasons for the challenge to the arbitral tribunal, within 15 days after becoming aware of the constitution of the arbitral tribun tribunal al or of the reasons reasons on which which the challen challenge ge is based based.. The appoi appointm ntment ent of the challenged arbitrator shall stand terminated if he himself withdraws form the office or the challenge is accepted by the other party. Otherwise, Otherwise, the arbitral tribunal shall decide on the challenge. Termination Termination of Appointmen Appointment: t: The appoi appointm ntment ent of an arbit arbitra rator tor shall shall termin terminate ate in following cases: 1. When the the arbitrato arbitratorr becomes in in law or in fact fact unable unable to perform perform his function functions. s. 2. When the the arbitrato arbitratorr for any reason reason fails fails to act withou withoutt undue delay. delay. 3. When the arbitr arbitrator ator withdr withdraws aws form form his office; office; or 4. When the parti parties es agree agree to the the termina termination tion.. Appointment of New Arbitrator: Where the appointment of an arbitrator is terminated, a new arbitrator shall be substituted in his place. The procedure for appointment of a substitute arbitrator shall be the same as applicable applicable to the appointment of the previous arbitrator. arbitrator. Power of Arbitral Tribunal to Order Interim Measures: The arbitral may at the request of a party, order a party to take such interim measure of protection as may be considered necessary in respect of the subject matter of the dispute. The arbitral tribunal may require a party to furnish adequate security in connection with a measure being ordered. The parties may, however agree that such power shall not be exercised by the arbitral tribunal. Interim Orders by court: A party may, before or during arbitral proceedings or at any time after the making of the arbitral award award but before its enforcement, apply to the court for any of the following matters – 1. Appointme Appointment nt of a guardian guardian for a minor minor or a person person of unsoun unsound d mind for the the purposes purposes of arbitral proceedings. proceedings. 2. Preserva Preservations tions,, interim interim custody custody or sale of any goods, goods, which are are the subject subject matter matter of the arbitration agreement. 3. Securing Securing the the amount amount in dispute dispute in the arbitr arbitration ation 4. Detention, Detention, preser preservati vation on or inspection inspection of any property property of thing thing which is the subject subject matter of the dispute, or to authorize for any of the aforesaid purposes purposes any person to enter upon any land or building in the possession of any party, or authorizing any samples to be taken or any observation to be made, or experiment to be tried, which may be necessary or expedient for obtaining full information or evidence. 5. Interim Interim injunct injunction ion or the the appoin appointment tment of of a receive receiver; r; or 6. Such other other interim interim measure measure of protect protection ion as may may appear appear to the court court to be just and convenient.
In a recent judgment, the Supreme Court has held that a court has jurisdiction under Section 9 or the Act to pass interim orders even before arbitral proceedings commence and before an arbitrator is appointed. Duties of Arbitral Tribunal: The parties may agree pm the proceedings. In the absence of such agreement, the arbitral tribunal may conduct the proceedings in the manner it considers appropriate and shall be empowe empowered red to determ determine ine the admis admissib sibili ility, ty, relev relevan ance, ce, mater materia ially lly and and weigh weightt of any any evidence. The tribunal shall not be bound by the Code of Civil Procedure, 1908 or the Indian Evidence Act, 1872. The place of arbitration and the language to be used shall be as agreed between the parties or as determined by the arbitral tribunal. Statements of Claim and Defense: The claimant shall submit the statement of claim stating i) The facts supporting his claim, ii) The points at issue and iii) The relief or remedy sought. The respondent shall submit the statement of defense stating his defense in respect of these particulars. The statement claim and defense shall be filed by the respective parties within the time agreed upon by the parties or as specified by the arbitral tribunal. The statement shall be supported by relevant documents or may include reference to such document / evidence. If the the stat statem emen entt of clai claim m is not not furn furnis ishe hed, d, the the arbi arbitr tral al trib tribun unal al shal shalll term termin inat ate e the the proceedings. If, however, the statement of defense is not furnished, the proceedings shall be continued and decided on merits. Arbitral Proceedings: The parties are free to agree as to how the proceedings of the arbitral tribunal shall be conducted. In the absence of any such agreement, the arbitral tribunal shall decide whether to hold oral hearing for presentation of evidence or for oral argument, or whether to conduct the proceedings on the basis of documents and other materials. Unless oral hearing has been specifically excluded by agreement, the arbitral tribunal shall hold oral hearings at an appropriate stage, on the request of a party. The parties shall be given sufficient advance notice of any hearing or meeting of the arbitral tribunal. All statements, documents or other information furnished by a party or any expert report or evidentiary document relied upon by the arbitral tribunal tribunal shall be communicated to the parties. If a part party y fail fails s to appe appear ar on oral oral hear hearin ing g or to prod produc uce e docu docume ment ntar ary y evid eviden ence ce,, the the proceedings shall be continued and decided on merits. Appointment of Expert: The arbitral tribunal may appoint one or more experts, unless there is a contrary agreement agreement between the parties. The expert may be required to report on specific issues. The tribunal may direct a party to furnish any relevant relevant information, documents, etc., to the expert. Assistance of Court: The arbitral tribunal or a party with the approval of the tribunal, my apply to the court for assistance assistance in taking evidence. Rule of Majority:
Unless otherwise agreed by the parties, in case of three or more arbitrators, the decision of the arbitral tribunal shall be made by a majority. However, if authorized by the parties or all the arbitrators, a question of procedure may be decided by the presiding arbitrator. Arbitral Award: An arbitral award shall be made in writing and shall be signed by the members of the arbitral tribunal. The award shall state its date and place of arbitration. The arbitral award shall state the reasons upon which it is based, unless the parties have agreed that no reasons are to be given or in case of award on a settlement between the parties. A signed copy of the award shall be delivered to each party. The arbitral tribunal may make an interim arbitral award on any matter with respect to which a final award shall be made later. Where the award is for payment of money the tribunal may order for payment of interest, at a reasonable rate for the specified period, unless there is an agreement to the contrary. If the award does not make any direction on interest, the sum directed to be paid under the award shall carry interest interest @ 18% p.a from the date of the award to the date of payment. The arbitral tribunal may make order as to costs as well. The arbitral award shall be final and binding on the parties and persons claiming under them respectively. Correction or Interpretation of Award: The arbitral arbitral tribuna tribunall may correct any computati computation, on, clerical clerical or typograph typographical ical error in the award, or give an interpretation on a specific point or part of the award, on request by a party within 30 days from the receipt of the award. Additional Arbitral Award: If any claim presented in the arbitral proceedings is omitted from the award, the tribunal shall make an additional arbitral award, on request by a party. Termination of Proceedings: The arbitral proceedings shall be terminated when 1. The fina finall arbit arbitra rall award award is made made 2. The claiman claimantt withdraws withdraws his his claim, claim, and the respond respondent ent does not not object to it. 3. The parties parties agree agree on the terminat termination, ion, 4. The continu continuati ation on or proceedi proceedings ngs has for any any other other reason reason become become unneces unnecessa sary ry or impossible The arbitral tribunal shall also terminate with the termination of proceedings. Enforcement of Award: An arbitral award is itself enforceable as a decree of the court, normally after three months form the date on which it was received by the parties, provided no application for setting aside the award is made or if it is made the same has been rejected. Setting aside an Award: An application for setting aside an arbitral award may be made before the court, by a party within three months of receipt of the award by him. The court may set aside an award on the following grounds: 1. A party party was was under under some some inca incapac pacity ity;; 2. The arbitr arbitratio ation n agreement agreement is is not valid valid under under the the law; law; 3. The party party making making the applicati application on was not given given proper notice notice of the appoint appointment ment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case. 4. The award award deals deals with with a dis disput pute e not contem contempla plated ted by or beyond beyond the scope of the submission to arbitration. arbitration.
5. The The comp compos osit itio ion n of the the arbi arbitr tral al trib tribun unal al or the the arbi arbitr tral al proc procee eedi ding ngs s was was not not in accordance with the agreement or with the law; 6. The subject subject – matter matter of the dispute dispute is not capabl capable e of settlement settlement by arbitr arbitratio ation n under the law; or 7. The arbitra arbitrall award award is in conflict conflict with with the public public policy policy of India. India. Appeal: An appeal shall lie before the court, against the following orders – 1. Granting Granting or refusing refusing to grant grant any any measure measure under under Section Section 9 2. Setting Setting aside or refusin refusing g to set aside an arbitra arbitrall award under under Section Section 34, and 3. Granting Granting or refusin refusing g to grant an interim interim measure measure of protection protection under under Section Section 17. No second appeal shall lie against the appellate order of the court, except, however, that an appeal may be made to the Supreme Court. ENFORCEMENT OF CERTAIN FOREIGN AWARDS: Part II dealing with enforcement of foreign awards consists of two chapters. Chapter I relate to New York Convention Awards and Chapter II deal with Geneva Convention Awards. ‘Foreign Award’ has been defined to mean an award on difference between persons arising out of legal relationships, whether contractual or not and considered as commercial under the law in force in India, and made in pursuance of an agreement in writing for arbitration to be govern governed ed eithe eitherr by the New York York Conven Conventio tion n or by the Genev Geneva a Conven Conventio tion, n, in the territory of notified foreign state. Where a commercial dispute covered by an arbitration agreement to which either of the convention applies, arises arises before a judicial authority in India, it shall at the request of a party be referred to arbitration. arbitration. Any foreign award which is enforceable under this part, shall be binding and may be relied upon by parties by way of defense, set off or otherwise in any legal proceedings in India. The party applying for the enforcement of a foreign award shall, produce the original award or a duly authenticated copy thereof, the original arbitration agreement or a certified copy thereof, and evidence to prove that the award is a foreign award. Sections 48 and 57 contain the conditions for enforcement of a foreign award and thus set out the grounds on which the enforcement may be refused. If the court is satisfied that the foreign award is enforceable, the award shall be deemed to be a decree of the court. An appeal shall lie against the order or court refusing to refer the parties to arbitration or refusing to enforce a foreign award.
CONCILIATION Concilia Conciliation tion is the process of amicable amicable settlement settlement of disputer disputers s by the parties, parties, with the assis assistan tance ce of the concil conciliat iator. or. Concil Conciliat iation ion differ differs s form form arbit arbitra ratio tion n in the sense sense that that in arbitration the award is the decision of the arbitral tribunal while in the case of Conciliation the decision is of the parties arrived at with the mediation of the Conciliation. The main advantages of Conciliation are more flexibility and minimum formality. Besides, since the proceedings are held in closed doors, there is complete confidentiality confidentiality assured. Notice of Conciliation A party initiating the Conciliation shall send a written notice to the other party, briefly identifyi identifying ng the subject of the dispute dispute and inviting him for Conciliation Conciliation.. The Concilia Conciliation tion proceedings shall commence on acceptance of inviting by the other party. If he rejects the invitation, there can be no Conciliation proceedings. proceedings. If the party initiating Conciliation does not receive a reply within 30 days from the date on which the invitation was sent or within the specified period, he may opt to treat this as a rejection and inform the same to the other party. Number of Conciliators: Unless otherwise agreed there shall be one Conciliator. The parties may, however, agree that there shall be two of three Conciliators, who shall act jointly. Appointment of Conciliators: A sole conciliators shall be appointed by mutual consent of the parties. In case of two Concilia Conciliators tors,, each party may appoint appoint one Concilia Conciliator. tor. In case case of three three concilia conciliators tors,, each party may appoint one Conciliator and the third Conciliator may be appointed by mutual agree agreemen mentt of the parti parties es who who shall shall act act as the presi presidin ding g concil concilia iator tor.. The parti parties es may, may, however, agree that a Conciliator shall be appointed or recommended by an institution or a person. Submission of Statements: Each party shall submit to the Conciliator a brief written statement describing the general nature of the dispute and the points at issue. A copy of the same shall be sent to the other party. The Conciliator may require of each party to send a copy whereof shall be sent to the other party.
Functions of Conciliators: 1. To assist assist the parties parties in an independen independentt and impartial impartial manner manner,, to reach an amicable amicable settlement of their dispute. 2. To be guided guided by principl principles es of objectivit objectivity, y, fairness fairness and and justice justice 3. To give give cons consid ider erat atio ion n to righ rights ts and and obli obliga gati tion ons s of the the part partie ies, s, trad trade e usag usages es,, circumstances surrounding the dispute and any previous business practice between the parties. 4. To cond conduc uctt the the Conc Concil ilia iati tion on proc procee eedi ding ngs s in an appr approp opri riat ate e mann manner er,, taki taking ng into into account the circumstances of the case and wishes of the parties. 5. To make make proposal proposals s for a settle settlement ment of of the disput dispute. e. 6. Not to act as an arbitr arbitrator ator or as a repres representa entative tive of a party party in any arbitra arbitrall or judicial judicial proceedings in respect of the same dispute, unless otherwise agreed by the parties. 7. Not to act as a witnes witness s in any arbitra arbitrall or judicial judicial proceedi proceedings. ngs. Disclosure of Information: Any factual information concerning the dispute received by the conciliation from a party, shall be disclosed to the other party to allow him an opportunity to present any explanation, except however, when a party gives any information subject to a condition that it be kept confidential. Co-operative of Parties: The parties shall co-operative with the conciliator in good faith, comply with request for submitting written materials, providing evidence and attending meetings. A part may submit to the conciliating suggestions for the settlement of the dispute. Settlement Agreement: If it appears to the conciliator that a settlement is possible, he shall formulate the terms of a possible settlement and submit them to the parties for their observations. The conciliator shall them reformulate the possible settlement in light of observations received from the parties. If the parties reach on a settlement, they may draw up and sign a written settlement agreemen agreementt with the assista assistance nce of the conciliat conciliator. or. The concilia conciliator tor shall shall authentic authenticate ate the settlement agreement and furnish a copy thereof to each of the parties and shall have the same effect as of an arbitral award. Termination of Conciliation Proceedings The Conciliation proceedings shall be terminated when: 1. A settlemen settlementt agreemen agreementt is signed signed by the part parties. ies. 2. A written written declarati declaration on is made by the conciliat conciliation ion after consul consultati tation on with the parties, parties, that further efforts at conciliation are no longer justified. 3. A writ writte ten n decl declar arat atio ion n is made made by the the conc concil ilia iato tor, r, afte afterr the the depo deposi sits ts requ requir ired ed in relat relation ion to costs costs the proce proceedi edings ngs are are not receiv received ed from from the parti parties, es, that that the proceedings are terminated. terminated. 4. A written written declaratio declaration n is made by the parties parties to the conciliator, conciliator, that that the conciliation conciliation proceedings are terminated. terminated. 5. A written declaration is sent by a party to the other party and and the conciliator, conciliator, that the the conciliation proceedings are terminated. Const of Conciliation Upon termination of the conciliation proceedings, the conciliators shall fix the costs of the concilia conciliation, tion, including including the fee and expenses expenses of the conciliator conciliator and the witnesse witnesses, s, cost rela relati ting ng to any any expe expert rt advi advice ce and and othe otherr expe expens nses es incu incurr rred ed in conn connec ecti tion on with with the the proceedings. A written notice of the costs shall be sent to the parties. The costs shall be borne borne equally equally by the parties unless the settleme settlement nt agreemen agreementt provides provides for a differen differentt apportionment. All expenses incurred incurred by a party shall be borne by him. The conciliator may require each party to deposits an advance for the costs, which the experts will be incurred. He may also ask for supplementary deposits during the course of proceedings.
