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Conciliation regulations of the Center of National and International Conciliation and Arbitration of the Lima Chamber of Commerce (1993)
Application of the conciliation rule
a) This rule will be applied to the conciliation of disputes, as long as the parties that try to reach a solution to their dispute have agreed to apply the conciliation rule of the Center.
b) Parties will be able to agree, at any time, the exclusion or amendment of some rules.
c) If some of the rules do not agree with a provision by law which parties can not repeal, that provision will prevail.
Beginning of the Conciliation proceedings
a) The party that takes the initiative for the conciliation sends in writing the other party, keeping a copy for the Center, an invitation to the conciliation in accordance with this regulation, as well as the current regulations, stating in brief the subject matter of the dispute.
b) Conciliatory proceedings are undertaken when the other party accepts the invitation to conciliation. If orally, it is advisable to confirm in writing, keeping a copy for the Center.
c) If the other party rejects the conciliation, no conciliatory proceedings take place.
d) The party that begins the conciliation has the option to consider a rejection to the invitation to conciliation, if they do not receive an answer within the next thirty (30) days as of the invitation date. If they decide to do so, they have to communicate it to the other party and the Center.
Number of conciliators
There is generally one conciliator, unless the parties agree to have two or three conciliators. When there is more than one conciliator, they have to act, as a rule, by common consent.
Appointment of conciliators
a) Appointment of conciliators by the parties:
a.1) In the conciliatory proceedings with one conciliator, parties try to reach an agreement as to who will be named as their conciliator.
a.2) In the conciliatory proceedings with two or three conciliators, each party appoints one conciliator. Parties try to agree as to who will be named as the third conciliator. If necessary, the two appointed conciliators appoint the third.
b) Parties can ask for assistance to the Court of Arbitration or General Secretary's Office of the Center concerning the appointment of conciliators according to the following clauses:
b.1) A party can ask the Court or General Secretary's Office to recommend suitable people who might act as conciliators.
b.2) Parties can come to an agreement concerning whether the appointment of one or more conciliators is carried out by the Court of Arbitration or the General Secretary's Office.
Submission of documents to the conciliator
a) The conciliator, after being appointed, asks each party to submit a brief exposition in writing describing the general nature of the dispute and terms thereof. Each party sends the other a copy of this exposition and a copy for the Center.
b) The conciliator can ask the other party for an additional exposition in writing, concerning its own exposition and facts and reasons that support it, enclosing documents and evidence that each party considers to be suitable.
c) The conciliator can, at any stage in the conciliatory proceedings, ask one of the parties for the submission of other suitable documents.
Representation and counseling
Parties may be represented by representatives of their choice. Names and addresses of such people must be reported in writing to the Center, the other party and the conciliator. This report must state precisely if the appointment consists of whether representatives or counselors.
Duties of the Conciliator
a) The conciliator help parties in an independent and impartial manner making every effort to reach a friendly agreement to the dispute.
b) The conciliator is subject to principles such as objectivity, equity and justice, taking into account the rights and duties of the parties, the uses of the mercantile trade dealt and the circumstances at the controversy, even any practice established between the parties.
c) The conciliator may conduct the conciliatory proceeding the way he considers adequate, taking into account the circumstances, parties' will, including the request by one of them to have the conciliator listen to oral reports, and the need to reach a quick agreement on the a transaction of the controversy.
d) The conciliator may, at any stage in the conciliatory proceedings, propose to negotiate the dispute. It is not necessary to make these proposals in writing or apply their basis.
In order to enhance the conciliatory process, the parties and conciliator have at their disposal the administrative services of the Center.
Communication between conciliator and parties
a) The conciliator may invite the parties to meet him or communicate with one another either verbally or in writing. He may meet or communicate with the parties either separately or together.
b) The conciliation hearings take place in the Center site. Hearings are carried out in the agreed place without exceptions and according to previous agreement between the parties and conciliators.
Disclosure and transfer of information
If the conciliator receives information from one of the parties concerning the dispute, he must disclose and transmit its contents to the other party so as keep the other party properly informed. However, if a party gives information to the conciliator under the condition that it be kept confidential, the conciliator must not disclose or transmit this information.
Parties cooperation with the conciliator
Parties will cooperate in good faith with the conciliator and, especially, make every effort to fulfill his requests to submit written documents, bring evidence and attend meetings.
Parties suggestions to propitiate the conciliation
Each party, on their own initiative, or invited by the conciliator, may submit suggestions to him to propitiate the conciliation through transaction formulae to finish the controversy.
a) If the conciliator considers there are elements for a transaction acceptable by the parties, he may formulate the terms of a transaction project and submit them to the parties, so that they can express their observations. In view of these observations, the conciliator may formulate other possible transaction terms.
b) If parties come to an agreement concerning the controversy transaction, they will draw up and sign a written transaction agreement. If parties request so, the conciliator shall draw up the transaction agreement or help the parties to do it. In the transaction agreement, parties will include an arbitrational clause through which they submit to the Center the solution to any conflict arisen from the agreement.
c) Parties finish a dispute when they sign the transaction agreement and stay obliged to fulfill such agreement. If it is suitable and parties agree, the transaction agreement will be subject to Article 20 of the legal Regulation for national arbitration.
The conciliator and parties will keep confidential all matters related to the conciliatory proceedings. Confidentiality is also applicable to transaction agreements, unless their disclosure is needed for execution and fulfillment.
Conclusion of the conciliatory proceedings
The conciliatory proceedings shall conclude:
a) If the parties sign a transaction agreement, without prejudice of Article 13, Clause c).- of this Regulation.
b) If the conciliator makes a statement in writing after consulting the parties concerning that further efforts of conciliation might not be justified.
c) If the parties make a statement in writing addressed to the conciliator concerning that the conciliatory proceedings are finished the very day they make such statement.
d) If one of the parties addresses a written notice to the other party, the conciliator, and the Center, if designated, concerning that the conciliatory proceedings are finished.
e) The fact that the conciliation is not concluded determines the immediate application of the Center arbitration regulations, understanding that parties subject themselves clearly and unconditionally to the regulations above mentioned, and accepting that the corresponding award is definitive and unappealable.
Appeal for arbitrational proceedings
Parties commit not to begin, during the conciliatory proceedings, any arbitrational proceeding related to a controversy originating the conciliatory proceedings; but a party may begin an arbitrational proceeding as long as it considers such proceeding as necessary to preserve its rights.
a) When the conciliatory proceedings are finished, the Center General Secretary's Office liquidates expenses generated by the conciliation and notifies them in writing to the parties. The word "expenses" comprises:
a.1) The conciliator's fees, according to the Fee Table and fee regulations of the Center.
a.2) Travel expenses and other conciliator's expenses, if they might come out.
a.3) Travel expenses and expenses of any witness who had been called by the conciliator with the parties' consent.
a.4) The cost of any expert counseling requested by the conciliator with the parties' consent.
a.5) Administrative expenses that the organization of the conciliation may cause to the Center, according to the Fee Table and the corresponding fee regulations.
b) Expenses indicated in the above paragraph should be divided between the parties, unless the transaction agreement states something different. All expenses incurred by a party are on their own account.
Payments in advance
a) The General Secretary's Office will endeavor to make the conciliator, once appointed, get from each party a sum as a payment in advance for his corresponding fees. To carry this out, he will practice a partial settlement giving notice to the parties.
b) The same above mentioned criterion is applied to other different expenses of the conciliatory proceedings, which are foreseeable at the moment the proceedings are begun.
c) If the sum in advance required according to clauses a and b of this article had not been paid by either party within a thirty-day term, the conciliator may adjourn the proceedings and submit a written conclusion statement to the parties, which goes into force immediately.
d) Once conciliation proceedings are concluded, the conciliator collects the corresponding balance due, unless circumstances determine some balance in hand for the parties.
Duty of the conciliator in other proceedings
Parties and conciliator agree that the conciliator may not act as an arbitrator, representative or counselor of neither party in any arbitrational or judicial proceeding related to a controversy which might have been subject matter of a conciliatory proceeding. Parties also agree not to summon the conciliator to be a witness in none of such proceedings.
Admissibility of evidence to other proceedings
Parties agree not to invoke or propose as evidence in an arbitrational or judicial proceeding, whether related or not to the controversy subject of the conciliatory proceeding:
a) Opinions expressed or suggestions formulated by the party in regard to a possible solution to the controversy.
b) Facts which the other party had known about in the course of the conciliatory proceedings.
c) Proposals made by the conciliator.
d) The fact that the other party had indicated to be ready to accept a proposal to solution formulated by the conciliator.
ITC E-Commerce Connect
ITC E-Commerce Connect