Rule 1
Application of the Rules
(1) Where the parties have agreed to conciliate under the
auspices of the Kuala Lumpur Regional Centre for Arbitration
(KLRCA), these rules shall apply.
(2) The parties may agree to exclude or vary any part of the
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.
Rule 2
Initiation and Commencement of Conciliation/Mediation
(1) The party initiating conciliation shall submit a written
request to the KLRCA which shall contain the following:
(a) The names and addresses of the parties;
(b) A reference to the conciliation clause or a copy of the
separate conciliation agreement, if any;
(c) A reference to the contract or other legal relationship
out of or in relation to which the dispute arises;
(d) A proposal as to the number of Conciliators (one or
three), if the parties have not agreed thereon;
(e) Nature of dispute and the amount involved and/or other
remedies sought;
(f) Registration fee in accordance with the Schedule of Fees
annexed.
(2) The KLRCA shall send a copy of the request to the other
party.
(3) Conciliation proceedings commence when the other party
accepts the request to conciliate in writing.
(4) If the other party rejects the request for conciliation or
if the KLRCA does not receive a reply within 30 days from the date
on which the KLRCA sends the conciliation request, the KLRCA may
then elect to treat this as a rejection of the invitation to
conciliate and inform theparty initiating conciliation
accordingly.
Rule 3
Number of Conciliators
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.
Rule 4
Appointment of Conciliators
(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) The Director of KLRCA shall assist in the appointment of
conciliators if the parties fail to reach agreement on the name or
names of the conciliator, in particular,
(a) a party may request the Director 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 the Director.
In recommending or appointing individuals to act as
conciliator, the Director shall have regard to such considerations
as are likely to secure the appointment of an independent and
impartialconciliator 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.
Rule 5
Submission of Statements to Conciliator
(1) The conciliator
1, 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 seems appropriate. The party sends a copy
of the 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.
(4) Where pursuant to this Rule, each party submits written
statements and documents to the conciliator and to the other party,
copies shall also be furnished to the KLRCA.
Rule 6
Representation and Assistance
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, to the conciliator and
to the KLRCA. Such communication is to specify whether the
appointment is made for purposes of representation or of
assistance.
Rule 7
Role of Conciliator
(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) At any stage of the conciliation proceedings the
conciliator may at the request or with the consent of all parties
make proposals for a settlement of the dispute. Such proposals need
not be in writing and need not be accompanied by any reasons
therefor. Such proposals shall be made in good faith to facilitate
the conciliation process, and shall not be binding on the
parties.
Rule 8
Administrative Assistance
The Director of KLRCA may arrange for administrative
assistance or facilities in order to facilitate the conduct of the
conciliation proceedings at the request of the conciliator or the
parties.
Rule 9
Communication between Conciliator and Parties
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.
Rule 10
Venue
The conciliation shall be held at KLRCA at Kuala Lumpur or any
other place chosen by the parties in consultation with the
conciliator.
Rule 11
Disclosure of Information
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.
Rule 12
Co-operation of Parties with Conciliator
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.
Rule 13
Suggestions by Parties for settlement of Dispute
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.
Rule 14
Settlement Agreement
(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
2. 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.
Rule 15
Confidentiality
The conciliator and the parties must keep confidential all
matters relating to the conciliation proceedings. Confidentiality
extends also to the settlement agreement, except where its
disclosure is necessary for purposes of implementation and
enforcement.
Rule 16
Termination of Conciliation Proceedings
(1) 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;
(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;
or
(e) within three months from the date of commencement of
conciliation proceedings unless agreed otherwise by the parties and
the conciliator.
(2) Unless agreed otherwise, the conciliator at the
termination of the conciliation proceedings shall furnish to the
Director of KLRCA a copy of the settlement agreement signed by the
parties.
Rule 17
Resort to Arbitral or Judicial Proceedings
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.
Rule 18 Costs
(1) The Director of KLRCA shall fix the costs of the
conciliation in accordance with the Schedule of Fees annexed. The
term "costs" includes:
- the fee of the conciliator which shall be
reasonable in amount;
- the travel and other expenses of the
conciliator;
- the travel and other expenses of witnesses
requested by the conciliator with the consent of the parties;
- the cost of any expert advice requested by
the conciliator with the consent of the parties;
- the expenses incurred by KLRCA in connection
with the conciliation as well as its administrative charges.
(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
the party.
Rule 19
Deposits
(1) The Director of the KLRCA shall at the commencement of the
conciliation request each party to deposit an equal amount as an
advance for the costs referred to in Rule 18(1) which are expected
to be incurred.
(2) During the course of the conciliation proceedings the
Director of KLRCA may request supplementary deposits from the
parties in equal amounts.
(3) If the required deposits are not paid in full by both
parties within thirty days after the receipt of the request, the
Director of KLRCA shall so inform the parties in order that one or
another of them may make the required payment. If such payment is
not made the conciliator, after consultation with the Director of
KLRCA, may order the suspension or termination of the conciliation
proceedings.
(4) The Director of KLRCA may apply deposits towards
disbursements for the costs of conciliation.
(5) Upon termination of the conciliation, the Director of
KLRCA shall render an accounting to the parties of the deposits
received and return any unexpended balance to the parties.
Rule 20
Role of Conciliator In Other Proceedings
(1) The conciliator shall not, without the consent of the
parties, act as an arbitrator or as a representative or counsel of
a party or appear as a witness in any arbitral or judicial
proceedings in respect of a dispute that is the subject of the
conciliation proceedings.
(2) The conciliator shall not be presented by the parties as a
witness in any arbitral or judicial proceedings.
Rule 21
Admissibility of Evidence In Other Proceedings
Unless the parties agree otherwise, they will not 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:
- views expressed or suggestions made by the
other party in respect of a possible settlement of the
dispute;
- admissions made by the other party in the
course of the conciliation proceedings;
- proposals made by the conciliator;
- the fact that the other party had indicated
his willingness to accept a proposal for settlement made by the
conciliator.
Rule 22
Exclusion of Liability
Neither KLRCA nor the conciliator shall be liable to any party
for any act or omission related to the conduct of the conciliation
proceedings.
Rule 23
Waiver of Defamation
The parties and the conciliator agree that statements or
comments whether written or oral made in the course of the
conciliation proceedings shall not be relied upon to found or
maintain any action for defamation, libel, slander or any related
complaint.
Schedule of Fees
(a) Registration Fee
A registration fee of US$ 50.00 is payable by the party
initiating conciliation (Rule 2(1)(f))
(b) Deposit
A deposit of US$500.00 towards administrative costs is payable
by each party on a reference to conciliation/mediation. This
payment is not refundable and shall be credited to the portion of
the administrative costs paid by each party for the
conciliation.
(c) Administrative Costs
The administrative costs for a conciliation/mediation shall be
fixed at one-quarter of the amount calculated in accordance with
the scale of administrative costs as set out in Appendix B of the
KLRCA Arbitration Rules with a minimum of US$500.00. In the event
that the amount in dispute is not stated, the administrative costs
shall be fixed by the Director of KLRCA.
(d) Conciliator/Mediator's Fee
In fixing the fee of the conciliator/mediator the Director of
KLRCA may undertake consultations with the conciliator/mediator and
the parties. Such fee shall be reasonable in amount, taking into
consideration the amount in dispute, the complexity of the subject
matter, the time spent by the conciliator/mediator and any other
relevant circumstances of the case.
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1 In
this and all following articles, the term "conciliator" applies to
a sole conciliator, two or three conciliators, as the case may
be.
2 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.