| GENERAL REGULATIONS OF THE CONSOLAT DE MAR Rules of arbitration - REPEALED REGULATIONS REGULATIONS CONCERNING THE PROCEDURE FOR CONSENSUAL CONFLICT RESOLUTIONS Regulations concerning the procedure for consensual conflict resolutions - REPEALED REGULATIONS
|
RULES FOR CONSENSUAL DISPUTE RESOLUTION ARTICLE 1. UNDERLYING PRINCIPLES Among other functions, the Official Chamber of Commerce, Industry and Shipping of Barcelona organises and administers Alternative Dispute Resolution Systems by means of the Consulate of the Sea, and in particular by means of its governing body, the Council of Twenty. The Council of Twenty is governed by the Regulations of the Consulate of the Sea, approved by the Official Chamber of Commerce, Industry and Shipping of Barcelona. These regulations set out the characteristics and operational process of the Consensual Dispute Resolution System as one of the alternative dispute resolution systems referred to in Article 9 b) of the Regulations of the Consulate of the Sea. These regulations will apply to consensual dispute resolution processes, such as mediation, administered by the Consulate of the Sea. ARTICLE 2. FEATURES OF THE PROCEDURE Voluntary nature The parties choose voluntarily, having received prior information, to embark on the procedure. Likewise, once the procedure has begun, should one party not wish to continue it may terminate its involvement and draw the process to an end. In such cases the Consulate of the Sea need simply be informed of the decision reached, without any requirement for an explanation of the reasons. Confidentiality All parties involved in the proceedings in whatever capacity are bound by the duty of confidentiality established under the terms of Article 11 of the Regulations of the Consulate of the Sea. At the administrative level, in order to guarantee such confidentiality: a) Once the procedure has ended the neutral third party will destroy all documentation connected with the proceedings and present the documentation provided by the parties to its corresponding owners, unless all the parties or the owner in question should decide otherwise. b) The Consulate of the Sea will hold only the minimum information required for administration of the service regarding the identity of the parties, the agreement to accept the procedure and documentation in accreditation of conclusion of the procedure for any of the reasons set out in Article 19. The remainder will be destroyed, unless otherwise agreed by the parties. c) The Consulate of the Sea will not, without the authorisation of the parties, disclose the existence or the outcome of the procedure. Nonetheless, the Consulate of the Sea may include information regarding the procedure in overall statistics concerning its activities, provided that the information does not allow the identity of the parties or the specific circumstances of the dispute to be uncovered. Neutrality Understood as an absence of any interest on the part of the neutral third party in the outcome of the process. Impartiality Understood as the absolute independence of the neutral third party regarding the parties involved. Flexibility As this is a semi-structured process, the stages are not governed by rigid protocols or formal requirements, but can be adapted to the needs of the parties and the specific aspects of the dispute. ARTICLE 3. THE PARTIES Parties may be companies or private individuals wishing to settle a situation of disagreement, conflict or dispute derived from their relationship in their business activities. The parties are obliged to: a) Sign the agreement for the consensual dispute resolution procedure to be held, with the non-disclosure agreement. b) Attend procedural sessions in person, or by means of a representative with sufficient decision-making capacity and power of attorney in order to reach resolutions, and likewise sufficiently informed as to the interests involved in order to be in a position to play a genuine part in the process. c) To cover the financial cost of the process. ARTICLE 4. NEUTRAL THIRD PARTY The neutral third party is an expert in the facilitation of negotiation and alternative dispute resolution systems. His or her intervention must be and must remain neutral, independent, objective and impartial. Acceptance of appointment to act as a neutral third party involves an express undertaking to respect all terms laid down in these regulations. ARTICLE 5. INVOLVEMENT OF THIRD PARTIES Where required because of the nature of the dispute, and provided that the parties so agree, expert witnesses or consultants may be involved, their role being confined solely to technical consultancy in the matter and the aspects requested by the parties. ARTICLE 6. FUNCTIONS OF THE NEUTRAL THIRD PARTY The specific functions of the neutral third party are as follows: a) Assess whether the dispute is within the remit of the parties. b) Ensure that no imbalance of power occurs between the parties preventing a satisfactory resolution from being achieved. c) Facilitate the creation of positive conditions in order to refocus a dispute towards a process of dialogue. d) Facilitate and stimulate communications between the parties and the generation of options. e) Assist in all aspects which would allow the parties to resolve their dispute by common consent. ARTICLE 7. OBLIGATIONS OF THE NEUTRAL THIRD PARTY The neutral third party is responsible for the proper conduct of the process, irrespective of whether the parties reach an agreement or not, in whole or in part. In this regard, his or her obligations are: a) Notify the parties and the Consulate of his or her resignation in the event that the grounds for incompatibility established in Article 8 of these regulations should apply. b) Diligence in the furtherance of his or her task, adopting all measures deemed appropriate in order to bring the proceedings to their conclusion. c) Disclosure and transparency towards the parties as to the characteristics of the process, in order to guarantee the voluntary nature of their involvement. d) Maintain confidentiality regarding the entire process. e) Be and remain impartial in the role performed and neutral with regard to the interests of the parties. f) Terminate the procedure on the grounds set out in Article 19 of these Regulations. ARTICLE 8. INCOMPATIBILITIES OF THE NEUTRAL THIRD PARTY In accordance with the principle of impartiality, no individual with any ties to any of the parties, as a relative, a friend or enemy, or with a manifest interest in the dispute involved in the process, may serve as the neutral third party in a consensual dispute resolution process. ARTICLE 9. OBJECT Any dispute, claim or disagreement between the subjects constituting fit matter under the terms of Article 3 of these regulations and which may be resolved by means of the consensual dispute resolution system. ARTICLE 10. COMMENCEMENT OF THE PROCEDURE The consensual dispute resolution procedure may be embarked upon under the following circumstances: a) Existence of prior agreement between the parties. In such cases an application may be filed jointly or separately. b) Without prior agreement between the parties in dispute. ARTICLE 11. APPLICATION The company wishing to use the consensual dispute resolution procedure must present a formal application in writing, using the corresponding form, addressed to the Office of the Secretary of the Consulate of the Sea The application must include: Adequate contact details (registered office, place of residence, establishment, postal address, telephone number, fax, e-mail address...) for the parties in dispute, allowing them to be identified and notified. Brief description of the dispute. The sum of the dispute. Any characteristics or qualifications felt to be required of the neutral third party. The application must be accompanied by: If a prior agreement exists, under the terms of Article 10.a), a document setting out the commitment to have recourse to this procedure in the event of dispute. Receipt for payment of the Registry charge listed under the corresponding tariff table. No application will be processed unless receipt is presented. If acting as representatives, documentation in accreditation of their capacity. The applicant must present as many copies of the documentation as there are parties, and an additional two for the Consulate of the Sea. Of the latter two, one copy will be presented by the Consulate of the Sea Secretary's Office to the neutral third party, following appointment. ARTICLE 12. ACCEPTANCE The Consulate of the Sea will examine the application and establish whether the requirements for recourse to the procedure are met. Within 10 days, the Consulate of the Sea will notify the applicant as to the suitability of the application and pass a copy on to the other party, together with any supplementary documents in order for that party, within a period of 15 calendar days, to send a formal written statement to the Consulate of the Sea Secretary's Office accepting the procedure, by any means providing written confirmation. Along with this acceptance, the respondent party must provide the following details: Brief arguments as to the description of the dispute and the sum thereof. Any characteristics or qualifications felt to be required of the neutral third party. Should this deadline passed without any reply having been received, or a negative reply, it shall be understood that the procedure has not been accepted, the Consulate of the Sea Secretary's Office informing the petitioner of this within a period of five days. ARTICLE 13. COSTS AND DEPOSIT OF FUNDS If the respondent party accepts the procedure, the Consulate of the Sea Secretary's Office will notify the parties of the funds to be deposited under the terms of the Regulations of the Consulate of the Sea, for the purposes set out therein. This deposit of funds, which will be established in accordance with the approved rates published in the Official Gazette of the Regional Government of Catalonia included as an Annex to these regulations, must be accompanied by the sum established according to the tariff table to cover the administrative costs of the hearing referred to in Article 16 of the regulations. In the absence of any other agreement between the parties as to the deposit of funds established in Article 12 of the regulations, each will contribute an equal share. As for the sum to cover the administrative costs of the hearing, this will be divided equally between the parties, although the sum of the registry charges paid by the petitioner will be credited to that party. These sums must be deposited within a period of 20 calendar days. Upon expiry of this deadline, should the corresponding payments not have been made the procedure will be shelved and the parties notified of this resolution, although payment will still be required of the sums accrued. If required, upon conclusion of the procedure and following calculation of the overall cost involved, the Council of Twenty will rule as to the reimbursement to the parties of any surplus payment made, or as applicable will invoice them for the remainder owing. ARTICLE 14. APPOINTMENT OF THE NEUTRAL THIRD PARTY The parties shall by common consent appoint the neutral third party, to be ratified by the Council of Twenty. Should the parties fail to agree, the Council of Twenty will, in accordance with the characteristics defined by the parties, appoint a neutral third party. Following receipt of the declaration of independence of the neutral third party and once the parties have deposited their funds under the terms of Article 13 of these regulations, the Consulate of the Sea Secretary's Office will notify the parties of the appointment of the neutral third party, a period of 10 calendar days being granted for them to register their agreement or objection. ARTICLE 15. REJECTION OF THE NEUTRAL THIRD PARTY In the event that either of the parties should reject the appointed individual, they must notify the Consulate of the Sea Secretary's Office in writing, stating the reasons. The Secretary's Office will notify the other party of the rejection. The Council of Twenty will appoint a different individual, in accordance with the needs stated by the parties, once again notifying them of the appointment in the manner set out above. Should either of the parties again reject the second appointment, within a period of 10 days, the Council of Twenty will shelve the process, draw up a formal record of this decision and notify the parties. ARTICLE 16. HEARING Once the parties have accepted the appointment of the neutral third party, the Consulate of the Sea Secretary's Office will formally summon the parties in writing to a hearing in order for them, before a member of the Council of Twenty and the Secretary of the Consulate of the Sea or the individual delegated thereby, to: Undertake to abide by the terms of these regulations regarding the principles inherent in consensual dispute resolution, by means of the agreement to conduct a consensual resolution procedure and the non-disclosure agreement. Ratify the individual who is to act as the neutral third party. Unanimously decide on the procedures deemed most appropriate in order to resolve the dispute. Should the parties not reach an agreement, or decide to leave this to the decision of the neutral third party, the procedure to be employed will be that of mediation. If the dispute is of an international nature and the parties speak different languages, the language of the procedure will be agreed. The secretary of the Consulate of the Sea, or the individual delegated, will draw up the corresponding minutes, to be signed by all those in attendance. ARTICLE 17. PROGRESS OF THE PROCEDURE The neutral third-party may meet or confer with the parties jointly or separately in order to learn the characteristics of the procedure and establish the sessions. A neutral third party will decide as to the appropriate number of sessions, in accordance at all times with principles of efficiency, the commitment of the parties and the cost of the procedure. Appropriate prior notice will be served of the date and time of each session. ARTICLE 18. AGREEMENT REACHED WITHIN THE PROCEDURE Should the parties reach an agreement which resolves their dispute in whole or in part, a record of this will be drawn up, to be signed by the neutral third party and the parties involved. This agreement is binding on the parties. ARTICLE 19. CONCLUSION OF THE PROCEDURE The consensual dispute resolution procedure ends: a) if the parties sign an agreement resolving all or some of the issues of dispute between them; b) upon expiry of the deadline of 60 days, or the period established by the parties; c) at the decision of all the parties; d) at the decision of one of the parties, written notice of this to be served on the Consulate of the Sea Secretary's Office at any time after attending the hearing established in Article 16 of these regulations and prior to the signature of any agreement bringing to an end all or some of the issues at dispute; e) at the decision of the neutral third party, written notice of this to be served on the parties and the Consulate of the Sea Secretary's Office if, in his or her judgement, it is highly unlikely that the length of the procedure would allow the parties to reach an agreement in whole or in part; f) in the event of the death, unavailability or resignation of the neutral third party, unless the parties should agree to continue with a different neutral third party appointed by them or, at their request, by the Council of Twenty; g) upon expiry of a period of 30 days from notice being served on the parties of the supplementary sum covered by Article 12 of the Regulations of the Consulate of the Sea, should the corresponding payment not have been made; h) in the event of the death or incapacitation of any of the parties. ARTICLE 20. LEGAL LIABILITY OF THE SERVICE The Official Chamber of Commerce, Industry and Shipping of Barcelona, its representatives belonging to the Consulate of the Sea, the members of the Council of Twenty and the neutral third parties shall under no circumstances bear any liability for actions or omissions connected with proceedings derived from the consensual dispute resolution process. RATES The rates applicable to Consensual Dispute Resolution procedures are those approved by the Council of Twenty of the Consulate of the Sea of Barcelona, the arbitration and alternative dispute resolution body of the Official Chamber of Commerce, Industry and Shipping of Barcelona, at its meeting held on 22 February 2005 , published in the Official Gazette of the Regional Government of Catalonia number 4389, of 23 May 2005.
|
|