HOME > Arbitration at TOMAC > GUIDE to CONCILIATION at JSE > JSE CONCILIATION RULES

TOMAC Arbitration

WaveLength(JSE Bulletin)

Laws of Japan

Maritime Law Firms in Japan

The Mariners' Digest

Web Links

Contact

Total Access:

GUIDE to CONCILIATION AT JSE

[JSE CONCILIATION RULES]

The Conciliation Rules of The Japan Shipping Exchange, Inc.

Enacted 30th March, 1992
In force 1st July, 1992

Part I Preliminary Investigation

Section 1 [Initiation of conciliation]

(1) If any of the parties to a dispute wishes to settle the dispute by conciliation under these Rules, it shall file with the Japan Shipping Exchange, Inc. (JSE) a written Request for Conciliation, together with the preliminary investigation fee.
(2) If all the parties to a dispute wish to settle the dispute by conciliation under these Rules, they shall file with JSE a written Submission for Conciliation, together with the preliminary investigation fee.

Section 2 [Determination of commencement of conciliation proceedings]

(1) In the case of a unilateral request under Section 1(1), JSE shall not only review the eligibility to settle the case by conciliation based on the request, but also confirm the other party's willingness to participate in the proposed conciliation and, if necessary, invite that party to agree to it. Then JSE shall, as soon as possible and at least within 21 days from the date of the request, inform the applicant and the other party, if necessary, whether JSE can accept the request and is prepared to commence the conciliation proceedings.
(2) In the case of a written submission pursuant to Section 1(2), JSE will immediately commence the conciliation proceedings.
(3) JSE will not return the preliminary investigation fee paid by the party or parties even if JSE does not commence the conciliation proceedings, nor will it credit the preliminary investigation fee against any part of the conciliation fee.

Part II Conciliation Proceedings

Section 3 [Date of commencement of conciliation proceedings]

The conciliation proceedings are deemed to commence on the date when JSE has informed all the parties of the conciliation proceedings' commencement.

Section 4 [Number and appointment of conciliators*]

* In this and all following articles, the term `conciliator' includes a sole conciliator and two or three conciliators, as the case may be.

(1) When JSE commences the conciliation proceedings and all the parties nominate a conciliator by their agreement, JSE shall appoint the conciliator so nominated.
(2) When JSE commences the conciliation proceedings and all the parties fails to nominate a conciliator by agreement, JSE shall appoint, after consultation with all the parties, normally a single conciliator unless two or more conciliators are necessary, within 14 days from the date of the conciliation proceedings' commencement.
(3) In the case of the appointment of a conciliator under Sub-section (2) above, JSE shall secure an independent and impartial conciliator and if so requested by any of the parties, shall take it into consideration whether to appoint a conciliator of a nationality other than the nationalities of the parties.
(4) In the case of an appointed conciliator being unable to serve, JSE shall appoint another conciliator after consultation with all the parties.

Section 5 [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 shall 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 course of business between the parties.
(3) The conciliator is not liable for any act or omission arising from his role.

Section 6 [Role of JSE]

(1) In order to facilitate the conduct of the conciliation proceedings, JSE assists the conciliator in the administration of the conciliation proceedings.
(2) JSE and any person who works for JSE are not liable for any act or omission arising from their role.

Section 7 [Privacy]

Conciliation sessions are private. Persons other than the parties or those who work for the parties may attend only with the permission of all the parties and the conciliator.

Section 8 [Conduct of conciliation proceedings]

(1) Upon the appointment of the conciliator each party shall immediately submit to JSE a brief written statement (in any form) describing the general nature of the dispute and the points at issue, and shall send a copy of this statement to the other party.
(2) The conciliator may request each party to submit to him a further written statement of its position and the facts and grounds in support thereof, supplemented by any documents and other evidence that such party deems appropriate. Each party shall send to the other party a copy of its statement and evidence submitted to the conciliator.
(3) The conciliator may fix the place of the conciliation session and may conduct the conciliation proceedings in such a manner as he considers appropriate, taking into account the circumstances of the case, the wishes of the parties, including any request by a party that the conciliator hear oral statements, and the need for a speedy settlement of the dispute.
(4) The conciliator may, if he thinks it necessary for settlement of the dispute, take expert testimony on condition that all the parties agree to pay the costs thereof.
(5) The conciliator may, at any stage of the conciliation proceedings, make proposals for a settlement of the dispute. Such proposals need not be in writing and need not be accompanied by a statement of the reasons therefor.
(6) JSE will assist a party to prepare and send to the other party written statements and documents in accordance with (1) and (2) above. That party shall pay the expense thereof to JSE.

Section 9 [Communication between the conciliator and parties]

The conciliator may, at any stage of the conciliation proceedings, meet all the parties together or each of them separately to ask their opinion. In this case, if required by the conciliator, the parties themselves or persons authorized to settle the dispute on their behalf shall attend the meeting.

Section 10 [Submission and disclosure of information by the parties]

(1) The conciliator may, at any stage of the conciliation proceedings, request the parties to submit to him such information as he deems appropriate.
(2) When the conciliator receives factual information concerning the dispute from any party, he shall disclose 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 should be kept confidential, the conciliator will not disclose that information to the other party.

Section 11 [Suggestions by parties for settlement of dispute]

Any party may, on his own initiative or at the invitation of the conciliator, submit to the conciliator suggestions for the settlement of the dispute.

Section 12 [Co-operation by 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.

Section 13 [Representation and assistance]

(1) 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 and to the conciliator; such communication is to specify whether the appointment is made for the purpose of representation or of assistance.
(2) If requested by a party, JSE shall, at the expense of the requesting party, assist the party to make the above-mentioned communication.

Section 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 shall formulate the terms of a possible settlement and submit 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, the conciliator shall draw up the settlement agreement. The settlement agreement shall be signed not only by all the parties, but also by the conciliator.
(3) The settlement agreement shall contain an arbitration clause which provides that any dispute arising from this settlement agreement shall be submitted to arbitration held in Tokyo by the Tokyo Maritime Arbitration Commission of The Japan Shipping Exchange, Inc. (TOMAC) in accordance with the Rules of TOMAC and any amendment thereto, and the award given by the arbitrators shall be final and binding on both parties.

Section 15 [Termination of conciliation proceedings]

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; or
(d) By a written declaration of one of the parties to the other party or parties and the conciliator, to the effect that the conciliation proceedings are terminated, on the date of the declaration; or
(e) By the conciliator's declaration under the provisions of Section 16(1) or Section 18(3), on the date of the declaration; or
(f) By a written declaration of the conciliator to the effect that the conciliator can not properly continue the conciliation proceedings by reason of non-compliance of a party or parties to the requests of the conciliator, on the date of the declaration.

Section 16 [Alteration of conciliation proceedings into arbitration proceedings]

(1) In case all the parties, after reaching a settlement agreement, agree to convert the settlement agreement to an arbitral award in order to secure the settlement of their dispute, the conciliator shall terminate the conciliation proceedings immediately.
(2) In the case of Sub-section (1) above, the parties shall make an arbitration agreement by signing the form provided in the Schedule and shall appoint the conciliator as the arbitrator.
(3) The arbitrator shall commence the arbitration proceedings immediately upon appointment by the parties, and shall make an arbitral award in the terms of the settlement agreement of the parties.

Part III Costs

Section 17 [Costs of conciliation proceedings]

(1) The costs of the conciliation proceedings includes:
- (a) The remuneration of the conciliator;
- (b) The administrative expenses of JSE for the conciliation proceedings;
- (c) The travel expenses and daily allowance of the conciliator;
- (d) The cost of expert's testimony;
- (e) The cost of translation; and
- (f) any other expenses especially required in the conciliation proceedings.
The costs of (a) and (b) above are contained in the Fee Schedule, and the costs of (c) and (f) above shall be fixed by JSE, if required.
(2) Upon termination of the conciliation proceedings, the conciliator shall fix the costs of the conciliation and gives written notice thereof to the parties.
(3) The costs, as defined above, are to be borne equally by the parties unless the settlement agreement provides for a different apportionment. All other expenses incurred by a party are borne by that party.

Section 18 [Deposits]

(1) The conciliator, upon his appointment, may request each party to deposit an equal amount which he deems necessary as an advance for the costs referred to in Section 17.
(2) During the course of the conciliation proceedings the conciliator may request supplementary deposits in an equal amount from each party.
(3) If the required deposits under Sub-section (1) and (2) above are not paid in full by both parties within 30 days, the conciliator may suspend the proceedings or may make a written declaration of termination to the parties; in the latter case the termination becomes effective on the date of that declaration.
(4) Upon termination of the conciliation proceedings, JSE will render an accounting to the parties of the deposits received and return any unexpended balance to the parties.

Part IV Supplementary Provisions

Section 19 [Prohibition of initiation of arbitral or judicial proceedings]

The parties shall not initiate any arbitral or judicial proceedings in respect of a dispute that is the subject of the conciliation proceedings during the conciliation proceedings (except for the arbitral proceedings mentioned in Section 16 above). However, any party may initiate such arbitral or judicial proceedings as are necessary for preserving his rights against prescription and the like.

Section 20 [Confidentiality]

The conciliator, the parties and JSE shall keep confidential all matters relating to the conciliation proceedings and the settlement agreement, except for purposes of implementation and enforcement of the settlement agreement.

Section 21 [Involvement of conciliator in other proceedings]

(1) The conciliator shall not act as an arbitrator or as a representative or counsel of the party or parties in any arbitral or judicial proceedings in respect of a dispute that is the subject of the conciliation proceedings except for the arbitral proceedings mentioned in Section 16 above.
(2) The parties shall not present the conciliator and Secretariat of JSE who participated in the conciliation proceedings as witnesses in such other proceedings.

Section 22 [Admissibility of evidence in other proceedings]

The parties agree not to 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:

(a) Views expressed or suggestions made by the other party in respect of a possible settlement of the dispute;
(b) Admissions made by the other party in the course of the conciliation proceedings;
(c) Proposals made by the conciliator;
(d) The fact that the other party had indicated his willingness to accept a proposal for settlement made by the conciliator.