GUIDE to CONCILIATION AT JSE

4. Successful Conciliation

Settlement Agreement

Original

SETTLEMENT AGREEMENT (Example)

Complainant*1: Excellent Shipping Co., Inc.
32, Akashi-cho, Chuo-ku, Kobe
John BAYSWATER, Representative Director

Respondent: Japan Materials Kabushiki Kaisha
3-16, Nihonbashi Muromachi 2-chome, Chuo-ku, Tokyo
Hardy STOCKMANN, Representative Director

CONCILIATION REGARDING DISPUTE
OVER MS HEISEI MARU FORWARDING CONTRACT

Dear Sirs:

In the above captioned case, the Conciliator drafted conditions for amicable settlement, presented them to the parties, heard their opinions and views, drafted the amended conditions, asked for mutual concessions and obtained positive cooperation from the parties, and the parties reached an amicable settlement under the following conditions.

It was agreed between the parties named above that any dispute arising from or related to this Settlement Agreement should be submitted under Section 14 (3) of JSE Conciliation Rules to arbitration according to the Arbitration Rules of Tokyo Maritime Arbitration Commission of JSE and that the parties should be conclusively bound by any arbitration award of arbitrators selected pursuant to such Arbitration Rules.*2

Remarks

Excellent Shipping Co., Inc., (the "Complainant") and Japan Materials Kabushiki Kaisha (the "Respondent") confirm that the contract for forwarding of the machinery system (the "Cargo") by loading at Hong Kong on board the Complainant's MS HEISEI MARU and discharging at Tokyo Port was fully performed at the time when the Cargo was fully discharged at Yokohama Port Wharf A, and the Respondent shall remit the sum of Yen 30,000,000, being the full amount of the marine forwarding fees, to the Complainant's account (Ordinary account No. 1212123 in the name of John Bayswater, Excellent Shipping Co., Inc. at Ginza Branch of ABC Bank) on or before September 5, 1994.
The Complainant hereby confirms that it paid the sum of Yen 1,200,000 to the Respondent as of this date in front of the Conciliator as consolation money for the unexpected delay in the land forwarding of the Cargo.
The Complainant and the Respondent hereby confirm to each other that there are no other obligations or debts outstanding regarding this dispute.
It is confirmed that the cost of conciliation for this case was Yen 123,600, and that the cost was paid by the parties on an equal basis.

IN WITNESS HEREOF, this Settlement Agreement was prepared in three copies,*3 the Complainant, the Respondent and the conciliator signing and or affixing their seal thereto, with the Complainant and the Respondent keeping one true copy each and JSE keeping the original.

Dated this 30th day of August, 1994

Complainant:: Excellent Shipping Co., Inc.*4
(Signed)
John BAYSWATER, Representative Director

Respondent:: Japan Materials Kabushiki Kaisha
(Signed)
Hardy STOCKMANN, Representative Director

Conciliator:
: (Signed)
Alan PEACEMAKER*5

[Comment]: Section 14 of the Conciliation Rules provides that the conciliator prepares conditions for settlement if he recognizes that the parties are willing to agree to settlement, presents the conditions to the parties, amends the same by listening to the opinions of the parties, and prepares the Settlement Agreement based on the parties' agreement. All the parties sign the Agreement and the conciliator signs his name and or affixes his personal seal to it. Note, however, that there will be included a provision that any dispute arising out of or related to the Settlement Agreement is to be resolved by arbitration by Tokyo Maritime Arbitration Commission of JSE (TOMAC) under its rules of maritime arbitration.

(Note 1): The example shown here is for the case where the application for conciliation has been made by one party. If the conciliation has been applied for by both parties, the indications shall be "Party A" and "Party B".
(Note 2): This provision, equivalent to an Arbitration Clause, is inserted here as required by Section 14(3) of the Conciliation Rules.
(Note 3): The number shall be that of the parties plus one original for JSE.
(Note 4): The representatives of the parties shall sign their names, but seals may be used for company names.
(Note 5): The conciliator shall sign his name and affix his personal seal, if any.

Arbitration Agreement Accompanying Change of Proceedings from Conciliation to Arbitration (Under Conciliation Rules, Section 16)

ARBITRATION AGREEMENT ACCOMPANYING CHANGE OF PROCEEDINGS
FROM CONCILIATION TO ARBITRATION (example) *1

Excellent Shipping Co., Inc.: 32, Akashi-cho, Chuo-ku, Kobe
John BAYSWATER, Representative Director

Japan Materials Kabushiki Kaisha: 3-16, Nihonbashi Muromachi 2-chome, Chuo-ku, Tokyo
Hardy STOCKMANN, Representative Director

CONCILIATION REGARDING DISPUTE
OVER MS HEISEI MARU FORWARDING CONTRACT

The following Arbitration Agreement is made by the above named parties in order to conclude the conciliation proceedings for the above captioned case and to have an Arbitration Award prepared in the terms of the settlement agreed by the parties under Section 16 of the Conciliation Rules of the Japan Shipping Exchange, Inc.*2

Remarks

The arbitrator shall be Mr. Alan PEACEMAKER.*3
The arbitrator shall immediately commence the arbitration procedure for this case in order to prepare the Arbitration Award containing the details of settlement agreed by the parties on August 30, 1994.
The parties have agreed that there is no need to hold a hearing or to attach reasons to the arbitration award in these arbitration proceedings.*4
The place of arbitration shall be Tokyo.
Except for the provisions of its first four sections, the Arbitration Rules of the Tokyo Maritime Arbitration Commission of the Japan Shipping Exchange, Inc. (TOMAC) shall be applied.*5

IN WITNESS HEREOF, this Agreement was prepared and executed by the parties, JSE keeping this original copy.

Dated this 30th day of August, 1994*6

    Excellent Shipping Co., Inc.*7
    (Signed)
    John BAYSWATER, Representative Director

    Japan Materials Kabushiki Kaisha
    (Signed)
    Hardy STOCKMANN, Representative Director

[Comment]: The Arbitration Agreement provides for the drafting of an arbitration award containing the settlement agreement reached by the parties as the Main Text (but without giving reasons) in order to give binding force to the settlement. For the award to be given the same effect as an established judgement of the court (Section 800 of the Code of Civil Procedure), it is necessary for the parties to conclude an arbitration agreement. As a rule, an arbitration award must include the reasons for the award, and an award without reasons needs to be agreed by the parties (Section 801 of the Code of Civil Procedure). The Arbitration Agreement in Form 009 is therefore necessary.
Arbitration as mentioned here is not arbitration by the Tokyo Maritime Arbitration Commission of JSE (TOMAC) but rather is an ad hoc arbitration. The Arbitration Rules of TOMAC are applied only in respect of matters not fully decided in the Arbitration Agreement.

(Note 1): The name of this document clearly indicates that this is not an agreement for arbitration under the jurisdiction of the Tokyo Maritime Arbitration Commission of JSE (TOMAC).
(Note 2): The basis for concluding this Arbitration Agreement is here indicated.
(Note 3): This Agreement provides that the conciliator is to act as arbitrator.
(Note 4): Care is taken to have the parties agree to waive a hearing and reasons for the award in order to avoid application of Section 801(1) of the Arbitration Act regarding Cancellation of Arbitration Award.
(Note 5): The provisions of the Arbitration Rules of Tokyo Maritime Arbitration Commission of JSE (TOMAC) are to be applied except for Sections 1 through 4.
(Note 6): Special care is taken regarding the date so that the Settlement Agreement and the Arbitration Agreement become valid simultaneously.
(Note 7): All the parties to the Arbitration Agreement shall sign their names and affix their seals.