FACT RULES OF CONCILIATION
Rule 1 - Short title and scope
(1) These rules may be called the FACT Rules of Conciliation.
(2) These rules shall apply where the parties have agreed in writing, that -
(a) a dispute which has arisen, or
(b) a dispute which may arise between them in respect of a defined legal relationship, whether contractual or not, should be resolved by amicable settlement under the FACT Rules of Conciliation.
(3) These rules shall not apply to disputes which, by virtue of any law for the time being in force, may not be submitted to conciliation.
(4) For the purpose of these Rules, the term "Mediation" shall mean and include "Conciliation" and all reference to Mediators shall mean and include "Conciliators".
Rule 2 - Definitions
In these rules, unless the context otherwise require:-
(a) 'Conciliation Committee' means the Conciliation Committee of the FACT and shall be the same as the Arbitration Committee of FACT;
(b) 'Sub Committee' means the Sub Committee of the Conciliation Committee of the FACT;
(c) 'Rules of Conciliation' or "rules" means the FACT Rules of Conciliation;
(d) 'Executive Committee' means the Executive Committee for the time being of the Federation;
(e) 'FACT" means FICCI Arbitration and Conciliation Tribunal, New Delhi;
(f) 'Panel of conciliators' means the panel of persons approved by the Conciliation Committee to act as conciliators;
(g) 'Party' means a party to the agreement referred to in rule 1(2);
(h) 'Schedule' means the Schedule to these rules.
Rule 3 - The Conciliation Committee
(a) The "Conciliation Committee" shall mean the Conciliation Committee of the FACT and shall be the same as the Arbitration Committee of FACT.
(b) The Conciliation Committee may co-opt not more than seventeen persons to be additional members of the Conciliation Committee during its term of office. Persons who are not members of the Executive Committee may also be co-opted to be members of the Conciliation Committee.
(c) The duties of the Conciliation Committee, among others, shall be to select Conciliators of FACT and to supervise the work of the Registrar.
(d) The Conciliation Committee may revise or alter the Rules of procedure of FACT or the schedule of fees and other charges to be paid. However, such amendment shall not be to the detriment of the parties which have already submitted to Conciliation and shall be applicable only prospectively.
(e) (i) A Sub Committee may be set up by the Conciliation Committee of FACT at any one or more Regional offices for the purposes of selection of Conciliators
(ii) The Chairman of the Regional office shall be the ex-officio Chairman of this Sub Committee. The Sub Committee shall hold office for a year.
(iii) The Chairman of the Sub Committee, in consultation with the Chairman of the Conciliation Committee of FACT, may co-opt not more than 17 members to be additional members of the Sub Committee, during its term of office.
(iv) Duties of the Sub Committee, among others, as may be delegated by the Committee, shall be to select Conciliators from the common panel of the FACT for dispute proceedings to be conducted in the respective Region.
Rule 4 - The Registrar
The Registrar shall be the chief administrative officer of the FACT. He shall receive applications to the FACT and shall receive payment of fees and costs, keep an up-to-date list of Panel members of the FACT, appoint, as provided hereinafter, arbitrator or arbitrators who will constitute the Bench to deal with any dispute, receive all applications made to the Bench by the parties and communicate to them the orders and directions of the Bench, keep a register of such other books and memoranda and make such other returns as the Conciliation Committee/Sub Committee shall from time to time require and generally carry out the directions of any Bench so constituted and take such other steps as may be necessary to assist any such Bench in the execution of its functions.
The Registrar may delegate to any officer of FACT, Chambers of Commerce or Trade Association at the premises of which the conciliation proceedings are taking place, to discharge such of the functions and administrative duties of the Registrar as are deemed proper and necessary from time to time, with reference to a particular case or cases.
Rule 5 - Panel of Conciliators
a) The FACT shall establish a Panel of Conciliators with sufficient training and experience for conducting conciliation proceedings. A list of such Conciliators shall be maintained by the FACT for the information of persons interested in availing conciliation services.
b) The Panel of Conciliators shall be bound by the policies and procedures prescribed by FACT and shall act in accordance thereof.
c) The Panel shall ensure maintenance of strict ethics and confidentiality.
d) The persons who have attained the age of more than 75 years will automatically cease to be member of the Panel. In the case of a member, who has been appointed as Conciliator before attainment of the age of 75 years, his panel membership will continue till the conclusion of the proceedings pending before him.
Rule 6 - Commencement of conciliation proceedings
(1) The party initiating conciliation shall send to the other party a written invitation to conciliate under these rules, briefly identifying the subject of the dispute, with a copy to FACT.
(2) Conciliation proceedings shall commence when the other party accepts in writing the invitation to conciliate. Upon acceptance of the invitation by the other party, the following information shall be submitted by both the parties along with the registration fees:
i. Notice of request for conciliation
ii. Names and full contact details of the parties and their counsels;
iii. Category of dispute (Commercial/IPR/Technology/Others);
iv. Statement of Claim setting out nature of dispute, points at issue and relief sought along with supporting documents;
v. Original or certified copies of the conciliation clause in the contract or the conciliation agreement.
(3) If the other party rejects the invitation, there will be no conciliation proceedings.
(4) If the party initiating conciliation does not receive a reply within thirty days from the date on which he sends the invitation, or within such other period of time as specified in the invitation, he may elect to treat this as a rejection of the invitation to conciliate and inform the other party accordingly.
Rule 7 - Number and appointment of conciliators
(1) There shall be one conciliator unless the parties have agreed that there shall be two or three conciliators.
(2) The parties may agree to enlist the assistance of the FACT in connection with the appointment of conciliator, and in particular:-
(a) a party may request the FACT to recommend the names of suitable individuals to act as conciliator; or
(b) where the agreement between the parties provides for the appointment of conciliator by the FACT, a party may request the FACT in writing to appoint a conciliator.
(3) Where a request in pursuance of clause (a) or clause (b) of sub-rule (2) is made to the FACT, the party making the request shall send to the FACT-
(a) a copy of the invitation to conciliate;
(b) a copy of the acceptance by the other party;
(c) a copy of the agreement, if any, between the parties providing for an amicable settlement of dispute between them by conciliation;
(d) any qualifications required of the conciliator;
(e) any additional information, if required, by the FACT.
(4) In recommending or appointing an individual to act as conciliator, the FACT will follow the procedure specified in rule 27 and will have regard to-
(a) any qualifications required of the conciliator by the agreement of the parties;
(b) such considerations as are likely to secure the appointment of an independent and impartial conciliator; and
(c) where the parties are of different nationalities, the advisability of appointing a conciliator of a nationality other than the nationalities of the parties.
(5) A successor conciliator will be appointed in the manner in which his predecessor had been appointed.
(6) No person shall act as Conciliator in any dispute in which that person has any financial or personal interest, except by consent of the parties. Before accepting an appointment, the Conciliator shall disclose to the parties and to FACT, any circumstances likely to create a presumption of bias or prevent speedy resolution of the dispute.
(7) Prior to commencement of the Conciliation proceedings, the FACT and the Conciliator shall confirm that all formalities prior to commencement of such Conciliation have been completed and all consents required prior to such commencement have been executed and received by FACT.
Rule 8 - Representation and assistance
Each party shall advise, in writing, the other party and the conciliator of-
(a) the name and address of any person who will represent or assist him, and
(b) the capacity in which that person will represent.
Rule 10 - Role of conciliator
(1) The conciliator shall assist 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 business practices between the parties.
(3) The conciliator may conduct the conciliation proceedings in such 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) 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 therefore.
(5) The Conciliator (s) and the Parties may decide upon calling for additional expert opinions as per the circumstances of each case. All such expenses shall be borne by all the parties equally unless otherwise agreed to by and between the parties.
Rule 11 - Administrative services
The FACT will arrange the administrative services specified in Part B if-
(a) the parties designate the FACT for arranging such services in the agreement to conciliate;
(b) the parties, or the conciliator with the consent of the parties, request the FACT to arrange such services.
Rule 12 - Communication between conciliator and parties
(1) The conciliator may invite the parties to meet 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.
(2) Unless the parties have agreed upon the place where meetings with the conciliator are to be held, such place shall be determined by the conciliator, taking into consideration the circumstances of the conciliation proceedings.
Provided that where administrative assistance by the FACT is sought under Rule 11, all such conciliation proceedings shall be conducted at the offices of FICCI or at a place designated by FACT as the venue for such proceedings.
Rule 13 - Disclosure of information
When the conciliator receives factual information concerning the dispute from a 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;
Provided that when a party gives any information to the conciliator subject to a specific condition that it be kept confidential, the conciliator shall not disclose that information to the other party.
Rule 14 - Cooperation of parties with conciliator
The parties shall in good faith co-operate with the conciliator and, in particular, shall endeavor to comply with requests by the conciliator to submit written materials, provide evidence and attend meetings.
Rule 15 - 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 16 - Settlement agreement
(1) When it appears to the conciliator that there exist elements of a settlement which may 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, they may draw up and sign a written settlement agreement. If requested by the parties, the conciliator may draw up, or assist the parties in drawing up, the settlement agreement.
(3) When the parties sign the settlement agreement, it shall be final and binding on the parties and persons claiming under them respectively.
(4) The conciliator shall authenticate the settlement agreement and furnish a copy thereof to each of the parties.
Rule 17 - Confidentiality
The conciliator and the parties shall keep confidential all matters relating to the conciliation proceedings. Confidentiality shall extend also to the settlement agreement, except where its disclosure is necessary for purposes of its implementation and enforcement.
Rule 18 - Termination of conciliation proceedings
(1) The conciliation proceedings shall be terminated-
(a) by the signing of the settlement agreement by the parties on the date of 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 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.
(2) The conciliator shall, upon termination of the conciliation proceedings, send an intimation thereof in writing to the FACT.
Rule 19 - Resort to arbitral or judicial proceedings
The parties shall not initiate, during the conciliation proceedings, any arbitral or judicial proceedings in respect of a dispute that is the subject matter 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 20 - Costs
(1) The Conciliator shall receive his fees upon the termination of the conciliation proceedings. The cost of conciliation, including the fee of the conciliator and any assistance provided pursuant to Rule 7(2)(b) and fee and charges for any administrative assistance pursuant to Rule 11 shall be fixed by FACT in accordance with the FACT Fee Schedule.
Provided that the FACT may, on request from the conciliator and after receiving written consent from the parties, fix the fee of the conciliator at a figure higher than that set out in the Schedule if, in exceptional circumstances of the case, this appears to be necessary.
(2) For the purpose of sub-rule (1), "costs" means costs relating to-
(a) the fee and expenses of the conciliator and witnesses requested by the conciliator with the consent of the parties;
(b) any expert advice requested by the conciliator with the consent of the parties;
(c) any assistance provided pursuant to Rule 7(2) and Rule 11;
(d) any other expenses incurred in connection with the conciliation proceedings and the settlement agreement.
(3) Where more than one conciliator is appointed, each conciliator shall be paid separately the fee set out in the Schedule.
(4) The costs shall be borne equally by the parties unless the settlement agreement provides for a different apportionment. All other expenses incurred by a party shall be borne by that party.
Rule 21 - Deposits
(1) FACT shall direct each party to deposit with the FACT an equal amount as an advance for the costs referred to in rule 20(2) which he expects will be incurred.
(2) During the course of the conciliation proceedings, the conciliator may, in consultation with the FACT, direct supplementary deposits with the FACT in an equal amount from each party for the costs referred to in sub rule (1).
(3) If the required deposits under sub-rules (1) and (2) are not made in full within thirty days, the conciliator will inform the parties in order that one or the other party may make the required deposit and if the required deposit is not made, the conciliator may suspend the proceedings, or may make a written declaration of termination of the proceedings to the parties, effective on the date of that declaration.
(4) Subject to any settlement agreement, upon termination of the conciliation proceedings, the FACT shall apply the deposits to the costs of the proceedings, render an accounting to the parties of the deposits received and applied and return any unexpended balance, to the parties.
Rule 22 - Role of conciliator in other proceedings
Unless otherwise agreed by the parties,-
(a) the conciliator shall not act as an arbitrator or as a representative or counsel of a party in any arbitral or judicial proceeding in respect of a dispute that is the subject-matter of the conciliation proceedings;
(b) the conciliator shall not be presented by the parties as a witness in any arbitral or judicial proceedings.
Rule 23 - Admissibility of evidence in other proceedings
The parties shall 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-matter 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 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.
Rule 25 - Rule 25
To facilitate the conduct of conciliation proceedings that the parties have agreed to conduct under the Rules of Conciliation, the FACT will-
(a) perform the functions of the appointing authority whenever-
(i) the FACT has been so designated by the parties in the conciliation clause of their contract or in a separate agreement, or
(ii) the parties have agreed to submit a dispute to the FACT under the Rules of Conciliation without specifically designating it as the appointing authority in their contract; and
(b) provide the administrative services herein specified when required by the agreement, or when requested by all the parties, or by the conciliator with the consent of the parties.
Rule 26 - Services as the Registry
(1) On receiving a request in pursuance of rule 7(2)(a) or 7(2)(b), the FACT will register the request and intimate in writing to the parties, the registration number of the case which shall be quoted by the party while making any subsequent communication to the FACT.
(2) The FACT will scrutinise every request and the documents, make necessary entries in the register and prepare a file of the case.
Rule 27 - Services as recommending or appointing authority
(1) On receipt of a request in pursuance of rule 7(2)(a), the FACT will communicate to the party, making the request, the FACT panel of Conciliators, containing the names, addresses, nationalities and a description of qualifications and experience of the Conciliators.
(2) On receipt of a request to appoint a conciliator in pursuance of rule 7(2)(b), the FACT will follow the following procedure-
In the case of appointment of a Sole Conciliator:
(a) FACT will communicate to each party the Panel of Conciliators, containing the names, addresses, nationalities and a description of qualifications and experience of the Conciliators, calling upon the parties to forward the name of an agreed Conciliator from among the Panel within a period which will not be less than thirty days from the date of the said notice from FACT.
(b) If for any reason the appointment cannot be made according to the procedure specified in clause (a), the FACT may appoint the conciliator from the panel of conciliators.
(c) The consent to act as conciliator shall be obtained by FACT from persons nominated by the parties or appointed by FACT.
(d) The sole conciliator so nominated by the parties or appointed by FACT shall be appointed as such in writing and notice of such appointment shall be given to the parties by FACT.
In the case where parties agree for two or three Conciliators
(e) Where the parties wish for two Conciliators, FACT will communicate to each party the Panel of Conciliators, containing the names, addresses, nationalities and a description of qualifications and experience of the Conciliators, and shall call upon the parties, by a notice in writing, to nominate one Conciliator each from among the FACT Panel, within a period which will not be less than thirty days from the date of the said notice from FACT. The consent to act as conciliator shall be obtained by FACT from persons nominated by the parties. The Conciliators so nominated by the parties shall be appointed as such in writing and notice of such appointment shall be given to the parties by FACT.
(f) Where the parties wish for three Conciliators, the procedure in clause (d) shall be followed. Thereafter, on receipt of the nominations from the respective parties, FACT shall appoint another person from among the Panel to be the Presiding Conciliator. The consent to act as conciliator shall be obtained by FACT from persons nominated by the parties or appointed by FACT. The Conciliators so nominated or appointed shall be appointed as such in writing and notice of such appointment shall be given to the parties by FACT.
(3) In recommending or appointing a conciliator, the FACT will have regard to the matters referred to in rule 7(4) and will carefully consider the nature of the dispute in order to include in the list, persons having appropriate professional or business experience, language ability and nationality.
(4) All appointments on behalf of the FACT will be made by the Conciliation Committee/Sub Committee.
Rule 28 - Administrative services
(1) The FACT may provide the administrative services specified in this Part-
(a) upon the request of the parties;
(b) upon the request of the conciliator with the consent of the parties; or
(c) if the parties designate the FACT for providing such services in their contract.
(2) All oral or written communications from a party to the conciliator, except at meetings, may be directed to the FACT which will transmit them to the conciliator and, where appropriate, to the other party.
(3) Agreement by the parties that the FACT will provide the administrative services, constitutes consent by the parties that, for purposes of compliance with any time requirements of the rules, any written communications shall be deemed to have been received by the other party/Conciliator when received by the FACT. When transmitting communications to a party, the FACT will do so to the addresses provided by each of them to the FACT for this purpose.
(4) The FACT will also assist in the exchange of information and of settlement proposals.
(5) The FACT will assist the conciliator to establish the date, time and place of meetings and will give the parties advance notice of such meetings.
(6) The FACT will provide a meeting room for the conciliator and the parties or their counsel in the offices of the FACT on the charges set out in the Schedule. However, where these facilities are provided in any place other than the offices of the FACT, the charges will be determined by the FACT and billed separately in each case.
(7) Upon request, the FACT will make arrangements for reporter transcripts of meetings or hearings, however, the charges will be determined by the FACT and billed separately in each case.
(8) Upon request, the FACT will make arrangements for the services of interpreters or translators. The cost of interpretation or translation will be determined by the FACT and billed separately and is not included in the fee for administrative services.
(9) (a) The FACT will hold advance deposits to be made towards the costs of the conciliation proceedings.
(b) On termination of the conciliation proceedings, the FACT will apply the proceeds of the advance deposits towards any of its unpaid administrative fee and charges and the costs of the conciliation proceedings and will render an accounting to the parties of the deposits received and applied, and return any unexpended balance to the parties.
(10) (a) Upon request, the FACT will provide other appropriate administrative services, the cost of which will be determined by the FACT and billed separately and are not included in the fee for administrative services.
(b) The kinds of services which can be provided are as follows:-
(i) long distance and local telephone access and facsimile facilities;
(ii) photocopying and other usual office services.
(11) (a) The FACT may require the party requesting one or more of the services referred to in sub-rule (6), (7), (8) or (10) to deposit an amount specified by it as advance towards the cost of such services;
(b) The FACT may also require the parties to make supplementary deposits towards the costs of the services referred to in clause (a);
(c) If the required deposit under clause (a) or clause (b) is not made in full within the time specified by the FACT, the FACT may not provide the services requested for.
Rule 29 - Fees and Expenses
A. Registration Fee
A registration fee of Rs. 5000/- shall be paid along with the application for reference to conciliation. The registration fee will not be refunded and shall become the property of the FACT.
B. Administrative Fee
(1) The fee of the FACT for appointing a conciliator and for providing administrative services, other than those specified in sub-rules (6), (7), (8) and (10) of rule 28, is based upon the amount in dispute as disclosed when the statement of dispute is submitted to the FACT in pursuance of sub-rule (1) of rule 8.
(2) The Schedule of Fees of the FACT Rules of Conciliation, as given hereunder, provides the costs of conciliation, which include the costs of the administrative fee and conciliators' fees (for each conciliator), which shall be fixed separately and shall be with regard to the amount in dispute in each case.
Schedule of Fees
|
Amount in Dispute (in Rs.) |
Conciliator's Fee (in Rs.) |
Administrative Fee (in Rs.) |
|
Up to. 5 lac (Rs. 5,00,000) |
30,000 |
15,000 |
|
From 5 lac one to 25 lacs (5,00,001 to 25,00,000) |
30,000 plus 1,500 per lac or part thereof subject to a ceiling of 60,000 |
15,000 plus 750 per lac or part thereof subject to a ceiling of 30,000 |
|
From. 25 lac one to 1 crore (25,00,001 to 1,00,0,000) |
60,000 plus 1,200 per lac or part thereof subject to a ceiling of 1,50,000 |
30,000 plus 600 per lac or part thereof subject to a ceiling of 75,000 |
|
From 1 crore one to 5 crores (1,00,00,001 to 5,00,00,000) |
1,50,000 plus 22,500 per crore or part thereof subject to a ceiling of 2,40,000 |
75,000 plus 11,250 per crore or part thereof subject to a ceiling of 1,20,000 |
|
From 5 crores one to 10 crores (Rs. 5,00,00,001 to Rs. 10,00,00,000) |
2,40,000 plus 15,000 per crore or part thereof subject to a ceiling of 3,15,000 |
1,20,000 plus 8000 per crore or part thereof subject to a ceiling of 1,60,000 |
|
Over 10 crore (10,00,00,000) |
3,15,000 plus 12,000 per crore or part thereof |
1,60,000 plus 6000 per crore or part thereof |
(3) In addition to the above, the FACT will be entitled to receive a Special Fee of Rs. 2500/- per hearing for providing facilities of hearing rooms and secretarial assistance etc. at the conciliation hearings.
(4) Notwithstanding the provisions in Sub-Rule (1) of this Rule, the Conciliation Committee or its Chairman/Sub Committee or its Chairman may prescribe the Conciliator's fees and the Administrative fees of the FACT at a figure higher than those prescribed in the said Sub-Rules, if in the exceptional circumstances of the case this appears to be necessary.
(5) Other expenses:
(i) The conciliator may be paid an amount of Rs. 750/- towards local conveyance for attending each conciliation hearing in the city of his residence. Any traveling and other expenses incurred by the conciliator or the Registrar for attending the conciliation hearings in a city other than the place of residence, shall also be reimbursed to him as provided hereinafter. All the above expenses shall form part of the conciliation costs.
(ii) A conciliator who has to travel shall be paid traveling expenses by air or rail (air conditioned wherever available) or car (when neither air nor rail transport is available) at actuals. In addition, he may be paid out-of-pocket expenses at actuals for boarding, lodging and local transport subject to maximum of Rs. 6,000/- per day in metropolitan towns, Rs. 3,000/- in class A cities and Rs. 2,000/- in other cities. A conciliator who makes his own arrangements for boarding, lodging, local transport etc. may be paid out of pocket expenses at the rate of Rs. 1000/- per day, without production of vouchers. The expense limits for stay of the FACT officials will be of those applicable to conciliators.
Rule 30 - Indemnity
The FACT, the Conciliation Committee/Sub Committee and officers of FACT shall not be liable for any act or omission in whatever capacity they may have acted in connection with or in relation to the conciliation proceedings under these Rules and the parties shall not raise any claim against them for the same.
