PCA Optional Conciliation Rules Model Conciliation Clauses

• Updated at: February 2023

CONTENTS

Introduction 151

Permanent Court of Arbitration Optional Conciliation Rules 155

Application of the Rules (Article 1) 155

Commencement of Conciliation Proceedings (Article 2) 155

Number of Conciliators (Article 3) 156

Appointment of Conciliators (Article 4) 156

Submission of Statements to Conciliator (Article 5) 157

Representation and Assistance (Article 6) 157

Role of Conciliator (Article 7) 157

Administrative Assistance (Article 8) 158

Communication between Conciliator and Parties (Article 9) 158

Disclosure of Information (Article 10) 159

Co-operation of Parties with Conciliator (Article 11) 159

Suggestions by Parties for Settlement of Dispute (Article 12) 159

Settlement Agreement (Article 13) 159

Confidentiality (Article 14) 160

Termination of Conciliation Proceedings (Article 15) 160

Resort to Arbitral or Judicial Proceedings (Article 16) 161

Costs (Article 17) 161

Deposits (Article 18) 162

Role of Conciliator in Other Proceedings (Article 19) 162

Asmissibility of Evidence in Other Proceedings (Article 20) 162

Notes to the Text 164

INTRODUCTION

Purpose of the Rules

Parties who have disputes that they are unable to settle through consultation and negotiation with each other may wish to consider conciliation as a method for resolving their differences without the need to resort to arbitration or judicial means.

Although the benefits of conciliation are widely recognized, some parties may hesitate to enter into conciliation because they may be unfamiliar with the process or may have different views concerning how a conciliation should be conducted. In order to facilitate greater use of conciliation, the Permanent Court of Arbitration has, with the approval of the Administrative Council, established these Optional Conciliation Rules (‘the PCA Optional Conciliation Rules’). These Rules are based on the UNCITRAL Conciliation Rules, with changes to indicate, inter alia, the availability of the Secretary-General of the Permanent Court of Arbitration to assist in appointing conciliators and of the International Bureau to furnish administrative support (art. 4, para. 3 and art. 8).

The purpose of these Rules is to provide a convenient basis for mutual agreement of parties on practical procedures that are useful in the conciliation process. Thus, for example, the Rules describe how to start a conciliation, how to appoint conciliators, what functions conciliators are expected to perform, and how to encourage parties to speak freely and candidly with conciliators while at the same time preserving necessary confidentiality. These Rules also describe how, if the conciliation is unsuccessful, it may be easily terminated so as not to delay or prejudice recourse to arbitration, judicial procedures or other means for ultimately resolving the dispute.

Scope of Application

The PCA Optional Conciliation Rules were prepared primarily for use in assisting to resolve disputes arising out of or relating to legal relationships where the parties seek an amicable settlement of their differences. In addition, parties are free to agree to use these Rules in seeking to resolve any other type of dispute.

These Rules are intended for use in conciliating disputes in which one or more of the parties is a State, a State entity or enterprise, or an international organization. Thus, for example, the same Rules may be used in disputes between two States and also in disputes between two parties only one of which is a State.

The PCA recognizes the importance and complexity of disputes that involve more than two parties. These Rules are also appropriate for use in connection with multiparty disputes, provided that changes are made to reflect participation by more than two parties. The Secretary-General of the Permanent Court of Arbitration is available to consult with interested parties concerning modifications that may be considered in adapting these Rules for use in multiparty disputes.

These Rules, and the services of the Secretary-General and the International Bureau, are available for use by all States and their entities and enterprises, and are not restricted to disputes in which the State is a party to either the Hague Convention on the Pacific Settlement of International Disputes of 1899, or that of 1907, nor is the choice of conciliators limited to persons who are listed as Members of the Permanent Court of Arbitration.

In modern international practice, the word ‘mediation’ is sometimes used to designate a process that is very similar to the procedures for ‘conciliation’ described in these Rules. In such cases, these Rules can also be used for mediation, it being necessary only to change the words ‘conciliation’ to ‘mediation’ and ‘conciliator’ to ‘mediator.’

Main Characteristics of these Rules

Parties who consider using the PCA Optional Conciliation Rules will wish to be aware of some of the main characteristics of these Rules:

A Voluntary Process

A primary principle that is expressed throughout these Rules is that initiating and continuing conciliation is entirely voluntary. Thus, these Rules provide that conciliation begins when all parties consent (art. 2, paras. 2 and 3) and that one party may terminate the process whenever it unilaterally determines that conciliation is no longer desirable (art. 15, para. (a)). These provisions reflect the belief that conciliation has the best chance to succeed when all parties share the desire to participate, and that, if they do not, it may be more efficient to resort without delay to arbitration or judicial means.

Flexible Procedures

Flexibility is another fundamental characteristic of...