Legal Affairs

Beijing-Hamburg Conciliation Rules

Preamble
Whereas the United Nations General Assembly in its resolution 35/52 adopted on 4th December, 1980, recommended the use of the Conciliation Rules of the United Nations Commission on International Trade Law (the "UNCITRAL Conciliation Rules") in cases where a dispute arises in the context of international commercial relations and the parties seek an amicable settlement of that dispute by recourse to conciliation,
Whereas conciliation proceedings will be facilitated by the establishment of conciliation centres where conciliation proceedings can take place with the administrative assistance of a neutral secretariat,
Whereas such conciliation centres have been established in Beijing, Peoples' Republic of China, and in Hamburg, Federal Republic of Germany,
Whereas the practical application of the UNCITRAL Conciliation Rules under the auspices of the said centres makes necessary certain variations in accordance with Article 1, paragraph (2) thereof,
the following rules have been adopted which shall be known as the BEIJING-HAMBURG CONCILIATION RULES:
Article 1 Application of the Rules
These Rules apply to conciliation of disputes arising out of or relating to a contractual or other legal relationship, whether commercial or maritime, where the parties seeking an amicable settlement of their dispute have agreed that the Beijing-Hamburg Conciliation Rules apply.
  1. Where any of these Rules is in conflict with a provision of law from which the parties cannot derogate, that provision prevails.
Article 2 Aim of Conciliation
Where the parties wish and agree that disputes arising between them as mentioned under Article 1 above shall be settled in an amicable manner, on the basis of mutual understanding, fairness and justice, a conciliator (or conciliators, as the case may be) shall assist them in reaching such a settlement in accordance with these Rules.
Article 3 Secretariat
  1. In order to facilitate the conduct of the conciliation proceedings, administrative assistance can be arranged in Beijing and/or Hamburg by the secretariat of the Beijing Conciliation Centre and/or the secretariat of the Beijing-Hamburg Conciliation Centre.
  2. These secretariats, if the parties so agree, may recommend names of suitable individuals to act as conciliators.
  3. Each secretariat appoints one or more conciliators if the parties so agree.
  4. These secretariats, unless the parties otherwise agree, act as institutions administering the conciliation procedure in a given case such as organising meetings and hearings, etc. The exchange of correspondence and documents between the parties and the conciliator shall be done through these secretariats.
  5. The conciliation shall be administered by the secretariat chosen by the parties. lf the parties have not chosen a secretariat the two secretariats shall jointly decide which of them shall ad­minister the proceedings. As a rule the secretariat in the respondent's country shall be chosen. In appropriate cases the two secretariats shall conduct joint conciliation. In this case, the number of conciliators shall be two, one from among the list of conciliators of the Beijing Conciliation Centre and one from among the list of conciliators of the Beijing-Hamburg Conciliation Centre, to be appointed by the disputing parties through consultation.
Where the disputing parties have expressly agreed to refer their dispute to joint conciliation by both centres, their reference shall be accepted.
Article 4 Place of Conciliation Meetings
The place where meetings with the conciliators are to be held will be either Beijing or Hamburg depending on where the conciliation is administered, unless otherwise agreed upon by the parties or determined by the conciliator, after consultation with the parties, having regard to the circum­stances of the conciliation proceedings.
Article 5 Settlement
The parties may agree, at any time before or during the conciliation proceedings, that they will accept as final and binding a settlement proposal made by the conciliator.
Article 6 Commencement of Conciliation Proceedings
  1. The party initiating conciliation sends to the other party a written invitation to conciliate under these Rules, briefly identifying the subject of the dispute.
  2. Conciliation proceedings commence when the other party accepts the invitation to conciliate. lf the acceptance is made orally it must be confirmed in writing.
  3. lf the other party rejects the invitation, there will be no conciliation proceedings.
  4. lf the party initiating conciliation does not receive a reply within thirty days from the date on which it sends the invitation, or within such other period of time as specified in the invitation, it may elect to treat this as a rejection of the invitation to conciliate. lf it so elects, it informs the other party accordingly.
Article 7 Number of Conciliators
There shall be two conciliators unless the parties agree that there shall be one conciliator. Where there are two conciliators they shall act jointly.
Article 8 Appointment of Conciliators
  1. In conciliation proceedings with one conciliator, the parties shall endeavour to reach agree­ment on the name of a sole conciliator.
  2. In conciliation proceedings with two conciliators, each party appoints one conciliator.
  3. The term "conciliator" as used herein applies to a sole conciliator or to two or more conciliators as the case may be.
Article 9 Submissions of Statements to Conciliator
  1. The conciliator, upon his appointment, requests each party to submit to him a brief written state­ment describing the general nature of the dispute and the points at issue. Each party sends a copy of its 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. The party shall send a copy of its further statement with related documents and evidence to the other party.
  3. At any stage of the conciliation proceedings the conciliator may request a party to submit to him such additional information as he deems appropriate.
Article 10 Representation and Assistance
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 purposes of representation or of assistance.
Article 11 Role of Conciliator
  1. The conciliator assists the parties in an independent and impartial manner in their attempts 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 therefore need not be accompanied by a statement of the reasons.
Article 12 Communication between Conciliator and Parties
Through the secretariat the conciliator may invite the parties to meet with 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.
Article 13 Disclosure of Information
When the conciliator receives factual information concerning the dispute from a party, he may 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 be kept confidential, the conciliator shall not disclose that information to the other party.
Article 14 Co-operation of Parties with Conciliator
The parties will co-operate in good faith with the conciliator and, in particular, will endeavour to comply with requests by the conciliator to submit written materials, provide evidence and attend meetings.
Article 15 Proposals by Parties for Settlement of Dispute
Each party may, on his own initiative or at the invitation of the conciliator, submit to the conciliator proposals for the settlement of the dispute. Such proposals shall not be binding on the party having submitted same unless accepted by the other party.
Article 16 Settlement Agreement
  1. When it appears to the conciliator that there exist elements of a settlement which would be acceptable to the parties, he may 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. lf the parties reach agreement on a settlement of the dispute, they shall draw up and sign a written settlement agreement. lf requested by the parties, the conciliator may draw up, or assist the parties in drawing up, the settlement agreement.
  3. The parties by signing the settlement agreement put an end to the dispute and are bound by the agreement.
Article 17 Confidentiality
The conciliator and the parties must keep confidential all matters relating to the conciliation pro­ceedings. Confidentiality extends also to the settlement agreement, except where its disclosure is necessary for purposes of implementation and enforcement.
Article 18 Termination of Conciliation Proceedings
The conciliation proceedings are terminated:
  1. By the signing of the settlement agreement by the parties, on the date of the agreement; or
  2. 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
  3. 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
  4. By a written declaration of a party to the other party and to the conciliator, if appointed, to the effect that the conciliation proceedings are terminated, on the date of the declaration.
Article 19 Resort to Arbitral or Judicial Proceedings
The parties undertake not to initiate, during the conciliation proceedings, any arbitral or judicial proceedings in respect of a dispute that is the subject 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.
Article 20 Costs
  1. Upon termination of the conciliation proceedings, the secretariat fixes the costs of the conciliation and gives written notice thereof to the parties. The term "costs" includes only:
  2. The fee of the conciliator which shall be reasonable in amount;
  3. The travel and other expenses of the conciliator;
  4. The travel and other expenses of witnesses requested by the conciliator with the consent of the parties;
  5. The costs of any expert advice requested by the conciliator with the consent of the parties;
  6. The costs of any assistance provided pursuant to Article 3 of these Rules.
  7. The costs, as defined above, are 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.
Article 21 Deposits
  1. The secretariat may request each party to deposit an equal amount as an advance for the costs referred to in Article 20, paragraph (1) which it expects will be incurred.
  2. During the course of the conciliation proceedings the secretariat may request supplementary deposits in an equal amount from each party.
  3. lf the required deposits under paragraph (1) and (2) of this Article are not paid in full by both parties within thirty days, the conciliator may suspend the proceedings or may make a written declaration of termination to the parties, effective on the date of that declaration.
  4. Upon termination of the conciliation proceedings, the secretariat renders a statement of accounts to the parties in respect of the deposits received, and returns any unexpended balance to the parties.
Article 22 Role of Conciliator in other Proceedings
lf the conciliation proceedings are terminated without any settlement agreement between the parties and the dispute is referred to arbitration later on, the conciliator may be appointed as arbi­trator unless this is contrary to the arbitration agreement between the parties or to the provisions of law of the country where arbitration is to be conducted.
Article 23 Admissibility of Evidence in other Proceedings
The parties undertake not to rely on or introduce the following as evidence in arbitral or judicial proceedings, whether or not such proceedings relate to the dispute that is the subject of the con­ciliation proceedings:
  1. Views expressed or proposals made by the other party in respect of a possible settlement of the dispute;
  2. Admissions made by the other party in the course of the conciliation proceedings;
  3. Proposals made by the conciliator;
  4. The fact that the other party had indicated its willingness to accept a proposal for settlement made by the conciliator.
Model Conciliation Clause
Where, in the event of a dispute arising out of or relating to this Contract, the parties wish to seek an amicable settlement of their dispute by conciliation, the conciliation shall be conducted by the Beijing Conciliation Centre, Beijing/by the Beijing-Hamburg Conciliation Centre, Hamburg, in accordance with the Beijing-Hamburg Conciliation Rules.
Contact:
Beijing-Hamburg Conciliation Centre Hamburg
c/o Handelskammer Hamburg
Legal department
Adolphsplatz 1
20247 Hamburg
Chinese European Arbitration Centre (CEAC)