Summary

Introduction

STANDARD CLAUSE

Part I. GENERAL PROVISIONS
Article 1. Sphere of Application of the Rules
Article 2. Administration of the Procedure
Article 3. Mediators and Arbitrators
Article 4. Consultants and Counsel
Article 5. Notifications
Article 6. Confidentiality
Article 7. Procedural Costs
Article 8. Extra procedural Settlement of the Dispute
Article 9. Gaps and Interpretation of the Rules
Article 10. Effective Date of Validity and Duration of the Rules

Part II. THE PROCEDURE
Article 11. Commencing the Procedure.The Request
Article 12. The Answer
Article 13. The Reply
Article 14. Determining the Procedure Type and Venue
Article 15. Precautionary and Emergency Measures

Part III. (i) MEDIATION
Article 16. Mediation Agreement
Article 17. Mediation Procedure
Article 18. Termination of the Mediation
Article 19. Termination as a Result of Settlement
Article 20. Termination as a Result of Failure to Settle
Article 21. Confidential Nature of the Mediation. Preclusions
Article 22. Responsibilities of the Mediator

Part IV. (ii) ARBITRATION
Article 23. Expedited Arbitration and Ordinary Arbitration
Article 24. Presentation Briefs
Article 25. Further Specifications, Requests, Arguments and Filing of Documents
Article 26. Costs of the Arbitration (First Assessment)
Article 27. Appointing the Arbitral Tribunal and Forwarding the File
Article 28. Venue for Arbitration
Article 29. The Course of Expedited Arbitration
Article 30. The Course of Ordinary Arbitration
a) Terms of Reference
b) Fact Finding
Article 31. Time-limit and Rules for Award
Article 32. Project of Award and Final Determination of Costs
Article 33. Making of Award
Article 34. Delivery of Award
Article 35. Challenge of Award

MEDIATION - Code of Conduct

FEES

INTRODUCTION
by the Court for Disputes Resolution at Curia Mercatorum

1.
Curia Mercatorum is an independent dispute resolution established in 1995 as a non-profit association who provides Alternative Dispute Resolution (ADR), services, arbitration and mediation in particular.
Within Curia Mercatorum there operates the Court for Disputes Resolution, made up of experts in juridical and business matters. The Court’s primary purpose is to supervise the procedure governed by these Rules. The Court as such does not directly undertake mediation or arbitration dealings, even if its component members may be appointed mediators or arbitrators following a request by the parties involved.

2.
Where the contending parties request mediation services, Curia will offer the assistance of one or more neutrals who can assist the parties to reach a negotiated solution to their dispute.
In case of arbitration, it should be recalled that the procedure is differentiated depending on whether the case involved concerns a sum larger or smaller than a given amount:
— an “expedited” procedure, marked by simplified proceedings essentially oral in nature, quick resolution, a single arbitrator acting as amiable compositeur;
— an “ordinary” procedure, modulated in keep ing with more customary canons (a decision based on strict rules of law, longer resolution times, an arbitration body possibility composed of more than one people, etc.).
Mediation and arbitration are processes which are basically unrelated from each other. Curia Mercatorum standard clause activates both, howaver it is possible, in fact, to opt either for mediation or arbitration alone. This, in particular, allows recourse to mediation also in case a dispute is currently before a court or arbitrators.

3.
The type of mediation advocated by Curia Mercatorum is an “indipendent” mediation, based on the neutrality of the mediator, a voluntary and consensusbased, totally confidential process.
It must be stressed that the mediator is basically to help the parties to reach an acceptable solution to their conflict. He or she has no imposing power, and the parties are therefore free to discontinue their negotiations at any moment. Of course, they will be bound in accordance with the ordinary rules, in case a settlement agreement is reached.
As for the way a mediation is conducted, Curia Rules leave ample room to the Mediator, who is free of the need to comply with particular procedural rules, since he or she is bound only to act in good faith, backing up and guiding the process of finding a consensus between the parties involved in order to resolve the case in question. Any mediator Curia may suggest to the parties has been trained under high quality standards, has partecipated to specific courses on mediation and creative problem solving techniques, and is bound to adhere to the Code of Conduct which is reproduced herein.
Notwithstanding the fact that any mediator has his or her own personal approach to mediation, Curia encourages a mediation rather “facilitative” than “evaluative”.

4.
Curia proceedings (either of mediation and arbitration) are likewise open for use by parties from different countries.
In fact, Curia will guarantees equal treatment of the parties involved (e.g., the fact that the proceedings take place in a third country, are supervised by mediators or arbitrators whose nationality is different from either of the parties, and must be conducted in the language employed by said parties in their business dealings).

5.
Curia procedure is meant to respect at the utmost the freedom of the parties involved, from the appointing of the mediator or arbitrators to the language used in the proceedings as well as the venue of said proceedings.
The Court has the right to the final selection of such elements, but it is the Court’s policy to confirm the suggestions made in this regard as long as there are no well-founded reasons for deciding differently.

6.
The venue of the proceedings may be, of course, either in Italy or abroad.
In setting the venue of the proceedings, it must be taken into consideration that, besides the norms inherent to the Rules at hand, application may be made of the procedural norms of the country in which the proceedings are being held.
In any event, in devising these Rules a conscientious effort has been made to develop a procedure as de-nationalised and as self-sufficient as possible.

7.
The procedure is also applicable in disputes between more than two parties, provided of course that said parties are of mutual accord.

8.
The costs of the proceedings shall be kept as low as possible, especially if the parties involved manage to settle their dispute by mediation or if the arbitration is of the “expedited” type.
To those costs there are added those arising from the fact that the proceedings take place, in whole or in part, at a venue different from those sites part of the Curia Mercatorum operation network (local organising expenses, travel expenses for mediators or arbitrators, etc.).

9.
One prerequisite in resolving disputes on the basis of the Rules at hand is that the contending parties agree to abide by the final decision.
To that end, there must be either:
(i) an explicit agreement when the dispute arises; or (ii) a (more advisable) previous agreement inserted in the contract the implementation or interpretation of which has given rise to the dispute.
In the latter case, it is best to utilise the following standard forms which can, upon consent of the parties involved, be accompanied by indication of the venue of the proceedings (specification of a given site does not preclude the possibility that certain steps of the proceedings may take place elsewhere, even abroad); of the language in which said proceedings are to take part; of the type of arbitration (“expedited” or “regular”), and if the arbitrators have to act according to law or as amiable compositeurs. (It must be remembered that in some countries a dispute resolution clause contained in standard contract forms may be subject to special requirements, such as explicit written approval, in order to be effective).

STANDARD CLAUSE

Tutte le controversie relative o comunque collegate al presente contratto saranno risolte in via definitiva in conformità al Regolamento di Mediazione/ Arbitrato Curia Mercatorum.
[FACOLTATIVO] La sede della procedura sarà .......................................... e la stessa si terrà in lingua ........................................

Any disputes relating to the present contract shall be finally settled in accordance with the Mediation/Arbitration Rules of Curia Mercatorum.
[OPTIONAL] The proceedings shall be held in .......................................... (venue) in ............................................. (language).

Tous différends découlant du présent contrat seront trachés définitivement suivant le Règlement Mediation/ Arbitrage Curia Mercatorum.
[ÉVENTUEL] La procedure aura lieu à .... ............................................................... en ..................................................... (langue).

Alle aus dem gegenwärtigen Vertrage sich ergebenden Streitigkeiten werden nach der Vergleichsund Schiedsgerichtsordnung der Curia Mercatorum entschieden.
[FAKULTATIV] Der Ort des Verfahrens ist ............................................... und es wird in der Sprache ...................... abgehalten.

10.
The contents of this introduction are of a purely illustrative design and import. The procedure shall take place only in compliance with the Rules.

11.
The present edition of the Rules which is in force since January 1st, 2002, presents minor changes in respect of the firts release, effective March 8, 1996.


Giuseppe Nino Maestrello
Chairman of the Court for Disputes Resolution - Curia Mercatorum

Treviso, January 2004

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