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Article
1.- Arbitrators and conciliators will be diligent and efficient to
bring the parties to a clear understanding or a fair decision concerning
the argument or dispute; they must be impartial and maintain impartiality.
Article
2.- The conciliator or arbitrator will accept his appointment only
if
1. He is completely convinced that he will be able to fulfil his duty
in an impartial manner.
2. He is completely convinced that he will be able to resolve argued and
disputed matters, and that he has adequate knowledge of the language used
in the corresponding arbitration.
3. He is able to devote to the conciliation or arbitration the time and
attention the parties have rights to demand, within reason. It is not
appropriate to get in touch with the parties to ask to be appointed as
conciliator or arbitrator.
Article
3.- The criteria to evaluate the professional ability of a conciliator
or arbitrator are impartiality and independence. Partiality occurs when
a conciliator or arbitrator favours one of the parties or demonstrates
a predisposition to specific aspects related to the subject matter of
an argument or dispute. Lack of independence arises from the relationship
between the conciliator or arbitrator and one of the parties or a person
closely related to him.
a) The events that might lead a civilized person, who does not know the
real mood of the conciliator or arbitrator, to consider the latter to
lack independence with respect to one of the parties, generate doubts
about his impartiality. The same would apply if a conciliator or arbitrator
has material interests on the results of the argument or dispute. Lack
of independence would also include any case in which a previous material
interest was therein acquired. These doubts about impartiality can be
passed over through the statement herein foreseen in Article 4.
b) Any current business relationship, either direct or indirect, between
the conciliator or arbitrator and one of the parties, or between the first
mentioned and a recognizable person that may turn out to be a substantial
witness in the case, will usually generate justified doubts with regard
to the proposed conciliator or arbitrator's impartiality or independence.
He will refrain from accepting an appointment in such circumstances, unless
the parties accept in writing that he can intervene. Indirect relationship
means that a member of the proposed conciliator or arbitrator's family,
company or his business partner, has a business relationship with one
of the parties.
c) Business relationships previously maintained are not a definite obstacle
for the acceptance of the appointment, unless their nature may affect
the conciliator or arbitrator's decision.
d) Substantially social and professional relationships that may arise
in a continued manner between a conciliator or arbitrator and a party
or a person whose testimony may prove to be clearly relevant to the conciliation
or arbitration, will generate justified doubts about the conciliator or
arbitrator's impartiality or independence.
Article
4.- The proposed conciliator or arbitrator must disclose all events
or circumstances that may originate justified doubts in regard to his
impartiality or lack of independence. If not, he will appear to be partial,
which may be a basis to disqualify him, even if the events and circumstances
not disclosed do not justify such disqualification.
a) The named conciliator must disclose:
1) Any business relationship, either current or past, direct or indirect,
in accordance with Article 3º, clause c, even his previous appointment
as conciliator or arbitrator, with either party or with any person that
may be considered to be a possible substantial witness in the conciliation
or arbitration. In regard to the current relationships, the commitment
to declare exists regardless their importance; in regard to past relationships,
the commitment only exists for the significant ones according to the professional
or business concerns of the conciliator or arbitrator. The fact that a
proposed conciliator or arbitrator does not disclose one of those indirect
relationships because he does not know it, is not considered as a disqualification
case, unless it might have been disclosed through reasonable inquiries.
2) Characteristics and duration of any substantially social relationship
maintained with one of the parties or a person that may be considered
as a substantially possible witness in the conciliation or arbitration.
3) Characteristics of any former relationship maintained with other conciliators
or arbitrators (including cases of joint fulfilment of the conciliator
or arbitrator's duty).
4) Anything he had previously known about the argument or dispute.
5) Anything about any commitment that may affect his availability to fulfil
his duties as a conciliator or arbitrator, as long as it can be foreseen.
c) The commitment to declare remains during the conciliation and arbitration
proceedings in regard to new events and circumstances.
d) The statement will be in writing and sent to all parties and conciliators
or arbitrators. When a conciliator or arbitrator receives his appointment,
he will communicate to the other conciliators or arbitrators any statement
that he might have previously declared to the parties.
Article
5.- During the conciliation or arbitration proceedings, the conciliator
or arbitrator will avoid unilateral communications concerning the matter
thereof with either party or their representatives. If such communications
occur, the conciliator or arbitrator must report their contents to the
other party or parties and to conciliators or arbitrators.
a) If a conciliator or arbitrator knows that another conciliator or arbitrator
has kept unlawful contacts with one of the parties, he can communicate
it to the remaining conciliators or arbitrators and, all together, will
make a decision concerning the measures to be taken. Usually, the measures
to be taken will initially demand the offending conciliator or arbitrator
to cease the unlawful contact with the other party. If the offending conciliator
or arbitrator denies to cease doing so, or simply persists
b) maintaining unlawful contact, the rest of the arbitrators or conciliators
may report it to the uninformed party, so that they may consider the appropriate
measures to be taken. Only in extreme circumstances, the conciliator or
arbitrator, after having communicated his intention in writing to the
rest of conciliators or arbitrators, can unilaterally inform one of the
parties of the other conciliator and arbitrator's behaviour to let such
party consider the substitution of the offending conciliator.
c) No conciliator or arbitrator can, either directly or indirectly, accept
favors or hospitality, deserving to be mentioned, by one the parties affected
by the conciliation or arbitration. The only conciliators or arbitrators
and the presidents of Arbitration Boards must be especially careful to
avoid significant, social or professional contacts with either party of
the conciliation or arbitration, with the absence of the other parties.
Article
6.- Unless the parties agree differently or in the case of default
by a party during the arbitrational proceeding, the conciliator or arbitrator
will not reach a unilateral agreement about the payment for expenses and
fees.
Article
7.- Conciliators and arbitrators must allocate time and attention
which might be reasonably demanded by the parties, according to the case
circumstances, looking for better ways to handle the conciliation or arbitration,
so that costs will not increase to unreasonable levels in regard to the
argument or dispute.
Article
8.- Whenever the parties had so required, or accepted a relevant suggestion
on behalf of the conciliator or Arbitration Board, the conciliator or
the Arbitration Board as a whole (or the President of the Arbitration
Board) can simultaneously make a proposal to both parties to reach an
agreement, it is preferable to do it before the others. Although the parties
may have previously reached an agreement concerning a proceeding, the
conciliator or Arbitration Board can warn the parties that it is not advisable
that a conciliator or arbitrator discuss with one of the parties, in the
absence of the other ones, concerning the terms of such agreement, as
it could cause that the conciliator or arbitrator involved in that discussion
might be disqualified from any other further participation in the conciliation
or arbitration.
Article
9.- Deliberations of the Arbitration Board and the award contents
will stay confidential forever, unless the parties exempt arbitrators
from this commitment. The arbitrator must not participate in any proceeding
consisting of passing judgement on the award, or supplying information
to facilitate so, unless he thinks he must disclose wrong or deceitful
behaviours of any arbitrator.
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