Mediation, Conciliation

& Arbitration
Comparison of National and International Practices

Group Members:
Zain Ijaz
Fahad Haseeb
M. Hasan Khan Niazi

Dispute Settlement Processes:

Arbitration
Opposing parties appoint Arbitrator (sole or a panel)
Meeting of the parties and review of arguments
Arbitrator makes the final decisions (Items of dispute)

Mediation
Opposing parties freely participate
Both parties make the final decisions (without interference)
Mediator is appointed, who acts as an assistance for the
parties (understanding dispute, reaching an agreement)

Conciliation
Similar to Mediation
Conciliator guides the parties to reach an agreement
Parties decide whether to be bound to the Conciliators
decision or not

PEC
Rules of Conciliation

Rules Of Conciliation:

Application of the Rules:

These Rules apply to conciliation of disputes arising out of or relating to a
contractual or other legal relationship where the parties seeking an
amicable settlement of their dispute have agreed that the PEC Conciliation
Rules apply.
Commencement of Conciliation Proceedings:
The party initiating conciliation sends a written invitation to the other party
to conciliate under these Rules
And briefly identifying the subject of the dispute.
Number of Conciliators:
There shall be one conciliator unless the parties agree that there shall be
odd number(s) of conciliators.
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. For conciliation on construction and engineering services the qualification
of the conciliator(s) shall be Professional Engineer.
A party may request PEC to recommend the names of suitable
individuals to act as conciliator
The parties may agree that the appointment of one or more (odd
number) conciliators be made directly by PEC

Rules Of Conciliation (Cont.)

Submission of Statements to Conciliator :

The appointed conciliator, requests each party to submit a brief written
statement describing the general nature of the dispute and the points at
issue.
Each party sends a copy of his statement to the other party
Representation and Assistance:
The parties may be represented or assisted by persons of their choice.
Role of Conciliator :
The conciliator assists the parties in an independent and impartial manner
in their attempt to reach an amicable settlement of their dispute
The conciliator may, at any stage of the conciliation proceedings, make
proposals for a settlement of the dispute
Administrative Assistance:
To facilitate the conduct of the conciliation proceedings, the parties, or the
conciliator with the consent of the parties, may arrange for administrative
assistance on techno-legal issues by PEC.
Communication between Conciliator and Parties:
To Communicate between Conciliator and Parties
They may meet or communicate with the parties together or with each of
them separately

Rules Of Conciliation (Cont.)

Disclosure of Information :
When the conciliator receives factual information concerning the dispute
from a party, he discloses the substance of that information to the other
party.
However, when a party gives any information to the conciliator subject to a
specific condition that it be kept confidential, the conciliator does not
disclose that information to the other party
Co-operation of Parties with Conciliator :
The parties will in good faith co-operate with the conciliator and, in
particular, will Endeavour to comply with requests by the conciliator to
submit written materials, provide evidence and attend meetings.
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
Settlement Agreement :
The conciliator formulates the terms of a possible settlement which would
be acceptable to the parties and submits to the parties for their
observations.
If the parties reach agreement on a settlement of the dispute, they draw up
and sign a written settlement agreement

Rules Of Conciliation (Cont.)

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
Termination of Conciliation Proceedings :
By the signing of the settlement agreement by the parties, on the date of the
agreement.
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
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.
Costs :
Upon termination of the conciliation proceedings, the conciliator fixes the costs
of the conciliation and gives written notice thereof to the parties.
The term "costs" includes:
The fee of the conciliator which shall be reasonable in amount.
The cost of any expert advice requested by the conciliator with the consent
of the parties

Rules Of Conciliation (Cont.)

Deposits :
The conciliator, upon his appointment, may request each party to deposit an
equal amount as an advance for the costs.
During the course of the conciliation proceedings the conciliator may request
supplementary deposits in an equal amount from each party
Role of Conciliator in other Proceedings :
The parties and the conciliator undertake that the conciliator will not act as
an arbitrator or as a representative or counsel of a party in any arbitral or
judicial proceedings in respect of a dispute that is the subject of the
conciliation proceedings.
Admissibility of Evidence in other Proceedings :
The parties undertake not to rely on or introduce as evidence in arbitral or
judicial proceedings.
Views expressed or suggestions made by the other party in respect of a
possible settlement of the dispute.
Admissions made by the other party in the course of the conciliation
proceedings
Time Period for Conciliation :
The whole proceedings and agreement thereof shall have to be completed
within 90 days.

PEC
Rules of Arbitration

1. Introductory Rules

Scope of Application
Conflicts/Disputes in relation to the contract
Settlement of disputes in accordance with these rules
Conflict with the provision of law
Notices, Calculation of Time Period
Details about the delivery of notices and the address details
of the receiver
Certain conditions and criteria for the beginning of time
period and its calculation
Request and Notices of Arbitration
Request for arbitration to PEC (Required Details)
Claimant and Respondent
Representation and Assistance
Parties may choose their own representation/assistance
Specify appointment purpose, representation or assistance

2. Composition of Arbitral Tribunal

Number of Arbitrators
Parties agreement on the number of Arbitrators
Appointment of Arbitrators
Appointment of a sole arbitrator (By the parties or by PEC)
PEC uses a certain list-procedure for appointing a sole
arbitrator (qualification, experience, nationality etc)
Other possible variations in the process of arbitrator selection
Challenge of Arbitrators
Justifiable doubts on independence and impartiality
Disclose circumstances to PEC
Notice of challenging an arbitrator within specified time period
Different cases of challenges (appointed by, challenged by etc)
Replacement of an Arbitrator and Repetition of Hearings
Substitute arbitrator appointed or chosen
If presiding arbitrator is replaced, the hearings held previously
shall be repeated and if any other arbitrator is replaced the
arbitral tribunal makes the decisions

3. Arbitral Proceedings

General Provisions
Equality, opportunity of presenting his case
Witness and evidence, decision by arbitral tribunal
Place of Arbitration and Language
Place determined by arbitral tribunal having regard to the
circumstances of the arbitration
Agreement of both parties
English language until agreement of parties
Translated documents in the language agreed by parties
Statement of Claim
Personal Details, Statement of supporting facts, Issue, Remedy
Statement of Defence
Must reply to the particulars of the statement of claim
Amendments to the Claim or Defence
Changes are acceptable within a specific time period
The amended claim must not fall outside the scope of
arbitration

3. Arbitral Proceedings

Further Written Statements

Statements in addition to the claim and defence, presented
within fixed periods of time for communicating
Periods of Time
Fixed by the arbitral tribunal for the communication of written
statements or other tasks
Evidence and Hearings
To strengthen the claim and defence, the arbitral tribunal
requires evidence within a fixed period of time
Advance notices by the arbitral tribunal
Hearings held in camera unless the parties agree otherwise
Evidence of witness may be presented in written forms signed
Arbitral tribunal determines the relevancy and weight of the
evidence offered
Experts
Arbitral tribunal appoints experts to report to it.
Parties give relevant documents/information for inspection
and the arbitral tribunal makes decision on the basis of the
report by the expert

3. Arbitral Proceedings

Closure of Hearings
No further proof to offer, no witness to be heard or
submissions to make so the arbitral tribunal declare the
hearings closed
The arbitral tribunal may reopen the hearings at any time
before award is made if it considers it necessary owing to
exceptional circumstances

4. The Award

Decisions
Arbitral tribunal must notify the parties about hearing
completion.
Arbitral tribunal to render its award within the specified time
period
If more than 1 arbitrator, then decision is made by a majority of
arbitrators in the arbitral tribunal
Form and Effect of Award
The award made in writing and shall be final and binding
The reasons upon which the award is based is states
Award signed by the arbitrators with date and place mentioned
Copies to be submitted to concerned parties and organizations
Settlements or Other Grounds for Termination
Agreement on settlement of dispute before award is made
Continuation of hearings becomes unnecessary or impossible for
any reason
Copies of termination order of arbitral tribunal to be submitted
to concerned parties and organizations

4. The Award

Correction of the Award

Correction can be done in the award within specified period of time
Any errors in computation or clerical error etc can be corrected
Additional Award and Finality
Either party may request to make an addition award as to claims
presented in the proceedings but omitted from the award
The additional award when delivered shall be considered final
Costs
The arbitral tribunal fixes the cost of arbitration in its award
List of items which are included in the term cost (fees, travel,
representation, administrative expenses etc)
Arbitral tribunal fee must be reasonable and appropriate
Details about which party is to bear the cost or how the cost is to be
divided amongst the parties
Deposit of Costs
Both parties to deposit equal amount on acceptance of arbitration
request by bank draft or cash (Payment Details)
Supplementary deposits during proceedings
After award is made, PEC shall render an accounting to the parties
and return any unexpected balance to the parties

FIDIC
Fdration Internationale des Ingnieurs-Conseils
International Federation of Consulting Engineers

Introduction to FIDIC
Conditions of Contract for Construction
For building or engineering works designed by the
Employer or by the Engineer
The General Conditions and the Particular Conditions
will together comprise the Conditions of Contract
governing the rights and obligations of the parties
Dispute Adjudication Agreement provides text for the
agreement between the Employer, the Contractor and
the adjudicator
Adjudicator is appointed to act either as sole
adjudicator or as a member of a three-person dispute
adjudication board

Contractors Claims
If the Contractor wants any extension of the Time for
Completion and/or any additional payment, the
Contractor shall give notice to the Engineer, describing the
event or circumstance giving rise to the claim
1st notice within period of 28 days
Fully detailed claim within 42 days after the Contractor
became aware of the issue
this fully detailed claim shall be considered as interim;
the Contractor shall send further interim claims at monthly
intervals, giving the accumulated delay and/or amount claimed, and
such further particulars as the Engineer may reasonably require;
The Contractor shall send a final claim within 28 days after the end
of the effects resulting from the event or circumstance.

Within 42 days after receiving a claim the Engineer shall

respond with approval, or with disapproval and detailed
comments.

Appointment of the Dispute Adjudication Board

The DAB shall comprise either one or three suitably
qualified persons (the members).
If the DAB is to comprise three persons, each Party shall
nominate one member for the approval of the other Party.
The Parties shall consult both these members and shall
agree upon the third member, who shall be appointed to
act as chairman.
If a list of potential members is included in the Contract,
the members shall be selected from those on the list.
Neither party can consult DAB without consultation of
each other
The appointment of any member may be terminated or
replaced by mutual agreement of both Parties.

Failure to Agree Dispute Adjudication Board

If any of the following conditions apply, namely:
The Parties fail to agree upon the appointment of the sole member
of the DAB by the date stated
Either Party fails to nominate members of DAB by such date
The Parties fail to agree upon the appointment of the third member
(to act as chairman) of the DAB by such date,
The Parties fail to agree upon the appointment of a replacement
person within 42 days as a result of death, disability, resignation or
termination of appointment,

Then the appointing entity or official named in the

contract shall, upon the request of either or both of the
Parties and after due consultation with both Parties

Obtaining Dispute Adjudication Boards Decision

Both Parties shall promptly make available to the DAB all
such additional information, further access to the Site,
and appropriate facilities, as the DAB may require for the
purposes of making a decision on such dispute.
Decision should be given within 84 days of reference
If either Party is dissatisfied with the DABs decision, then
Parties may, within 28 days after receiving the decision,
give notice to the other Party of its dissatisfaction.
If the DAB has given its decision as to a matter in dispute
to both Parties, and no notice of dissatisfaction has been
given by either Party within 28 days after it received the
DABs decision, then the decision shall become final and
binding upon both Parties.

Amicable Settlement
Both Parties shall attempt to settle the dispute amicably
before the commencement of arbitration.
However, unless both Parties agree otherwise, arbitration
may be commenced on or after the 56th day after the day
on which notice of dissatisfaction was given

Arbitration
Unless settled amicably, any dispute in respect of which
the DABs decision (if any) has not become final and
binding shall be finally settled by international
arbitration. Unless otherwise agreed by both Parties:
the dispute shall be finally settled under the Rules of Arbitration of
the International Chamber of Commerce,
The dispute shall be settled by three arbitrators appointed in
accordance with these Rules, and
The arbitration shall be conducted in the language for
communications defined in Sub-Clause 1.4 [Law and Language].

The arbitrator(s) shall have full power to open up, review

and revise any certificate, determination, instruction,
opinion or valuation of the Engineer, and any decision of
the DAB, relevant to the dispute.

Failure to Comply with DABs Decision

In the event that:
Neither Party has given notice of dissatisfaction within the period
stated in Sub-Clause 20.4 [Obtaining Dispute Adjudication Boards
Decision],
The DABs related decision (if any) has become final and binding,
A Party fails to comply with this decision,

Then the other Party may, without prejudice to any other

rights it may have, refer the failure itself to arbitration
shall not apply to this reference.

Expiry of DABs Appointment

If a dispute arises between the Parties in connection with,
or arising out of, the
Contract or the execution of the Works and there is no
DAB in place, whether by
reason of the expiry of the DABs appointment or
otherwise:
Clause Obtaining Dispute Adjudication Boards Decision and
Sub-Clause Amicable Settlement shall not apply, and
The dispute may be referred directly to arbitration

GENERAL CONDITIONS OF
DISPUTE ADJUDICATION AGREEMENT

Definitions
General Provisions
Warranties
General Obligations of the Member
General Obligations of the Employer and the Contractor
Payment
Termination
Default of the Member
Disputes

Thank you