UNCITRAL Model Law on International Commercial Conciliation 2002
In Part 3, of the Arbitration and Conciliation Act,1996 Sections 61 to 81 mostly are in tandem with provisions of the UNCITRAL Conciliation Rules of 1980. The only such provision which isn't precisely a reproduction of the 1980 rules is Section 66 which provides for the Conciliator to be not bound by certain specific amendments. The Conciliator isn't bound by the Code of Civil Procedure, 1908(5 of 1908) or the Indian Evidence Act,1872.
While Section 73, another incredibly crucial section, entails that the Conciliator can formulate terms of a possible settlement if he feels that there is the possibility for existing elements of a purported settlement. The Conciliator is also entitled to reformulate the terms after receiving the observations of the parties. The said provisions in the 1996 Act, make it quite clear that the Conciliator under the aforementioned act, along with assisting parties in arriving at a settlement, is also permitted to make "proposals for a settlement" as well as "formulate the terms of a possible settlement" or even "reformulate the concerned terms". This emanates from an extremely UNCITRAL concept and line of thought.
The UNCITRAL Model law on International Commercial Conciliation 2002, which came later after the UNCITRAL Conciliation Rules,1980 has still although not been adopted by India. These rules contained the following 14 articles
1.Regarding the scope of the application and the definition
3.Any kind of variation by agreements
4.The eventual commencement of conciliation proceedings
5.The number and appointment of conciliators
6.The Conduct of Conciliation
7.The communication between conciliator as well as parties
8.Disclosure of information
9.Pertaining specifically ro confidentiality
10.The eventual admissibility of evidence in other such proceedings
11.The termination of conciliation proceedings
12.The conciliator acting eventually as an arbitrator
13.Resorting to arbitral or judicial proceedings
14.The ultimate enforceability of the respective settlement agreements
This very Model Law of International Commercial Conciliation 2002 is in two parts- Part essentially contains 14 articles while Part 2 entails a guide to the enactment as well as ultimate appropriate use of the law.
The Guide in turn is drawn from the travaux preparatoires of the UNCITRAL model law on International Commercial Conciliation. This explains why the provisions in the Model law have been included essentially as basis features of a statutory device which was initially designed to achieve the the objectives of the Model law. When it eventually drafted the model law, the Commission had assumed that the explanatory material would be able to accompany the text of the model law. However, it ended up not doing that. Simultaneously, other issues, which weren't settled in the Model Law, have been addressed in the Guide, which was formulated to provide for an additional source of inspiration to states which enacted the Model Law. It would help in assisting states in considering which provisions of the Model Law, if any, which possibly might be varied to accommodate specific national circumstances. The Guide was primarily prepared by the secretariat in tandem to a request that was made by UNCITRAL. It reflected the deliberations and decisions of the commission during the particular session at which the Model law was eventually adopted, as well as the considerations of UNCITRAL’s Working Group 2 concerning Arbitration and Conciliation that ended up conducting the preparatory groundwork.
Source: Harmony amidst Disharmony: Fali S Nariman