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Excluding Liability of a Conciliator and Recent Criticisms

Excluding Liability of a Conciliator

The Rules of UNCITRAL of the year 1980 very much like those of the ICC on Conciliation are silent regarding the subject of excluding the liability of the conciliator. Several modern conciliation rules contain such similar provisions. Prof Pieter Sanders also refers to Article 25 of the Mediation Rules of the year 1994 of the World Intellectual Property Organisation also known as WIPO; also with regards to Article 3(c) of the 1994 Mediation rules of CPR(short for Centre for Public Resources); Article 16(2) of the Mediation rules of the year 1996 of CAMCA(Commercial Arbitration and Mediation Centre for the Americas); and then subsequently dealing with Rule 15 of the Mediation rules 1999 of the AAA(American Arbitration Association).

An exclusion of liability of the conciliator can be started in conciliation rules but it will be henceforth only applicable if it is enshrined in the law as such. According to Prof. Sanders, however, this particular rule will apply regardless of any extenuating factors such as even when it hasn't been expressly stated. The laws of California, Oregon and Texas(but not India) contain the provision that a particular conciliator will not be liable for any such act or omission in the performance of his particular role as a conciliator’. Bermuda’s International Arbitration and Conciliation Law,of the year 1993 has in turn added a particular exception in the form that a specific conciliator will be liable in the case of ‘conscious and deliberate wrongdoing’.

Recent Criticisms

Model laws that have been adopted by UNCITRAL are the result of a collaborative effort by legal experts from UNCITRAL’s member states, from states with observer status and even from external observers who came from international governmental and non governmental organisations. This would lead to an unusually high degree of expertise with regards to the working group and commission sessions. In lieu of this very fact, as well with regards to the high degree of specific detailing which had been invested into the drafting of the Model law on conciliation, it still to date has tremendous critics in response to which some might say “undue criticism”. For instance, Van Ginkel noted that the working group that was guided by three leading principles to abide by, which in his personal opinion were extremely regrettable in the form of -
Firstly to do with party autonomy, which would be the first principle which is to do with the working group’s decision to give party autonomy such importance so that the parties could even decide to exclude the eventual applicability of the entire Model law.
Secondly, the smallest common denominator would be in the form of the second criticism which is that the very positioning of the Model law at the level of the “smallest common denominator” amongst prevailing national conciliation legislation.
While, thirdly the absolutely absurd criticism that Model Law follows too closely the UNCITRAL conciliation rules which ironically it was meant to do anyway.

Source: The Arbitration Series Volume 2 Harmony amidst Disharmony: The International Framework- Fali S Nariman

  • Prof Sanders
  • UNCITRAL Model Law

BY : Kabir Dev

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