吉隆坡区域仲裁中心仲裁规则 (2013英文版)


KLRCA MEDIATION RULES (Revised 2013)

Application of the Rules

  1. These rules      apply to any Mediation of any present or future dispute where the parties      have agreed that the KLRCA Mediation Rules (“the Rules”) will apply.

  2. Where any of      the Rules is in conflict with the provision of law from which the parties      cannot derogate, that provision prevails.

Commencement of Mediation Proceedings

  1. Any      party/parties wishing to commence Mediation proceedings pursuant to the      Rules shall give to KLRCA a written Request for Mediation which shall      contain the following:-

    • The names, addresses (including e-mail addresses),       telephone numbers of the parties and any legal or other representatives       involved;

    • A reference to any Mediation clause or a copy of the       separate Mediation agreement, if any;

    • A reference to the contract (if any) or other legal       relationship (if any) out of or in relation to which the dispute arises;

    • A brief explanation of the nature of dispute, the       amount involved, if any, and any specific relief or outcome sought by any       party; and

    • The Registration Fee set out in accordance with the       Schedule of Fees annexed hereto (“Registration Fee”).

    1. Upon receipt      of a written Request for Mediation under Rule 3, KLRCA shall send a copy      of the Request for Mediation to the other party/ parties named.

    2. The Mediation      process shall be deemed to have commenced when KLRCA receives written      notice of the other party’s/parties’ acceptance of the Request.

    3. If the other      party/parties reject(s) the Request or if KLRCA does not receive a reply      within 30 days from the date of KLRCA’s written notice of the Request      under Rule 4, KLRCA may elect to treat this as a rejection of the Request      and inform the party/ parties initiating the Mediation accordingly.

    Appointment of the Mediator

    1. Where all      parties have agreed upon a proposed Mediator, who is willing to serve and      is not disqualified under Rule 10, the parties will jointly appoint that      person as the Mediator.

    2. If, within 30      days of the Request for Mediation under Rule 4, all parties have not      agreed upon a proposed Mediator willing to serve and not disqualified      under Rule 10, then the Director of KLRCA shall appoint the Mediator and      the parties are deemed to have approved the appointment made by the      Director of KLRCA.

    3. There shall be      one Mediator unless the parties otherwise agree.

    4. No person may      act as a Mediator in any dispute in which that person has any financial or      personal interest or any conflict of interest likely to affect or which      might reasonably be perceived to affect the Mediator’s independence or      ability to act impartially at all times, save where the parties have been      notified in writing of such circumstances and have subsequently expressly      consented in writing to the appointment of a Mediator.

    5. If, following      appointment, a Mediator becomes aware of any circumstances that may create      a reasonable perception of bias, partiality or lack of neutrality, the      Mediator shall immediately so inform the parties and, where the Mediator      was appointed by KLRCA, shall immediately inform KLRCA. If any party      objects to the continued service of the Mediator, the Mediator shall be      disqualified. In this event, the parties will have a further 30 days from      disqualification of the Mediator to appoint a new Mediator. In the event      that the parties do not within such 30-day period agree upon a substitute      proposed Mediator willing to serve and not disqualified under Rule 10,      then the Director of KLRCA shall appoint the Mediator and the parties are      deemed to have approved the appointment made by the Director of KLRCA.

    Role of the Mediator

    1. AThe Mediator      shall assist the parties in an independent and impartial manner to reach      an amicable settlement of the dispute.

    2. The Mediator      may conduct the Mediation in such manner as the Mediator considers      appropriate, having regard to the circumstances of the dispute, the wishes      of the parties and any practical considerations which might be relevant      for the satisfactory and prompt resolution of the dispute.

    3. Prior to or      during the Mediation, the Mediator may communicate with the parties together,      or with any party separately, with or without its representatives, either      in person, by telephone, videoconference or electronically as the Mediator      sees fit.

    4. The parties      may be required by the Mediator to participate in a preliminary conference      prior to the commencement of the formal Mediation. The purpose of the      preliminary conference is to enable the parties, with the assistance of      the Mediator, to:-

      • Discuss and agree upon issues in dispute or formulate a       process by which those issues are to be clarified and agreed;

      • Make provision for, in accordance with the Mediator’s       directions, the service and exchange of documentary material relevant to       the Mediation including position papers by all parties;

      • Make provision for such other planning and administrative       arrangements as are necessary and appropriate to enable the Mediation to       proceed.a

      Role of the Parties

      1. Each party to      the Mediation has a duty to participate in good faith in the Mediation.      Each party and their representatives will use their best endeavours to      co-operate with each other and with the Mediator to settle their      differences.

      Authority and Representation

      1. Each party to      a Mediation may be assisted or represented by any person it chooses      (including legal advisers). The identity, contact details and roles of any      such persons must be disclosed to all parties and to the Mediator.

      2. Each party to      the Mediation must have authority to settle a dispute or be represented by      a person or persons having full authority to settle the dispute. In the      event that any such authority is limited, the limits of authority must be      disclosed to the parties and the Mediator.

      Confidentiality

      1. All mediation      proceedings shall be private and confidential. All parties and      participants in the Mediation shall execute a written undertaking in the      form of the Confidentiality Undertaking as provided for in Schedule A to      give effect to this requirement.

      2. Any      information given to the Mediator by a party in caucus or private session      shall be kept confidential as between the party furnishing the information      and the Mediator unless the party providing the information consents to      its disclosure to any other party to the Mediation.

      3. The Mediator,      all parties and participants in the Mediation must keep all matters      relating to or arising out of the Mediation private and confidential      except:-

        • Where disclosure is compelled by law;

        • If necessary to give effect to a Mediation agreement or       to enforce an agreement reached to settle or resolve the whole or any       part of the dispute;

        • With the consent of the parties to the Mediation.

        Proceedings

        1. Unless parties      agreed otherwise, the Mediation proceedings shall be held in the KLRCA      premises.

        2. The parties      will be notified of the time and venue of the Mediation proceedings which      shall be subject to the parties’ agreement.

        3. The parties      shall ensure that they have all necessary additional services where      required for the Mediation.

        Termination of the Mediation

        1. The Mediator      may suspend or terminate the Mediation or withdraw as Mediator when he or      she reasonably believes the circumstances require it, including when he or      she has reasonable grounds to suspect that:-

          • The parties are involved in illegal/fraudulent conduct;       or

          • The parties are unable to participate meaningfully and       reasonably in negotiations; or

          • Continuation of the Mediation process would cause       significant harm to any party or a third party.

          1. When the      Mediator determines that it is necessary to suspend or terminate a      Mediation or to withdraw, the Mediator must do so without violating the      obligation of confidentiality and in a manner that will cause the least      possible harm to the parties.

          2. The Mediator      shall promptly inform the Director of KLRCA of the termination.

          3. In addition to      termination occurring under Rule 25, the Mediation shall be deemed to be      terminated upon:-

            • Upon the signing by the parties of a written settlement       agreement;

            • A written declaration of the Mediator, after       consultation with the parties, to the effect that further attempts at       Mediation are no longer justified;

            • A written declaration by any of the parties addressed       to the Mediator to the effect that the Mediation is hereby terminated; or

            • Expiry of 3 months from the date of the Request for       Mediation under Rule 4 unless agreed otherwise by the parties; or

            • By order of the Director of KLRCA in the event that any       monies properly payable under Rule 30 are not paid as required by these       Rules.

            Costs

            1. Unless      otherwise agreed or ordered by a court or arbitrator, each party shall      bear its own costs of the Mediation.

            2. The costs and      expenses of the Mediation shall include but are not limited to:-

              • The professional fees of the Mediator;

              • The cost of the venue hire, including meeting rooms,       breakout rooms, meals, translation fees, photocopying fees, internet       access, telephone and communication expenses, administrative costs       incurred under Rule 30(d), and any other costs reasonably and properly       incurred in respect of the organisation or conduct of the Mediation;

              • Any fees or costs set out above in respect of expert       advice or expert witnesses who attend or provide such advice with the       consent of the parties;

              • The proper administrative charges of KLRCA relating to       the conduct of the Mediation fixed in accordance with this Rule. Without       limiting the foregoing, the costs of KLRCA may include:-

              ·             The Registration Fees;

              ·             Appointment Fee and

              ·             Any Administrative Costs.

              1. The parties      are jointly and severally liable for costs and expenses set out in Rule 30      above.

              Administrative Assistance

              1. Subject to      Rule 24 above, the Director of KLRCA may arrange for translators,      administrative assistance, and/or other facilities in order to facilitate      the Mediation at the request of the Mediator or the parties.

              Exclusion of Liability

              1. Except in the      case of fraud on the part of KLRCA or the person claiming immunity or      protection from suit under this rule, neither KLRCA nor the Mediator shall      be liable to any party or to any other participant in the Mediation for      any act or omission in relation to or arising out of the Mediation      conducted under these rules or in respect of or arising out of any settlement      reached in any Mediation conducted under these rules.

              2. All statements      whether written or oral made in the course of the Mediation shall not be      relied upon to institute or maintain any action for defamation, libel,      slander or any related complaint.

              Role of Mediator in Other Proceedings

              1. The Mediator      shall not, without the consent of the parties, act as an arbitrator or as      a representative or counsel of a party or appear as a witness in any      arbitral or judicial proceedings or give advice to any person whatsoever      in respect of a dispute that is the subject of the Mediation.
                     The parties and the Mediator agree that they will not present the Mediator      as a witness in any such proceedings, nor will they subpoena or endeavour      to compel the Mediator to give evidence or to produce documents in any      subsequent judicial proceedings or arbitration.

              Schedule of Fees

              1. Parties are      free to agree with the Mediator on the Mediator’s Fees. Unless otherwise      agreed, the Schedule of Fees shall apply.

              2. The Schedule      of Fees provides the fee scale for international and domestic Mediation.

                • An “international Mediation” means a Mediation where –

                  • One of the parties to the Mediation has its place of        business in any State other than Malaysia;

                  • Any place where a substantial part of the obligations        of any commercial or other relationship is to be performed or the place        with which the subject matter of the dispute is most closely connected        is in any state other than Malaysia; or

                  • The parties have expressly agreed that the subject        matter of the Mediation relates to more than one State.

                    • A “domestic Mediation” is any Mediation which is not an       “international Mediation”.

                    1. Prior to the      commencement of the Mediation, each party shall pay the Registration Fees,      Appointment Fee (if any) and deposit the Mediator’s Fees and      Administration Costs with the KLRCA in accordance with the Schedule of      Fees annexed hereto.

                    2. At any time      during the course of the Mediation the Director of KLRCA may require      additional deposits to be paid by the parties on account of the costs and      expenses referred to in Rule 30. Any additional such sums requested by the      Director of KLRCA on account of the costs and expenses referred to in Rule      30 shall be payable 15 days after the receipt of the request for      additional deposits.

                    3. If any of the      monies referred to in Rules 29 and 30 are not paid in full by both parties      within 15 days after the receipt of the Request, the Director of KLRCA      shall so inform the parties in order that one or another of them may make      the required payment.

                    4. If any such      payment is not made, the Mediator, after consultation with the Director of      KLRCA, may order the suspension or termination of the Mediation.

                    5. The Director      of KLRCA may apply the deposit towards the fees and disbursements incurred      by KLRCA and the Mediator for the Mediation.

                    6. Upon      termination of the Mediation, the Director of KLRCA shall render an      account to the parties of the deposit received and used and return any      unexpended balance to the parties.

                    DOMESTIC MEDIATION

                    a) Registration Fee
                    A non-refundable registration fee of RM150.00 is payable by the party initiating Mediation (Rule 3(e)).

                    b) Administrative Costs
                    The Administrative Costs for Mediation shall be fixed at RM500.00 per case.

                    c) Mediator’s Fee
                    i) RM3500.00 per day; and
                    ii) RM450.00 per hour for review of documents and related works.

                    INTERNATIONAL MEDIATION

                    a) Registration Fee
                    A non-refundable registration fee of USD50.00 is payable by the party initiating Mediation (Rule 3(e)).

                    b) Administrative Costs
                    The Administrative Costs for Mediation shall be fixed at USD250.00 per case.

                    c) Mediator’s Fee
                    i) USD6000.00 per day; and
                    ii) USD750.00 per hour for review of documents and related works.

                     


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