INFORMATION AND COMMUNICATION TECHNOLOGY (ICT)-MEDIATION RULES

Text in force as from January 1^st 2010

The numbers of the legal provisions referred to in these rules, are the  provisions in force when the rules were approved.

ICT-Mediation clause

"The parties hereby undertake to apply the CEPANI ICT-Mediation Rules to all disputes arising out of or in relation to this Agreement."

The following provisions may be added to this clause:

"The proceedings shall be conducted in the (...) language"

"Should the ICT mediation fail, the dispute shall be finally settled under the CEPANI Rules of Arbitration by one or more arbitrators appointed in accordance with those Rules".

INTRODUCTION

Mediation is the most appropriate way to settle disputes within the field of information and communication technology (ICT).

These rules shall apply if one or more parties wish to settle their disputes through ICT-mediation according to the CEPANI rules. It is not required that the parties have concluded a mediation agreement prior to the dispute.

ICT-mediation is an alternative dispute resolution method whereby parties request a third person (the expert ICT-mediator) to assist them in their attempt to reach an amicable settlement of their dispute arising out of, or relating to, a contractual or other legal relationship within the field of information and communication technology.

When the nature of the dispute requires complementary specializations, several mediators may be appointed. In this case, the word Mediator shall be read as Mediators.

When more than two parties are involved in the dispute, the word Claimant, or Respondent shall be read and understood as involving several parties.

Article 1 Unilateral or joint request for ICT-mediation

1.1 A party wishing to have recourse to mediation under the CEPANI rules shall submit its request for mediation to the Secretariat, in person or via its authorized representative or counsel. The request can be submitted in electronic form or in hard copy and must be signed in both cases.

If the unilateral request is submitted in hard copy, it shall be supplied in a number of original and signed copies sufficient to provide one copy for each party, one copy for the mediator and one copy for the Secretariat.

Upon reception of the request, CEPANI will immediately send a copy of the request to the Respondent.

1.2 The request for ICT-mediation may also be submitted jointly by all parties involved in the dispute.

This joint request may be submitted in electronic form or in hard copy.  In both cases, it must be signed by all parties or by their authorized representative or counsel.

If a joint request is submitted in hard copy, it shall be supplied in two copies, one for the mediator and one for the CEPANI secretariat.

1.3  The request shall contain, inter alia, the following information :

• name, address, registered office, telephone and fax number, e-mail address, and VAT-number, if any, of the Claimant and of any representative or counsel acting on behalf of the Claimant.
• a unique electronic communication method chosen for the exchange of all communications during the proceedings (including the name of the contact person, the communication method and e-mail addresses), and a unique communication method chosen for the exchange of hard copy documents (including the name of the contact person, the communication method and postal addresses).
• in case of a unilateral request for ICT-mediation and following article art.1.1 : the name of the Respondent, along with all the information the Claimant has in order to reach the Respondent or its' authorized representative or counsel, such as a postal and mail address, telephone and fax numbers, the VAT-number, if any, and any useful information obtained from previous contacts.
• a recital of the nature and circumstances of the dispute giving rise to the claim.
• all documents, as well as a list of documents concerning the claim.
• the proof of payment of the registration costs as fixed under art.2 of annex I.II of the CEPANI Rules.

1.4  In case of a unilateral request for ICT-mediation, as mentioned in art. 1.1 of these Rules, and if the request contains a claim to a right, the Claimant has to respect the formalities mentioned in article 1730 of the Judicial Code in order for the request to suspend the limitation period of the claim ( see annex III of CEPANI rules).

In case of a joint request as mentioned in art. 1.2 of these Rules, the parties accept that, if their joint request contains a claim to a right, it shall suspend the limitation period of the claim related to the said right during one month.

Article 2 Answer to request for ICT-mediation

The Respondent will inform the CEPANI secretariat whether or not it will participate in the ICT-mediation.  The Respondent must inform the CEPANI secretariat within seven days after the request has been sent by the CEPANI secretariat as mentioned in art. 1.1.  It will do so by using the response form available on the web site.

If no positive answer is given within the said time limit, the request for ICT-mediation shall be considered void.

A disagreement on the conditions proposed by the Claimant is also considered as a refusal to take part in the mediation, unless the Claimant accepts in writing the conditions proposed by Respondent.

Article 3 Effect of the ICT-mediation agreement

When the parties agree to resort to CEPANI for ICT-mediation, they thereby submit to the Rules, including the annexes, in effect on the date of the receipt by CEPANI of the request for ICT-mediation.

THE ICT MEDIATIOR

Article 4 Appointment of the ICT-mediator(s)

4.1 The CEPANI Appointments Committee or the Chairman shall appoint a mediator within seven days following receipt of the positive response as mentioned in article 2.  In doing so, it will take into account the mediator's expertise, availability and ability to carry out the mediation in accordance with these Rules.

The parties may appoint a mediator by mutual consent, subject to the approval of the CEPANI Appointments Committee.

4.2  Simultaneously CEPANI will inform the parties concerning : 

• the rate and the way the fees and costs of the mediator will be calculated;
• the administrative costs of CEPANI;
• the conditions for the payment of such fees and costs;
• the amount of the advance for mediation costs
• the seat and the date of the beginning of the mediation

4.3 Provided that the advance has been fully paid, the Secretariat shall transmit the file to the mediator as soon as the latter has been appointed.

4.4  When several Mediators are appointed, they will act as a body.

Article 5 Independence of the ICT-mediator

The mediator shall be independent. Prior to his/her appointment, the candidate mediator shall sign a statement of independence.

The mediator and/or the parties shall immediately disclose to CEPANI any facts or circumstances which might be of such a nature as to call into question the mediator's independence and which may occur during the mediation. In such event, CEPANI may replace the mediator.

Article 6 Mediation protocol

6.1  The mediator is free to organize the mediation as he/she sees fit in accordance with these Rules. He/she shall sign a mediation protocol with the parties, in accordance with art. 1731 of the Judicial Code, which will also state:

• the way in which the ICT-mediation costs will be divided among the parties
• the language(s) of the mediation
• the method of communication agreed upon by the parties and the mediator

A copy of the mediation protocol, signed by the parties or their authorized representative or counsel, shall be transmitted to CEPANI.

Article 7   Powers of the mediator

7.1 The mediator shall ensure that the proceedings are properly conducted.  He/She shall create a favorable climate in which parties themselves can find a solution to their dispute.

7.2 The mediator sees to it that the parties are treated equally.

7.3 The mediator shall not have the power to impose a solution on the parties.

7.4 In the context and for  the benefits of his/her mission, the mediator can, with the consent of the parties, hear third parties if they accept or, when the complexity of the case requires it, consult an expert in one or more specific fields.

7.5 After having consulted the parties, the mediator may decide to hold hearings and meetings at any other location that he/she considers appropriate.

Article 8  Replacement of the mediator

8.1  In the event of the mediator's death, accepted withdrawal, resignation, or if there is a cause preventing him from fulfilling his/her duties, or upon request of all parties, the mediator may be replaced.

8.2  The mediator shall also be replaced when the Appointments Committee or the Chairman decides that the mediator is prevented de jure or de facto from fulfilling his/her duties in accordance with these Rules or within the allotted time limits.

ICT MEDIATION

Article 9  Notifications made pursuant to these Rules

9.1   All notifications or communications made pursuant to these Rules shall take place in written form, as determined in the mediation protocol.

All notifications or communications shall be valid if dispatched to the last address of the party, as notified by the said party.

A notification, or communication, made in accordance with paragraph 1, shall be deemed to have been made when it is received or should have been received by the party itself, by its authorized representative or its counsel.

A notification or communication by e-mail to CEPANI at the e-mail address given by CEPANI is only deemed to have been received when CEPANI confirms the receipt thereof by e-mail.

Article 10   Time limits specified in these Rules

Periods of time specified in the present Rules, shall start to run on the day following the date on which a notification or communication is deemed to have been made in accordance with article 9. If the last day of the relevant period of time granted is an official holiday or a non-business day in the country where the notification or communication has to be made, the period of time shall expire at the end of the first following business day.

A notification or communication shall be treated as having been sent timely if it is dispatched prior to, or on, the date of the expiry of the time limit.

Pursuant to the request of a party, of the mediator or on its own motion, CEPANI may extend the periods of time specified in these Rules.

Article 11   Confidentiality duty of the mediator, the parties, their authorized representatives and counsel

The mediator, the parties, their authorized representatives and counsels, as well as the experts or third parties that have been involved in the proceedings, have a duty of confidentiality in accordance with art. 1728 of the Judicial Code.

Article 12 Examination of the case

The hearings shall not be public. Unless otherwise agreed by the mediator and the parties, persons not involved in the proceedings shall not be admitted.

The parties shall appear in person or through duly authorized representatives or counsel.

SETTLEMENT AND END OF THE ICT-MEDIATION

Article 13 Settlement and end of the ICT-mediation

Settlement/ non settlement

13.1 Should the ICT-mediation lead to a settlement, the agreement shall be set forth in writing, dated and signed by the parties and by the mediator.   This document shall set out the precise undertakings of each party and the distribution of the ICT-mediation costs.

The mediator shall send an original copy of the settlement to CEPANI.

13.2 In the event that the mediation fails to produce  a settlement, or if the mediator considers that the mediation must not be pursued, he/she shall record this fact and the grounds on which it is based in a document available on the CEPANI website. The mediator shall send a copy to CEPANI and to the parties.

End of the ICT-mediation

13.3 When an agreement is reached, the mediation shall end when the parties and the mediator send a copy of the settlement to CEPANI.  The settlement must be signed and dated by the parties and by the mediator.

If no agreement is reached, the mediation shall end as soon as the mediator notifies CEPANI that no settlement is reached.  A copy shall be sent to the parties.

13.4 At any time, either party may refuse to continue the mediation. In such event, the mediation ends when written notification of that party's refusal is sent to CEPANI and to the mediator, if already appointed.

Article 14 ICT-mediation costs

14.1 The mediation costs shall include the fees and expenses of the mediator, as well as the administrative expenses of the Secretariat, and the cost agreed upon by the parties.  The advance required to cover the mediation costs shall be paid to CEPANI prior to the appointment or the approval of the appointment of the mediator by the Appointments Committee or the Chairman.

14. 2. Other costs and expenses relating to the mediation, such as the expenses incurred by a party, are not included in the mediation costs and are borne by the said party.

14.3. If CEPANI decides in course of the proceedings, after having consulted the mediator, that the initial amount for mediation costs must be adjusted, further advance payments may be required.

Unless otherwise agreed by the parties, the advance on mediation costs, as well as the additional advance(s) on mediation costs, shall be payable in equal shares by the parties.

When the advance on mediation costs exceeds € 50.000,00 a bank guarantee may be posted to cover such payment.

When a request for an additional advance on mediation costs has not been complied with, and after consultation with the mediator, the Secretariat may direct the mediator to suspend his/her work until the advance is fully paid.

14.4 At the end of the ICT-mediation, the mediation costs are deducted from the advance on ICT-mediation costs received.  The outstanding balance, if any, is reimbursed to the parties, as may be agreed between them.