1.  Section VI shall apply if one or more parties wish to have recourse to a third person whose mission shall be to complete the contract on items unforeseen by them, or to adapt their common intent to new situations.

 

2.  Only parties who have so agreed with a specific clause may have recourse to Section VI. Depending on its scope as determined by the parties, the mission shall lead to a recommendation or a decision.

 

 

 

 

1.  A party wishing to have recourse to the adaptation of contracts proceedings under the CEPANI rules shall submit its Request for Adaptation of Contracts to the Secretariat.

 

The Request for Adaptation of Contracts shall include, inter alia, the following information:

 

a) name, first name and the name in full, description, address, telephone and fax numbers, e-mail addresses and VAT-number, if any, of each of the parties;

 

b)  Claimant’s position;

 

c)  any comments as to the seat and the language of the adaptation of contracts proceedings and the applicable rules of law. 

d)  Proof of payment of the registration costs. Each Request for adaptation of contracts must be accompanied by an advance payment of 500 EUR on administrative costs. Such payment is non-refundable, and shall be credited to the Claimant's portion of the advance on costs for adaptation of contracts.
Modified by the decision of the General Assembly of CEPANI of June 13th 2007
 

Together with the Request, Claimant shall provide copies of all agreements, in particular the agreement for the adaptation of contracts, the correspondence between the parties and other relevant documents.

 

The Request for Adaptation of Contracts and the documents annexed thereto shall be supplied in a number of copies sufficient to provide one copy for the third person and one for the Secretariat.

 

 

 

1.  If the Request is submitted by one party only, the Secretariat shall inform the other party of the Request for Adaptation of Contracts as soon as possible if the request is complete following article 2 and shall grant it a period of fifteen days to submit its comments with respect to the Request 

2.  If the Request is submitted by one party only, the date on which the Secretariat informs the other party of the Request for Adaptation of Contracts and of the annexes thereto shall be deemed to be the date of commencement of the adaptation of contracts proceedings.

 

If the Request is submitted by all the parties, the date on which the Secretariat receives the Request for Adaptation of Contracts and the annexes thereto and the payment for registration costs mentioned in article 2 d) shall be deemed to be the date of commencement of the adaptation of contract proceedings. 

The Secretariat shall confirm the date of commencement of the adaptation of contracts proceedings to the parties.

 

3.  The time limit mentioned in paragraph 1 may be extended pursuant to a reasoned request of Respondent, or on its own motion, by the Secretariat.

 

 

 

In the event that there is no apparent adaptation of contracts agreement, the adaptation of contracts proceedings may not proceed should the absent party not answer within the period of fifteen days mentioned in Article 3, or should it refuse the adaptation of contracts proceedings in accordance with the CEPANI Rules.

 

 

 

When the parties agree to resort to CEPANI for the adaptation of contracts proceedings, they thereby submit to the CEPANI Rules, including the annexes, in effect on the date of the commencement of the adaptation of contracts proceedings, unless they have agreed to submit to the Rules in effect on the date of their adaptation of contracts agreement. 

 

1.  The Request for Adaptation of Contracts, the Answer to the Request for Adaptation of Contracts, all pleadings, the appointment of the third person and the notification of the decision or the recommendation of the third person shall be valid if they are made by delivery against receipt, by registered mail, courier, fax or any other means of telecommunication that proves their dispatch. All other notifications and communications made pursuant to these Rules may be made by any other form of written communication.

 

If a party is represented by counsel, all notifications or communications shall be made to the latter, unless that party requests otherwise.

 

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

 

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

 

3.  Periods of time specified in the present Rules, shall start to run on the day following the date a notification or communication is deemed to have been made in accordance with paragraph 2. 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 notice or communication shall be treated as having been sent timely if it is dispatched in accordance with paragraph 1 prior to, or on the date of, the expiry of the time limit.

 

 

 

 

1.  Only those persons who are independent of the parties and of their counsel and who comply with the rules of good conduct set out in Schedule II, may serve as third persons in adaptation of contracts proceedings organized by CEPANI.

 

2.  The Appointments Committee or the Chairman shall appoint the third person. The parties may nominate the third person by mutual consent, subject to the approval of the Appointments Committee or the Chairman.

 

3.  The third person who was appointed or whose nomination has been approved, shall sign a statement of independence and disclose in writing to the Secretariat any facts or circumstances which might be of such a nature as to call into question the third person’s independence in the eyes of the parties. The Secretariat shall provide such information to the parties in writing and fix a time limit for any comments from them.

 

4.  The third person shall immediately disclose in writing to the Secretariat and to the parties any facts or circumstances of a similar nature as those mentioned in paragraph 3 which may arise during the adaptation of contracts proceedings.

 

5.  The decisions of the Appointments Committee or the Chairman as to the appointment, approval of the nomination or replacement of the third person shall be final. These decisions do not have to state the reasons for the decision.

 

6.  By accepting to serve, every third person undertakes to carry out his responsibilities until the end in accordance with these Rules.

 

7.  Unless otherwise agreed by the parties, the third person shall not act as an arbitrator, representative or counsel of a party in arbitral or judicial proceedings relating to the dispute which was the subject of the adaptation of contracts proceedings.

 

 

 

1.  The parties may nominate the third person by mutual consent, subject to the approval of the Appointments Committee or the Chairman. Should the parties fail to agree on his nomination within fifteen days from the notification of the Request for Adaptation of Contracts to the other party, or within such additional time as may be allowed by the Secretariat, the third person shall be automatically appointed by the Appointments Committee or the Chairman. Where the Appointments Committee or the Chairman refuses to approve the nomination of the third person, it or he shall proceed with the replacement within a period of fifteen days of the notification of this refusal to the parties.

 

2.  The Appointments Committee or the Chairman appoints or approves the nomination of the third person after the payment by the parties, or by one of them, of the advance on Adaptation of Contracts costs in accordance with the provisions of Article 17. It thereby takes into account more particularly the availability, the qualifications and the ability of the third person to conduct the adaptation of contracts proceedings in accordance with these Rules.

 

 

 

1.  In the event of a third person's death, accepted withdrawal, resignation, or if there is a cause preventing him from fulfilling his duties, or upon request of all parties, the third person shall be replaced.

 

2.  A third person shall also be replaced when the Appointments Committee or the Chairman finds that the third person is prevented de jure or de facto from fulfilling his duties in accordance with these Rules or within the allotted time limits.

In such event, the Appointments Committee or the Chairman shall decide on the matter after having invited the third person and the parties to comment in writing to the Secretariat within the time limit allotted by the latter. Such comments shall be communicated to the parties and to the third person.

 

 

 

 

Provided that the advance on adaptation of contracts costs has been fully paid, the Secretariat shall transmit the file to the third person as soon as the latter has been appointed or his nomination approved.

 

 

 

1.  The language of the adaptation of contracts proceedings shall be determined by mutual agreement between the parties. Failing such an agreement, the language or languages of the adaptation of contracts proceedings shall be determined by the third person, due regard being given to the circumstances of the case and, in particular, to the language of the contract.

 

2.  The third person shall have full authority to decide which of the parties shall bear the translation costs, if any, and to what extent.

 

 

 

1.  The Appointments Committee or the Chairman shall determine the seat of the adaptation of contracts proceedings, unless the parties have agreed otherwise.

 

2.  Unless otherwise agreed by the parties and after having consulted with them, the third person may decide to hold his hearings and meetings at any other location that he considers appropriate.

 

 

 

The third person is free to organize the proceedings as he sees fit.

 

 

 

 

 

The mission of the third person shall end when he draws up his conclusions in a written decision or recommendation.

 

 

 

1.  Once the decision or recommendation has been made, the third person shall transmit it to the Secretariat in as many original versions as there are parties involved, plus one original version for the Secretariat

 

2.  The Secretariat shall notify the original signed decision or recommendation to the parties, provided that the adaptations of contracts costs have been fully paid to the CEPANI by the parties or by one of them.

 

 

 

 

1.  The costs of the adaptation of contracts proceedings shall include the fees and expenses of the third person, as well as the administrative expenses of CEPANI. They shall be fixed by the Secretariat in consultation with the appointed third person and due regard being given to the nature and scope of his mission.

 

2.  Other costs and expenses relating to the adaptation of contracts proceedings, such as the expenses incurred by a party, are not included in the adaptation of contracts proceedings and are borne by this party.

 

 

 

1.  The advance required to cover the costs of the adaptation of contracts proceedings, as determined in accordance with Article 16, paragraph 1 shall be paid to the CEPANI prior to the appointment or the approval of the nomination of the third person by the Appointments Committee or the Chairman.

 

2.  Further advance payments may be required if and when any adjustments are made to the costs of the adaptation of contracts proceedings in the course of the proceedings.

 

3.  The advance on adaptation of contracts costs, as well as the additional advance on adaptation of contracts costs, shall be payable in equal shares by Claimant and Respondent. However, any party shall be free to pay the whole of the advance on adaptation of contracts costs should the other party fail to pay its share.

 

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

 

5.  When a request for an additional advance on adaptation of contracts costs has not been complied with, and after consultation with the third person, the Secretariat may direct the third person to suspend his work and set a time limit, which must be not less than fifteen days, on the expiry of which the extension of the mission on the basis of which the additional advance was calculated shall be considered as withdrawn. A party shall not be prevented on the ground of such a withdrawal from reintroducing the same claim or counterclaim at a later date in another proceeding.

 

 

 

1.  The adaptation of contracts costs shall be finally fixed by the Secretariat.

 

2.  Unless otherwise agreed, the parties shall each bear one half of the costs of the adaptation of contracts proceedings.

 

3.  The decision or the recommendation of the third person set forth the adaptation of contracts costs, as determined by the Secretariat, and set out the agreement between the parties, if any, on the allocation of the adaptation of contracts costs.