Board of Conciliation, Mediation
A. RULES OF PROCEDURE OF THE CONCILIATION BOARD FOR COMMERCIAL DISPUTES OF THE FRANKFURT AM MAIN CHAMBER OF COMMERCE AND INDUSTRY (IHK)
AND THE FRANKFURT AM MAIN BAR ASSOCIATION (RECHTSANWALTSKAMMER)
WHEREAS
The settlement of commercial disputes between companies by amicable arrangement is of major economic interest. Against this backdrop the Frankfurt am Main Bar Association (Rechtsanwaltskammer) (hereinafter referred to as "Bar Association") and the Frankfurt am Main Chamber of Commerce and Industry (hereinafter referred to as "IHK“) have set up a Conciliation Board for commercial disputes (hereinafter referred to as "Conciliation Board"), which has the following RULES OF PROCEDURE:
§ 1
Jurisdiction
1.1According to these Rules of Procedure the subject-matter of the conciliation procedure can be disputes arising from the business or trade activities of both parties. The Conciliation Board shall also have jurisdiction for disputes under company law which concern a company carrying on a business or trade.
1.2At least one of the parties must be a member of a German chamber of commerce and industry or be represented by an attorney at law. In the case of disputes under company law it suffices if the company is a member of a German chamber of commerce and industry.
§ 2
Clerks' Offices
2.1Both the IHK and the Bar Association shall set up a clerk's office on their premises.
2.2The clerks' offices shall advise the parties on all matters to do with the conciliation procedure. More particularly, they shall assist in the selection of conciliators at the request of the parties.
§ 3
Commencement of the procedure
3.1The party requesting the conciliation shall submit a written application for the conduct of the procedure to one of the clerk's offices together with proof of conformity with the preconditions as to jurisdiction (§ 1). Two copies of the application shall be submitted. It shall contain details of the parties, their dispute relationship and the claims asserted and be accompanied by copies of all relevant certificates and evidence. In the case of a party represented by an attorney at law, the application shall also contain a brief legal appreciation of the subject-matter of the dispute.
3.2If the applicant requests a conciliation procedure with three conciliators (§ 4, 4.1), this must be applied for in addition.
3.3The clerk's office shall inform the opposing party about the application linked with a request for notification within three weeks of whether the other party agrees to the conciliation procedure. If said agreement is not received by the clerk's office by the stipulated deadline, then no conciliation procedure will be conducted. The applicant shall be informed whether the opposing party has agreed to the procedure.
3.4If the parties agree that a conciliation procedure is to be conducted, the parties shall be called on to pay a flat charge in accordance with § 7 clause 7.1, to select a conciliator and to conclude a conciliation agreement within the intendment of § 6.
§ 4
Conciliators
4.1As a rule, the procedure shall be conducted with one conciliator. At the request of both parties a procedure with three conciliators is also possible.
4.2The conciliator shall be impartial, independent and unbiased and subject to an extensive duty of secrecy. He must be qualified to exercise the functions of a judge. If the procedure is conducted with three conciliators, it suffices when one of the conciliators is qualified to exercise the functions of a judge.
4.3The parties may agree on one conciliator. They may also apply to the clerk's office for a conciliator to be nominated by that office. If the application involves a conciliation procedure with three conciliators, each party shall nominate one conciliator. The two conciliators shall then jointly nominate an umpire as chairperson.
4.4Unless the parties submit a corresponding application, the nomination shall be made by the Conciliation Board if the clerk's office fails to name a conciliator within two weeks of the application for a conciliation procedure whom the parties have agreed on and who meets the preconditions under §§ 4 und 5. In the case of a conciliation procedure involving three conciliators, the Conciliation Board shall make the nomination if one of the parties fails to name a conciliator within two weeks of being asked to do so by the clerk's office. Furthermore, the Conciliation Board shall also make the nomination if the two nominated conciliators fail to agree on a chairperson within two weeks. The nomination shall be undertaken by the clerk's office which received the application for the conduct of a conciliation procedure. The decisive date for compliance with the deadlines shall be the date of receipt by the clerk's office.
4.5The parties may replace the conciliator(s) at any time by mutual agreement.
§ 5
Impartiality of the conciliator
5.1Whoever has advised or represented one of the parties prior to the commencement of the procedure in conjunction with the subject-matter of the dispute may not act as a conciliator.
5.2During the conciliation procedure the conciliator may not represent or advise either of the parties on any dispute whatsoever. In conjunction with the subject-matter at dispute in the conciliation procedure, the prohibition to act as counsel shall also apply after termination of the procedure.
5.3The conciliator may not have business links to either of the parties during the conciliation procedure. Nor may any-one act as a conciliator who has joined a person for the joint exercise of a profession who is linked in accordance with § 5.1 to § 5.3 with one of the parties.
5.4The conciliator may only take up his office with the approval of both parties in the same matter.
5.5The parties undertake not to name the conciliator in ensuing court proceedings as a witness for facts revealed to him during the conciliation procedure.
§ 6
Conciliation agreement
6.1The Conciliation Board shall only become involved beyond the measures which initiated the procedure (§ 3) if the parties have undertaken in writing to endeavor to have their dispute conciliated in accordance with these conciliation rules (conciliation agreement).
6.2The conciliation agreement shall contain the provision that limitation in respect of the claims involved in the dispute shall be interrupted for the period from conclusion of the agreement up to three months after termination of the conciliation procedure.
§ 7
Costs
7.1The clerk's office levies a flat charge amounting to between 100 Euro and 500 Euro in conjunction with the value in dispute and the expected expenditure. Statutory VAT shall be added to the amount if the activity of the clerk's office is subject to VAT. Each of the two parties shall pay 50% of the flat charge in advance.
7.2Each conciliator shall be paid an hourly fee according to the following scale:
Value in dispute | Sole conciliator, Chairperson | Assessor, with three conciliators |
up to Euro 25,000.00 | Euro 150.00 | Euro 100.00 |
from Euro 25,000.00 to Euro 100,000.00 | Euro 175.00 | Euro 125.00 |
more than 100,000.00 | Euro 200.00 | Euro 150.00 |
7.3Furthermore, the parties shall be bound to reimburse any necessary expenses of the conciliator and Conciliation Board. This shall also include VAT if there is an obligation to pay VAT.
7.4The parties shall be jointly and severally liable vis à vis the clerk's office for the flat charge and its expenses.
7.5Each party shall bear any costs incurred by it and the costs of its representation itself. Later cost compensation between the parties on the grounds of a court decision or contractual agreement shall not be ruled out. It shall be deemed to have been agreed that the costs connected to the conduct of this procedure for a party are necessary within the intendment of the preparation of the proceedings in accordance with § 91 Code of Civil Procedure (ZPO) to the extent that a dispute under civil law becomes pending in respect of the dispute if the conciliation procedure fails.
7.6An agreement closing the conciliation procedure shall settle the distribution of costs of the conciliator and the clerk's office between the parties. If there is no such agreement, the conciliator shall be deemed to be called on to make a binding decision about the distribution in his capacity as expert arbitrator in accordance with § 317 Civil Code (BGB).
7.7If the procedure fails, each of the parties shall bear half of the costs of the conciliator.
§ 8
Course of procedure
8.1Once the opposing party has approved the conciliation procedure and the applicant has been informed accordingly (§ 3), the conciliation procedure shall only be continued if the conciliation agreement according to § 6 has been signed and the flat charge according to § 7 clause 7.1 has been paid. If this does not happen within three weeks, the clerk's office may declare the termination of the conciliation procedure.
8.2If the preconditions under § 8 clause 8.1 are met, the Conciliation Board shall serve the request for conciliation on the opposing party and ask it to send two copies of its response in writing within two weeks of receipt. The response should outline the opposing party's position in a factual form and contain copies of written evidence. The response from a party represented by an attorney at law should contain a brief legal appreciation of the subject-matter of the dispute from its viewpoint. The request may be served at an earlier time for reasons of speeding up the procedure.
8.3The conciliator shall decide in agreement with the parties on the venue of the conciliation procedure and set a date as soon as possible to which the parties and, where appropriate, their representatives shall be summoned. On that day the dispute and legal situations shall be discussed and an agreement sought in the interests of both parties.
8.4The procedure shall be private. The confidential nature of the procedure must be respected by all participants in the procedure.
8.5The conciliator shall decide the further course of the procedure at his own discretion bearing in mind the principles of impartiality, equity and justice. Where possible, the wishes of the parties should be taken into account
8.6The conciliator may call at any time on a party to submit further information. Any written documents submitted by the parties shall be taken into account. The conciliator may inspect in situ the subject-matter of the dispute.
8.7The parties undertake to promote the continuance of the procedure at all times. Neither of the parties shall be entitled to inspect the conciliator's files.
8.8At all stages in the procedure the conciliator shall seek to achieve settlement of the dispute by mutual agreement. Parties not represented by an attorney at law shall be informed by the conciliator about the legal background to and the consequences of a settlement proposal.
8.9At the express request of the parties the conciliator may
submit a proposal for an arrangement,
explain to the parties the chances of success of a court case from his viewpoint,
make an arbitral award concerning the entire dispute relationship or parts thereof to the extent that the parties have previously concluded an agreement as to the court of arbitration.
§ 9
Termination of the procedure
9.1The procedure shall end when the agreement terminating the dispute has been concluded or at least one party has declared the conciliation to have failed in writing to the conciliator and the other party. At the hearing date an oral declaration shall suffice.
9.2If the conciliator does not see any chance of success for the procedure, he may terminate the procedure at any time. No reasons need to be given for this decision. In a procedure with three conciliators unanimity shall be required for the termination of the procedure.
The conciliator shall point out to the parties the possibility for the replacement by mutual agreement of the conciliator (§ 4 clause 4.5).
9.3The conciliator must record the result of the procedure in minutes. He must inform the clerk's office when the conciliation procedure has been terminated. The notification shall also detail whether agreement could be reached between the parties.
9.4In the event of the conclusion of an agreement, the conciliation procedure shall be deemed to have been terminated on the date of the signing of the agreement. To the extent that the termination of the procedure or the failure of conciliation has been declared to the parties present, this date shall be deemed to be the termination of the procedure. If one of the parties to the conciliation procedure is not present, the conciliation procedure shall be deemed to be terminated at the time at which the conciliator informs the party in writing of the termination of the procedure.
§ 10
Liability
10.1A liability of the Bar Association and IHK, their relevant bodies and members for actions or forbearances of the conciliator shall be excluded. In the conciliation agreement the conciliator may restrict his liability to the statutorily admissible scope.
10.2The liability of IHK and the Bar Association shall be restricted to wrongful intent and gross negligence.
§ 11
Entry into force
These Rules of Procedure shall enter into force on the day after their publication.
These Rules of Procedure of the Conciliation Board were adopted on 21 June 2000 by the Plenary Assembly of the Frankfurt am Main Chamber of Commerce and Industry.
B. Conciliation clause
The Frankfurt am Main Chamber of Commerce and Industry advises all parties wishing to make reference to the Rules of Procedure of the Conciliation Board for Commercial Disputes of the Frankfurt am Main Chamber of Commerce and Industry (IHK) and the Frankfurt am Main Bar Association (Rechtsanwaltskammer) to use the following conciliation and mediation clause in their contracts:
1.
The parties undertake in the case of differences of opinion to conduct a conciliation procedure with the goal of elaborating a fair agreement reflecting their different interests by means of mediation with the support of a neutral conciliator bearing in mind the economic, legal, personal and social circumstances.
All disputes arising out of the contract ... (description of the contract) or about its validity shall be conciliated in accordance with the Conciliation Rules of the Frankfurt am Main Chamber of Commerce and Industry (IHK) and the Frankfurt am Main Bar Association (Rechtsanwaltskammer) under exclusion of recourse to the ordinary courts of law.
2.
The parties shall jointly choose the conciliator. If no agreement is reached about the person of the conciliator, he shall be appointed by the Conciliation Board. This appointment shall be binding for the parties.
3.
The costs of the conciliation procedure shall be borne to 50% (or proportionately) by the parties unless a different agreement has been reached.
4.
If no viable solution is found in the conciliation procedure, both parties are free to resort to a competent court.
5.
The parties , though, shall not be prevented from instituting summary proceedings, in particular proceedings to obtain a temporary injunction.
As an alternative to conciliation clause point 4. can be replaced by the following agreement:
4.
If the conciliation fails, because one parties declares the failure or the conciliator declares the conciliation to be failed, the parties have recourse to the arbitration court of the Frankfurt am Main Chamber of Commerce and Industry (IHK)
It is recommended that the following provisions be added to the arbitration clause:
- The place of Conciliation is .....
(if the venue of the Conciliation Board shall not be Frankfurt am Main); - The Conciliation Board consists of .... (number of) conciliators
(if the Conciliation Board shall consist of more than one conciliator); - The substantive law of ... is applicable to the dispute
(in international cases) - The language of the Conciliation proceedings is .....
(in international cases)
