Introduction

It is well recognized that the availability of prompt, effective and economical means of dispute resolution is an important element in the orderly growth and encouragement of international investment and trade. Increasingly, arbitration and mediation, instead of litigation in national courts, have become the preferred means of resolving international commercial disputes. With respect to private disputes arising in the sphere of the North American Free Trade Agreement (“NAFTA”), Article 2022 of NAFTA specifically provides for the encouragement and use of arbitration and other alternative dispute resolution techniques (“ADR”) as the desirable means of resolving such controversies.

The use of mediation, a nonbinding process where the parties submit their dispute to an impartial third person who assists them in reaching their own settlement, and arbitration, submission of a dispute to one or more impartial persons for a final and binding determination, can be utilized for the resolution of all types of private commercial disputes arising in investment and trade, construction, employment, financial services, franchising, intellectual property, manufacturing, oil and gas, and many other areas.

Consistent with the objectives of NAFTA, the Commercial Arbitration and Mediation Center for the Americas (“CAMCA”) and the procedures reproduced in this booklet were designed to provide commercial parties involved in the free trade area with an efficient, international forum for the resolution of private commercial disputes which inevitably arise. Created jointly by the American Arbitration Association, the British Columbia International Commercial Arbitration Centre, the Mexico City National Chamber of Commerce, and the Québec National and International Commercial Arbitration Centre, all leading national institutions devoted to the promotion and responsible use of private dispute resolution techniques, CAMCA operates with uniform rules, policies and administrative procedures.

Representatives from each of these institutions govern CAMCA and cases may be filed with any of their offices. A multi-national panel of arbitrators and mediators is available to serve under these rules, and impartial committees, representative of the nationalities of the parties and chaired by a national of a country other than that of any of the parties, are available to resolve contested locale issues.

Parties may provide for mediation of future disputes utilizing the services of CAMCA by inserting the following clause into their contract:

“The parties agree that they will endeavor to settle any dispute, controversy or claim arising out of or relating to this contract, which they are unable to settle through direct discussions, by mediation administered by the Commercial Arbitration and Mediation Center for the Americas under its rules before resorting to arbitration, litigation or other dispute resolution procedure. The requirement of filing a notice of claim with respect to the dispute submitted to mediation shall be suspended until the conclusion of the mediation process.”

In the absence of a future dispute resolution clause in their agreement, the parties may also submit an existing controversy to mediation under the auspices of CAMCA by using the following agreement:

“We, the undersigned parties, hereby agree to submit to mediation administered by the Commercial Arbitration and Mediation Center for the Americas under its rules the following dispute, controversy or claim: (cite briefly). The requirement of filing a notice of claim with respect to the dispute, controversy or claim submitted to mediation shall be suspended until the conclusion of the mediation process.”

The parties can provide for arbitration of future disputes utilizing the dispute resolution services of CAMCA by inserting the following clause into their contract:

“Any dispute, controversy or claim arising out of or relating to this contract, or the breach thereof, shall be finally settled by arbitration administered by the Commercial Arbitration and Mediation Center for the Americas in accordance with its rules and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.”

In the absence of a future dispute resolution clause in their agreement, the parties may also submit an existing controversy to arbitration under the auspices of CAMCA by using the following agreement:

“We, the undersigned parties, hereby agree to submit to arbitration administered by the Commercial Arbitration and Mediation Center for the Americas under its rules the following dispute, controversy or claim: (cite briefly). We further agree that we will faithfully observe this agreement and the rules, and that a judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.”

The parties may wish to consider adding one or all of the following to either of the above arbitration clauses:

(a)“The number of arbitrators shall be (one or three)”;

(b)“The place of arbitration shall be (city and/or country)”; or,

(c)“The substantive law applicable to the dispute shall be _____________”;

(d) “The language(s) of the arbitration shall be ______________.”

In the alternative, a clause may also be inserted into a contract that first provides for mediation under the CAMCA Mediation Rules and, if the mediation is unsuccessful, for the dispute to be arbitrated under the CAMCA Arbitration Rules. A sample of such a clause is as follows:

“The parties agree that they will endeavor to settle any dispute, controversy or claim arising out of or relating to this contract, which they are unable to settle through direct discussions, by mediation administered by the Commercial Arbitration and Mediation Center for the Americas under its rules before resorting to arbitration. Thereafter, any dispute, controversy or claim arising out of or relating to this contract shall be settled by arbitration administered by the Commercial Arbitration and Mediation Center for the Americas in accordance with its rules and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The requirement of filing a notice of claim with respect to the dispute, controversy or claim submitted to mediation shall be suspended until the conclusion of the mediation process.”

For additional information on the services of CAMCA and its mediation and arbitration facilities, please contact any of the national offices of the Center:

American Arbitration Association

140 West 51st Street
New York, N.Y. 10020
Tel.: (21) 484-4000 Telefax: (21) 765-4874

British Columbia International Commercial Arbitration Centre

670-999 Canada Place, WTC
Vancouer, B.C. V6C 2E2,
Canadá
Tel.: (604) 684-2821
Telefax: (604) 641-1250

Cámara Nacional de Comercio de la Ciudad de México

Paseo de la Reforma No. 42
Col. Centro
Delegación Cuauhtémoc
06048 México, D.F.
Tel.: (52) 55 92 26 77
Telefax: (52) 57 05 74 12

The Quebec National and International Commercial Arbitration Centre

Edifice la Fabrique 295, boul.
Carest est
Quebec, Canada G1L 3G8
Tel.: (418) 649-1374
Telefax: (418) 649-0845

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CAMCA MEDIATION RULES

Article 1

I. Commencing the Mediation
Article 2 Notice of Mediation

II. The Mediator
Article 3 Multi-national Panel of Mediators
Article 4 Appointment of Mediator
Article 5 Challenge of Mediator
Article 6 Replacement of Mediator
Article 7 Authority of Mediator

III. General Conditions
Article 8 Representation
Article 9 Date, Time, and Place of Mediation
Article 10 Identification of Matters in Dispute
Article 11 Privacy
Article 12 Confidentiality
Article 13 No Stenographic Record
Article 14 Termination of Mediation
Article 15 Mediation Settlement
Article 16 Exclusion of Liability
Article 17 Interpretation and Application of Rules
Article 18 Expenses
Administrative Fees
The Filing Fee
Deposits
Refunds

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CAMCA MEDIATION RULES*

Article 1

The parties shall be deemed to have made these rules a part of their mediation agreement whenever they have provided for mediation by the Commercial Arbitration and Mediation Center for the Americas (hereinafter referred to as the “administrator”) under its mediation rules. These rules, and any amendment of them, shall apply in the form obtained at the time the demand for, or submission to, mediation is received by CAMCA. The parties, by written agreement, may vary the procedures set forth in these rules.

I. Commencing the Mediation

Notice of Mediation
Article 2

1. Any party or parties to a dispute may initiate mediation by filing with the administrator a submission to mediation or a written request for mediation pursuant to these rules, together with the appropriate filing fee. Where there is no submission to mediation or contract providing for mediation, a party may request the administrator to invite another party to join in mediation. Upon receipt of such a request, the administrator will contact the other parties involved in the dispute and attempt to obtain their agreement to mediation.

2. A request for or submission to mediation shall contain a brief statement of the nature of the dispute, and the names, addresses, and telephone numbers of all parties to the dispute and their representatives, if any. The initiating party shall simultaneously file two copies of the request with the administrator and one copy with every party to the dispute.

II. The Mediator

Multi-national Panel of Mediators
Article 3

CAMCA shall establish and maintain a multi-national panel of mediators and shall appoint mediators as provided in these rules.

Appointment of Mediator
Article 4

1. If the parties have not appointed a mediator and have not mutually agreed on a method of appointment, the administrator shall send simultaneously to each party to the dispute an identical list of names of persons chosen from the multi-national CAMCA panel. Normally, a single mediator will be appointed, unless the parties agree otherwise.

2. Each party to the dispute shall have twenty (20) days from the transmittal date in which to strike names objected to, number the remaining names in order of preference, and return the list to the administrator. If a party does not return the list within the time specified, all persons named therein shall be deemed acceptable. From among the persons who have been approved on the relevant lists, and in accordance with the designated order of mutual preference, the administrator shall invite the acceptance of a mediator to serve. If the parties fail to agree on any of the persons named, or if acceptable mediators are unable to act, or if for any other reason the appointment cannot be made from the submitted lists, the administrator shall have the power to make the appointment from among other members of the panel without the submission of additional lists. To the extent possible, the administrator will abide by any agreement of the parties regarding the desired qualifications of the mediator.

Challenge of Mediator
Article 5

Persons serving as mediators shall be independent and impartial. No person shall serve as a mediator in any dispute in which that person has any financial or personal interest in the matters in dispute between the parties or the result or outcome of the mediation. Prior to accepting an appointment, the prospective mediator shall confirm his/her availability and disclose any circumstance likely to create justifiable doubts as to impartiality or independence. Upon receipt of such information, the administrator shall either replace the mediator or immediately communicate the information to the parties for their comments. In the event that the parties disagree as to whether the mediator shall serve, the administrator will appoint another mediator. The administrator is authorized to appoint another mediator whenever the appointed mediator is unable to serve promptly.

Replacement of Mediator
Article 6

If any mediator becomes unwilling or unable to serve or is disqualified, the administrator will appoint another mediator, taking into account the expressed preferences of the parties.

Authority of Mediator
Article 7

1. The mediator does not have the authority to impose a settlement on the parties but will seek to assist them in reaching a satisfactory resolution of the dispute. The mediator is authorized to conduct joint and separate meetings with the parties and to make oral and written recommendations for settlement. Whenever necessary, the mediator may also obtain expert advice concerning technical aspects of the dispute, provided that the parties agree and bear the costs of obtaining such advice. Arrangements for obtaining such expert advice shall be made by the mediator or the parties, as the mediator shall determine.

2. The mediator is authorized to end the mediation whenever, in the judgment of the mediator, further efforts at mediation would not contribute to a resolution of the dispute between the parties.

III. General Conditions

Representation

Article 8

1. By agreeing to mediate under these rules, the parties undertake to conduct the mediation in a bona fide and forthright manner and make a serious attempt to resolve the dispute.

2. Any party may be represented in the mediation. The names, addresses and telephone numbers of such persons shall be communicated in writing to all parties and to the administrator.

3. The parties shall make every reasonable effort to ensure that their representatives have the necessary authority to settle the dispute.

Date, Time, and Place of Mediation
Article 9

The mediator shall fix the date and the time of each mediation session in consultation with the parties.

The mediation shall be held at any convenient location agreeable to the mediator and the parties, as the mediator shall determine, including the most convenient office of the administrator.

Identification of Matters in Dispute
Article 10

1. At least ten (10) days prior to the first scheduled mediation session, each party shall provide the mediator with a brief memorandum setting forth its position with regard to the issues that need to be resolved, its position with respect to these issues and all information reasonably required for the mediator to understand these issues. Such memoranda shall be mutually exchanged by the parties.

2. The parties will be expected to produce all information reasonably required for the parties and the mediator to understand the issues presented.

3. The mediator may require any party to supplement such information.

Privacy
Article 11

Mediation sessions are private. The parties and their representatives may attend mediation sessions. Other persons may attend only with the permission of the parties and with the consent of the mediator.

Confidentiality
Article 12

1. Confidential information disclosed to a mediator by the parties or participants in the course of the mediation shall not be divulged by the mediator. All records, reports or other documents received or made by the mediator while serving in that capacity shall be confidential. The mediator shall not be compelled to divulge such records or to testify in regard to the mediation in any adversarial proceeding or judicial forum.

2. The parties shall maintain the confidentiality of the mediation and shall not rely on, or introduce as evidence in any arbitral, judicial, or other proceeding:

(a) views expressed or suggestions made by another party with respect to a possible settlement of the dispute;

(b) admissions made by a party in the course of the mediation proceedings;

(c) documents, notes, or other information obtained during the mediation proceeding;

(d) proposals made or views expressed by the mediator; or,

(e) the fact that a party had or had not indicated willingness to accept a proposal.

No Stenographic Record
Article 13

There shall be no stenographic record of the mediation proceedings.

Termination of Mediation
Article 14

The mediation shall be terminated:

(a) by the execution of a settlement agreement by the parties;

(b) by a written declaration of the mediator to the effect that further efforts at mediation are no longer worthwhile; or,

(c) by a written declaration of a party or parties to the effect that the mediation proceedings are terminated.

Mediation Settlement
Article 15

Parties who undertake to mediate under these rules agree to carry out any settlement agreement without delay.

Exclusion of Liability
Article 16

1. Neither the administrator nor any mediator is a necessary party in judicial proceedings relating to the mediation.

2. Neither the administrator nor any mediator shall be liable to any party for any act or omission in connection with any mediation conducted under these rules, save that they may be liable for the consequences of conscious and deliberate wrongdoing.

Interpretation and Application of Rules
Article 17

The mediator shall interpret and apply these rules insofar as they relate to the mediator’s powers and duties. All other rules shall be interpreted and applied by the administrator.

Expenses
Article 18

The expenses of any information production shall be paid by the party producing such information. All other expenses of the mediation, including required travel and other expenses of the mediator and representatives of the administrator, and the expenses of any information or expert advice produced at the direct request of the mediator, shall be borne equally by the parties unless they agree otherwise.

Administrative Fees

The Filing Fee

The filing fee payable in U.S. dollars at the time mediation is requested is $500. This fee is to be borne equally or as otherwise agreed by the parties.

Additionally, the parties are charged a fee based on the mediator’s time. It is suggested that parties consult the administrator for applicable rates.

There is a $150 charge to the filing party where the administrator is requested to invite other parties to join in mediation, which will be applied to the filing fee upon obtaining the parties’ agreement to mediate.

The expenses of the administrator and the mediator, if any, are generally borne equally by the parties. The parties may vary this arrangement by agreement.

Deposits

Before the commencement of mediation, the parties shall equally deposit such portion of the fee covering the cost of mediation as the administrator shall direct and all appropriate additional sums that the administrator deems necessary to defray the expenses of the proceeding. When the mediation has terminated, the administrator shall render an accounting and return any unexpended balance to the parties.

Refunds

Once the mediation file is opened, no refund of filing fees will be made.