MEDIATION RULES

OF HTA COMMERCIAL ARBITRATION CENTER

In force as from July 1, 2019

TABLE OF CONTENT

CHAPTER 1. GENERAL PROVISIONS

Article 1. Scope of application

Article 2. Definitions

Article 3. Principles of mediation

Article 4. Responsibilities of the Mediator, Center and staff of the Center

CHAPTER 2. MEDIATION PROCEDURES

Article 5. Request for mediation

Article 6. Commencement of mediation

Article 7. Appointment of mediator

Article 8. Roles of mediator

Article 9. Representatives and assistants of the parties in mediation

Article 10. Mediation language

Article 11. Conduct of mediation

Article 12. Circulation of notices and documents

Article 13. Duties of the parties in mediation

Article 14. Confidentiality

Article 15. Mediated Settlement Agreement

Article 16. Termination of mediation procedures

CHAPTER 3. MEDIATION FEES AND ARISING EXPENSES

Article 17. Mediation fees and arising expenses

Article 18. Payment of mediation fees and arising expenses

 

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CHAPTER 1. GENERAL PROVISIONS

 Article 1. Scope of application

1. 1. The Rules of Mediation of the HTA Commercial Arbitration Center (hereinafter referred to as “the Rules”) shall apply to resolve disputes through mediation at the HTA Commercial Arbitration Center (hereinafter referred to as “Center”).
   2. Parties may jointly agree to exclude, modify or supplement any provision of the Rules, with the written consent of the Center and the mediator, provided that such exclusion, modification or supplement are not in contrary to mandatory provisions of laws.
   3. If any provision of the Rules is not in compliance with a mandatory provision of laws, the provision of laws shall prevail.
   4. In all matters not expressly provided for in the Rules, the Center and the mediator shall act in the spirit of the Rules and make all efforts for the dispute to be resolved in a fair and efficient manner.

Article 2. Definitions

In these Rules, the following terms shall be understood as follows:

1. 1. “Mediation” is commercial mediation in accordance with the law; “Mediator” is a commercial mediator according to the law.
   2. “List of Mediators” means the Center’s list of mediators.
   3. “Mediation agreement” means a written agreement, in form of a contract clause or a separate mediation agreement, by which parties agree to resolve their potential or existing disputes through mediation at the Center in accordance with the Rules.
   4. “Mediated Settlement Agreement” is the outcome of the mediation, by which the parties agree on the solutions for settlement their dispute in whole or in part.

Article 3. Principles of mediation

1. 1. The Parties to mediation are completely voluntary and equal in rights and obligations.
   2. Informations relating to the mediation procedures must be kept confidential, unless otherwise agreed in writing by the parties or provided for by law.
   3. The content of the Mediated Settlement Agreement does not violate the prohibition of the law, is not contrary to social morality, not to avoid the obligation, not to violate the rights of third parties.

 Article 4. Responsibilities of the Mediator, Center and staff of the Center

The mediator, Center and the Center’s employees shall not be liable to any party for any act or omission in connection with the conduct of mediation by the mediator in the mediation process, unless such act or omission is a violation of prohibitions under the laws.

 

CHAPTER 2. MEDIATION PROCEDURES

 Article 5. Request for Mediation

1. 1. Any party wishing to commence mediation shall send a Request for Mediation together with the mediation agreement to the Center. The Request for Mediation may contain following informations:
      1. Date, month, year on which the Request for Mediation is made;
      2. Names and addresses of the parties in dispute;
      3. Brief description of the dispute;
      4. Request(s) on solutions of mediation; including monetary valued request(s) and other request(s) (if any);
      5. The name(s) of the person(s) nominated to be the mediator(s) or suggestion on appointment method or on criteria of the mediator(s);
      6. The signature of legal representative or authorized representative where the requesting party is a legal entity; the signature of the individual or authorized representative where the requesting party is an
   2. In the absence of a mediation agreement, any party that wishes to commence mediation shall send to the Center a Request containing an offer to another party to resolve their dispute(s) through mediation at the Center in accordance with the Rules.

 Article 6. Commencement of mediation

1. 1. In the case specified in paragraph 1 of Article 5 of the Rules, within 05 working days since the date of receipt of the Request for Mediation and mediation fees in accordance with Article 18 of the Rules, the Center shall send a Notice and the Request for Mediation to the other party(ies). Within 10 days since the date of its receipt of such Notice, that party shall send the Statement of Reply to the Center.

The mediation procedures shall commence on the date that the Center receives the Request for Mediation and the registration fee. If such another party refuses to mediate or fails to send the Statement of Reply, the mediation process shall terminate in accordance with Article 16 of the Rules.

1. 2. In the case specified in paragraph 2 of Article 5 of the Rules, within 05 working days since the Center receives the Request, the Center shall transfer the Request to another party for its consideration. Within 10 days since the date of receipt of the Request, that party shall send a Response to the Center on whether it accepts to mediate or refuses to do so. The Center may, at its best effort, assist the parties to reach a mediation

If such another party accepts the offer to mediate, the Center shall instruct the parties following the steps as stipulated in Article 3 of the Rules. In case of refusal or failure of such another party in sending a Response to the Center, the mediation under the Rules shall not be conducted.

 Article 7. Appointment of mediator

1. 1. The parties shall mutually agree on the mediator and notify the Center of that mediator. If the mediator is not listed in the List of Mediators, the parties must provide evidence proving that he or she is a mediator pursuant to the provisions of law. In case of parties’ failure to agree on the mediator or in the absence of an agreed appointment method, the Center’s Director shall appoint a mediator on behalf of the parties.
   2. When appointing a mediator, the Center’s Director shall diligently consider the agreement of parties on criteria of the mediator (if any), and may consider other attributes of the prospective mediator, consisting of nationality, language skills, training and experience, and the prospective mediator’s availability and ability to conduct the mediation in accordance with the Rules in order to appoint an appropriate mediator. The appointed mediator may not be necessary in the List of Mediators
   3. Before accepting the appointment, the prospective mediator shall promptly disclose in writing to the Center any facts or circumstances that might cause any doubt about his or her independence, impartiality, objectivity and honesty or any failure to meet the parties’ requirements of the mediator (if any). The Center shall notify the parties of such disclosure and instruct the parties to agree on or to request the Center to appoint another mediator, unless the parties still agree expressly on that mediator to conduct the mediation. The selection and appointment of another mediator shall proceed pursuant to paragraph 1 and paragraph of this Article.

 Article 8. Roles of mediator

1. 1. The Mediator shall always be independent, impartial, objective and honest in assisting the parties to reach solutions for their disputes. The mediator has the disclosure obligation as stipulated in paragraph 3 of Article 7 above throughout the mediation process.
   2. The mediator shall conduct the mediation in such a manner as he or she considers appropriate with the consent of the parties, taking into account the circumstances of the case, the wishes of the parties and the need for a speedy settlement of the dispute.
   3. The mediator may, at any stage of the mediation, make proposals for solutions to settle the dispute but must not impose a settlement on parties. Such proposals need not to be accompanied by a statement of the reasons thereof.
   4. The mediator shall not be a representative or counsel of a party and shall not be an adjudicator or arbitrator in the dispute he or she is mediating or has mediated, unless the parties agreed otherwise.

Arrticle 9. Representatives and assistants of the parties in mediation

1. 1. The parties may have representatives or assistants in mediation by their own choice. The names and addresses of such representatives and assistants must be communicated in writing to the mediator and another party. Such notification shall specify the capacity of each person as representative or assistant of a party.
   2. The parties will confer the necessary authority and mandate upon their representatives to settle the dispute.

 Article 10. Mediation language

1. 1. The mediation process shall be conducted in the language(s) agreed by the parties. In the absence of such an agreement, the mediator shall determine the language of mediation. Where translation is required, the party requesting the translation shall be responsible for the quality of the translation.
   2. The Center may arrange the translation services upon the request of a party at the expense of the requesting party.

 Article 11. Conduct of mediation

1. 1. The Center shall organize administrative matters of the mediation, in consultation with the parties, including following matters:
      1. Arranging meeting room(s) and fixing date(s) for mediation sessions at the Center or other venues as agreed by the parties;
      2. Organizing the exchange of any information and documents among the parties and the mediators;
      3. Providing general administrative.
   2. When conducting mediation, the mediator may request the parties to submit statements on matters in dispute.
   3. The mediator may hold joint mediation sessions with the parties or private mediation sessions with each party. Any party may request for a private mediation session with the mediator at any stage of the mediation. Mediation sessions may be held via teleconference, video-conference or any other appropriate means.
   4. Prior to or after the scheduled mediation sessions mentioned in paragraph 3 herein above, the mediator may communicate with a party or the parties, in an effort to assist the parties to reach a full settlement of dispute.
   5. Mediation sessions are conducted in confidence, unless the parties agreed otherwise. Prior to the beginning of a mediation session, the mediator and the parties must be promptly informed of the participation of any third party in that mediation session. Such participation must be subject to the consent of the mediator and the parties.
   6. Each party may, at its own discretion or as suggested by the mediator, disclose its proposals on solutions to settle the dispute to the mediator.

 Article 12. Circulation of notices and documents

1. 1. The notices and documents in mediation communicated among the parties and the mediators shall be circulated through the Center, unless such notices and documents are submitted directly to the mediator in private mediation sessions with clear instruction that such notices or documents must be kept confidential and not be disclosed to another party.
   2. Notices and documents shall be sent by the Center to the parties at the addresses provided by the parties and can be sent by delivery against receipt, registered mail, facsimile, email or any other means of communication that provides a record of the sending thereof.

 Article 13. Duties of the parties in mediation

The parties are to participate in mediation in good faith, including cooperating with each other and with the mediator for the mediation to proceed and to conclude promptly with positive outcomes, presenting accurately the details of the dispute, and providing the information and documents related to the dispute at the request of the mediator.

 Article 14. Confidentiality

1. 1. Unless otherwise agreed by the parties in writing, all information produced in or collected from the mediation must be kept confidential by the mediator, the parties and any third party participating in the mediation.
   2. The whole content of the Mediated Settlement Agreement is also kept confidential, unless the disclosure is necessary for the enforcement and implementation of such Mediated Settlement Agreement.
   3. Any information exchanged between a party and the mediator in a private mediation session shall be kept strictly confidential and not be disclosed to any other parties, unless being consented in advance by the party that provides such information.
   4. No audio-visual recording, no transcript or formal record will be made of any part of the mediation process, except the note-taking by the mediator for the sole purpose of conducting the mediation.
   5. Any documents or information could be only obtained through mediation shall not be used as evidence in subsequent judicial, arbitral or other proceedings. The parties shall not call the mediator as a witness in any subsequent proceedings, whether in relation to the dispute that has been mediated or any other disputes in connection with the same transaction.

 Article 15. Mediated Settlement Agreement

1. The Mediated Settlement Agreement shall be made in writing and contain the following matters:
   1. Basis of the conduct of mediation;
   2. General information of the parties;
   3. Brief description of the dispute;
   4. Settlement agreements and solutions;
   5. Other contents agreed by the parties in accordance with provisions of laws;
   6. Signatures of the mediator and the.
2. The Settlement Agreement is binding on the parties and enforceable as under the regulations of laws.

 Article 16. Termination of mediation procedure

1. The mediation procedure shall be terminated in the following circumstances:
   1. Where the parties conclude a mediated settlement agreement;
   2. Where the mediator, after consulting with the parties, announces in writing that from his or her assessment, the continuing of the mediation procedure will not promise any possibilities of positive outcomes;
   3. Where a party or the parties send a written notice to the mediator stating that such party or the parties wish to terminate the ongoing mediation procedure;
   4. Where the party receiving a Request for Mediation refuses to mediate; or fails to send the Statement of Reply to the Center within the period of time fixed by the Center;
   5. Where the period of time for payment of mediation fees fixed by the Center has expired and there is no appropriate action.
2. The Center shall notify the mediator and the parties of the termination of the mediation process by an official notice.

CHAPTER 3. MEDIATION FEES AND ARISING EXPENSES

 Article 17. Mediation fees and arising expenses

1. 1. The mediation fees are calculated in accordance with the Fee Schedule of the Center and consists of:
      1. Registration fee;
      2. Remuneration of mediator(s);
      3. Administrative fees for the.
   2. Arising expenses are charged on the basis of actual expenses, including:
      1. Expenses for travelling, accommodation and other expenses of the mediator;
      2. Arising expenses for other requests of.
   3. Unless the parties agreed otherwise, the fees and expenses mentioned in paragraphs 1(b), 1(c) and 2(a) shall be equally allocated between/among the parties; the expenses in paragraph 2(b) shall be borne by the requesting party or parties. A party may pay on behalf of another party for any outstanding portion of fees and expenses mentioned

Article 18. Payment of mediation fees and arising expenses

1. 1. The payment of mediation fees shall be made pursuant to the Fee Schedule of the Center.
   2. The Center may request a party or the parties to advance against expenses arising during the mediation. If such advance payment is not made in full, the Center is entitled to decline to provide the services requested by a party or to request the mediator to suspend the mediation process.
   3. Upon the termination of the mediation process, the Center shall calculate the actual expenses in paragraph 2, if the advance exceeds the actual expenses, the Center shall refund the excess amount, if the actual expenses exceed the advance, the parties shall pay the Center the outstanding amount./.

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