CONVENTION ON A CODE OF CONDUCT FOR LINER CONFERENCES, 1974
CONVENTION ON A CODE OF CONDUCT FOR LINER CONFERENCES, 1974
Objectives and Principles
Whole document
The Contracting Parties to the present Convention,
Desiring to improve the liner conference system,
Recognizing the need for a universally acceptable code of conduct for
liner conferences,
Taking into account the special needs and problems of the developing
countries with respect to the activities of liner conferences serving
their foreign trade,
Agreeing to reflect in the Code the following fundamental objectives
and basic principles:
(a) The objective to facilitate the orderly expansion of world
sea-borne trade;
(b) The objective to stimulate the development of regular and
efficient liner services adequate to the requirements of the trade
concerned;
(c) The objective to ensure a balance of interests between suppliers
and users of liner shipping services;
(d) The principle that conference practices should not involve any
discrimination against the shipowners, shippers or the foreign trade of
any country;
(e) The principle that conferences hold meaningful consultations with
shippers' organizations, shippers' representatives and shippers on
matters of common interest, with, upon request, the participation of
appropriate authorities;
(f) The principle that conferences should make available to interested
parties pertinent information about their activities which are relevant to
those parties and should publish meaningful information on their
activities.
Have agreed as follows:
PART ONE
CHAPTER I. DEFINITIONS
Liner conference or conference
A group of two or more vessel-operating carriers which provides
international liner services for the carriage of cargo on a particular
route or routes within specified geographical limits and which has an
agreement or arrangement, whatever its nature, within the framework of
which they operate under uniform or common freight rates and any other
agreed conditions with respect to the provision of liner services.
National shipping line
A national shipping line of any given country is a vessel-operating
carrier which has its head office of management and its effective control
in that country and is recognized as such by an appropriate authority of
that country or under the law of that country.
Lines belonging to and operated by a joint venture involving two or
more countries and in whose equity the national interests, public and or
private, of those countries have a substantial share and whose head office
of management and whose effective control is in one of those countries can
be recognized as a national line by the appropriate authorities of those
countries.
Third-country shipping line
A vessel-operating carrier in its operations between two countries of
which it is not a national shipping line.
Shipper
A person or entity who has entered into, or who demonstrates an
intention to enter into, a contractual or other arrangement with a
conference or shipping line for the shipment of goods in which he has a
beneficial interest.
Shippers' organization
An association or equivalent body which promotes, represents and
protects the interests of shippers and, if those authorities so desire, is
recognized in that capacity by the appropriate authority or authorities of
the country whose shippers it represents.
Goods carried by the conference
Cargo transported by shipping lines members of a conference in
accordance with the conference agreement.
Appropriate authority
Either a government or a body designated by a government or by
national legislation to perform any of the functions ascribed to such
authority by the provisions of this Code.
Promotional freight rate
A rate instituted for promoting the carriage of non-traditional
exports of the country concerned.
Special freight rate
A preferential freight rate, other than a promotional freight rate,
which may be negotiated between the parties concerned.
CHAPTER II. RELATIONS AMONG MEMBER LINES
Article 1 Membership
1. Any national shipping line shall have the right to be a full member
of a conference which serves the foreign trade of its country, subject to
the criteria set out in Article 1, paragraph 2. Shipping lines which are
not national lines in any trade of a conference shall have the right to
become full members of that conference, subject to the criteria set out in
Article 1, paragraphs 2 and 3, and to the provisions regarding the share
of trade as set out in Article 2 as regards third-country shipping lines.
2. A shipping line applying for membership of a conference shall
furnish evidence of its ability and intention, which may include the use
of chartered tonnage, provided the criteria of this paragraph are met, to
operate a regular, adequate and efficient service on a long-term basis as
defined in the conference agreement within the framework of the
conference, shall undertake to abide by all the terms and conditions of
the conference agreement, and shall deposit a financial guarantee to cover
any outstanding financial obligation in the event of subsequent
withdrawal, suspension or expulsion from membership, if so required under
the conference agreement.
3. In considering an application for membership by a shipping line
which is not a national line in any trade of the conference concerned, in
addition to the provisions of Article 1, paragraph 2, the following
criteria, inter alia, should be taken into account:
(a) The existing volume of the trade on the route or routes served by
the conference and prospects for its growth;
(b) The adequacy of shipping space for the existing and prospective
volume of trade on the route or routes served by the conference;
(c) The probable effect of admission of the shipping line to the
conference on the efficiency and quality of the conference service;
(d) The current participation of the shipping line in trade on the
same route or routes outside the framework of a conference; and
(e) The current participation of the shipping line on the same route
or routes within the framework of another conference.
The above criteria shall not be applied so as to subvert the
implementation of the provisions relating to participation in trade set
out in Article 2.
4. An application for admission or readmission to membership shall be
promptly decided upon and the decision communicated by a conference to an
applicant promptly, and in no case later than six months from the date of
application. When a shipping line is refused admission or readmission the
conference shall, at the same time, give in writing the grounds for such
refusal.
5. When considering applications for admission, a conference shall
take into account the views put forward by shippers and shippers'
organizations of the countries whose trade is carried by the conference,
as well as the views of appropriate authorities if they so request.
6. In addition to the criteria for admission set out in Article 1,
paragraph 2, a shipping line applying for readmission shall also give
evidence of having fulfilled its obligations in accordance with Article 4,
paragraphs 1 and 4. The conference may give special scrutiny to the
circumstances under which the line left the conference.
Article 2 Participation in Trade
1. Any shipping line admitted to membership of a conference shall have
sailing and loading rights in the trades covered by that conference.
2. When a conference operates a pool, all shipping lines members of
the conference serving the trade covered by the pool shall have the right
to participate in the pool for that trade.
3. For the purpose of determining the share of trade which member
lines shall have the right to acquire, the national shipping lines of each
country, irrespective of the number of lines, shall be regarded as a
single group of shipping lines for that country.
4. When determining a share of trade within a pool of individual
member lines, and/or groups of national shipping lines in accordance with
Article 2, paragraph 2, the following principles regarding their right to
participation in the trade carried by the conference shall be observed,
unless otherwise mutually agreed:
(a) The group of national shipping lines of each of two countries the
foreign trade between which is carried by the conference shall have equal
rights to participate in the freight and volume of traffic generated by
their mutual foreign trade and carried by the conference;
(b) Third-country shipping lines, if any, shall have the right to
acquire a significant part, such as 20 per cent, in the freight and
volume of traffic generated by that trade.
5. If, for any one of the countries whose trade is carried by a
conference, there are no national shipping lines participating in the
carriage of that trade, the share of the trade to which national shipping
lines of that country would be entitled under Article 2, paragraph 4 shall
be distributed among the individual member lines participating in the
trade in proportion to their respective share.
6. If the national shipping lines of one country decide not to carry
their full share of the trade, that portion of their share of the trade
which they do not carry shall be distributed among the individual member
lines participating in the trade in proportion to their respective shares.
7. If the national shipping lines of the countries concerned do not
participate in the trade between those countries covered by a conference,
the shares of trade carried by the conference between those countries
shall be allocated between the participating member lines of third
countries by commercial negotiations between those lines.
8. The national shipping lines of a region, members of a conference,
at one end of the trade covered by the conference, may redistribute among
themselves by mutual agreement the shares in trades allocated to them, in
accordance with Article 2, paragraphs 4 to 7 inclusive.
9. Subject to the provisions of Article 2, paragraphs 4 to 8 inclusive
regarding shares of trade among individual shipping lines or groups of
shipping lines, pooling or trade-sharing agreements shall be reviewed by
the conference periodically, at intervals to be stipulated in those
agreements and in accordance with criteria to be specified in the
conference agreement.
10. The application of the present Article shall commence as soon as
possible after entry into force of the present Convention and shall be
completed within a transition period which in no case shall be longer than
two years, taking into account the specific situation in each of the
trades concerned.
11. Shipping lines members of a conference shall be entitled to
operate chartered ships to fulfil their conference obligations.
12. The criteria for sharing and the revision of shares as set out in
Article 2, paragraphs 1 to 11 inclusive shall apply when, in the absence
of a pool, there exists berthing, sailing and/ or any other form of cargo
allocation agreement.
13. Where no pooling, berthing, sailing or other trade participation
agreements exist in a conference, either group of national shipping lines,
members of the conference, may require that pooling arrangements be
introduced, in respect of the trade between their countries carried by the
conference, in conformity with the provisions of Article 2, paragraph 4;
or alternatively they may require that the sailing be so adjusted as to
provide an opportunity to these lines to enjoy substantially the same
rights to participate in the trade between those two countries carried by
the conference as they would have enjoyed under the provisions of Article
2, paragraph 4. Any such request shall be considered and decided by the
conference. If there is no agreement to institute such a pool or
adjustment of sailing among the members of the conference, the groups of
national shipping lines of the countries at both ends of the trade shall
have a majority vote in deciding to establish such a pool or adjustment of
sailings. The matter shall be decided upon within a period not exceeding
six months from the receipt of the request.
14. In the event of a disagreement between the national shipping lines
of the countries at either end whose trade is served by the conference
with regard to whether or not pooling shall be introduced, they may
require that within the conference sailings be so adjusted as to provide
an opportunity to these lines to enjoy substantially the same rights to
participate in the trade between those two countries carried by the
conference as they would have enjoyed under the provisions of Article 2,
paragraph 4. In the event that there are no national shipping lines in one
of the countries whose trade is served by the conference, the national
shipping line or lines of the other country may make the same request. The
conference shall use its best endeavours to meet this request. If,
however, this request is not met, the appropriate authorities of the
countries at both ends of the trade may take up the matter if they so wish
and make their views known to the parties concerned for their
consideration. If no agreement is reached, the dispute shall be dealt with
in accordance with the procedures established in this Code.
15. Other shipping lines, members of a conference, may also request
that pooling or sailing agreements be introduced, and the request shall be
considered by the conference in accordance with the relevant provisions of
this Code.
16. A conference shall provide for appropriate measures in any
conference pooling agreement to cover cases where the cargo has been shut
out by a member line for any reason excepting late presentation by the
shipper. Such agreement shall provide that a vessel with unbooked space,
capable of being used, be allowed to lift the cargo, even in excess of the
pool share of the line in the trade, if otherwise the cargo would be shut
out and delayed beyond a period set by the conference.
17. The provisions of Article 2, paragraphs 1 to 16 inclusive concern
all goods regardless of their origin, their destination or the use for
which they are intended, with the exception of military equipment for
national defence purposes.
Article 3 Decision-making Procedures
The decision-making procedures embodied in a conference agreement
shall be based on the equality of all the full member lines; these
procedures shall ensure that the voting rules do not hinder the proper
work of the conference and the service of the trade and shall define the
matters on which decisions will be made by unanimity. However, a decision
cannot be taken in respect of matters defined in a conference agreement
relating to the trade between two countries without the consent of the
national shipping lines of those two countries.
Article 4 Sanctions
1. A shipping line member of a conference shall be entitled, subject
to the provisions regarding withdrawal which are embodied in pool schemes,
and/or cargo-sharing arrangements, to secure its release, without
penalty, from the terms of the conference agreement after giving three
months notice, unless the conference agreement provides for a different
time period, although it shall be required to fulfil its obligations as a
member of the conference up to the date of its release.
2. A conference may, upon notice to be specified in the conference
agreement, suspend or expel a member for significant failure to abide by
the terms and conditions of the conference agreement.
3. No expulsion or suspension shall become effective until a statement
in writing of the reasons therefor has been given and until any dispute
has been settled as provided in chapter VI.
4. Upon withdrawal or expulsion, the line concerned shall be required
to pay its share of the outstanding financial obligations of the
conference, up to the date of its withdrawal or expulsion. In cases of
withdrawal, suspension or expulsion, the line shall not be relieved of its
own financial obligations under the conference agreement or of any of its
obligations towards shippers.
Article 5 Self-policing
1. A conference shall adopt and keep up to date an illustrative list,
which shall be as comprehensive as possible, of practices which are
regarded as malpractices and/or breaches of the conference agreement and
shall provide effective self-policing machinery to deal with them, with
specific provisions requiring:
(a) The fixing of penalties or a range of penalties for malpractices
or breaches, to be commensurate with their seriousness;
(b) The examination and impartial review of an adjudication of
complaints, and/or decisions taken on complaints, against malpractices or
breaches, by a person or body unconnected with any of the shipping lines
members of the conference or their affiliates, on request by the
conference or any other party concerned;
(c) The reporting, on request, on the action taken in connexion with
complaints against malpractices and/or breaches, and on a basis of
anonymity for the parties concerned, to the appropriate authorities of the
countries whose trade is served by the conference and of the countries
whose shipping lines are members of the conference.
2. Shipping lines and conferences are entitled to the full
co-operation of shippers and shippers' organizations in the endeavour to
combat malpractices and breaches.
Article 6 Conference Agreements
All conference agreements, pooling, berthing and sailing rights
agreements and amendments or other documents directly related to, and
which affect, such agreements shall be made available on request to the
appropriate authorities of the countries whose trade is served by the
conference and of the countries whose shipping lines are members of the
conference.
CHAPTER III. RELATIONS WITH SHIPPERS
Article 7 Loyalty Arrangements
1. The shipping lines members of a conference are entitled to
institute and maintain loyalty arrangements with shippers, the form and
terms of which are matters for consultation between the conference and
shippers' organizations or representatives of shippers. These loyalty
arrangements shall provide safeguards making explicit the rights of
shippers and conference members. These arrangements shall be based on the
contract system or any other system which is also lawful.
2. Whatever loyalty arrangements are made, the freight rate applicable
to loyal shippers shall be determined within a fixed range of percentages
of the freight rate applicable to other shippers. Where a change in the
differential causes an increase in the rates charged to shippers, the
change can be implemented only after 150 days' notice to those shippers or
according to regional practice and/or agreement. Disputes in connexion
with a change of the differential shall be settled as provided in the
loyalty agreement.
3. The terms of loyalty arrangements shall provide safeguards making
explicit the rights and obligations of shippers and of shipping lines
members of the conference in accordance with the following provisions,
inter alia:
(a) The shipper shall be bound in respect of cargo whose shipment is
controlled by him or his affiliated or subsidiary company or his
forwarding agent in accordance with the contract of sale of the goods
concerned, provided that the shipper shall not, by evasion, subterfuge, or
intermediary, attempt to divert cargo in violation of his loyalty
commitment;
(b) Where there is a loyalty contract, the extent of actual or
liquidated damages and/or penalty shall be specified in the contract. The
member lines of the conference may, however, decide to assess lower
liquidated damages or to waive the claim to liquidated damages. In any
event, the liquidated damages under the contract to be paid by the shipper
shall not exceed the freight charges on the particular shipment, computed
at the rate provided under the contract;
(c) The shipper shall be entitled to resume full loyalty status,
subject to the fulfilment of conditions established by the conference
which shall be specified in the loyalty arrangement;
(d) The loyalty arrangement shall set out:
(i) A list of cargo, which may include bulk cargo shipped without
mark or count, which is specifically excluded from the scope of the
loyalty arrangement;
(ii) A definition of the circumstances in which cargo other than
cargo covered by (i) above is considered to be excluded from the scope of
the loyalty arrangement;
(iii) The method of settlement of disputes arising under the
loyalty arrangement;
(iv) Provision for termination of the loyalty arrangement on
request by either a shipper or a conference without penalty, after expiry
of a stipulated period of notice, such notice to be given in writing; and
(v) The terms for granting dispensation.
4. If there is a dispute between a conference and a shippers'
organization, representatives of shippers and/or shippers about the form
or terms of a proposed loyalty arrangement, either party may refer the
matter for resolution under appropriate procedures as set out in this
Code.
Article 8 Dispensation
1. Conferences shall provide, within the terms of the loyalty
arrangements, that requests by shippers for dispensation shall be examined
and a decision given quickly and, if requested, the reasons given in
writing where dispensation is withheld. Should a conference fail to
confirm, within a period specified in the loyalty arrangement, sufficient
space to accommodate a shipper's cargo, within a period also specified in
the loyalty arrangement, the shipper shall have the right, without being
penalized, to utilize any vessel for the cargo in question.
2. In ports where conference services are arranged subject to the
availability of a specified minimum of cargo (i.e. on inducement), but
either the shipping line does not call, despite due notice given by
shippers, or the shipping line does not reply within an agreed time to the
notice given by shippers, shippers shall automatically have the right,
without prejudicing their loyalty status, to use any available vessel for
the carriage of their cargo.
Article 9 Availability of Tariffs and Related Conditions and/orRegulations
Tariffs, related conditions, regulations, and any amendments thereto
shall be made available on request to shippers, shippers' organizations
and other parties concerned at reasonable cost, and they shall be made
available for examination at offices of shipping lines and their agents.
They shall spell out all conditions concerning the application of freight
rates and the carriage of any cargo covered by them.
Article 10 Annual Reports
Conferences shall provide annually to shippers' organizations, or to
representatives of shippers, reports on their activities designed to
provide general information of interest to them, including relevant
information about consultations held with shippers and shippers'
organizations, action taken regarding complaints, changes in membership,
and significant changes in service, tariffs and conditions of carriage.
Such annual reports shall be submitted, on request, to the appropriate
authorities of the countries whose trade is served by the conference
concerned.
Article 11 Consultation Machinery
1. There shall be consultations on matters of common interest between
a conference, shippers' organizations, representatives of shippers and,
where practicable, shippers, which may be designated for that purpose by
the appropriate authority if it so desires. These consultations shall take
place whenever requested by any of the above-mentioned parties.
Appropriate authorities shall have the right, upon request, to participate
fully in the consultations, but this does not mean that they play a
decision-making role.
2. The following matters, inter alia, may be the subject of
consultation:
(a) Changes in general tariff conditions and related regulations;
(b) Changes in the general level of tariff rates and rates for major
commodities;
(c) Promotional and/or special freight rates;
(d) Imposition of, and related changes in, surcharges;
(e) Loyalty arrangements, their establishment or changes in their form
and general conditions;
(f) Changes in the tariff classification of ports;
(g) Procedure for the supply of necessary information by shippers
concerning the expected volume and nature of their cargoes; and
(h) Presentation of cargo for shipment and the requirements regarding
notice of cargo availability.
3. To the extent that they fall within the scope of activity of a
conference, the following matters may also be the subject of consultation:
(a) Operation of cargo inspection services;
(b) Changes in the pattern of services;
(c) Effects of the introduction of new technology in the carriage of
cargo, in particular unitization, with consequent reduction of
conventional service or loss of direct services; and
(d) Adequacy and quality of shipping services, including the impact of
pooling, berthing or sailing arrangements on the availability of shipping
services and freight rates at which shipping services are provided;
changes in the areas served and in the regularity of calls by conference
vessels.
4. Consultations shall be held before final decisions are taken,
unless otherwise provided in this Code. Advance notice shall be given of
the intention to take decisions on matters referred to in Article 11,
paragraphs 2 and 3. Where this is impossible, urgent decisions may be
taken pending the holding of consultations.
5. Consultations shall begin without undue delay and in any event
within a maximum period specified in the conference agreement or, in the
absence of such a provision in the agreement, not later than 30 days
after receipt of the proposal for consultation, unless different periods
of time are provided in this Code.
6. When holding consultations, the parties shall use their best
efforts to provide relevant information, to hold timely discussions and to
clarify matters for the purpose of seeking solutions of the issues
concerned. The parties involved shall take account of each other's views
and problems and strive to reach agreement consistent with their
commercial viability.
CHAPTER IV. FREIGHT RATES
Article 12 Criteria for Freight-Rate Determination
In arriving at a decision on questions of tariff policy in all cases
mentioned in this Code, the following points shall, unless otherwise
provided, be taken into account:
(a) Freight rates shall be fixed at as low a level as is feasible from
the commercial point of view and shall permit a reasonable profit for
shipowners;
(b) The cost of operations of conferences shall, as a rule, be
evaluated for the round voyage of ships, with the outward and inward
directions considered as a single whole. Where applicable, the outward
and inward voyage should be considered separately. The freight rates
should take into account, among other factors, the nature of cargoes, the
interrelation between weight and cargo measurement, as well as the value
of cargoes;
(c) In fixing promotional freight rates and/or special freight rates
for specific goods, the conditions of trade for these goods of the
countries served by the conference, particularly of developing and
land-locked countries, shall be taken into account.
Article 13 Conference Tariffs and Classification of Tariff Rates
1. Conference tariffs shall not unfairly differentiate between
shippers similarly situated. Shipping lines members of a conference shall
adhere strictly to the rates, rules and terms shown in the tariffs and
other currently valid published documents of the conference and to any
special arrangements permitted under this Code.
2. Conference tariffs should be drawn up simply and clearly,
containing as few classes/ categories as possible, depending on the
commodity and, where appropriate, for each class/ category; they should
also indicate, wherever practicable, in order to facilitate statistical
compilation and analysis, the corresponding appropriate code number of the
item in accordance with the Standard International Trade Classification,
the Brussels Tariff Nomenclature or any other nomenclature that may be
internationally adopted; the classification of commodities in the tariffs
should, as far as practicable, be prepared in co-operation with shippers'
organizations and other national and international organizations
concerned.
Article 14 General Freight-Rate Increases
1. A conference shall give notice of not less than 150 days, or
according to regional practice and/or agreement, to shippers'
organizations or representatives of shippers and/or shippers and, where so
required, to appropriate authorities of the countries whose trade is
served by the conference, of its intention to effect a general increase in
freight rates, an indication of its extent, the date of effect and the
reasons supporting the proposed increase.
2. At the request of any of the parties prescribed for this purpose in
this Code, to be made within an agreed period of time after the receipt of
the notice, consultations shall commence, in accordance with the relevant
provisions of this Code, within a stipulated period not exceeding 30 days
or as previously agreed between the parties concerned; the consultations
shall be held in respect of the bases and amounts of the proposed increase
and the date from which it is to be given effect.
3. A conference, in an effort to expedite consultations, may or upon
the request of any of the parties prescribed in this Code as entitled to
participate in consultations on general freight-rate increases shall,
where practicable, reasonably before the consultations, submit to the
participating parties a report from independent accountants of repute,
including, where the requesting parties accept it as one of the bases of
consultations, an aggregated analysis of date regarding relevant costs and
revenues which in the opinion of the conference necessitate an increase in
freight rates.
4. If agreement is reached as a result of the consultations, the
freight-rate increase shall take effect from the date indicated in the
notice served in accordance with Article 14, paragraph 1, unless a later
date is agreed upon between the parties concerned.
5. If no agreement is reached within 30 days of the giving of notice
in accordance with Article 14, paragraph 1, and subject to procedures
prescribed in this Code, the matter shall be submitted immediately to
international mandatory conciliation, in accordance with chapter VI. The
recommendation of the conciliators, if accepted by the parties concerned,
shall be binding upon them and shall be implemented, subject to the
provisions of Article 14, paragraph 9, with effect from the date
mentioned in the conciliators' recommendation.
6. Subject to the provisions of Article 14, paragraph 9, a general
freight-rate increase may be implemented by a conference pending the
conciliators' recommendation. When making their recommendation, the
conciliators should take into account the extent of the above-mentioned
increase made by the conference and the period for which it has been in
force. In the event that the conference rejects the recommendation of the
conciliators, shippers and/or shippers' organizations shall have the right
to consider themselves not bound, after appropriate notice, by any
arrangement or other contract with that conference which may prevent them
from using non-conference shipping lines. Where a loyalty arrangement
exists, shippers and/ or shippers' organizations shall give notice within
a period of 30 days to the effect that they no longer consider themselves
bound by that arrangement, which notice shall apply from the date
mentioned therein, and a period of not less than 30 days and not more than
90 days shall be provided in the loyalty arrangement for this purpose.
7. A deferred rebate which is due to the shipper and which has already
been accumulated by the conference shall not be withheld by, or forfeited
to, the conference as a result of action by the shipper under Article 14,
paragraph 6.
8. If the trade of a country carried by shipping lines members of a
conference on a particular route consists largely of one or few basic
commodities, any increase in the freight rate on one or more of those
commodities shall be treated as a general freight-rate increase, and the
appropriate provisions of this Code shall apply.
9. Conferences should institute any general freight-rate increase
effective in accordance with this Code for a period of a stated minimum
duration, subject always to the rules regarding surcharges and regarding
adjustment in freight rates consequent upon fluctuations in foreign
exchange rates. The period over which a general freight-rate increase is
to apply is an appropriate matter to be considered during consultations
conducted in accordance with Article 14, paragraph 2, but unless otherwise
agreed between the parties concerned during the consultations, the
minimum period of time between the date when one general freight-rate
increase becomes effective and the date of notice for the next general
freight-rate increase given in accordance with Article 14, paragraph 1
shall not be less than 10 months.
Article 15 Promotional Freight Rates
1. Promotional freight rates for non-traditional exports should be
instituted by conferences.
2. All necessary and reasonable information justifying the need for a
promotional freight rate shall be submitted to a conference by the
shippers, shippers' organizations or representatives of shippers
concerned.
3. Special procedures shall be instituted providing for a decision
within 30 days from the date of receipt of that information, unless
mutually agreed otherwise, on applications for promotional freight rates.
A clear distinction shall be made between these and general procedures for
considering the possibility of reducing freight rates for other
commodities or of exempting them from increases.
4. Information regarding the procedures for considering applications
for promotional freight rates shall be made available by the conference to
shippers and/or shippers' organizations and, on request, to the
Governments and/or other appropriate authorities of the countries whose
trade is served by the conference.
5. A promotional freight rate shall be established normally for a
period of 12 months, unless otherwise mutually agreed between the parties
concerned. Prior to the expiry of the period, the promotional freight
rate shall be reviewed, on request by the shipper and/or shippers'
organization concerned, when it shall be a matter for the shipper and/or
shippers' organization, at the request of the conference, to show that
the continuation of the rate is justified beyond the initial period.
6. When examining a request for a promotional freight rate, the
conference may take into account that, while the rate should promote the
export of the non-traditional product for which it is sought, it is not
likely to create substantial competitive distortions in the export of a
similar product from another country served by the conference.
7. Promotional freight rates are not excluded from the imposition of a
surcharge or a currency adjustment factor in accordance with Articles 16
and 17.
8. Each shipping line member of a conference serving the relevant
ports of a conference trade shall accept, and not unreasonably refuse, a
fair share of cargo for which a promotional freight rate has been
established by the conference.
Article 16 Surcharges
1. Surcharges imposed by a conference to cover sudden or extraordinary
increases in costs or losses of revenue shall be regarded as temporary.
They shall be reduced in accordance with improvements in the situation or
circumstances which they were imposed to meet and shall be cancelled,
subject to Article 16, paragraph 6, as soon as the situation or
circumstances which prompted their imposition cease to prevail. This shall
be indicated at the moment of their imposition, together, as far as
possible, with a description of the change in the situation or
circumstances which will bring about their increase, reduction or
cancellation.
2. Surcharges imposed on cargo moving to or from a particular port
shall likewise be regarded as temporary and likewise shall be increased,
reduced or cancelled, subject to Article 16, paragraph 6, when the
situation in that port changes.
3. Before any surcharge is imposed, whether general or covering only a
specific port, notice should be given and there shall be consultation,
upon request, in accordance with the procedures of this Code, between the
conference concerned and other parties directly affected by the surcharge
and prescribed in this Code as entitled to participate in such
consultations, save in those exceptional circumstances which warrant
immediate imposition of the surcharge. In cases where a surcharge has been
imposed without prior consultation, consultations, upon request, shall be
held as soon as possible thereafter. Prior to such consultations,
conferences shall furnish data which in their opinion justify the
imposition of the surcharge.
4. Unless the parties agree otherwise, within a period of 15 days
after the receipt of a notice given in accordance with Article 16,
paragraph 3, if there is no agreement on the question of the surcharge
between the parties concerned referred to in that Article, the relevant
provisions for settlement of disputes provided in this Code shall prevail.
Unless the parties concerned agree otherwise, the surcharge may, however,
be imposed pending resolution of the dispute, if the dispute still
remains unresolved at the end of a period of 30 days after the receipt of
the above-mentioned notice.
5. In the event of a surcharge being imposed, in exceptional
circumstances, without prior consultation as provided in Article 16,
paragraph 3, if no agreement is reached through subsequent consultations,
the relevant provisions for settlement of disputes provided in this Code
shall prevail.
6. Financial loss incurred by the shipping lines members of a
conference as a result of any delay on account of consultations and/or
other proceedings for resolving disputes regarding imposition of
surcharges in accordance with the provisions of this Code, as compared to
the date from which the surcharge was to be imposed in terms of the notice
given in accordance with Article 16, paragraph 3, may be compensated by an
equivalent prolongation of the surcharge before its removal. Conversely,
for any surcharge imposed by the conference and subsequently determined
and agreed to be unjustified or excessive as a result of consultations or
other procedures prescribed in this Code, the amounts so collected or the
excess thereof as determined herein above, unless otherwise agreed, shall
be refunded to the parties concerned, if claimed by them, within a period
of 30 days of such claim.
Article 17 Currency Changes
1. Exchange rate changes, including formal devaluation or revaluation,
which lead to changes in the aggregate operational costs and/or revenues
of the shipping lines members of a conference relating to their operations
within the conference provide a valid reason for the introduction of a
currency adjustment factor or for a change in the freight rates. The
adjustment or change shall be such that in the aggregate the member lines
concerned neither gain nor lose, as far as possible, as a result of the
adjustment or change. The adjustment or change may take the form of
currency surcharges or discounts or of increases or decreases in the
freight rates.
2. Such adjustments or changes shall be subject to notice, which
should be arranged in accordance with regional practice, where such
practice exists, and there shall be consultations in accordance with the
provisions of this Code between the conference concerned and the other
parties directly affected and prescribed in this Code as entitled to
participate in consultations, save in those exceptional circumstances
which warrant immediate imposition of the currency adjustment factor or
freight-rate change. In the event that this has been done without prior
consultations, consultations shall be held as soon as possible thereafter.
The consultations should be on the application, size and date of
implementation of the currency adjustment factor or freight-rate change,
and the same procedures shall be followed for this purpose as are
prescribed in Article 16, paragraphs 4 and 5, in respect of surcharges.
Such consultations should take place and be completed within a period not
exceeding 15 days from the date when the intention to apply a currency
surcharge or to effect a freight-rate change is announced.
3. If no agreement is reached within 15 days through consultations,
the relevant provisions for settlement of disputes provided in this Code
shall prevail.
4. The provisions of Article 16, paragraph 6 shall apply, adapted as
necessary to currency adjustment factors and freight-rate changes dealt
with in the present Article.
CHAPTER V. OTHER MATTERS
Article 18 Fighting Ships
Members of a conference shall not use fighting ships in the conference
trade for the purpose of excluding, preventing or reducing competition by
driving a shipping line not a member of the conference out of the said
trade.
Article 19 Adequacy of Service
1. Conferences should take necessary and appropriate measures to
ensure that their member lines provide regular, adequate and efficient
service of the required frequency on the routes they serve and shall
arrange such services so as to avoid as far as possible bunching and
gapping of sailings. Conferences should also take into consideration any
special measures necessary in arranging services to handle seasonal
variations in cargo volumes.
2. Conferences and other parties prescribed in this Code as entitled
to participate in consultations, including appropriate authorities if
they so desire, should keep under review, and should maintain close
co-operation regarding the demand for shipping space, the adequacy and
suitability of service, and in particular the possibilities for
rationalization and for increasing the efficiency of services. Benefits
identified as accruing from rationalization of services shall be fairly
reflected in the level of freight rates.
3. In respect of any port for which conference services are supplied
only subject to the availability of a specified minimum of cargo, that
minimum shall be specified in the tariff. Shippers should give adequate
notice of the availability of such cargo.
Article 20 Head Office of a Conference
A conference shall as a rule establish its head office in a country
whose trade is served by that conference, unless agreed otherwise by the
shipping lines members of that conference.
Article 21 Representation
Conferences shall establish local representation in all countries
served, except that where there are practical reasons to the contrary the
representation may be on a regional basis. The names and addresses of
representatives shall be readily available, and these representatives
shall ensure that the views of shippers and conferences are rapidly made
known to each other with a view to expediting prompt decisions. When a
conference considers it suitable, it shall provide for adequate delegation
of powers of decision to its representatives.
Article 22 Contents of Conference Agreements. Trade ParticipationAgreements and Loyalty Arrangements
Conference agreements, trade participation agreements and loyalty
arrangements shall conform to the applicable requirements of this Code and
may include such other provisions as may be agreed which are not
inconsistent with this Code.
PART TWO
CHAPTER VI. PROVISIONS AND MACHINERY FOR SETTLEMENT OF DISPUTES
A. GENERAL PROVISIONS
Article 23
1. The provisions in this chapter shall apply whenever there is a
dispute relating to the application or operation of the provisions of this
Code between the following parties:
(a) A conference and a shipping line;
(b) The shipping lines members of a conference;
(c) A conference or a shipping line member thereof and a shippers'
organization or representatives of shippers or shippers; and
(d) Two or more conferences.
For the purpose of this chapter the term "party" means the original
parties to the dispute as well as third parties which have joined the
proceedings in accordance with (a) of Article 34.
2. Disputes between shipping lines of the same flag, as well as those
between organizations belonging to the same country, shall be settled
within the framework of the national jurisdiction of that country, unless
this creates serious difficulties in the fulfilment of the provisions of
this Code.
3. The parties to a dispute shall first attempt to settle it by an
exchange of views or direct negotiations with the intention of finding a
mutually satisfactory solution.
4. Disputes between the parties referred to in Article 23, paragraph 1
relating to:
(a) Refusal of admission of a national shipping line to a conference
serving the foreign trade of the country of that shipping line;
(b) Refusal of admission of a third-country shipping line to a
conference;
(c) Expulsion from a conference;
(d) Inconsistency of a conference agreement with this Code;
(e) A general freight-rate increase;
(f) Surcharges;
(g) Changes in freight rates or the imposition of a currency
adjustment factor, due to exchange rate changes;
(h) Participation in trade; and
(i) The form and terms of proposed loyalty arrangements
which have not been resolved through an exchange of views or direct
negotiations shall, at the request of any of the parties to the dispute,
be referred to international mandatory conciliation in accordance with the
provisions of this chapter.
Article 24
1. The conciliation procedure is initiated at the request of one of
the parties to the dispute.
2. The request shall be made:
(a) In disputes relating to membership of conferences: not later than
60 days from the date of receipt by the applicant of the conference
decision, including the reasons therefor, in accordance with Article 1,
paragraph 4 and Article 4, paragraph 3;
(b) In disputes relating to general freight-rate increases: not later
than the date of expiry of the period of notice specified in Article 14,
paragraph 1;
(c) In disputes relating to surcharges: not later than the date of
expiry of the 30-day period specified in Article 16, paragraph 4 or, where
no notice has been given, not later than 15 days from the date when the
surcharge was put into effect; and
(d) In disputes relating to changes in freight rates or the imposition
of a currency adjustment factor due to exchange rate changes: not later
than five days after the date of expiry of the period specified in Article
17, paragraph 3.
3. The provisions of Article 24, paragraph 2 shall not apply to a
dispute which is referred to international mandatory conciliation in
accordance with Article 25, paragraph 3.
4. Requests for conciliation in disputes other than those referred to
in Article 24, paragraph 2, may be made at any time.
5. The time-limits specified in Article 24, paragraph 2 may be
extended by agreement between the parties.
6. A request for conciliation shall be considered to have been duly
made if it is proved that the request has been sent to the other party by
registered letter, telegram or teleprinter has been served on it within
the time-limits specified in Article 24, paragraphs 2 or 5.
7. Where no request has been made within the time-limits specified in
Article 24, paragraphs 2 or 5, the decision of the conference shall be
final and no proceedings under this chapter may be brought by any party to
the dispute to challenge that decision.
Article 25
1. Where the parties have agreed that disputes referred to in Article
23, paragraph 4 (a), (b), (c), (d), (h) and (i) shall be resolved through
procedures other than those established in that Article, or agree on
procedures to resolve a particular dispute that has arisen between them,
such disputes shall, at the request of any of the parties to the dispute,
be resolved as provided for in their agreement.
2. The provisions of Article 25, paragraph 1 apply also to the
disputes referred to in Article 23, paragraph 4 (e), (f) and (g), unless
national legislation, rules or regulations prevent shippers from having
this freedom of choice.
3. Where conciliation proceedings have been initiated, such
proceedings shall have precedence over remedies available under national
law. If a party seeks remedies under national law in respect of a dispute
to which this chapter applies without invoking the procedures provided for
in this chapter, then, upon the request of a respondent to those
proceedings, they shall be stayed and the dispute shall be referred to the
procedures defined in this chapter by the court or other authority where
the national remedies are sought.
Article 26
1. The Contracting Parties shall confer upon conferences and shippers'
organizations such capacity as is necessary for the application of the
provisions of this chapter. In particular:
(a) A conference or a shippers' organization may institute proceedings
as a party or be named as a party to proceedings in its collective
capacity;
(b) Any notification to a conference or shippers' organization in its
collective capacity shall also constitute a notification to each member of
such conference or shippers' organization;
(c) A notification to a conference or shippers' organization shall be
transmitted to the address of the head office of the conference or
shippers' organization. Each conference or shippers' organization shall
register the address of its head office with the Registrar appointed in
accordance with Article 46, paragraph 1. In the event that a conference or
shippers' organization fails to register or has no head office, a
notification to any member in the name of the conference or shippers'
organization shall be deemed to be a notification to such conference or
organization.
2. Acceptance or rejection by a conference or shippers' organization
of a recommendation by conciliators shall be deemed to be acceptance or
rejection of such a recommendation by each member thereof.
Article 27
Unless the parties agree otherwise, the conciliators may decide to
make a recommendation on the basis of written submissions without oral
proceedings.
B. INTERNATIONAL MANDATORY CONCILIATION
Article 28
In international mandatory conciliation the appropriate authorities of
a Contracting Party shall, if they so request, participate in the
conciliation proceedings in support of a party being a national of that
Contracting Party, or in support of a party having a dispute arising in
the context of the foreign trade of that Contracting Party. The
appropriate authority may alternatively act as an observer in such
conciliation proceedings.
Article 29
1. In international mandatory conciliation the proceedings shall be
held in the place unanimously agreed to by the parties or, failing such
agreement, in the place decided upon by the conciliators.
2. In determining the place of conciliation proceedings the parties
and the conciliators shall take into account, inter alia, countries which
are closely connected with the dispute, bearing in mind the country of the
shipping line concerned and, especially when the dispute is related to
cargo, the country where the cargo originates.
Article 30
1. For the purposes of this chapter an international panel of
conciliators shall be established, consisting of experts of high repute
or experience in the fields of law, economics of sea transport, or foreign
trade and finance, as determined by the Contracting Parties selecting
them, who shall serve in an independent capacity.
2. Each Contracting Party may at any time nominate members of the
panel up to a total of 12, and shall communicate their names to the
Registrar. The nominations shall be for periods of six years each and may
be renewed. In the event of the death, incapacity or resignation of a
member of the panel, the Contracting Party which nominated such person
shall nominate a replacement for the remainder of his term of office. A
nomination takes effect from the date on which the communication of the
nomination is received by the Registrar.
3. The Registrar shall maintain the panel list and shall regularly
inform the Contracting Parties of the composition of the panel.
Article 31
1. The purpose of conciliation is to reach an amicable settlement of
the dispute through recommendations formulated by independent
conciliators.
2. The conciliators shall identify and clarify the issues in dispute,
seek for this purpose any information from the parties, and on the basis
thereof, submit to the parties a recommendation for the settlement of the
dispute.
3. The parties shall co-operate in good faith with the conciliators in
order to enable them to carry out their functions.
4. Subject to the provisions of Article 25, paragraph 2, the parties
to the dispute may at any time during the conciliation proceedings decide
in agreement to have recourse to a different procedure for the settlement
of their dispute. The parties to a dispute which has been made subject to
proceedings other than those provided for in this chapter may decide by
mutual agreement to have recourse to international mandatory conciliation.
Article 32
1. The conciliation proceedings shall be conducted either by one
conciliator or by an uneven number of conciliators agreed upon or
designated by the parties.
2. Where the parties cannot agree on the number or the appointment of
the conciliators as provided in Article 32, paragraph 1, the conciliation
proceedings shall be conducted by three conciliators, one appointed by
each party in the statement(s) of claim and reply respectively, and the
third by the two conciliators thus appointed, who shall act as chairman.
3. If the reply does not name a conciliator to be appointed in cases
where Article 32, paragraph 2 would apply, the second conciliator shall,
within 30 days following the receipt of the statement of claim, be chosen
by lot by the conciliator appointed in the statement of claim from among
the members of the panel nominated by the Contracting Parties of which the
respondent (s) is (are) a national(s).
4. Where the conciliators appointed in accordance with Article 32,
paragraphs 2 or 3 cannot agree on the appointment of the third conciliator
within 15 days following the date of the appointment of the second
conciliator, he shall, within the following five days, be chosen by lot by
the appointed conciliators. Prior to the drawing by lot:
(a) No member of the panel of conciliators having the same nationality
as either of the two appointed conciliators shall be eligible for
selection by lot;
(b) Each of the two appointed conciliators may exclude from the list
of the panel of conciliators an equal number of them subject to the
requirement that at least 30 members of the panel shall remain eligible
for selection by lot.
Article 33
1. Where several parties request conciliation with the same respondent
in respect of the same issue, or of issues which are closely connected,
that respondent may request the consolidation of those cases.
2. The request for consolidation shall be considered and decided upon
by majority vote by the chairmen of the conciliators so far chosen. If
such request is allowed, the chairmen will designate the conciliators to
consider the consolidated cases from among the conciliators so far
appointed or chosen, provided that an uneven number of conciliators is
chosen and that the conciliator first appointed by each party shall be one
of the conciliators considering the consolidated case.
Article 34
Any party, other than an appropriate authority referred to in Article
28, if conciliation has been initiated, may join in the proceedings:
either
(a) As a party, in case of a direct economic interest;
or
(b) As a supporting party to one of the original parties, in case of
an indirect economic interest,
unless either of the original parties objects to such joinder.
Article 35
1. The recommendations of the conciliators shall be made in accordance
with the provisions of this Code.
2. When the Code is silent upon any point, the conciliators shall
apply the law which the parties agree at the time the conciliation
proceedings commence or thereafter, but not later than the time of
submission of evidence to the conciliators. Failing such agreement, the
law which in the opinion of the conciliators is most closely connected
with the dispute shall be applicable.
3. The conciliators shall not decide ex aequo et bono upon the dispute
unless the parties so agree after the dispute has arisen.
4. The conciliators shall not bring a finding of non liquet on the
ground of obscurity of the law.
5. The conciliators may recommend those remedies and reliefs which are
provided in the law applicable to the dispute.
Article 36
The recommendations of the conciliators shall include reasons.
Article 37
1. Unless the parties have agreed before, during or after the
conciliation procedure that the recommendation of the conciliators shall
be binding, the recommendation shall become binding by acceptance by the
parties. A recommendation which has been accepted by some parties to a
dispute shall be binding as between those parties only.
2. Acceptance of the recommendation must be communicated by the
parties to the conciliators, at an address specified by them, not later
than 30 days after receipt of the notification of the recommendation;
otherwise, it shall be considered that the recommendation has not been
accepted.
3. Any party which does not accept the recommendation shall notify the
conciliators and the other parties, within 30 days following the period
specified in Article 37, paragraph 2 of its grounds for rejection of the
recommendation, comprehensively and in writing.
4. When the recommendation has been accepted by the parties, the
conciliators shall immediately draw up and sign a record of settlement, at
which time the recommendation shall become binding upon those parties. If
the recommendation has not been accepted by all parties, the conciliators
shall draw up a report with respect to those parties rejecting the
recommendation, noting the dispute and the failure of those parties to
settle the dispute.
5. A recommendation which has become binding upon the parties shall be
implemented by them immediately or at such later time as is specified in
the recommendation.
6. Any party may make its acceptance conditional upon acceptance by
all or any of the other parties to the dispute.
Article 38
1. A recommendation shall constitute a final determination of a
dispute as between the parties which accept it, except to the extent that
the recommendation is not recognized and enforced in accordance with the
provisions of Article 39.
2. "Recommendation" includes an interpretation, clarification or
revision of the recommendation made by the conciliators before the
recommendation has been accepted.
Article 39
1. Each Contracting Party shall recognize a recommendation as binding
between the parties which have accepted it and shall, subject to the
provisions of Article 39, paragraphs 2 and 3, enforce, at the request of
any such party, all obligations imposed by the recommendation as if it
were a final judgement of a court of that Contracting Party.
2. A recommendation shall not be recognized and enforced at the
request of a party referred to in Article 39, paragraph 1 only if the
court or other competent authority of the country where recognition and
enforcement is sought is satisfied that:
(a) Any party which accepted the recommendation was, under the law
applicable to it, under some legal incapacity at the time of acceptance;
(b) Fraud or coercion has been used in the making of the
recommendations;
(c) The recommendation is contrary to public policy (ordre public) in
the country of enforcement; or
(d) The composition of the conciliators, or the conciliation
procedure, was not in accordance with the provisions of this Code.
3. Any part of the recommendation shall not be enforced and recognized
if the court or other competent authority is satisfied that such part
comes within any of the subparagraphs of Article 39, paragraph 2 and can
be separated from other parts of the recommendation. If such part cannot
be separated, the entire recommendation shall not be enforced and
recognized.
Article 40
1. Where the recommendation has been accepted by all the parties, the
recommendation and the reasons therefor may be published with the consent
of all the parties.
2. Where the recommendation has been rejected by one or more of the
parties but has been accepted by one or more of the parties:
(a) The party or parties rejecting the recommendation shall publish
its or their grounds for rejection, given pursuant to Article 37,
paragraph 3, and may at the same time publish the recommendation and the
reason therefor;
(b) A party which has accepted the recommendation may publish the
recommendation and the reasons therefor; it may also publish the grounds
for rejection given by any other party unless such other party has already
published its rejection and the grounds therefor in accordance with
Article 40, paragraph 2 (a).
3. Where the recommendation has not been accepted by any of the
parties, each party may publish the recommendation and the reasons
therefor and also its own rejection and the grounds therefor.
Article 41
1. Documents and statements containing factual information supplied by
any party to the conciliators shall be made public unless that party or a
majority of the conciliators agree otherwise.
2. Such documents and statements supplied by a party may be tendered
by that party in support of its case in subsequent proceedings arising
from the same dispute and between the same parties.
Article 42
Where the recommendation has not become binding upon the parties, no
views expressed or reasons given by the conciliators, or concessions or
offers made by the parties for the purpose of the conciliation procedure,
shall affect the legal rights and obligations of any of the parties.
Article 43
1. (a) The costs of the conciliators and all costs of the
administration of the conciliation proceedings shall be borne equally by
the parties to the proceedings, unless they agree otherwise.
(b) When the conciliation proceedings have been initiated, the
conciliators shall be entitled to require an advance or security for the
costs referred to in Article 43, paragraph 1 (a).
2. Each party shall bear all the expenses it incurs in connexion with
the proceedings, unless the parties agree otherwise.
3. Notwithstanding the provisions of Article 43, paragraphs 1 and 2,
the conciliators may, having decided unanimously that a party has brought
a claim vexatiously or frivolously, assess against that party any or all
of the costs of other parties to the proceedings. Such decision shall be
final and binding on all the parties.
Article 44
1. Failure of a party to appear or to present its case at any stage of
the proceedings shall not be deemed an admission of the other party's
assertions. In that event, the other party may, at its choice, request the
conciliators to close the proceedings or to deal with the questions
presented to them and submit a recommendation in accordance with the
provisions for making recommendations set out in this Code.
2. Before closing the proceedings, the conciliators shall grant the
party failing to appear or to present its case a period of grace, not
exceeding 10 days, unless they are satisfied that the party does not
intend to appear or to present its case.
3. Failure to observe procedural time-limits laid down in this Code or
determined by the conciliators, in particular time-limits relating to the
submission of statements or information, shall be considered a failure to
appear in the proceedings.
4. Where the proceedings have been closed owing to one party's failure
to appear or to present its case, the conciliators shall draw up a report
noting that party's failure.
Article 45
1. The conciliators shall follow the procedures stipulated in this
Code.
2. The rules of procedure annexed to the present Convention shall be
considered as model rules for the guidance of conciliators. The
conciliators may, by mutual consent, use, supplement or amend the rules
contained in the annex or formulate their own rules of procedure to the
extent that such supplementary, amended or other rules are not
inconsistent with the provisions of this Code.
3. If the parties agree that it may be in the interest of achieving an
expeditious and inexpensive solution of the conciliation proceedings, they
may mutually agree to rules of procedure which are not inconsistent with
the provisions of this Code.
4. The conciliators shall formulate their recommendation by consensus
or failing that shall decide by majority vote.
5. The conciliation proceedings shall finish and the recommendation of
the conciliators shall be delivered not later than six months from the
date on which the conciliators are appointed, except in the cases
referred to in Article 23, paragraph 4 (e), (f) and (g), for which the
time limits in Article 14, paragraph 1 and Article 16, paragraph 4 shall
be valid. The period of six months may be extended by agreement of the
parties.
C. INSTITUTIONAL MACHINERY
Article 46
1. Six months before the entry into force of the present Convention,
the Secretary-General of the United Nations shall, subject to the approval
of the General Assembly of the United Nations, and taking into account the
views expressed by the Contracting Parties, appoint a Registrar who may be
assisted by such additional staff as may be necessary for the performance
of the functions listed in Article 46, paragraph 2. Administrative
services for the Registrar and his assistants shall be provided by the
United Nations Office at Geneva.
2. The Registrar shall perform the following functions in consultation
with the Contracting Parties as appropriate:
(a) Maintain the list of conciliators of the international panel of
conciliators and regularly inform the Contracting Parties of the
composition of the panel;
(b) Provide the names and addresses of the conciliators to the parties
concerned on request;
(c) Receive and maintain copies of requests for conciliation, replies,
recommendation, acceptances, or rejections, including reasons therefor;
(d) Furnish on request, and at their cost, copies of recommendations
and reasons for rejection to the shippers' organizations, conferences and
Governments, subject to the provisions of Article 40;
(e) Make available information of a non-confidential nature on
completed conciliation cases, and without attribution to the parties
concerned, for the purposes of preparation of material for the Review
Conference referred to in Article 52; and
(f) The other functions prescribed for the Registrar in Article 26,
paragraph 1 (c) and Article 30, paragraphs 2 and 3.
CHAPTER VII. FINAL CLAUSES
Article 47 Implementation
1. Each Contracting Party shall take such legislative or other
measures as may be necessary to implement the present Convention.
2. Each Contracting Party shall communicate to the Secretary-General
of the United Nations, who shall be the depositary, the text of the
legislative or other measures which it has taken in order to implement the
present Convention.
Article 48 Signature, Ratification, Acceptance, Approval and Ac-cession
1. The present Convention shall remain open for signature as from July
1, 1974 until and including June 30, 1975 at United Nations Headquarters
and shall thereafter remain open for accession.
2. All States* are entitled to become Contracting Parties to the
present Convention by:
[* At its 9th plenary meeting on 6 April 1974, the Conference adopted
the following understanding recommended by its Third Main Committee:
"In accordance with its terms, the present Convention will be open to
participation by all States, and the Secretary-General of the United
Nations will act as depositary. It is the understanding of the Conference
that the Secretary-General, in discharging his functions as depositary of
a convention or other multilateral legally binding instrument with an
"All-States" clause, will follow the practice of the General Assembly of
the United Nations in implementing such a clause and, whenever advisable,
will request the opinion of the General Assembly before receiving a
signature or an instrument of ratification, acceptance, approval or
accession."]
(a) Signature subject to and followed by ratification, acceptance or
approval; or
(b) Signature without reservation as to ratification, acceptance or
approval; or
(c) Accession.
3. Ratification, acceptance, approval or accession shall be effected
by the deposit of an instrument to this effect with the depositary.
Article 49 Entry into Force
1. The present Convention shall enter into force six months after the
date on which not less than 24 States, the combined tonnage of which
amounts to at least 25 per cent of world tonnage, have become Contracting
Parties to it in accordance with Article 48. For the purpose of the
present Article the tonnage shall be deemed to be that contained in
Lloyd's Register of Shipping-Statistical Tables 1973, table 2 "World
Fleets-Analysis by Principal Types", in respect to general cargo
(including passenger/cargo) ships and container (fully cellular) ships,
exclusive of the United States reserve fleet and the American and Canadian
Great Lakes fleets.**
[** The tonnage requirements for the purpose of Article 49, paragraph
1 are set out in part two hereafter.]
2. For each State which thereafter ratifies, accepts, approves or
accedes to it, the present Convention shall come into force six months
after deposit by such State of the appropriate instrument.
3. Any State which becomes a Contracting Party to the present
Convention after the entry into force of an amendment shall, failing an
expression of a different intention by that State:
(a) Be considered as a Party to the present Convention as amended; and
(b) Be considered as a Party to the unamended Convention in relation
to any Party to the present Convention not bound by the amendment.
Article 50 Denunciation
1. The present Convention may be denounced by any Contracting Party at
any time after the expiration of a period of two years from the date on
which the Convention has entered into force.
2. Denunciation shall be notified to the depositary in writing, and
shall take effect one year, or such longer period as may be specified in
the instrument of denunciation, after the date of receipt by the
depositary.
Article 51 Amendments
1. Any Contracting Party may propose one or more amendments to the
present Convention by communicating the amendments to the depositary. The
depositary shall circulate such amendments among the Contracting Parties,
for their acceptance, and among States entitled to become Contracting
Parties to the present Convention which are not Contracting Parties, for
their information.
2. Each proposed amendment circulated in accordance with Article 51,
paragraph 1 shall be deemed to have been accepted if no Contracting Party
communicates an objection thereto to the depositary within 12 months
following the date of its circulation by the depositary. If a Contracting
Party communicates an objection to the proposed amendment, such amendment
shall not be considered as accepted and shall not be put into effect.
3. If no objection has been communicated, the amendment shall enter
into force for all Contracting Parties six months after the expiry date of
the period of 12 months referred to in Article 51, paragraph 2.
Article 52 Review Conferences
1. A Review Conference shall be convened by the depositary five years
from the date on which the present Convention comes into force to review
the working of the Convention, with particular reference to its
implementation, and to consider and adopt appropriate amendments.
2. The depositary shall, four years from the date on which the present
Convention comes into force, seek the views of all States entitled to
attend the Review Conference and shall, on the basis of the views
received, prepare and circulate a draft agenda as well as amendments
proposed for consideration by the Conference.
3. Further review conferences shall be similarly convened every five
years, or at any time after the first Review Conference, at the request of
one-third of the Contracting Parties to the present Convention, unless the
first Review Conference decides otherwise.
4. Notwithstanding the provisions of Article 52, paragraph 1, if the
present Convention has not entered into force five years from the date of
the adoption of the Final Act of the United Nations Conference of
Plenipotentiaries on a Code of Conduct for Liner Conferences, a Review
Conference shall, at the request of one-third of the States entitled to
become Contracting Parties to the present Convention, be convened by the
Secretary-General of the United Nations, subject to the approval of the
General Assembly, in order to review the provisions of the Convention and
its annex and to consider and adopt appropriate amendments.
Article 53 Functions of the Depositary
1. The depositary shall notify the signatory and acceding States of:
(a) Signatures, ratifications, acceptances, approvals and accessions
in accordance with Article 48;
(b) The date on which the present Convention enters into force in
accordance with Article 49;
(c) Denunciations of the present Convention in accordance with Article
50;
(d) Reservations to the present Convention and the withdrawal of
reservations;
(e) The text of the legislative or other measures which each
Contracting Party has taken in order to implement the present Convention
in accordance with Article 47;
(f) Proposed amendments and objections to proposed amendments in
accordance with Article 51; and
(g) Entry into force of amendments in accordance with Article 51,
paragraph 3.
2. The depositary shall also undertake such actions as are necessary
under Article 52.
Article 54 Authentic Texts-Deposit
The original of the present Convention, of which the Chinese, English,
French, Russian and Spanish texts are equally authentic, will be deposited
with the Secretary-General of the United Nations.
In witness whereof the undersigned, having been duly authorized to
this effect by their respective Governments, have signed the present
Convention, on the dates appearing opposite their signatures.
ANNEX TO THE CONVENTION
Model rules of procedure for international mandatory conciliation
Rule 1
1. Any party wishing to institute conciliation proceedings under the
Code shall address a request to that effect in writing, accompanied by a
statement of claim to the other party, and copied to the Registrar.
2. The statement of claim shall:
(a) Designate precisely each party to the dispute and state the
address of each;
(b) Contain a summary statement of pertinent facts, the issues in
dispute and the claimant's proposal for the settlement of the dispute;
(c) State whether an oral hearing is desired and, if so, and to the
extent then known, the names and addresses of persons to give evidence,
including experts' evidence, for the claimant;
(d) Be accompanied by such supporting documentation and relevant
agreements and arrangements entered into by the parties as the claimant
may consider necessary at the time of making the claim;
(e) Indicate the number of conciliators required, any proposal
concerning the appointment of conciliators, or the name of the conciliator
appointed by the claimant in accordance with Article 32, paragraph 2; and
(f) Contain proposals, if any, regarding rules of procedure.
3. The statement of claim shall be dated and shall be signed by the
party.
Rule 2
1. If the respondent decides to reply to the claim, he shall, within
30 days following the date of his receipt of the statement of claim,
transmit a reply to the other party and copied to the Registrar.
2. The reply shall:
(a) Contain a summary statement of pertinent facts opposed to the
contentions in the statement of claim, the respondent's proposal, if any,
for the settlement of the dispute and any remedy claimed by him with a
view to the settlement of the dispute;
(b) State whether an oral hearing is desired and, if so, and to the
extent then known, the names and addresses of persons to give evidence,
including experts' evidence, for the respondent;
(c) Be accompanied by such supporting documentation and relevant
agreements and arrangements entered into by the parties as the respondent
may consider necessary at the time of making the reply;
(d) Indicate the number of conciliators required, any proposal
concerning the appointment of conciliators, or the name of the conciliator
appointed by the respondent in accordance with Article 32, paragraph 2;
and
(e) Contain proposals, if any, regarding rules of procedure.
3. The reply shall be dated and shall be signed by the party.
Rule 3
1. Any person or other interest desiring to participate in
conciliation proceedings under Article 34 shall transmit a written request
to the parties to the dispute, with a copy to the Registrar.
2. If participation in accordance with (a) of Article 34 is desired,
the request shall set forth the grounds therefor, including the
information required under Rule 1, paragraph 2 (a), (b) and (d).
3. If participation in accordance with (b) of Article 34 is desired,
the request shall state the grounds therefor and which of the original
parties would be supported.
4. Any objection to a request for joinder by such a party shall be
sent by the objecting party, with a copy to the other party, within seven
days of receipt of the request.
5. In the event that two or more proceedings are consolidated,
subsequent requests for third-party participation shall be transmitted to
all parties concerned, each of which may object in accordance with the
present Rule.
Rule 4
By agreement between the parties to a dispute, on motion by either
party, and after affording the parties an opportunity of being heard, the
conciliators may order the consolidation or separation of all or any
claims then pending between the same parties.
Rule 5
1. Any party may challenge a conciliator where circumstances exist
that cause justifiable doubts as to his independence.
2. Notice of challenge, stating reasons therefor, should be made prior
to the date of the closing of the proceedings, before the conciliators
have rendered their recommendation. Any such challenge shall be heard
promptly and shall be determined by majority vote of the conciliators in
the first instance, as a preliminary point, in cases where more than one
conciliator has been appointed. The decision in such cases shall be final.
3. A conciliator who has died, resigned, become incapacitated or
disqualified shall be replaced promptly.
4. Proceedings interrupted in this way shall continue from the point
where they were interrupted, unless it is agreed by the parties or
ordered by the conciliators that a review or rehearing of any oral
testimony take place.
Rule 6
The conciliators shall be judges of their own jurisdiction and/or
competence within the provisions of the Code.
Rule 7
1. The conciliators shall receive and consider all written statements,
documents, affidavits, publications or any other evidence, including oral
evidence, which may be submitted to them by or on behalf of any of the
parties, and shall give such weight thereto as in their judgement such
evidence merits.
2. (a) Each party may submit to the conciliators any material it
considers relevant, and at the time of such submission shall deliver
certified copies to any other party to the proceedings, which party shall
be given a reasonable opportunity to reply thereto;
(b) The conciliators shall be the sole judges of the relevance and
materiality of the evidence submitted to them by the parties;
(c) The conciliators may ask the parties to produce such additional
evidence as they may deem necessary to an understanding and determination
of the dispute, provided that, if such additional evidence is produced,
the other parties to the proceedings shall have a reasonable opportunity
to comment thereon.
Rule 8
1. Whenever a period of days for the doing of any act is provided for
in the Code or in these Rules, the day from which the period begins to run
shall not be counted, and the last day of the period shall be counted,
except where that last day is a Saturday, Sunday or a public holiday at
the place of conciliation, in which case the last day shall be the next
business day.
2. When the time provided for is less than seven days, intermediate
Saturdays, Sundays and public holidays shall be excluded from the
computation.
Rule 9
Subject to the provisions relating to procedural time-limits in the
Code, the conciliators may, on a motion by one of the parties or pursuant
to agreement between them, extend any such time-limit which has been fixed
by the conciliators.
Rule 10
1. The conciliation shall fix the order of business and, unless
otherwise agreed, the date and hour of each session.
2. Unless the parties otherwise agree, the proceedings shall take
place in private.
3. The conciliators shall specifically inquire of all the parties
whether they have any further evidence to submit before declaring the
proceedings closed, and a noting thereof shall be recorded.
Rule 11
Conciliators' recommendations shall be in writing and shall include:
(a) The precise designation and address of each party;
(b) A description of the method of appointing conciliators, including
their names;
(c) The dates and place of the conciliation proceedings;
(d) A summary of the conciliation proceedings, as the conciliators
deem appropriate;
(e) A summary statement of the facts found by the conciliators;
(f) A summary of the submissions of the parties;
(g) Pronouncements on the issues in dispute, together with the reasons
therefor;
(h) The signatures of the conciliator and the date of each signature;
and
(i) An address for the communication of the acceptance or rejection of
the recommendation.
Rule 12
The recommendation shall, so far as possible, contain a pronouncement
on costs in accordance with the provision of the Code. If the
recommendation does not contain a full pronouncement on costs, the
conciliators shall, as soon as possible after the recommendation, and in
any event not later than 60 days thereafter, make a pronouncement in
writing regarding costs as provided in the Code.
Rule 13
Conciliators' recommendations shall also take into account previous
and similar cases whenever this would facilitate a more uniform
implementation of the Code and observance of conciliators'
recommendations.
period not
exceeding 15 days from the date when the intention to apply a currency
surcharge or to effect a freight-rate change is announced.
3. If no agreement is reached within 15 days through consultations,
the relevant provisions for settlement of disputes provided in this Code
shall prevail.
4. The provisions of Article 16, paragraph 6 shall apply, adapted as
necessary to currency adjustment factors and freight-rate changes dealt
with in the present Article.
CHAPTER V. OTHER MATTERS
Article 18 Fighting Ships
Members of a conference shall not use fighting ships in the conference
trade for the purpose of excluding, preventing or reducing competition by
driving a shipping line not a member of the conference out of the said
trade.
Article 19 Adequacy of Service
1. Conferences should take necessary and appropriate measures to
ensure that their member lines provide regular, adequate and efficient
service of the required frequency on the routes they serve and shall
arrange such services so as to avoid as far as possible bunching and
gapping of sailings. Conferences should also take into consideration any
special measures necessary in arranging services to handle seasonal
variations in cargo volumes.
2. Conferences and other parties prescribed in this Code as entitled
to participate in consultations, including appropriate authorities if
they so desire, should keep under review, and should maintain close
co-operation regarding the demand for shipping space, the adequacy and
suitability of service, and in particular the possibilities for
rationalization and for increasing the efficiency of services. Benefits
identified as accruing from rationalization of services shall be fairly
reflected in the level of freight rates.
3. In respect of any port for which conference services are supplied
only subject to the availability of a specified minimum of cargo, that
minimum shall be specified in the tariff. Shippers should give adequate
notice of the availability of such cargo.
Article 20 Head Office of a Conference
A conference shall as a rule establish its head office in a country
whose trade is served by that conference, unless agreed otherwise by the
shipping lines members of that conference.
Article 21 Representation
Conferences shall establish local representation in all countries
served, except that where there are practical reasons to the contrary the
representation may be on a regional basis. The names and addresses of
representatives shall be readily available, and these representatives
shall ensure that the views of shippers and conferences are rapidly made
known to each other with a view to expediting prompt decisions. When a
conference considers it suitable, it shall provide for adequate delegation
of powers of decision to its representatives.
Article 22 Contents of Conference Agreements. Trade ParticipationAgreements and Loyalty Arrangements
Conference agreements, trade participation agreements and loyalty
arrangements shall conform to the applicable requirements of this Code and
may include such other provisions as may be agreed which are not
inconsistent with this Code.
PART TWO
CHAPTER VI. PROVISIONS AND MACHINERY FOR SETTLEMENT OF DISPUTES
A. GENERAL PROVISIONS
Article 23
1. The provisions in this chapter shall apply whenever there is a
dispute relating to the application or operation of the provisions of this
Code between the following parties:
(a) A conference and a shipping line;
(b) The shipping lines members of a conference;
(c) A conference or a shipping line member thereof and a shippers'
organization or representatives of shippers or shippers; and
(d) Two or more conferences.
For the purpose of this chapter the term "party" means the original
parties to the dispute as well as third parties which have joined the
proceedings in accordance with (a) of Article 34.
2. Disputes between shipping lines of the same flag, as well as those
between organizations belonging to the same country, shall be settled
within the framework of the national jurisdiction of that country, unless
this creates serious difficulties in the fulfilment of the provisions of
this Code.
3. The parties to a dispute shall first attempt to settle it by an
exchange of views or direct negotiations with the intention of finding a
mutually satisfactory solution.
4. Disputes between the parties referred to in Article 23, paragraph 1
relating to:
(a) Refusal of admission of a national shipping line to a conference
serving the foreign trade of the country of that shipping line;
(b) Refusal of admission of a third-country shipping line to a
conference;
(c) Expulsion from a conference;
(d) Inconsistency of a conference agreement with this Code;
(e) A general freight-rate increase;
(f) Surcharges;
(g) Changes in freight rates or the imposition of a currency
adjustment factor, due to exchange rate changes;
(h) Participation in trade; and
(i) The form and terms of proposed loyalty arrangements
which have not been resolved through an exchange of views or direct
negotiations shall, at the request of any of the parties to the dispute,
be referred to international mandatory conciliation in accordance with the
provisions of this chapter.
Article 24
1. The conciliation procedure is initiated at the request of one of
the parties to the dispute.
2. The request shall be made:
(a) In disputes relating to membership of conferences: not later than
60 days from the date of receipt by the applicant of the conference
decision, including the reasons therefor, in accordance with Article 1,
paragraph 4 and Article 4, paragraph 3;
(b) In disputes relating to general freight-rate increases: not later
than the date of expiry of the period of notice specified in Article 14,
paragraph 1;
(c) In disputes relating to surcharges: not later than the date of
expiry of the 30-day period specified in Article 16, paragraph 4 or, where
no notice has been given, not later than 15 days from the date when the
surcharge was put into effect; and
(d) In disputes relating to changes in freight rates or the imposition
of a currency adjustment factor due to exchange rate changes: not later
than five days after the date of expiry of the period specified in Article
17, paragraph 3.
3. The provisions of Article 24, paragraph 2 shall not apply to a
dispute which is referred to international mandatory conciliation in
accordance with Article 25, paragraph 3.
4. Requests for conciliation in disputes other than those referred to
in Article 24, paragraph 2, may be made at any time.
5. The time-limits specified in Article 24, paragraph 2 may be
extended by agreement between the parties.
6. A request for conciliation shall be considered to have been duly
made if it is proved that the request has been sent to the other party by
registered letter, telegram or teleprinter has been served on it within
the time-limits specified in Article 24, paragraphs 2 or 5.
7. Where no request has been made within the time-limits specified in
Article 24, paragraphs 2 or 5, the decision of the conference shall be
final and no proceedings under this chapter may be brought by any party to
the dispute to challenge that decision.
Article 25
1. Where the parties have agreed that disputes referred to in Article
23, paragraph 4 (a), (b), (c), (d), (h) and (i) shall be resolved through
procedures other than those established in that Article, or agree on
procedures to resolve a particular dispute that has arisen between them,
such disputes shall, at the request of any of the parties to the dispute,
be resolved as provided for in their agreement.
2. The provisions of Article 25, paragraph 1 apply also to the
disputes referred to in Article 23, paragraph 4 (e), (f) and (g), unless
national legislation, rules or regulations prevent shippers from having
this freedom of choice.
3. Where conciliation proceedings have been initiated, such
proceedings shall have precedence over remedies available under national
law. If a party seeks remedies under national law in respect of a dispute
to which this chapter applies without invoking the procedures provided for
in this chapter, then, upon the request of a respondent to those
proceedings, they shall be stayed and the dispute shall be referred to the
procedures defined in this chapter by the court or other authority where
the national remedies are sought.
Article 26
1. The Contracting Parties shall confer upon conferences and shippers'
organizations such capacity as is necessary for the application of the
provisions of this chapter. In particular:
(a) A conference or a shippers' organization may institute proceedings
as a party or be named as a party to proceedings in its collective
capacity;
(b) Any notification to a conference or shippers' organization in its
collective capacity shall also constitute a notification to each member of
such conference or shippers' organization;
(c) A notification to a conference or shippers' organization shall be
transmitted to the address of the head office of the conference or
shippers' organization. Each conference or shippers' organization shall
register the address of its head office with the Registrar appointed in
accordance with Article 46, paragraph 1. In the event that a conference or
shippers' organization fails to register or has no head office, a
notification to any member in the name of the conference or shippers'
organization shall be deemed to be a notification to such conference or
organization.
2. Acceptance or rejection by a conference or shippers' organization
of a recommendation by conciliators shall be deemed to be acceptance or
rejection of such a recommendation by each member thereof.
Article 27
Unless the parties agree otherwise, the conciliators may decide to
make a recommendation on the basis of written submissions without oral
proceedings.
B. INTERNATIONAL MANDATORY CONCILIATION
Article 28
In international mandatory conciliation the appropriate authorities of
a Contracting Party shall, if they so request, participate in the
conciliation proceedings in support of a party being a national of that
Contracting Party, or in support of a party having a dispute arising in
the context of the foreign trade of that Contracting Party. The
appropriate authority may alternatively act as an observer in such
conciliation proceedings.
Article 29
1. In international mandatory conciliation the proceedings shall be
held in the place unanimously agreed to by the parties or, failing such
agreement, in the place decided upon by the conciliators.
2. In determining the place of conciliation proceedings the parties
and the conciliators shall take into account, inter alia, countries which
are closely connected with the dispute, bearing in mind the country of the
shipping line concerned and, especially when the dispute is related to
cargo, the country where the cargo originates.
Article 30
1. For the purposes of this chapter an international panel of
conciliators shall be established, consisting of experts of high repute
or experience in the fields of law, economics of sea transport, or foreign
trade and finance, as determined by the Contracting Parties selecting
them, who shall serve in an independent capacity.
2. Each Contracting Party may at any time nominate members of the
panel up to a total of 12, and shall communicate their names to the
Registrar. The nominations shall be for periods of six years each and may
be renewed. In the event of the death, incapacity or resignation of a
member of the panel, the Contracting Party which nominated such person
shall nominate a replacement for the remainder of his term of office. A
nomination takes effect from the date on which the communication of the
nomination is received by the Registrar.
3. The Registrar shall maintain the panel list and shall regularly
inform the Contracting Parties of the composition of the panel.
Article 31
1. The purpose of conciliation is to reach an amicable settlement of
the dispute through recommendations formulated by independent
conciliators.
2. The conciliators shall identify and clarify the issues in dispute,
seek for this purpose any information from the parties, and on the basis
thereof, submit to the parties a recommendation for the settlement of the
dispute.
3. The parties shall co-operate in good faith with the conciliators in
order to enable them to carry out their functions.
4. Subject to the provisions of Article 25, paragraph 2, the parties
to the dispute may at any time during the conciliation proceedings decide
in agreement to have recourse to a different procedure for the settlement
of their dispute. The parties to a dispute which has been made subject to
proceedings other than those provided for in this chapter may decide by
mutual agreement to have recourse to international mandatory conciliation.
Article 32
1. The conciliation proceedings shall be conducted either by one
conciliator or by an uneven number of conciliators agreed upon or
designated by the parties.
2. Where the parties cannot agree on the number or the appointment of
the conciliators as provided in Article 32, paragraph 1, the conciliation
proceedings shall be conducted by three conciliators, one appointed by
each party in the statement(s) of claim and reply respectively, and the
third by the two conciliators thus appointed, who shall act as chairman.
3. If the reply does not name a conciliator to be appointed in cases
where Article 32, paragraph 2 would apply, the second conciliator shall,
within 30 days following the receipt of the statement of claim, be chosen
by lot by the conciliator appointed in the statement of claim from among
the members of the panel nominated by the Contracting Parties of which the
respondent (s) is (are) a national(s).
4. Where the conciliators appointed in accordance with Article 32,
paragraphs 2 or 3 cannot agree on the appointment of the third conciliator
within 15 days following the date of the appointment of the second
conciliator, he shall, within the following five days, be chosen by lot by
the appointed conciliators. Prior to the drawing by lot:
(a) No member of the panel of conciliators having the same nationality
as either of the two appointed conciliators shall be eligible for
selection by lot;
(b) Each of the two appointed conciliators may exclude from the list
of the panel of conciliators an equal number of them subject to the
requirement that at least 30 members of the panel shall remain eligible
for selection by lot.
Article 33
1. Where several parties request conciliation with the same respondent
in respect of the same issue, or of issues which are closely connected,
that respondent may request the consolidation of those cases.
2. The request for consolidation shall be considered and decided upon
by majority vote by the chairmen of the conciliators so far chosen. If
such request is allowed, the chairmen will designate the conciliators to
consider the consolidated cases from among the conciliators so far
appointed or chosen, provided that an uneven number of conciliators is
chosen and that the conciliator first appointed by each party shall be one
of the conciliators considering the consolidated case.
Article 34
Any party, other than an appropriate authority referred to in Article
28, if conciliation has been initiated, may join in the proceedings:
either
(a) As a party, in case of a direct economic interest;
or
(b) As a supporting party to one of the original parties, in case of
an indirect economic interest,
unless either of the original parties objects to such joinder.
Article 35
1. The recommendations of the conciliators shall be made in accordance
with the provisions of this Code.
2. When the Code is silent upon any point, the conciliators shall
apply the law which the parties agree at the time the conciliation
proceedings commence or thereafter, but not later than the time of
submission of evidence to the conciliators. Failing such agreement, the
law which in the opinion of the conciliators is most closely connected
with the dispute shall be applicable.
3. The conciliators shall not decide ex aequo et bono upon the dispute
unless the parties so agree after the dispute has arisen.
4. The conciliators shall not bring a finding of non liquet on the
ground of obscurity of the law.
5. The conciliators may recommend those remedies and reliefs which are
provided in the law applicable to the dispute.
Article 36
The recommendations of the conciliators shall include reasons.
Article 37
1. Unless the parties have agreed before, during or after the
conciliation procedure that the recommendation of the conciliators shall
be binding, the recommendation shall become binding by acceptance by the
parties. A recommendation which has been accepted by some parties to a
dispute shall be binding as between those parties only.
2. Acceptance of the recommendation must be communicated by the
parties to the conciliators, at an address specified by them, not later
than 30 days after receipt of the notification of the recommendation;
otherwise, it shall be considered that the recommendation has not been
accepted.
3. Any party which does not accept the recommendation shall notify the
conciliators and the other parties, within 30 days following the period
specified in Article 37, paragraph 2 of its grounds for rejection of the
recommendation, comprehensively and in writing.
4. When the recommendation has been accepted by the parties, the
conciliators shall immediately draw up and sign a record of settlement, at
which time the recommendation shall become binding upon those parties. If
the recommendation has not been accepted by all parties, the conciliators
shall draw up a report with respect to those parties rejecting the
recommendation, noting the dispute and the failure of those parties to
settle the dispute.
5. A recommendation which has become binding upon the parties shall be
implemented by them immediately or at such later time as is specified in
the recommendation.
6. Any party may make its acceptance conditional upon acceptance by
all or any of the other parties to the dispute.
Article 38
1. A recommendation shall constitute a final determination of a
dispute as between the parties which accept it, except to the extent that
the recommendation is not recognized and enforced in accordance with the
provisions of Article 39.
2. "Recommendation" includes an interpretation, clarification or
revision of the recommendation made by the conciliators before the
recommendation has been accepted.
Article 39
1. Each Contracting Party shall recognize a recommendation as binding
between the parties which have accepted it and shall, subject to the
provisions of Article 39, paragraphs 2 and 3, enforce, at the request of
any such party, all obligations imposed by the recommendation as if it
were a final judgement of a court of that Contracting Party.
2. A recommendation shall not be recognized and enforced at the
request of a party referred to in Article 39, paragraph 1 only if the
court or other competent authority of the country where recognition and
enforcement is sought is satisfied that:
(a) Any party which accepted the recommendation was, under the law
applicable to it, under some legal incapacity at the time of acceptance;
(b) Fraud or coercion has been used in the making of the
recommendations;
(c) The recommendation is contrary to public policy (ordre public) in
the country of enforcement; or
(d) The composition of the conciliators, or the conciliation
procedure, was not in accordance with the provisions of this Code.
3. Any part of the recommendation shall not be enforced and recognized
if the court or other competent authority is satisfied that such part
comes within any of the subparagraphs of Article 39, paragraph 2 and can
be separated from other parts of the recommendation. If such part cannot
be separated, the entire recommendation shall not be enforced and
recognized.
Article 40
1. Where the recommendation has been accepted by all the parties, the
recommendation and the reasons therefor may be published with the consent
of all the parties.
2. Where the recommendation has been rejected by one or more of the
parties but has been accepted by one or more of the parties:
(a) The party or parties rejecting the recommendation shall publish
its or their grounds for rejection, given pursuant to Article 37,
paragraph 3, and may at the same time publish the recommendation and the
reason therefor;
(b) A party which has accepted the recommendation may publish the
recommendation and the reasons therefor; it may also publish the grounds
for rejection given by any other party unless such other party has already
published its rejection and the grounds therefor in accordance with
Article 40, paragraph 2 (a).
3. Where the recommendation has not been accepted by any of the
parties, each party may publish the recommendation and the reasons
therefor and also its own rejection and the grounds therefor.
Article 41
1. Documents and statements containing factual information supplied by
any party to the conciliators shall be made public unless that party or a
majority of the conciliators agree otherwise.
2. Such documents and statements supplied by a party may be tendered
by that party in support of its case in subsequent proceedings arising
from the same dispute and between the same parties.
Article 42
Where the recommendation has not become binding upon the parties, no
views expressed or reasons given by the conciliators, or concessions or
offers made by the parties for the purpose of the conciliation procedure,
shall affect the legal rights and obligations of any of the parties.
Article 43
1. (a) The costs of the conciliators and all costs of the
administration of the conciliation proceedings shall be borne equally by
the parties to the proceedings, unless they agree otherwise.
(b) When the conciliation proceedings have been initiated, the
conciliators shall be entitled to require an advance or security for the
costs referred to in Article 43, paragraph 1 (a).
2. Each party shall bear all the expenses it incurs in connexion with
the proceedings, unless the parties agree otherwise.
3. Notwithstanding the provisions of Article 43, paragraphs 1 and 2,
the conciliators may, having decided unanimously that a party has brought
a claim vexatiously or frivolously, assess against that party any or all
of the costs of other parties to the proceedings. Such decision shall be
final and binding on all the parties.
Article 44
1. Failure of a party to appear or to present its case at any stage of
the proceedings shall not be deemed an admission of the other party's
assertions. In that event, the other party may, at its choice, request the
conciliators to close the proceedings or to deal with the questions
presented to them and submit a recommendation in accordance with the
provisions for making recommendations set out in this Code.
2. Before closing the proceedings, the conciliators shall grant the
party failing to appear or to present its case a period of grace, not
exceeding 10 days, unless they are satisfied that the party does not
intend to appear or to present its case.
3. Failure to observe procedural time-limits laid down in this Code or
determined by the conciliators, in particular time-limits relating to the
submission of statements or information, shall be considered a failure to
appear in the proceedings.
4. Where the proceedings have been closed owing to one party's failure
to appear or to present its case, the conciliators shall draw up a report
noting that party's failure.
Article 45
1. The conciliators shall follow the procedures stipulated in this
Code.
2. The rules of procedure annexed to the present Convention shall be
considered as model rules for the guidance of conciliators. The
conciliators may, by mutual consent, use, supplement or amend the rules
contained in the annex or formulate their own rules of procedure to the
extent that such supplementary, amended or other rules are not
inconsistent with the provisions of this Code.
3. If the parties agree that it may be in the interest of achieving an
expeditious and inexpensive solution of the conciliation proceedings, they
may mutually agree to rules of procedure which are not inconsistent with
the provisions of this Code.
4. The conciliators shall formulate their recommendation by consensus
or failing that shall decide by majority vote.
5. The conciliation proceedings shall finish and the recommendation of
the conciliators shall be delivered not later than six months from the
date on which the conciliators are appointed, except in the cases
referred to in Article 23, paragraph 4 (e), (f) and (g), for which the
time limits in Article 14, paragraph 1 and Article 16, paragraph 4 shall
be valid. The period of six months may be extended by agreement of the
parties.
C. INSTITUTIONAL MACHINERY
Article 46
1. Six months before the entry into force of the present Convention,
the Secretary-General of the United Nations shall, subject to the approval
of the General Assembly of the United Nations, and taking into account the
views expressed by the Contracting Parties, appoint a Registrar who may be
assisted by such additional staff as may be necessary for the performance
of the functions listed in Article 46, paragraph 2. Administrative
services for the Registrar and his assistants shall be provided by the
United Nations Office at Geneva.
2. The Registrar shall perform the following functions in consultation
with the Contracting Parties as appropriate:
(a) Maintain the list of conciliators of the international panel of
conciliators and regularly inform the Contracting Parties of the
composition of the panel;
(b) Provide the names and addresses of the conciliators to the parties
concerned on request;
(c) Receive and maintain copies of requests for conciliation, replies,
recommendation, acceptances, or rejections, including reasons therefor;
(d) Furnish on request, and at their cost, copies of recommendations
and reasons for rejection to the shippers' organizations, conferences and
Governments, subject to the provisions of Article 40;
(e) Make available information of a non-confidential nature on
completed conciliation cases, and without attribution to the parties
concerned, for the purposes of preparation of material for the Review
Conference referred to in Article 52; and
(f) The other functions prescribed for the Registrar in Article 26,
paragraph 1 (c) and Article 30, paragraphs 2 and 3.
CHAPTER VII. FINAL CLAUSES
Article 47 Implementation
1. Each Contracting Party shall take such legislative or other
measures as may be necessary to implement the present Convention.
2. Each Contracting Party shall communicate to the Secretary-General
of the United Nations, who shall be the depositary, the text of the
legislative or other measures which it has taken in order to implement the
present Convention.
Article 48 Signature, Ratification, Acceptance, Approval and Ac-cession
1. The present Convention shall remain open for signature as from July
1, 1974 until and including June 30, 1975 at United Nations Headquarters
and shall thereafter remain open for accession.
2. All States* are entitled to become Contracting Parties to the
present Convention by:
[* At its 9th plenary meeting on 6 April 1974, the Conference adopted
the following understanding recommended by its Third Main Committee:
"In accordance with its terms, the present Convention will be open to
participation by all States, and the Secretary-General of the United
Nations will act as depositary. It is the understanding of the Conference
that the Secretary-General, in discharging his functions as depositary of
a convention or other multilateral legally binding instrument with an
"All-States" clause, will follow the practice of the General Assembly of
the United Nations in implementing such a clause and, whenever advisable,
will request the opinion of the General Assembly before receiving a
signature or an instrument of ratification, acceptance, approval or
accession."]
(a) Signature subject to and followed by ratification, acceptance or
approval; or
(b) Signature without reservation as to ratification, acceptance or
approval; or
(c) Accession.
3. Ratification, acceptance, approval or accession shall be effected
by the deposit of an instrument to this effect with the depositary.
Article 49 Entry into Force
1. The present Convention shall enter into force six months after the
date on which not less than 24 States, the combined tonnage of which
amounts to at least 25 per cent of world tonnage, have become Contracting
Parties to it in accordance with Article 48. For the purpose of the
present Article the tonnage shall be deemed to be that contained in
Lloyd's Register of Shipping-Statistical Tables 1973, table 2 "World
Fleets-Analysis by Principal Types", in respect to general cargo
(including passenger/cargo) ships and container (fully cellular) ships,
exclusive of the United States reserve fleet and the American and Canadian
Great Lakes fleets.**
[** The tonnage requirements for the purpose of Article 49, paragraph
1 are set out in part two hereafter.]
2. For each State which thereafter ratifies, accepts, approves or
accedes to it, the present Convention shall come into force six months
after deposit by such State of the appropriate instrument.
3. Any State which becomes a Contracting Party to the present
Convention after the entry into force of an amendment shall, failing an
expression of a different intention by that State:
(a) Be considered as a Party to the present Convention as amended; and
(b) Be considered as a Party to the unamended Convention in relation
to any Party to the present Convention not bound by the amendment.
Article 50 Denunciation
1. The present Convention may be denounced by any Contracting Party at
any time after the expiration of a period of two years from the date on
which the Convention has entered into force.
2. Denunciation shall be notified to the depositary in writing, and
shall take effect one year, or such longer period as may be specified in
the instrument of denunciation, after the date of receipt by the
depositary.
Article 51 Amendments
1. Any Contracting Party may propose one or more amendments to the
present Convention by communicating the amendments to the depositary. The
depositary shall circulate such amendments among the Contracting Parties,
for their acceptance, and among States entitled to become Contracting
Parties to the present Convention which are not Contracting Parties, for
their information.
2. Each proposed amendment circulated in accordance with Article 51,
paragraph 1 shall be deemed to have been accepted if no Contracting Party
communicates an objection thereto to the depositary within 12 months
following the date of its circulation by the depositary. If a Contracting
Party communicates an objection to the proposed amendment, such amendment
shall not be considered as accepted and shall not be put into effect.
3. If no objection has been communicated, the amendment shall enter
into force for all Contracting Parties six months after the expiry date of
the period of 12 months referred to in Article 51, paragraph 2.
Article 52 Review Conferences
1. A Review Conference shall be convened by the depositary five years
from the date on which the present Convention comes into force to review
the working of the Convention, with particular reference to its
implementation, and to consider and adopt appropriate amendments.
2. The depositary shall, four years from the date on which the present
Convention comes into force, seek the views of all States entitled to
attend the Review Conference and shall, on the basis of the views
received, prepare and circulate a draft agenda as well as amendments
proposed for consideration by the Conference.
3. Further review conferences shall be similarly convened every five
years, or at any time after the first Review Conference, at the request of
one-third of the Contracting Parties to the present Convention, unless the
first Review Conference decides otherwise.
4. Notwithstanding the provisions of Article 52, paragraph 1, if the
present Convention has not entered into force five years from the date of
the adoption of the Final Act of the United Nations Conference of
Plenipotentiaries on a Code of Conduct for Liner Conferences, a Review
Conference shall, at the request of one-third of the States entitled to
become Contracting Parties to the present Convention, be convened by the
Secretary-General of the United Nations, subject to the approval of the
General Assembly, in order to review the provisions of the Convention and
its annex and to consider and adopt appropriate amendments.
Article 53 Functions of the Depositary
1. The depositary shall notify the signatory and acceding States of:
(a) Signatures, ratifications, acceptances, approvals and accessions
in accordance with Article 48;
(b) The date on which the present Convention enters into force in
accordance with Article 49;
(c) Denunciations of the present Convention in accordance with Article
50;
(d) Reservations to the present Convention and the withdrawal of
reservations;
(e) The text of the legislative or other measures which each
Contracting Party has taken in order to implement the present Convention
in accordance with Article 47;
(f) Proposed amendments and objections to proposed amendments in
accordance with Article 51; and
(g) Entry into force of amendments in accordance with Article 51,
paragraph 3.
2. The depositary shall also undertake such actions as are necessary
under Article 52.
Article 54 Authentic Texts-Deposit
The original of the present Convention, of which the Chinese, English,
French, Russian and Spanish texts are equally authentic, will be deposited
with the Secretary-General of the United Nations.
In witness whereof the undersigned, having been duly authorized to
this effect by their respective Governments, have signed the present
Convention, on the dates appearing opposite their signatures.
ANNEX TO THE CONVENTION
Model rules of procedure for international mandatory conciliation
Rule 1
1. Any party wishing to institute conciliation proceedings under the
Code shall address a request to that effect in writing, accompanied by a
statement of claim to the other party, and copied to the Registrar.
2. The statement of claim shall:
(a) Designate precisely each party to the dispute and state the
address of each;
(b) Contain a summary statement of pertinent facts, the issues in
dispute and the claimant's proposal for the settlement of the dispute;
(c) State whether an oral hearing is desired and, if so, and to the
extent then known, the names and addresses of persons to give evidence,
including experts' evidence, for the claimant;
(d) Be accompanied by such supporting documentation and relevant
agreements and arrangements entered into by the parties as the claimant
may consider necessary at the time of making the claim;
(e) Indicate the number of conciliators required, any proposal
concerning the appointment of conciliators, or the name of the conciliator
appointed by the claimant in accordance with Article 32, paragraph 2; and
(f) Contain proposals, if any, regarding rules of procedure.
3. The statement of claim shall be dated and shall be signed by the
party.
Rule 2
1. If the respondent decides to reply to the claim, he shall, within
30 days following the date of his receipt of the statement of claim,
transmit a reply to the other party and copied to the Registrar.
2. The reply shall:
(a) Contain a summary statement of pertinent facts opposed to the
contentions in the statement of claim, the respondent's proposal, if any,
for the settlement of the dispute and any remedy claimed by him with a
view to the settlement of the dispute;
(b) State whether an oral hearing is desired and, if so, and to the
extent then known, the names and addresses of persons to give evidence,
including experts' evidence, for the respondent;
(c) Be accompanied by such supporting documentation and relevant
agreements and arrangements entered into by the parties as the respondent
may consider necessary at the time of making the reply;
(d) Indicate the number of conciliators required, any proposal
concerning the appointment of conciliators, or the name of the conciliator
appointed by the respondent in accordance with Article 32, paragraph 2;
and
(e) Contain proposals, if any, regarding rules of procedure.
3. The reply shall be dated and shall be signed by the party.
Rule 3
1. Any person or other interest desiring to participate in
conciliation proceedings under Article 34 shall transmit a written request
to the parties to the dispute, with a copy to the Registrar.
2. If participation in accordance with (a) of Article 34 is desired,
the request shall set forth the grounds therefor, including the
information required under Rule 1, paragraph 2 (a), (b) and (d).
3. If participation in accordance with (b) of Article 34 is desired,
the request shall state the grounds therefor and which of the original
parties would be supported.
4. Any objection to a request for joinder by such a party shall be
sent by the objecting party, with a copy to the other party, within seven
days of receipt of the request.
5. In the event that two or more proceedings are consolidated,
subsequent requests for third-party participation shall be transmitted to
all parties concerned, each of which may object in accordance with the
present Rule.
Rule 4
By agreement between the parties to a dispute, on motion by either
party, and after affording the parties an opportunity of being heard, the
conciliators may order the consolidation or separation of all or any
claims then pending between the same parties.
Rule 5
1. Any party may challenge a conciliator where circumstances exist
that cause justifiable doubts as to his independence.
2. Notice of challenge, stating reasons therefor, should be made prior
to the date of the closing of the proceedings, before the conciliators
have rendered their recommendation. Any such challenge shall be heard
promptly and shall be determined by majority vote of the conciliators in
the first instance, as a preliminary point, in cases where more than one
conciliator has been appointed. The decision in such cases shall be final.
3. A conciliator who has died, resigned, become incapacitated or
disqualified shall be replaced promptly.
4. Proceedings interrupted in this way shall continue from the point
where they were interrupted, unless it is agreed by the parties or
ordered by the conciliators that a review or rehearing of any oral
testimony take place.
Rule 6
The conciliators shall be judges of their own jurisdiction and/or
competence within the provisions of the Code.
Rule 7
1. The conciliators shall receive and consider all written statements,
documents, affidavits, publications or any other evidence, including oral
evidence, which may be submitted to them by or on behalf of any of the
parties, and shall give such weight thereto as in their judgement such
evidence merits.
2. (a) Each party may submit to the conciliators any material it
considers relevant, and at the time of such submission shall deliver
certified copies to any other party to the proceedings, which party shall
be given a reasonable opportunity to reply thereto;
(b) The conciliators shall be the sole judges of the relevance and
materiality of the evidence submitted to them by the parties;
(c) The conciliators may ask the parties to produce such additional
evidence as they may deem necessary to an understanding and determination
of the dispute, provided that, if such additional evidence is produced,
the other parties to the proceedings shall have a reasonable opportunity
to comment thereon.
Rule 8
1. Whenever a period of days for the doing of any act is provided for
in the Code or in these Rules, the day from which the period begins to run
shall not be counted, and the last day of the period shall be counted,
except where that last day is a Saturday, Sunday or a public holiday at
the place of conciliation, in which case the last day shall be the next
business day.
2. When the time provided for is less than seven days, intermediate
Saturdays, Sundays and public holidays shall be excluded from the
computation.
Rule 9
Subject to the provisions relating to procedural time-limits in the
Code, the conciliators may, on a motion by one of the parties or pursuant
to agreement between them, extend any such time-limit which has been fixed
by the conciliators.
Rule 10
1. The conciliation shall fix the order of business and, unless
otherwise agreed, the date and hour of each session.
2. Unless the parties otherwise agree, the proceedings shall take
place in private.
3. The conciliators shall specifically inquire of all the parties
whether they have any further evidence to submit before declaring the
proceedings closed, and a noting thereof shall be recorded.
Rule 11
Conciliators' recommendations shall be in writing and shall include:
(a) The precise designation and address of each party;
(b) A description of the method of appointing conciliators, including
their names;
(c) The dates and place of the conciliation proceedings;
(d) A summary of the conciliation proceedings, as the conciliators
deem appropriate;
(e) A summary statement of the facts found by the conciliators;
(f) A summary of the submissions of the parties;
(g) Pronouncements on the issues in dispute, together with the reasons
therefor;
(h) The signatures of the conciliator and the date of each signature;
and
(i) An address for the communication of the acceptance or rejection of
the recommendation.
Rule 12
The recommendation shall, so far as possible, contain a pronouncement
on costs in accordance with the provision of the Code. If the
recommendation does not contain a full pronouncement on costs, the
conciliators shall, as soon as possible after the recommendation, and in
any event not later than 60 days thereafter, make a pronouncement in
writing regarding costs as provided in the Code.
Rule 13
Conciliators' recommendations shall also take into account previous
and similar cases whenever this would facilitate a more uniform
implementation of the Code and observance of conciliators'
recommendations.
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