APPOINTMENT & ROLE OF CONCILIATORS
(SECTION 63, 64, 67)
COMMENCEMENT OF PROCEEDINGS
- SECTION 62 -
SECTION 62 – BARE PROVISION
Written invitation – The party initiating conciliation shall send a written invitation to conciliate,
which shall state the subject matter of the dispute in brief.
Acceptance – The conciliation proceedings shall only commence once the other party accepts the
invitation to conciliate in writing.
Rejection – If the other party rejects the invitation to conciliate, then there shall be no
conciliation.
Deemed Rejection – If the other party does not return its written acceptance or rejection within a
period of 30 days from sending of the written invitation the party sending the invitation may
deem it to be rejected.
Withdrawal of Invitation– In case the other party does not inform about its acceptance or
rejection, in such case the first party shall communicate to the party that since there had been no
response, the invitation extended stood withdrawn.
INITIATION OF CONCILIATION
At any stage of arbitral proceedings, any of the parties can make an offer of conciliation to the
other, by an invitation in writing, to conciliate under the provision of Part III of the Act.
The invitation shall identify the dispute, necessary particulars and a justification for resorting to
conciliation.
Upon receipt of the invitation the other party shall have the option to either accept it or reject it.
If the other party accepts it then the conciliation shall be deemed to have commenced.
REJECTION OF INVITATION
The rejection can be of two types:
Express
Implied
If the party after receiving the invitation to conciliate sends back in writing a refusal to
conciliate, that would amount to express rejection.
However, if the party fails to take any action 30 days after the receipt of the invitation to
conciliate, then in such a case the party who sent the invitation shall infer rejection on part of the
other party.
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NUMBER OF CONCILIATORS
- SECTION 63 -
The decision with respect to appointing a specific number of conciliators has to be taken once
the other party sends back its written acceptance to conciliate.
In such case the parties shall agree on the composition of the conciliation tribunal.
In absence of any agreement, there shall only be one conciliator.
However, there is a bar on the maximum number of conciliators i.e., three.
If one of the conciliators is not present, in such case it would not vitiate the conciliation
proceedings.
APPOINTMENT OF CONCILIATORS
- SECTION 64 -
MODES OF APPOINTMENT
A cursory reading of section 64 clearly provides that the appointment of an conciliator can be done by
the following two modes:
1. By the parties themselves; OR
2. By the institution or person nominated by the parties.
APPOINTMENT BY THE PARTIES
The following three scenarios may occur when the parties decide to appoint the conciliator themselves:
1. One conciliator – The parties may agree on the name of one conciliator, who would solely
compose of the conciliation tribunal.
2. Two conciliators – Each party may appoint one conciliator.
3. Three conciliators – Each party shall appoint one conciliator, and the parties may agree on the
name of third conciliator who shall act as the presiding conciliator.
APPOINTMENT BY THE INSTITUTION
A party may request an institution or a person to recommend the names of suitable individuals to
act as conciliator; or
The parties may agree that the appointment of one or more conciliators be made directly by such
an institution or person.
The decision of the institution or person shall in no way be binding on the parties.
In case of international commercial conciliation the person who is appointed as a conciliator
shall be of a different nationality than the parties.
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SUBMISSION OF STATEMENT TO CONCILIATOR
- SECTION 65 -
PROCEEDINGS BEFORE CONCILIATORS
Receipt of letter of appointment – The conciliator can only act once he receives the letter of his
appointment as a conciliator.
Written statement – The conciliator may require the parties to submit a brief written statement,
identifying the nature of disputes and the points at issue.
Contents of Written Statement – The written statement shall be concise and brief, it should be
self-explanatory and should not call for elucidation time and again.
Reply – The other party upon receipt of the written statement and connected documents shall file
a detailed reply which shall clearly state as to whether the party agrees or disagrees to the
points/dispute stated in the written statement.
Supplying a copy to the all the parties – Any document which is relied upon in the conciliation
proceedings shall be supplied to the other party as it is a quintessential before arriving at any
settlement agreement.
SUPPLEMENTING FACTS & GROUNDS
Further written statement – The conciliator can ask for a further written statement from either or
both the parties in respect of their stand, supported by facts and grounds in justification thereof.
Document or Evidence – The conciliator can also ask for any other document and/or evidence
which helps in narrowing down the controversy or even help in resolving it completely.
Supplying a copy to all the parties – any communication received by the conciliator at the back
of the other party may not be relied upon in further proceedings. Such acts lead to breakdown of
the conciliation process.
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ROLE OF CONCILIATOR
- SECTION 67 -
TO ACT OBJECTIVELY & INDEPENDENTLY
The conciliator shall strive towards reaching an amicable settlement.
He is in no way guided by principles of law or precedents.
He is free to adopt his own procedure which is best in light of the interests of the parties.
Primarily, due weightage shall be given to the rights and obligations of the parties.
Secondly, the trade practise, previous business, market situation, facts and circumstances shall be
considered by the conciliator.
The conciliator shall be objective, fair and just in his conduct.
The conciliator shall assist the parties in an independent and impartial manner.
CONDUCTING PROCEEDINGS FAIRLY
Since the conciliator is free to adopt his own procedure, there is an incumbent duty upon him to
be fair, just, impartial and independent & honest.
He should adhere to the principles of natural justice.
He should afford adequate opportunity to the parties to present their case in whatever manner
they like.
The conciliator is also free to permit the parties to present oral arguments in order dispose of the
matter in a speedy manner.
MAKING PROPOSALS LEADING TO CONCILIATION
Various suggestions can be made by the conciliator to the parties in order to settle the dispute.
The suggestions shall not be out of tune with the facts and circumstances of the case.
Even oral hearings can be resorted to as there is nothing better than a speedy oral hearing if the
parties are ad idem.
Fresh proposals or alternative proposals can also be mooted by the conciliator.
The conciliator can make his proposal in any form i.e., oral or writing.
It is up to the parties to agree or not agree to such suggestions or proposals.
The conciliator can formulate the terms of possible settlement if it appears to him that there is an
iota scope of the parties arriving at a settlement.
The conciliator merely authenticates the settlement agreement, it is for the parties who are
required to reach an agreement on the settlement of dispute.
