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RULES FOR APPOINTMENT OF EXPERTS AND NEUTRALS WHERE THE ADR PROCEEDINGS ARE NOT ADMINISTERED BY FICM

 

PREAMBLE

The MCN Rules for the Appointment of Experts and Neutrals (the “Rules”) are administered by MCN.

MCN will appoint an expert or a neutral pursuant to the Rules in situations where the parties have agreed to use MCN as the appointing authority or where MCN is otherwise satisfied that there is a sufficient basis for appointing an expert or a neutral. An expert appointed under the Rules may be a physical person or a legal person, such as a company or a partnership. MCN’s role is limited to the process of appointing the expert or neutral in question and administering any proceedings under the Rules.

There are various situations in which the parties may agree to have an expert appointed by MCN. Experts from a broad range of specializations may be appointed. Such Specializations include accounting, finance, engineering, information technology, construction, energy and law. The parties may agree to appoint an expert to give a contractually binding expert determination or to give non-binding advice. This can be in either a contentious or non-contentious context.

There are also various situations in which the parties may agree to have a neutral appointed by MCN. An appointed neutral may serve as a negotiator/mediator/conciliator/arbitrator/ dispute board member or in a similar capacity who may assist the parties with the resolution of a dispute in any similar or a combination of several ADR procedures that is not administered by the MCN.

Article 1 – Recourse to MCN

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• Any request for the appointment of an expert or a neutral (the “Request for Appointment”) shall be submitted to MCN. Any Request for Appointment shall be processed by Appointments Committee only when it is based upon an agreement between the parties for the appointment of an expert or a neutral by Appointments Committee or when Appointments Committee is otherwise satisfied that there is a sufficient basis for appointing an expert or a neutral.
• The Request for Appointment shall include:
• the names, addresses, telephone numbers, email addresses and any other contact details of:
  • each person filing the Request for Appointment and any other person involved in the relevant proceedings, including any other parties to the agreement for the appointment of an expert or a neutral; and
  • any person representing each person filing the Request for Appointment;

• if applicable, the name and contact details of any person or entity relevant for checking potential conflicts of interest of the expert or neutral;

• when the Request for Appointment is for an expert:
  1. a description of the field of activity of the expert to be appointed;
  2. any desired attributes of the expert, including but not limited to education, qualifications, language skills and professional experience;
  3. any undesired attributes of the expert and a description of any matters that would disqualify a potential expert;
  4. a detailed description of the work to be carried out by the expert, including whether an expert report or site visits will be required;
  5. the desired time frame for completing such work;
  6. any agreement as to the language(s) to be used by the expert or, in the absence thereof, any proposal as to such language(s);
  7. any agreement as to the location of any physical meetings or, in the absence thereof, any proposal as to such location; and
  8. a copy of any agreement for the appointment of an expert by Appointments Committee and/or of any other elements which form the basis of the Request for Appointment;

• when the Request for Appointment is for a neutral:
  1. a description of the dispute resolution or other procedure for which a neutral’s assistance is sought;
  2. a description of the dispute, if any;
  3. any desired attributes of the neutral, including but not limited to education, qualifications, language skills and professional experience;
  4. any undesired attributes of the neutral and a description of any matters which would disqualify a potential neutral;
  5. the desired time frame for conducting and completing the procedure;
  6. any agreement as to the language(s) to be used by the neutral or, in the absence thereof, any proposal as to such language(s);
  7. any agreement as to the location of any physical meetings or, in the absence thereof, any proposal as to such location; and
  8. a copy of any agreement for the appointment of a neutral by Appointments Committee and/or of any other elements which form the basis of the Request for Appointment.
• Appointments Committee shall inform the other party or parties in writing of the Request for Appointment once Appointments Committee has sufficient copies of the Request for Appointment and has received the filing fee required under Article 4.
• When the Request for Appointment is not made jointly by all of the parties, and/or when the parties do not agree on the attributes of the expert or the neutral, and/or when the parties do not agree on the expert’s work or the neutral’s role, Appointments Committee shall send a copy of the Request for Appointment to the other party or parties, who may make observations within a time limit fixed by MCN. Observations received shall be communicated by Appointments Committee to the other party or parties for comments within a time limit fixed by MCN.
• Appointments Committee shall proceed with the Request for Appointment as it sees fit and will inform the parties of how it will proceed.

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Article 3 – The Appointment

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• Any appointment of an Expert or a Neutral by Appointments Committee shall be made by Appointments Committee either through an MCN National Committee or Group, or otherwise. MCN’s role under these Rules ends upon the notification of the appointment.
• If the parties have not agreed to the appointment of an Expert/Neutral and have not provided any other method of appointment, the Expert/Neutral shall be appointed in the following manner:

(A) Upon receipt of a request for an Expert or a Neutral appointment, the MCN will send to each party a list of Experts/Neutrals from the MCN Panel of Experts/Neutrals. The parties are encouraged to agree to an Expert/Neutral from the submitted list and to advise MCN of their agreement.

(B) If the parties are unable to agree upon an Expert/Neutral, each party shall strike unacceptable names from the list, number the remaining names in order of preference, and return the list to the MCN. If a party does not return the list within the time specified, all Experts/Neutrals on the list shall be deemed acceptable. From among the Experts/Neutrals who have been mutually approved by the parties, and in accordance with the designated order of mutual preference, the MCN shall invite an Expert/Neutral to serve.

(C) If the parties fail to agree on any of the Experts/Neutrals listed, or if acceptable Experts/Neutrals are unable to serve, or if for any other reason the appointment cannot be made from the submitted list, the MCN shall have the authority to make the appointment from among other members of the Panel of Experts/Neutrals without the submission of additional lists.

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• In confirming or appointing an Expert or a Neutral, Appointments Committee shall consider the prospective Expert’s or Neutral’s nationality, residence, training and experience, and the prospective Expert’s or Neutral’s availability and ability to conduct the work to be carried out. Appointments Committee shall make all reasonable efforts to appoint an Expert or a Neutral having the attributes, if any, which have been agreed upon by all of the parties. If, despite such efforts, Appointments Committee is not able to identify an Expert or a Neutral having all of the attributes agreed upon by all of the parties, Appointments Committee may ask the parties whether they wish Appointments Committee to appoint more than one Expert or Neutral (who between them have the requested attributes), or whether the attributes agreed upon by the parties may be modified.
• Every Expert or Neutral must be and remain impartial and independent of the parties involved in the proceedings, if any, unless otherwise agreed in writing by such parties.
• Before an appointment, a prospective Expert or Neutral shall sign a statement of acceptance, availability, impartiality and independence. The prospective Expert or Neutral shall disclose in writing to Appointments Committee any facts or circumstances which might be of such a nature as to call into question the Expert’s or Neutral’s independence in the eyes of the parties, as well as any circumstances that could give rise to reasonable doubts as to the Expert’s or Neutral’s impartiality. Appointments Committee shall provide such information to the parties in writing and shall fix a time limit for any comments from them.
• If any party files a written objection with Appointments Committee asserting that the Expert or Neutral does not have the necessary attributes, is not fulfilling the Expert’s or Neutral’s functions or is not independent or impartial, Appointments Committee may replace the Expert or Neutral after having considered the observations of the Expert or Neutral and the other party or parties.
• Any information or documents given to the Expert or the Neutral by Appointments Committee or any party in connection with the appointment shall be used by the Expert or the Neutral only for the purposes of the appointment and shall be treated by the Expert or the Neutral as confidential.

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Article 4 – Costs for the Appointment

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• Each Request for Appointment must be accompanied by the non-refundable filing fee specified in Article 1 of Appendix II. No Request for Appointment shall be processed unless accompanied by the filing fee.
• When Appointments Committee is requested to appoint more than one Expert or more than one Neutral, the non-refundable filing fee accompanying the Request for Appointment and to be paid by the requesting Person is the amount referred to in the preceding paragraph multiplied by the number of experts or neutrals requested.
• After taking into consideration the specificities of the case, Appointments Committee may fix an additional fee, as specified in Article 2 of Appendix II, to be paid by the party or parties having filed the Request for Appointment.
• Appointments Committee may cease acting if any requested additional fee or amount has not been paid.

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Article 5 – General Provisions

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• An expert appointed under the Rules may be a physical person or a legal person, such as a company or a partnership. The term “expert” as used in the Rules applies mutatis mutandis to both physical and legal persons.
• The expert or neutral, MCN and its employees and representatives shall not be liable to any person for any act or omission in connection with the appointment of an Expert or a Neutral, except to the extent such limitation of liability is prohibited by applicable law.
• In all matters not expressly provided for in the Rules, Appointments Committee shall act in the spirit of the Rules..

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APPENDIX I – STATUTES OF THE APPOINTMENTS COMMITTEE 

Article 1 – Composition of the Appointments Committee

The Appointments Committee is composed of a maximum of seven members (a president, and up to six other members) appointed by the MCN Governing Council for a three-year renewable term.

Article 2 – Meetings

A meeting of the Appointments Committee shall be convened by its president whenever necessary.

Article 3 – Function and Duties of the Appointments Committee

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• The president shall make the final decision on the appointment of the Expert or Neutral.
• The president will decide whether an objection is justified and shall decide on the manner in which a replacement will be made.
• In the absence of the president, or otherwise at the president’s request, one of the three vice-presidents shall be authorized by Appointments Committee to fulfill the tasks of the president, including taking decisions pursuant to these statutes.

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Article 4 – Confidentiality

The work of the Appointments Committee and Executive Body is of a confidential nature, which must be respected by everyone who participates in that work in whatever capacity.

APPENDIX II – COSTS

 Article 1 – Filing Fee

Save as provided in Article 3 below, each Request for Appointment pursuant to the Rules must be accompanied by a filing fee of USD 300 or equivalent thereto, per Expert or Neutral to be appointed. The filing fee is non-refundable. No Request for Appointment shall be processed unless accompanied by the requisite payment.

Article 2 – Additional Fee for Appointment

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• Depending on the specificities of the case, Appointments Committee may request the payment of an additional fee from the party or parties having filed the Request for Appointment.
• When fixing the additional fee, Appointments Committee shall take into account all circumstances of the case, including the requested attributes of the Expert or Neutral to be appointed, the specific nature of the case, including the amount of time needed by Appointments Committee to identify suitable candidates, the time frame in which Appointments Committee shall proceed with the appointment and any other relevant circumstances.

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Article 3 – Appointment of a Neutral to carry out ADR proceedings under MCN administration

If the appointment of a Neutral who shall act as a negotiator/mediator/conciliator/arbitrator/dispute board member or acting in the like capacity at the joint request of all of the parties in ongoing proceedings pursuant to the MCN Rules of Mediation, the appointment of the Neutral shall be free of charge.

Article 4 – Additional Costs for Objection and Replacement

Each written objection to the appointment of an Expert or a Neutral by Appointments Committee pursuant to Article 3(6) of the Rules shall be accompanied by a non-refundable fee. The amount is to be paid by the party or parties filing the objection. No objection shall be processed unless accompanied by the requisite payment.  However, where the objections raised by any of the parties are found to be bona fide and genuine regarding the appointment of an Expert or a Neutral by the Appointments Committee, the additional fee shall be refunded to the party raising such objection.

Article 5 – Administrative Expenses

For additional services, Appointments Committee may at its discretion fix MCN administrative expenses, which shall be commensurate with the services provided and shall normally not exceed a maximum amount of US$ 10,000.

Article 6 – Currency, Taxes and Scope

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• All amounts fixed by Appointments Committee or pursuant to any Appendices to the Rules are payable in US dollars except where prohibited by law, in which case MCN may apply a different scale and fee arrangement in another currency.

• Any MCN administrative expenses, including the filing fee and the additional fee, may be subject to Taxes or charges of a similar nature at the prevailing rate.
• The above provisions on the costs of appointments of Experts and Neutrals shall be effective as of 1 July 2017 in respect of any Request for Appointment filed on or after such date under the present Rules

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