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1974年班轮公会行动守则公约(三)

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  Article 37

  1. Unless the parties have agreed before, during or after theconciliation procedure that the recommendation of the conciliators shallbe binding, the recommendation shall become binding by acceptance by theparties. A recommendation which has been accepted by some parties to adispute shall be binding as between those parties only.

  2. Acceptance of the recommendation must be communicated by theparties to the conciliators, at an address specified by them, not laterthan 30 days after receipt of the notification of the recommendation;otherwise, it shall be considered that the recommendation has not beenaccepted.

  3. Any party which does not accept the recommendation shall notify theconciliators and the other parties, within 30 days following the periodspecified in Article 37, paragraph 2 of its grounds for rejection of therecommendation, comprehensively and in writing.

  4. When the recommendation has been accepted by the parties, theconciliators shall immediately draw up and sign a record of settlement, atwhich time the recommendation shall become binding upon those parties. Ifthe recommendation has not been accepted by all parties, the conciliatorsshall draw up a report with respect to those parties rejecting therecommendation, noting the dispute and the failure of those parties tosettle the dispute.

  5. A recommendation which has become binding upon the parties shall beimplemented by them immediately or at such later time as is specified inthe recommendation.

  6. Any party may make its acceptance conditional upon acceptance byall or any of the other parties to the dispute.

  Article 38

  1. A recommendation shall constitute a final determination of adispute as between the parties which accept it, except to the extent thatthe recommendation is not recognized and enforced in accordance with theprovisions of Article 39.

  2. “Recommendation” includes an interpretation, clarification orrevision of the recommendation made by the conciliators before therecommendation has been accepted.

  Article 39

  1. Each Contracting Party shall recognize a recommendation as bindingbetween the parties which have accepted it and shall, subject to theprovisions of Article 39, paragraphs 2 and 3, enforce, at the request ofany such party, all obligations imposed by the recommendation as if itwere a final judgement of a court of that Contracting Party.

  2. A recommendation shall not be recognized and enforced at therequest of a party referred to in Article 39, paragraph 1 only if thecourt or other competent authority of the country where recognition andenforcement is sought is satisfied that:

  (a) Any party which accepted the recommendation was, under the lawapplicable to it, under some legal incapacity at the time of acceptance;

  (b) Fraud or coercion has been used in the making of therecommendations;

  (c) The recommendation is contrary to public policy (ordre public) inthe country of enforcement; or

  (d) The composition of the conciliators, or the conciliationprocedure, was not in accordance with the provisions of this Code.

  3. Any part of the recommendation shall not be enforced and recognizedif the court or other competent authority is satisfied that such partcomes within any of the subparagraphs of Article 39, paragraph 2 and canbe separated from other parts of the recommendation. If such part cannotbe separated, the entire recommendation shall not be enforced andrecognized.

  Article 40

  1. Where the recommendation has been accepted by all the parties, therecommendation and the reasons therefor may be published with the consentof all the parties.

  2. Where the recommendation has been rejected by one or more of theparties but has been accepted by one or more of the parties:

  (a) The party or parties rejecting the recommendation shall publishits or their grounds for rejection, given pursuant to Article 37,paragraph 3, and may at the same time publish the recommendation and thereason therefor;

  (b) A party which has accepted the recommendation may publish therecommendation and the reasons therefor; it may also publish the groundsfor rejection given by any other party unless such other party has alreadypublished its rejection and the grounds therefor in accordance withArticle 40, paragraph 2 (a)。

  3. Where the recommendation has not been accepted by any of theparties, each party may publish the recommendation and the reasonstherefor and also its own rejection and the grounds therefor.

  Article 41

  1. Documents and statements containing factual information supplied byany party to the conciliators shall be made public unless that party or amajority of the conciliators agree otherwise.

  2. Such documents and statements supplied by a party may be tenderedby that party in support of its case in subsequent proceedings arisingfrom the same dispute and between the same parties.

  Article 42

  Where the recommendation has not become binding upon the parties, noviews expressed or reasons given by the conciliators, or concessions oroffers 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 theadministration of the conciliation proceedings shall be borne equally bythe parties to the proceedings, unless they agree otherwise.

  (b) When the conciliation proceedings have been initiated, theconciliators shall be entitled to require an advance or security for thecosts referred to in Article 43, paragraph 1 (a)。

  2. Each party shall bear all the expenses it incurs in connexion withthe 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 broughta claim vexatiously or frivolously, assess against that party any or allof the costs of other parties to the proceedings. Such decision shall befinal and binding on all the parties.

  Article 44

  1. Failure of a party to appear or to present its case at any stage ofthe proceedings shall not be deemed an admission of the other party'sassertions. In that event, the other party may, at its choice, request theconciliators to close the proceedings or to deal with the questionspresented to them and submit a recommendation in accordance with theprovisions for making recommendations set out in this Code.

  2. Before closing the proceedings, the conciliators shall grant theparty failing to appear or to present its case a period of grace, notexceeding 10 days, unless they are satisfied that the party does notintend to appear or to present its case.

  3. Failure to observe procedural time-limits laid down in this Code ordetermined by the conciliators, in particular time-limits relating to thesubmission of statements or information, shall be considered a failure toappear in the proceedings.

  4. Where the proceedings have been closed owing to one party's failureto appear or to present its case, the conciliators shall draw up a reportnoting that party's failure.

  Article 45

  1. The conciliators shall follow the procedures stipulated in thisCode.

  2. The rules of procedure annexed to the present Convention shall beconsidered as model rules for the guidance of conciliators. Theconciliators may, by mutual consent, use, supplement or amend the rulescontained in the annex or formulate their own rules of procedure to theextent that such supplementary, amended or other rules are notinconsistent with the provisions of this Code.

  3. If the parties agree that it may be in the interest of achieving anexpeditious and inexpensive solution of the conciliation proceedings, theymay mutually agree to rules of procedure which are not inconsistent withthe provisions of this Code.

  4. The conciliators shall formulate their recommendation by consensusor failing that shall decide by majority vote.

  5. The conciliation proceedings shall finish and the recommendation ofthe conciliators shall be delivered not later than six months from thedate on which the conciliators are appointed, except in the casesreferred to in Article 23, paragraph 4 (e), (f) and (g), for which thetime limits in Article 14, paragraph 1 and Article 16, paragraph 4 shallbe valid. The period of six months may be extended by agreement of theparties.

  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 approvalof the General Assembly of the United Nations, and taking into account theviews expressed by the Contracting Parties, appoint a Registrar who may beassisted by such additional staff as may be necessary for the performanceof the functions listed in Article 46, paragraph 2. Administrativeservices for the Registrar and his assistants shall be provided by theUnited Nations Office at Geneva.

  2. The Registrar shall perform the following functions in consultationwith the Contracting Parties as appropriate:

  (a) Maintain the list of conciliators of the international panel ofconciliators and regularly inform the Contracting Parties of thecomposition of the panel;

  (b) Provide the names and addresses of the conciliators to the partiesconcerned 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 recommendationsand reasons for rejection to the shippers' organizations, conferences andGovernments, subject to the provisions of Article 40;

  (e) Make available information of a non-confidential nature oncompleted conciliation cases, and without attribution to the partiesconcerned, for the purposes of preparation of material for the ReviewConference 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 othermeasures as may be necessary to implement the present Convention.

  2. Each Contracting Party shall communicate to the Secretary-Generalof the United Nations, who shall be the depositary, the text of thelegislative or other measures which it has taken in order to implement thepresent Convention.

  Article 48 Signature, Ratification, Acceptance, Approval and Ac-cession

  1. The present Convention shall remain open for signature as from July1, 1974 until and including June 30, 1975 at United Nations Headquartersand shall thereafter remain open for accession.

  2. All States are entitled to become Contracting Parties to thepresent Convention by:

  [ At its 9th plenary meeting on 6 April 1974, the Conference adoptedthe following understanding recommended by its Third Main Committee:

  “In accordance with its terms, the present Convention will be open toparticipation by all States, and the Secretary-General of the UnitedNations will act as depositary. It is the understanding of the Conferencethat the Secretary-General, in discharging his functions as depositary ofa convention or other multilateral legally binding instrument with an”All-States“ clause, will follow the practice of the General Assembly ofthe United Nations in implementing such a clause and, whenever advisable,will request the opinion of the General Assembly before receiving asignature or an instrument of ratification, acceptance, approval oraccession.”]

  (a) Signature subject to and followed by ratification, acceptance orapproval; or

  (b) Signature without reservation as to ratification, acceptance orapproval; or

  (c) Accession.

  3. Ratification, acceptance, approval or accession shall be effectedby 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 thedate on which not less than 24 States, the combined tonnage of whichamounts to at least 25 per cent of world tonnage, have become ContractingParties to it in accordance with Article 48. For the purpose of thepresent Article the tonnage shall be deemed to be that contained inLloyd's Register of Shipping-Statistical Tables 1973, table 2 “WorldFleets-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 CanadianGreat Lakes fleets.

  [ The tonnage requirements for the purpose of Article 49, paragraph1 are set out in part two hereafter.]

  2. For each State which thereafter ratifies, accepts, approves oraccedes to it, the present Convention shall come into force six monthsafter deposit by such State of the appropriate instrument.

  3. Any State which becomes a Contracting Party to the presentConvention after the entry into force of an amendment shall, failing anexpression 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 relationto 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 atany time after the expiration of a period of two years from the date onwhich the Convention has entered into force.

  2. Denunciation shall be notified to the depositary in writing, andshall take effect one year, or such longer period as may be specified inthe instrument of denunciation, after the date of receipt by thedepositary.

  Article 51 Amendments

  1. Any Contracting Party may propose one or more amendments to thepresent Convention by communicating the amendments to the depositary. Thedepositary shall circulate such amendments among the Contracting Parties,for their acceptance, and among States entitled to become ContractingParties to the present Convention which are not Contracting Parties, fortheir information.

  2. Each proposed amendment circulated in accordance with Article 51,paragraph 1 shall be deemed to have been accepted if no Contracting Partycommunicates an objection thereto to the depositary within 12 monthsfollowing the date of its circulation by the depositary. If a ContractingParty communicates an objection to the proposed amendment, such amendmentshall not be considered as accepted and shall not be put into effect.

  3. If no objection has been communicated, the amendment shall enterinto force for all Contracting Parties six months after the expiry date ofthe 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 yearsfrom the date on which the present Convention comes into force to reviewthe working of the Convention, with particular reference to itsimplementation, and to consider and adopt appropriate amendments.

  2. The depositary shall, four years from the date on which the presentConvention comes into force, seek the views of all States entitled toattend the Review Conference and shall, on the basis of the viewsreceived, prepare and circulate a draft agenda as well as amendmentsproposed for consideration by the Conference.

  3. Further review conferences shall be similarly convened every fiveyears, or at any time after the first Review Conference, at the request ofone-third of the Contracting Parties to the present Convention, unless thefirst Review Conference decides otherwise.

  4. Notwithstanding the provisions of Article 52, paragraph 1, if thepresent Convention has not entered into force five years from the date ofthe adoption of the Final Act of the United Nations Conference ofPlenipotentiaries on a Code of Conduct for Liner Conferences, a ReviewConference shall, at the request of one-third of the States entitled tobecome Contracting Parties to the present Convention, be convened by theSecretary-General of the United Nations, subject to the approval of theGeneral Assembly, in order to review the provisions of the Convention andits 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 accessionsin accordance with Article 48;

  (b) The date on which the present Convention enters into force inaccordance with Article 49;

  (c) Denunciations of the present Convention in accordance with Article50;

  (d) Reservations to the present Convention and the withdrawal ofreservations;

  (e) The text of the legislative or other measures which eachContracting Party has taken in order to implement the present Conventionin accordance with Article 47;

  (f) Proposed amendments and objections to proposed amendments inaccordance 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 necessaryunder 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 depositedwith the Secretary-General of the United Nations.

  In witness whereof the undersigned, having been duly authorized tothis effect by their respective Governments, have signed the presentConvention, on the dates appearing opposite their signatures.

  ANNEX TO THE CONVENTIONModel rules of procedure for international mandatory conciliation

  Rule 1

  1. Any party wishing to institute conciliation proceedings under theCode shall address a request to that effect in writing, accompanied by astatement 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 theaddress of each;

  (b) Contain a summary statement of pertinent facts, the issues indispute and the claimant's proposal for the settlement of the dispute;

  (c) State whether an oral hearing is desired and, if so, and to theextent 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 relevantagreements and arrangements entered into by the parties as the claimantmay consider necessary at the time of making the claim;

  (e) Indicate the number of conciliators required, any proposalconcerning the appointment of conciliators, or the name of the conciliatorappointed 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 theparty.

  Rule 2

  1. If the respondent decides to reply to the claim, he shall, within30 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 thecontentions in the statement of claim, the respondent's proposal, if any,for the settlement of the dispute and any remedy claimed by him with aview to the settlement of the dispute;

  (b) State whether an oral hearing is desired and, if so, and to theextent 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 relevantagreements and arrangements entered into by the parties as the respondentmay consider necessary at the time of making the reply;

  (d) Indicate the number of conciliators required, any proposalconcerning the appointment of conciliators, or the name of the conciliatorappointed 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 inconciliation proceedings under Article 34 shall transmit a written requestto 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 theinformation 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 originalparties would be supported.

  4. Any objection to a request for joinder by such a party shall besent by the objecting party, with a copy to the other party, within sevendays 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 toall parties concerned, each of which may object in accordance with thepresent Rule.

  Rule 4

  By agreement between the parties to a dispute, on motion by eitherparty, and after affording the parties an opportunity of being heard, theconciliators may order the consolidation or separation of all or anyclaims then pending between the same parties.

  Rule 5

  1. Any party may challenge a conciliator where circumstances existthat cause justifiable doubts as to his independence.

  2. Notice of challenge, stating reasons therefor, should be made priorto the date of the closing of the proceedings, before the conciliatorshave rendered their recommendation. Any such challenge shall be heardpromptly and shall be determined by majority vote of the conciliators inthe first instance, as a preliminary point, in cases where more than oneconciliator has been appointed. The decision in such cases shall be final.

  3. A conciliator who has died, resigned, become incapacitated ordisqualified shall be replaced promptly.

  4. Proceedings interrupted in this way shall continue from the pointwhere they were interrupted, unless it is agreed by the parties orordered by the conciliators that a review or rehearing of any oraltestimony take place.

  Rule 6

  The conciliators shall be judges of their own jurisdiction and/orcompetence 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 oralevidence, which may be submitted to them by or on behalf of any of theparties, and shall give such weight thereto as in their judgement suchevidence merits.

  2. (a) Each party may submit to the conciliators any material itconsiders relevant, and at the time of such submission shall delivercertified copies to any other party to the proceedings, which party shallbe given a reasonable opportunity to reply thereto;

  (b) The conciliators shall be the sole judges of the relevance andmateriality of the evidence submitted to them by the parties;

  (c) The conciliators may ask the parties to produce such additionalevidence as they may deem necessary to an understanding and determinationof the dispute, provided that, if such additional evidence is produced,the other parties to the proceedings shall have a reasonable opportunityto comment thereon.

  Rule 8

  1. Whenever a period of days for the doing of any act is provided forin the Code or in these Rules, the day from which the period begins to runshall 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 atthe place of conciliation, in which case the last day shall be the nextbusiness day.

  2. When the time provided for is less than seven days, intermediateSaturdays, Sundays and public holidays shall be excluded from thecomputation.

  Rule 9

  Subject to the provisions relating to procedural time-limits in theCode, the conciliators may, on a motion by one of the parties or pursuantto agreement between them, extend any such time-limit which has been fixedby the conciliators.

  Rule 10

  1. The conciliation shall fix the order of business and, unlessotherwise agreed, the date and hour of each session.

  2. Unless the parties otherwise agree, the proceedings shall takeplace in private.

  3. The conciliators shall specifically inquire of all the partieswhether they have any further evidence to submit before declaring theproceedings 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, includingtheir names;

  (c) The dates and place of the conciliation proceedings;

  (d) A summary of the conciliation proceedings, as the conciliatorsdeem 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 reasonstherefor;

  (h) The signatures of the conciliator and the date of each signature;and

  (i) An address for the communication of the acceptance or rejection ofthe recommendation.

  Rule 12

  The recommendation shall, so far as possible, contain a pronouncementon costs in accordance with the provision of the Code. If therecommendation does not contain a full pronouncement on costs, theconciliators shall, as soon as possible after the recommendation, and inany event not later than 60 days thereafter, make a pronouncement inwriting regarding costs as provided in the Code.

  Rule 13

  Conciliators' recommendations shall also take into account previousand similar cases whenever this would facilitate a more uniformimplementation of the Code and observance of conciliators'recommendations.

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