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Compromise And Arbitral Submission

CHAPTER 1. Compromise

Section 1. Compromise in General
Art. 3307 – Definition.

A compromise is a contract whereby the parties, though mutual concessions, terminate an existing dispute or prevent a dispute arising in the future.

Art. 3308 – Conditions as to form.
(1)    A compromise may be made to create, to modify or to extinguish legal obligations.
(2)    The forms required by law for the creation, modification or extinction of these obligations without consideration shall be complied with.

Art. 3309 – Interpretation – 1. Principle.
The terms of the compromise entailing renunciation shall be interpreted restrictively.

Art. 3310 – 2. Application.
(1)    Renunciation by one party of all his rights, actions and claims shall entail the extinction of such rights, actions and claims only in respect of which the compromise has been reached.
(2)    Where a person who has made a compromise on a right which he possessed in his own right acquires subsequently a similar right though another person, he shall in no way be bound in respect of the newly-acquired right by the previous compromise.

Art. 3311 – Relative effect.
A compromise made by one interested party shall not be binding on the other interested parties and may not be set up by them.

Art. 3312 – Mistake of right.
(1)    As between the parties, the compromise shall have the force of resjudicata without appeal.
(2)    It may not be contested on the ground of a mistake made by one or both of the parties concerning the rights on which they have compromised.

Art. 3313 – Fundamental mistake. – 1. Void or false documents.
(1)    A compromise may be invalidated on the ground of mistake where the instrument for the performance of which it is made is void.
(2)    It may also be invalidated where the agreement of one or both of the parties was due to the existence of a document which is shown to be false.
(3)    The compromise shall be valid in either case where, at the time of the contract, the parties had in view the possibility that the instrument might be void or the document false.

Art. 3314 – 2. Unknown judgment.
(1)    A compromise may be invalidated where the dispute which it was intended to terminate has been settled by a judgment having the force of res judicata of which one or both of the parties were unaware.
(2)    Where an appeal lies from the judgment of which one or both of the parties are unaware, the compromise shall remain valid.

Art. 3315 – 3. Compromise effecting general settlement.
(1)    Where the parties have reached a general settlement on all the matters they may have had in common, the compromise may not be invalidated on the ground that documents unknown to one or both of the parties at the time of the contract, have subsequently been discovered.
(2)    The compromise may however be invalidated in such a case where the documents in question were willfully withheld by one of the parties at the time of the contract.

Art. 3316 – Illicit object.
A compromise relating a contact the object of which is contrary to the law or to public morality shall be of no effect.

Art. 3317 – Warranties due by parties.
(1)    The compromise shall have a declaratory effect as regards the rights which one of the parties renounces therein.
(2)    The conditions and forms required by law for the transfer of the right renounced shall be complied with.
(3)    The parties to the compromise shall not give each other any warranties concerning these rights, save that of their personal act and such other warranty as may have been expressly stipulated.

Section 2. Conciliation
Art. 3318 – Appointment of conciliator.

(1)    The parties may entrust a third party with the mission of bringing them together and, if possible, negotiating a settlement between them.
(2)    The conciliator may be appointed, at the request of the parties, by an institution or by a third party.
(3)    The person appointed conciliator shall be free to accept or to refuse his appointment.

Art. 3319 – Duties of parties.
(1)    The parties shall provide the conciliator with all the information necessary for the performance of his duties.
(2)    They shall refrain from any act that would make the conciliator’s task more difficult or impossible.

Art. 3320 – Duties of conciliator.
(1)    Before expressing his findings, the conciliator shall give the parties an opportunity of fully stating their views.
(2)    He shall draw up the terms of a compromise or, if none can be reached, a memorandum of non-conciliation.
(3)    He shall communicate these documents to the parties.

Art. 3321 – Time-limit.
(1)    The conciliator shall carry out his duties within the period of time laid down in the contact or, in the absence of any such limit, within six months from the date of his appointment.
(2)    During this period, the patties may perform such acts as are necessary to preserve their rights.
(3)    They may not bring their dispute before the court prior to the expiration of this period unless the conciliator has drawn up a memorandum of non-conciliation.

Art. 3322 – Powers of conciliator.
(1)    The conciliator’s powers shall be interpreted restrictively.
(2)    The parties shall not be bound by the terms of the compromise drawn up by the conciliator unless they have expressly undertaken in writing to confirm them.

Art. 3323 – Conciliator’s expenses and remuneration.
(1)    The conciliator shall be refunded any reasonable expenses he has incurred in the discharge of his duties.
(2)    He shall not be entitled to remuneration unless otherwise expressly agreed.

Art. 3324 – Application of rules regarding compromise.
The provisions of Section 1 of this Chapter shall in addition apply to a compromise reached through conciliation.

Chapter 2. Arbitral submission
Art. 3325 – Definition.

(1)    The arbitral submission is the contract whereby the parties to a dispute entrust its solution to a third party, the arbitrator, who undertakes to settle the dispute in accordance with the principles of law.
(2)    The arbitrator may be instructed only to establish a point of fact without deciding on the legal consequences flowing therefrom.

Art. 3326 – Capacity and form. – 1. Principle.
(1)    The capacity to dispose of a right without consideration shall be required for the submission to arbitration of a dispute concerning such right.
(2)    The arbitral submission shall be drawn up in the form required by law for disposing without consideration of the right to which it relates.

Art. 3327 – 2. Exception.
(1)    The provisions of Art. 3326 shall not apply where this Coe expressly provides for arbitration.
(2)    The arbitral submission may in such case be made by the tutor in the name of a minor or interdicted person.
(3)    It shall be subject to no special form.

Art. 3328 – Object of contract and arbitration clause.
(1)    The dispute referred to arbitration may be an existing dispute.
(2)    The parties to a contract may also submit to arbitration disputes which may arise out of the contract in the future.
(3)    An arbitral submission relating to future disputes shall not be valid unless it concerns disputes which flow from a contract or other specific legal obligation.

Art. 3329 – Interpretation.
The provisions of the arbitral submission relating to the jurisdiction of the arbitrators shall be interpreted restrictively.

Art. 3330 – Scope of jurisdiction.
(1)    The arbitral submission may authorize the arbitrator to decide difficulties arising out of the interpretation of the submission itself.
(2)    It may in particular authorise the arbitrator to decide disputes relating to his own jurisdiction.
(3)    The arbitrator may in no case be required to decide whether the arbitral submission is or is not valid.

Art. 3331 – Appointment of arbitrator. – 1. By the parties.
(1)    The arbitrator may be appointed either in the arbitral submission or subsequently.
(2)    The submission may provide that there shall be one arbitrator or several arbitrators.
(3)    Where the submission fails to specify the number of arbitrators or the manner in which they shall be appointed, each party shall appoint one arbitrator.

Art. 3332 – 2. By the arbitrators or by the court.
(1)    Unless otherwise provided, where there is an even number of arbitrators they shall, before assuming their functions, appoint another arbitrator who shall as of right preside the arbitration tribunal.
(2)    Where their number is odd, the arbitrators shall appoint the president of the arbitration tribunal from among themselves.
(3)    Failing agreement between the arbitrators, the appointments provided in sub-art. (1) and (2) shall be made by the court at the request of one of the parties.

Art. 3333 – 3. Procedure for appointment.
(1)    Where necessary, the party availing himself of the arbitral submission shall specify the dispute he wishes to raise and appoint an arbitrator.
(2)    Notice thereof shall be given to the other party and, where appropriate, to the person entrusted with the appointment of an arbitrator under the arbitral submission.

Art. 3334 – 4. Time-limit.
(1)    Where the other party or the person required to appoint an arbitrator fails to do so within thirty days, the court shall appoint such arbitrator.
(2)    The time-limit shall run from the day when the notice provided in Art. 3333 (2) reached its destination.
(3)    Modifications to these rules may be provided in the arbitral submission.

Art. 3335 – 5. Equality of parties.
The arbitral submission shall not be valid where it places one of the parties in a privileged position as regards the appointment of the arbitrator.

Art. 3336 – Default of arbitrator. – 1. Replacement.
(1)    Where an arbitrator refuses his appointment, dies, becomes incapable or resigns, he shall be replace by the procedure prescribed for his appointment, in accordance with the previsions of the preceding Articles.
(2)    Where an arbitrator is disqualified or removed, the new arbitrator shall be appointed by the court.
(3)    The provisions of this Article may be modified by agreement between the parties.

Art. 3337 – 2. Lapse of submission.
(1)    Where the arbitrator has been named in the arbitral submission and the parties do not agree on who is to replace him, the arbitral submission shall lapse.
(2)    However, it shall remain valid in respect of a future dispute where, at the time when it arises, the impediment of the arbitrator has ceased.
(3)    The provisions of this Article may be modified by agreement between the parties.

Art. 3338 – Death of party.
The death of one of the parties shall not terminate the functions of the arbitrator he has appointed, unless otherwise provided by the parties.

Art. 3339 – Functions of arbitrator.
(1)    Any person may be appointed as an arbitrator.
(2)    No regard shall  be had to the nationality of the arbitrator.
(3)    The person appointed as an arbitrator shall be free to accept or to refuse his appointment.

Art. 3340 – Disqualification of arbitrator. – 1. Grounds.
(1)    An arbitrator may be disqualified where he is not of age or where he has been convicted by a court, is of unsound mind, ill or absent or is for any other reason unable to discharge his functions property or within a reasonable time.
(2)    The arbitrator appointed by agreement between the parties or by a third party may be disqualified where there are any circumstances capable of casting doubt upon his impartiality or independence.
(3)    The president of the arbitration tribunal may be disqualified for the same reason.

Art. 3341 – 2. Demurrer.
Unless otherwise provided, a party may seek the disqualification of the arbitrator appointed by himself only for a reason arising subsequently to such appointment, or for one of which he can show that he had knowledge only after the appointment.

Art. 3342 – 3. Procedure.
(1)    An application for disqualification shall be made to the arbitration tribunal by a party before the giving of the award and as soon as such party knew of the grounds for disqualification.
(2)    The parties may stipulate that the application for disqualification be made to another authority.
(3)    Where the application for disqualification is dismissed, this decision may be appealed against in court within ten days.

Art. 3343 – Removal of arbitrator.
Where an arbitrator, having accepted his appointment, unduly delays the discharge of his duties, the authority agreed upon by the parties or, in the absence of such agreement, the court, may remove the arbitrator on the application of either party.

Art. 3344 – Penalty for non-performance.
(1)    Where a party to an arbitral submission brings before the ?????????? dispute covered by the submission, refuse to perform the acts required for setting the arbitration in motion or claims that he is not bound by the arbitral submission, the other party may in his discretion demand the performance of the arbitral submission or consider it to have lapsed in respect of the dispute in question.
(2)    The fact that a party to an arbitral submission applies to the court to preserve his rights from extinction shall not entail the lapsing of the submission.

Art. 3345 – Reference to Civil Procedure Code.
(1)    The procedure to be followed by the arbitration tribunal shall be as prescribed by the Code of civil procedure.
(2)    The same shall apply to matters arising out of the execution of the award or to appeals against such award.

Art. 3346 – Arbitral code.
As used in this Chapter, the terms “arbitral submission” or “stipulation of the parties” include the provisions of the arbitral code to which the parties may have referred.