Mediation and conciliation under the aegis of the Committee
Mediation and conciliation procedures under the aegis of the Committee aim to facilitate an amicable settlement of a dispute arising from the restitution or return of cultural property.
In a mediation procedure, one or more neutral and impartial intermediaries, the mediator(s), intervene(s) to bring together and assist the parties concerned in order to reach an amicable settlement of their dispute arising from the restitution or return of cultural property (Article 2 of the Rules of Procedure).
Conciliation, on the other hand, refers to a procedure whereby the parties concerned submit their dispute to a body constituted of conciliators, who play a more active role by proposing specific solutions while leaving the parties free to accept or reject these proposals.
These procedures have been specifically designed to meet the needs of disputes relating to the return and restitution of cultural property. They offer significant advantages to the parties, which can be divided into two categories: those relating to the procedure itself and those concerning the outcome of the dispute.
How to initiate a mediation or conciliation procedure under the aegis of the Committee?
Request forms to initiate a mediation or conciliation procedure :
- Requests addressed to a Member State or Associate Member State of UNESCO
- Requests addressed to a public or private institution
Model agreements for submitting a dispute to mediation or conciliation under the aegis of the Committee :
The scope rationae materiae of these procedures has been designed to cover a wide range of disputes relating to the return or restitution of cultural property.
Thus, the Committee's mediation and conciliation procedures are applicable to any request submitted to the Committee for the return or restitution of cultural property as defined in Article 3 of the Committee's Statutes, i.e., provided that the property has 鈥渇undamental significance from the point of view of the spiritual values and cultural heritage of the people of a Member State or Associate Member of UNESCO and which has been lost as a result of colonial or foreign occupation or as a result of illicit appropriation鈥.
In accordance with Article 4(1) of the Rules of Procedure, only UNESCO Member States and Associate Members may have recourse to these procedures, but States may also represent the interests of public or private institutions established on their territory, as well as those of their nationals.
A request may be submitted with regard to a public or private institution if the latter is in possession of the cultural property concerned, and if the State on whose territory the institution is established has been immediately informed of the request by the initiating Member State or Associate Member of UNESCO and does not object to it.
There is no time limit on the submission of requests for return and restitution under the aegis of the Committee.
This is an advantage over other dispute resolution mechanisms created under existing international instruments, which are not retroactive. These mechanisms also make it possible to avoid the difficulties of legal disputes, and in particular prescription periods, which are the possessors' most effective weapon for dismissing, or at least delaying, the success of justified claims.
In accordance with Article 6 of the Rules of Procedure, mediation or conciliation proceedings may be initiated by the parties in one of two ways: either following a recommendation by the Committee under Article 4 paragraph 1 of its Statutes, or directly on their own initiative.
In both cases, a mediation or conciliation procedure can only be initiated on the basis of the mutual consent of the parties concerned (see model agreements).
Model agreements:
Future disputes: Mediation/conciliation clause
Any dispute, controversy or claim arising out of or in connection with this [contract/agreement] and relating to the return and restitution of an item of cultural property as defined in Article 3 of the of the Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in Case of Illicit Appropriation (hereinafter "the Committee"), as well as any extra-contractual claim, shall be submitted to [mediation/conciliation] in accordance with the Rules of Procedure for Mediation and Conciliation of the Committee.
Litigation already in progress: Ad hoc mediation/conciliation agreement
The undersigned parties hereby agree to submit the following dispute to [mediation/conciliation], in accordance with the Rules of Procedure for Mediation and Conciliation of the Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in case of Illicit Appropriation:
[Brief description of the dispute]
On the basis of such agreement, each party submits a written request to initiate a mediation or conciliation procedure to the Director-General of UNESCO, who will confirm receipt and inform the Chairman of the Committee (see Request form for Member State or Associate Member State of UNESCO / Request form for a public or private institution.
The request should be sent by e-mail or by post and addressed to :
ICPRCP Committee Secretariat
7 Place de Fontenoy
75007 Paris
France
Where appropriate, the Secretariat recommends that requests for mediation or conciliation be submitted electronically.
The following information must be included in or attached to the request:
The names and contact details of the parties;
A brief description of the nature of the dispute;
A request that the dispute be submitted to mediation or conciliation, attesting to the mutual consent of the parties concerned to have recourse to one of the two procedures;
Relevant supporting documents.
The parties appoint the mediator(s) or conciliators within 60 days of the written request to initiate a mediation or conciliation procedure and inform the Chairman of the Committee accordingly. Failing such appointment, the Director-General of UNESCO, after consulting the parties concerned, shall make the appointment.
The parties shall submit to the mediator(s) or conciliators the dispute, their position thereon and all relevant documentation. All documentation is communicated to the other party.
In consultation with the parties, the mediator(s) or conciliators then set the times, places and dates of their meetings. The mediator(s) or conciliators may undertake their own investigations and research to determine the facts of the dispute.
At the end of the conciliation procedure, the conciliators submit a report to the parties, which includes their recommendations. When a procedure is closed without a settlement, the Committee remains seized of the disputed issue as well as any other unresolved issue submitted to it.
However, the outcome of the procedure is only binding on the parties if they reach a binding agreement to this effect.
Advantages of mediation and conciliation procedures
Non-binding procedures under the control of the parties
These procedures are based on the free consent of the parties to the dispute, from initiation to closure. Parties must agree to take part in mediation or conciliation, and any party may unilaterally decide to stop the procedure at any time by giving written notice of withdrawal.
Conciliation and mediation are non-binding and do not constitute judicial means of dispute resolution. As such, the risk incurred by each party to the dispute is relatively low.
These procedures offer the parties the flexibility they need to conduct their discussions within an amicable framework. For example, the parties can decide to modify the procedure laid down in the Rules of Procedure before the start of the procedure or, in the case of the conciliation procedure, the conciliators may decide to adopt specific rules of procedure.
Confidential procedures
In accordance with Article 3(2) of the Rules of Procedure, procedures are conducted in complete confidentiality, which is necessary for cases that are generally complex and politically sensitive, and which helps to protect the reputation and integrity of the parties involved. The confidentiality of mediation and conciliation enables the parties to negotiate more freely and constructively, without fear of publicity.
This confidentiality implies, with regard to mediation and conciliation under the aegis of the Committee, that all recordings and information or documents obtained during the procedure cannot be disclosed, unless the parties decide otherwise (Articles 8.6 and 8.7 of the Rules of Procedure). Any communication concerning the settlement of the dispute in question must also be made on an agreed basis.
Rapid and generally less costly than legal procedures
Another advantage lies in the speed of these procedures and the fact that their costs are often lower than ordinary arbitration or court proceedings, which can be long, complex and very costly, with no guarantee of resolution of the underlying issues notwithstanding a possible arbitral or court award.
The various timetables are adapted to enable disputes to be settled quickly. For example, in accordance with Article 7(1) of the Rules of Procedure, the parties have 60 days from the written request to initiate a mediation or conciliation procedure to appoint the mediator(s) or conciliators. Furthermore, Article 8(9) of the Rules of Procedure also provides that the mediator(s) or conciliators shall endeavor to bring the parties to an amicable settlement of the dispute within one year of the date of their appointment, unless the parties agree otherwise.
The Organization does not charge any fees for the administration of procedures initiated in accordance with the Rules of Procedure. However, the parties concerned share equally all costs related to the mediation or conciliation procedure (interpretation services at meetings, translation of documents, expert travel, etc.), unless another arrangement has been made. In this way, one party can assist the other in meeting the expenses of the proceedings.
Parties may also apply to the Committee for financial assistance through the Committee Fund to cover the costs of any stage of a mediation or conciliation procedure.
Autonomous procedures
As with cases submitted to the Committee, mediation and conciliation procedures under the aegis of the Committee are autonomous and do not prejudice any other similar procedure. They thus have the advantage of offering Member States a wider range of options from which to choose, without prejudice to any other procedures or means of dispute settlement that the parties have implemented or wish to implement simultaneously or at a later date. It should be noted that combining different procedures increases the chances of settlement.
When a procedure is closed without settlement, the Committee remains seized of the issue in dispute, as it does of any other unresolved issue submitted to it.
The benefits of litigation outcomes
Attractive solutions for all parties
Generally, mediation and conciliation procedures are attractive to the parties, as they enable them to participate more directly in determining the outcome of their own dispute, while protecting their respective interests. The aim of these procedures is to find a mutually beneficial solution.
By focusing on building future relationships rather than simply repairing past wrongs, these procedures have the capacity to avoid further complication of the dispute and animosity between the parties.
A variety of solutions
Compared to judicial or arbitration procedures, these procedures are more open to different amicable solutions to disputes.
Practice shows an impressive variety of solutions, which can even be used cumulatively in a particular case. These solutions include restitution (outright or with a counterpart), restitution under specific conditions, restitution accompanied by measures of cultural cooperation, formal recognition of importance for cultural identity, loans (long-term, temporary, etc.), donations, the establishment of a special ownership regime (co-ownership, trust, etc.), the execution of replicas, the withdrawal of the restitution claim in exchange for monetary compensation, or the transfer of ownership to a third party (e.g. a museum).
Specialized mediators and conciliators
Another advantage is that mediator(s) and conciliators are selected by the parties from a pool of experts on restitution , and/or knowledge on the nature of the dispute or the specific nature of the cultural property in question.
The mediator(s) and conciliators are required to observe strict impartiality and comply with the rules of conduct expressly mentioned in Articles 3(2) and 5 of the Rules of Procedure for Mediation and Conciliation.
The Secretariat has drawn up and keeps up to date a list of possible mediators and conciliators appointed by UNESCO Member States, but the parties remain free to appoint any other mediator or conciliator. This list offers a diversity of experts available worldwide, with varying profiles and language skills.