Rules of Procedure for The Claims Resolution Process
Adopted on October 15, 1997 by the
Board of Trustees of the
Independent Claims Resolution Foundation
Foreword to these Rules of Procedure
On July 23, 1997, the Swiss Bankers Association published the names of holders of accounts that were opened by non-Swiss nationals and residents prior to the end of the Second World War (May 9, 1945) and that have been dormant ever since. A second simultaneously published list includes the names of persons holding powers of attorney to these accounts. Additional names will be published in October 1997 and later on, as the search for dormant accounts goes on by investigations of the Independent Committee of Eminent Persons (the "ICEP") chaired by Paul A. Volcker, or by means of internal efforts of the Swiss banks.
All persons who believe that they are the rightful owners of a published dormant account have been invited to file their claims within six months after publication. In order to resolve all of these claims to dormant accounts in an equitable and expeditious manner, a Claims Resolution Process (the "CRP") has been established to be funded by the Swiss Bankers Association and supervised by the Swiss Federal Banking Commission and ICEP. The Independent Claims Resolution Foundation to carry out the CRP will be governed by a Board of Trustees (the "Board of Trustees"). The Board of Trustees will select the members of a Claims Resolution Tribunal to serve as independent, impartial and objective arbitrators of claims to dormant accounts.
These Rules of Procedure have been adopted by the Board of Trustees to govern the procedure before the Claims Resolution Tribunal, and are designed to provide justice to both the claimants and the Swiss banks and to offer them an equitable and cost-free speedy procedure operating under relaxed standards of proof to resolve all claims to dormant accounts of non-Swiss customers.
In order to provide rapid resolution of uncomplicated claims, a sole member of the Claims Resolution Tribunal (the "Sole Arbitrators") will, except as provided by Article 13, decide these cases under a fast-track procedure, and all other claims shall be decided in the ordinary procedure by panels composed of three members of the Tribunal (the "Claims Panels") or by Sole Arbitrators.
I. Jurisdiction of the Claims Resolution Tribunal
Article 1 Scope of Application
These Rules of Procedure govern all claims submitted to the Claims Resolution Tribunal
Article 2 Submission of Claims Resolution Agreement
Claims are submitted to the Claims Resolution Tribunal by filing, directly or through a Ernst & Young contact office or otherwise, a signed claims resolution agreement.
Swiss banks may elect to enter into a master arbitration agreement with the Independent Claims Resolution Foundation submitting to the jurisdiction of the Claims Resolution Tribunal all claims to their dormant accounts for which a claimant submits a signed claims resolution agreement. The Claims Resolution Tribunal shall immediately notify the respective Swiss bank of any filed claims resolution agreements.
Article 3 Adjudication Bodies of the Claims Resolution Tribunal
All decisions of the Claims Resolution Tribunal shall be rendered by
Article 4 Jurisdiction of Panel Members acting as Sole Arbitrator
A member of the Claims Resolution Tribunal acting as a Sole Arbitrator shall decide:
Article 5 Jurisdiction of the Claims Panel
Claims Panels composed of three members of the Claims Resolution Tribunal shall decide all cases that are not resolved by Sole Arbitrators.
II. Appointment of Claims Panels and Sole Arbitrators
Article 6 Appointment of Claims Panel and Sole Arbitrator
Upon submission of the case in accordance with Article 2, the Chairman of the Claims Resolution Tribunal shall appoint to every claim a Claims Panel or a Sole Arbitrator.
Any member of the Claims Resolution Tribunal may be appointed as Sole Arbitrator in addition to serving as a member of a Claims Panel. The Chairman of the Claims Resolution Tribunal may act as a Sole Arbitrator.
Each Claims Panel shall comprise one Swiss member of the Claims Resolution Tribunal and two international members.
The parties shall be notified by the Chairman of the Claims Resolution Tribunal of the names, addresses, telephone and telefax numbers of a Sole Arbitrator or the members of the Claims Panel (the "Panel Members").
Article 7 Incapacity or Resignation of Sole Arbitrators or Panel Members
If a Sole Arbitrator or a Panel Member becomes incapacitated, or unable to perform the duties of his or her office, or resigns, a substitute for such Sole Arbitrator or Panel Member shall be appointed in the same manner as the person who is replaced.
The procedure continues with the new arbitrator where his or her predecessor left it.
Article 8 Challenge of Sole Arbitrator or a Panel Member
A Sole Arbitrator or a Panel Member may be challenged if circumstances exist that give rise to legitimate doubts concerning his or her independence or integrity.
The challenge petition shall be submitted to the Chairman of the Claims Resolution Tribunal immediately after the party making such challenge becomes aware of the relevant facts. It shall specify the facts and circumstances upon which the challenge is based.
If the Sole Arbitrator or the Panel Member contests the challenge, the Board of Trustees of the Independent Claims Resolution Foundation shall finally decide on the challenge.
Article 9 Removal of Sole Arbitrator or a Panel Member
If a Sole Arbitrator or Panel Member does not fulfill his or her duties despite having been called to them by the other Panel Members or the Chairman of the Claims Resolution Tribunal, the Board of Trustees may, at the request of the Chairman of the Claims Resolution Tribunal, remove such Sole Arbitrator or Panel Member. The decision of the Board of Trustees is final.
III. Initial Screening
Article 10 Initial Screening by a Sole Arbitrator
Within twenty (20) days after receipt of a claim, the Swiss bank shall inform the CCO whether it agrees that the name of the bank and the amount held in the dormant account be disclosed to the claimant.
If the bank does not respond within twenty days to the CCO, or if it declines to disclose its name and the amount held in the dormant account, the CCO shall present the claim to the Claims Resolution Tribunal for an initial screening by a Sole Arbitrator.
The Sole Arbitrator shall order that the name of the bank and the amount held in the dormant account be disclosed to the claimant, unless he or she determines in the initial screening that
A written claims resolution agreement in accordance with Article 2 is not required for the initial screening.
IV. Fast Track Procedure
Article 11 Initiation and Timing of Fast Track Procedure
Claims may be submitted to a Sole Arbitrator for fast track review at the request of the Swiss bank or upon agreement of all parties involved.
Claims submitted to a Sole Arbitrator shall be resolved within thirty (30) days after submission to the fast-track approval.
Article 12 Scope of Fast Track Review
To make an award to a claimant using the Fast Track procedure, a Sole Arbitrator shall decide:
Article 13 Referral to a Claims Panel by the Sole Arbitrator
A claim submitted to the fast track procedure shall be referred to a Claims Panel for decision in the ordinary procedure if the Sole Arbitrator
V. Ordinary Procedure
Article 14 In General
All claims that are not approved in the fast track procedure shall be resolved in the ordinary procedure before a Sole Arbitrator or Claims Panel. The ordinary procedure involves a full review of the claim and all available evidence in an expedited procedure.
Article 15 Resolution of Claims
A claim shall be approved if the entitlement of the claimant can be established to the satisfaction of the Sole Arbitrator or Claims Panel in accordance with the standards of proof provided for in Article 22.
Notwithstanding the above, the Sole Arbitrator or Claims Panel shall reject a claim if, by a preponderance of the evidence, it is established that
VI. Applicable Law
Article 16 Applicable Substantive Law
The Sole Arbitrator and the Claims Panels shall apply the law with which the matter in dispute has the closest connection in deciding matters concerning the relationship between the published account holder or holder of power of attorney and the claimant (e.g., to inheritance matters or fiduciary agreements). At the request of all involved parties other than the Swiss bank, inheritance matters may be resolved according to Talmudic law.
The relationship between the claimant and the Swiss bank shall be governed by Swiss law, except as provided by these Rules of Procedure. In deciding matters relating to interest, fees and charges, the Sole Arbitrators and Claims Panels shall apply the Interest Guidelines.
VII. Procedural Rules
Article 17 Conduct of the Proceedings
A Sole Arbitrator and the Claims Panels shall
Article 18 Submission of Information
With the notification of the nomination of the Sole Arbitrator or the Claims Panel in accordance with Article 6, the claimant shall be invited to file any additional information not yet submitted with the claim form that may be helpful in resolving his or her claim.
Each party shall produce the documents upon which it relies in conjunction with its submissions.
A Sole Arbitrator or the Chairman of the Claims Panel shall specifically inquire of all parties whether they have any further statements or information to offer. Upon negative replies, or after the expiry of the time-limit set for the replies, a Sole Arbitrator or the Claims Panel shall declare the main proceedings closed.
Article 19 Deadlines
The Sole Arbitrators or the Claims Panels shall set deadlines by indicating the date of expiry. A deadline is deemed to have been complied with if the submission has been mailed, or was transmitted by telefax, before the expiry of the deadline. Requests for extensions of deadlines must be submitted before the deadline has expired. The extension requested should be specified.
Article 20 Multi-Party Proceedings
The Claims Resolution Tribunal shall join all relevant claims in one procedure before the same Claims Panel or Sole Arbitrator, if
Article 21 nbsp;Participation of Third Persons
Article 22 Relaxed Standard of Proof
The claimant must show that it is plausible in light of all the circumstances that he or she is entitled, in whole or in part, to the dormant account. The Sole Arbitrators or the Claims Panels shall assess all information submitted by the parties or otherwise available to them. They shall at all times bear in mind the difficulties of proving a claim after the destruction of the Second World War and the Holocaust and the long time that has lapsed since the opening of these dormant accounts.
A finding of plausibility requires, inter alia,
Article 23 Taking of Evidence by one Member of a Claims Panel
At the discretion of a Claims Panel, evidence may be taken in the presence of only one member of the Claims Panel and the parties, except where a party is absent.
Article 24 Statements by the Parties and Third Persons
The Sole Arbitrators or the Claims Panels may hear the parties and third persons as unsworn witnesses or under oath. Where the circumstances require it, or with the agreement of the parties, oral testimony may be substituted by a sworn statement (affidavit).
IX. The Claims Resolution Tribunal
Article 25 Composition of the Claims Resolution Tribunal
The Claims Resolution Tribunal is composed of
Article 26 Organization
The Claims Resolution Tribunal shall organize itself and may, if necessary, promulgate rules of its practice and internal rules consistent with these Rules of Procedures.
Article 27 Procedures of the Claims Resolution Tribunals
In meetings of all members of the Claims Resolution Tribunal, the presence of the majority of all members shall constitute a quorum. Absent members cannot be represented. Resolutions of the Claims Resolution Tribunal are adopted by a majority vote of the members of the Claims Resolution Tribunal present. In case of a tie, the Chairman shall have the casting vote.
Article 28 Functions of the Chairman
The Chairman shall perform the following functions:
Article 29 Function of the Vice Chairman
The Vice Chairman shall replace the Chairman if he is absent or temporarily not able to fulfill his functions.
Article 30 Secretary of the Claims Resolution Tribunal
The Board of Trustees may appoint, in consultation with the Claims Resolution Tribunal, a law firm to act as the Secretary of the Claims Resolution Tribunal. The Secretary may be assigned to, inter alia,
Article 31 Deliberation and Vote
The Sole Arbitrators shall decide alone.
The Claims Panels shall decide by a simple majority of all its members. The members of the Claims Panels may not abstain from voting.
Article 32 Binding Effect of Prayers
The Claims Panels, or the Sole Arbitrator in cases under Article 4 (ii), may enter a larger or smaller award than the claimant has prayed for.
Article 33 Form and Content of the Award
The award shall be made in writing and signed by the Sole Arbitrators or the Chairperson of the Claims Panels and at least one Panel Member. The award shall contain:
XI. Miscellaneous Provisions
Article 34 Seat of the Claims Resolution Tribunal
The seat of the Claims Resolution Tribunal, Claims Panels and Sole Arbitrators is in Zurich, Switzerland. Hearings may be held at places outside Switzerland.
Article 35 Language of the Claims Resolution Procedure
The Sole Arbitrators and the Claims Panels shall determine the language of each claims proceeding by taking into account the languages spoken by the parties. Absent such determination, the procedure shall be conducted in English. The Claims Panels and the Sole Arbitrators shall provide, if necessary, the translation of documents and oral statements delivered in any language other than English into the language of the proceeding.
These Rules of Procedure may be translated into languages other than English, but the English version shall prevail and be applied by the Claims Resolution Tribunal.
Article 36 Publication of the Decisions
The decisions of the Claims Resolution Tribunal shall be made public in an appropriate manner to be determined by the Board of Trustees. If the claimant requests confidentiality, the members of the Claims Resolution Tribunal shall keep confidential all information relating to the identity of the account holder and the claimant, unless otherwise required by applicable law.
Article 37 Time is of the Essence
The Claims Resolution Tribunal shall resolve all claims in an expedited procedure and shall render its decision within six (6) months after submission of the claim to the Claims Resolution Tribunal.
Article 38 Communications
Orders, decisions and awards under these Rules shall be notified to the parties by registered mail, or, if necessary, by private courier. For other communications, the Claims Resolution Tribunal shall determine the appropriate means of communication between itself and the parties.
Article 39 Representation
Any party may be represented and assisted in the CRP by persons of their choice, including counsel provided by voluntary organizations. Each party shall bear at its own expense all costs, including fees and expenses of lawyers, accountants and other professionals, incurred in connection with such representation.
If a claim is admitted in the ordinary procedure pursuant to Art. 14 et seq., the Claims Panels or Sole Arbitrator may award to the claimant a full or partial reimbursement up to a maximum of USD 5,000 of his or her costs and expenses (a) in case of needy claimants, or (b) if the complexity of a case calls for special efforts by a claimant to prove his or her entitlement.
Article 40 Costs of the Payment Process
All costs and expenses of the Claims Resolution Tribunal shall be borne by the Independent Claims Resolution Foundation, and no part of the costs shall be charged to the claimant(s).
Article 41 Exclusion of Liability
The members of the Claims Resolution Tribunal shall not be liable to any party for any act or omission in connection with any CRP conducted under these Rules, except that they may be liable to a party for the consequences of conscious and deliberate wrongdoing. The liability of the members of the Claims Resolution Tribunal shall be governed by Swiss law.
Article 42 Interpretation of Rules
These rules shall be construed by the Claims Resolution Tribunal so as to accomplish the purpose of fair and expeditious disposition of all claims. The Claims Resolution Tribunal shall have the right to enact such guidelines and procedures, consistent with these Rules, as are required to fill gaps in these Rules and to deal with unforeseen circumstances.