1 May Kiwa Regulations for Board of Appeal

Transcription

1 1 May 2014 Kiwa Regulations for Board of Appeal

2 1 May 2014 Kiwa Regulations for Board of Appeal 2014 Kiwa N.V. All rights reserved. No part of this book may be reproduced, stored in a database or retrieval system, or published, in any form or in any way, electronically, mechanically, by print, photoprint, microfilm or any other means without prior written permission from the publisher. Kiwa Nederland B.V. Sir W. Churchilllaan 273 Postbus AB RIJSWIJK the Netherlands Tel Fax

3 Contents 1 General 3 2 Composition 3 3 Lodging appeals 4 4 Information 5 5 Deposit 5 6 Hearing 5 7 Arbitral award 6 8 Accelerated proceedings 7 9 Secrecy 7 10 Final provisions 7 Kiwa Nederland B.V May 2014

4 Definitions In these regulations, the following definitions apply: Kiwa: an independent quality assurance organisation whose core activity concerns certification. Appellant: a natural person or legal entity who challenges a decision and/or measure of Kiwa that results from an agreement concluded between Kiwa and the appellant. Board of Appeal: independent and impartial body that settles disputes in respect of decisions and/or measures that result from agreements between Kiwa and natural persons and legal entities. Dispute Settlement: the manner of litigation within the meaning of the fourth book of the Dutch Code of Civil Procedure (Rv). Kiwa Nederland B.V May 2014

5 1. General 1.1 These arbitration regulations provide for the manner in which disputes are handled that result from decisions and/or measures taken by Kiwa pursuant to an agreement concluded between Kiwa and the Appellant and on the basis of Kiwa Regulations that refer to these arbitration regulations. 1.2 In the event of a dispute within the meaning of article 1.1 of these regulations, in accordance with article 3 of these regulations an Appellant will be authorised to lodge an appeal against a decision and/or measure taken by Kiwa within the meaning of article 1.1. of these regulations. 1.3 The appeal will be heard by the Board of Appeal set up in conformity with article 2 of these regulations and in accordance with the procedures set out in articles 3, 5, 6, 7 and The Board of Appeal shall operate independently and impartially and shall be bound only by the procedures laid down in these regulations. 1.5 When settling a dispute, if and to the extent possible the Board of Appeal shall consider the results of previous and similar appeal cases in its decision on the appeal. The traceability of such appeal cases, including the action taken to arrive at a solution, shall also be taken into account, including the adjustments and corrective actions which resulted from the appeals in question. 1.6 If an Appellant has lodged an appeal in a timely fashion against a decision and/or measure of Kiwa that concerns the Appellant directly and personally, such Appellant may also submit an argued request to the Board of Appeal to have the contested decision or measure suspended in part or in full. Such a request may be made as long as the appeal has not yet been decided on by the Board of Appeal. The request for a suspension must be submitted in accordance with the procedure stated in article 3 of these regulations. 1.7 The chairman of the Board of Appeal shall give a reasoned award in respect of the request for suspension within the meaning of article 1.6 of these regulations as soon as possible after the receipt of the request. Article 7.4 of these regulations applies mutatis mutandis to the award on the request for suspension referred to above. 2. Composition 2.1 Kiwa shall appoint an independent chairman 1 and a deputy chairman for a period of office of six years. After the expiry of this period reappointment shall be possible. The chairman and deputy chairman must have a university degree in law. If a term of office expires for a member while the Board of Appeal is still handling an appeal, the membership of the Board of Appeal of that member may be extended by the period required to decide on that appeal. 2.2 Only natural persons who have no direct or indirect interest in disputes submitted to the Board of Appeal may be appointed by Kiwa as members of the Board of Appeal. 2.3 The chairman and deputy chairman of the Board of Appeal shall have no involvement in Kiwa whatsoever other than in their capacities stated above. 2.4 In the absence of the chairman the deputy chairman shall take over all the duties of the chairman stated in these regulations. 2.5 The chairman shall determine the composition of the Board of Appeal and shall inform the parties about the composition. 1 At this moment Mr D. Rijpma, Ekelmans & Meijer Advocaten, Postbus 93455, 2509 AL The Hague, the Netherlands. Kiwa Nederland B.V May 2014

6 2.6 The Board of Appeal consists of three members, i.e.: the chairman; the chairman of the Board of Experts involved in the subject matter of the appeal; a third member to be appointed by the chairman. 2.7 The chairman appoints a secretary to the Board of Appeal, who is responsible for the reporting procedure of this body. The secretary shall not form part of the Board of Appeal. 2.8 If there is any conflict of interest between the Appellant and one or several members of the Board of Appeal, this member will immediately be replaced by another member, who meets the requirements of articles 2.2 and 2.3 of these regulations, who is appointed by the chairman with respect to this appeal. 2.9 Kiwa and the Appellants shall be entitled to object to one or more members of the Board of Appeal while stating arguments, if they question the impartiality or independence of such member or members If the chairman of the Board of Appeal is of the opinion on the basis of the objections stated in article 2.9 of these regulations that any doubt about the impartiality and/or independence of one or more of the members of the Board of Appeal is justified, he shall immediately take the measures required to replace the member or members concerned, to the extent that this concerns the hearing of the appeal in question If the chairman is of the opinion that there is no reasonable ground to fear partiality and/or dependence, the parties will be informed about this based on a properly substantiated written decision. 3. Lodging appeals 3.1 The Appellant must lodge an appeal within the meaning of article 1.1 of these regulations by sending a registered letter to the Board of Appeal, at the address of the chairman of the Board of Appeal, presently Ekelmans & Meijer Advocaten, Postbus 93455, 2509 AL The Hague. The period for lodging an appeal is 30 calendar days. The period commences on the day following the day on which the decision and/or measure in question was communicated to the Appellant by sending the Appellant the decision and/or measure in question. 3.2 A notice of appeal submitted after that period must be declared inadmissible. A notice of appeal submitted after the period has ended will not be declared inadmissible if the Board of Appeal cannot reasonably rule that the person lodging the appeal and/or the Appellant was in default. As far as excusability of exceeding the deadline is concerned, as referred to above, harmonisation shall be sought with established case law of the Administrative Jurisdiction Division of the Council of State. 3.3 The notice of appeal shall be signed by a person authorised to represent the Appellant and shall contain at a minimum: the name and address of the person lodging the appeal, the date, a copy of the decision against which the appeal is directed as well as the grounds for the appeal, which may also be submitted to the Board of Appeal as soon as possible but 14 days at the latest after the date of the notice of appeal. 3.4 If and to the extent that the appeal relates to a certificate issued by Kiwa to which the Appellant itself was not a party, the Appellant shall submit a declaration signed by it showing that it is subjecting itself to the provisions of these regulations. 3.5 The chairman confirms the receipt of the notice of appeal to the Appellant. 3.6 The chairman informs Kiwa/Kiwa's director in writing of the appeal that has been lodged, with submission of a copy of the notice of appeal. The chairman subsequently invites Kiwa to lodge a defence. Kiwa Nederland B.V May 2014

7 3.7 The chairman shall furthermore compose the Board of Appeal in accordance with the provisions of article 2.6 of these regulations and shall inform the Appellant and Kiwa/Kiwa s director of the composition of the Board of Appeal. 3.8 The Appellant and Kiwa shall have the right to be heard by the Board of Appeal. 3.9 After having asked the Appellant and Kiwa on what dates they are prevented from attending, the chairman shall fix the place, date and time of the hearing as soon as possible, in consultation with the other members of the Board of Appeal and the secretary. When fixing this date a period of at least 14 days will be observed in order to allow the parties involved to prepare for the hearing of the appeal The secretary shall inform the parties of the date on which the appeal will be heard The Appellant and Kiwa shall be allowed to submit additional documents seven days, or another amount of time to be determined by the chairman with a view to the principles of due process, prior to the hearing. These additional documents must be submitted in due time to allow the parties to properly respond to them during the hearing The Appellant and Kiwa shall send each other copies of all documents they submit to the Board of Appeal. 4. Information 4.1 The employees of Kiwa, including any external experts involved in the relevant assessment for the certification, shall be obliged to provide the Board of Appeal with necessary information if so requested. The obligation of secrecy to be observed towards third parties as provided for in the regulations for the relevant certification system shall not apply to this. 5. Deposit 5.1 When an appeal is lodged, the chairman shall determine a deposit to be paid by the Appellant. The amount of the deposit should be reasonable in relation to the estimated costs of hearing the appeal. After the arbitral award, this deposit will be set off against any costs payable by the Appellant. 5.2 If the Appellant is a natural person who is appealing against a decision and/or measure taken by Kiwa under the Kiwa Regulations for the Certification of Persons, no deposit shall be due. 5.3 If the deposit has not been paid into the account of the Board of Appeal within 30 days of the request referred to in article 5.1, the chairman shall send the Appellant a registered letter informing it that it has a final period of eight calendar days to pay the deposit. If the Appellant fails to pay the deposit in time, the appeal shall be declared inadmissible. 6. Hearing 6.1 During the hearing of the appeal, the Board of Appeal shall hear both the Appellant and Kiwa. 6.2 Both the Appellant and Kiwa shall be allowed to be represented by a lawyer or authorised representative during the hearing. 6.3 The Appellant and Kiwa shall be entitled to be assisted by witnesses and experts, provided notice has been given in writing to the Board of Appeal and to Kiwa or the Appellant of the names and addresses of such witnesses or experts at least five calendar days prior to the hearing. Kiwa Nederland B.V May 2014

8 6.4 The Board of Appeal shall be allowed to call its own witnesses, consult its own experts and take other measures or make other arrangements that are deemed necessary in the interest of giving an arbitral award. Where appropriate, the Board of Appeal shall make this known to the parties. The Board of Appeal shall give the Appellant and Kiwa the opportunity to express their views with respect to the witness statements and the experts' opinion. 6.5 If necessary, the Board of Appeal may decide to hold a further hearing. 7. Arbitral award 7.1 The Board of Appeal shall make an award according to the standards of reasonableness and fairness, based on the procedural documents and additional documents submitted by the Appellant and Kiwa, the proceedings at the hearing and any statements made by witnesses and/or experts, in which respect the Board of Appeal is bound by the rules and regulations determined by Kiwa, including but not limited to: - the General Terms and Conditions applying to Assignments granted to Kiwa; - the recognition criteria if the appeal concerns a certification system recognised by the Dutch Certification Council (Raad voor de Certificatie); - the regulations for the certification system concerned; - the standards, criteria, evaluation guidelines and other guidelines and interpretation of documents applicable to the certification scheme in question. 7.2 The Board of Appeal is obliged to decide on the appeal within three months of the day, as referred to in article 3.10 of these regulations, on which the hearing of the appeal started. If this is necessary with a view to the handling of the appeal, the Board shall be authorised to twice extend the period referred to in the previous sentence by a period of three months. The chairman of the Board of Appeal shall notify the parties hereof in writing, stating why the period was extended. If an appeal has been lodged under the Kiwa Regulations for the Certification of Persons, the Board of Appeal shall give its award within one month from receiving the notice of appeal referred to in article 3.1. of these regulations. 7.3 The Board of Appeal shall decide by a majority of votes. 7.4 The decision of the Board of Appeal and its grounds shall be recorded in writing in the form of an arbitral award and shall be signed by the members of the Board of Appeal. The secretary shall send copies of the decision to the Appellant and Kiwa by registered letter. The secretary shall ensure that the parties have the copies of the decision at their disposal as soon as possible but within two weeks at the latest after the decision was made. 7.5 If the Board of Appeal declares the appeal lodged to be partially or fully valid, it may decide that Kiwa must withdraw or alter the disputed decision or measure or must take or refrain from taking a decision or measure in accordance with the decision of the Board of Appeal. 7.6 In its decision, the Board of Appeal shall also determine the amount of the costs of the proceedings, excluding the costs of legal assistance, as well as deciding which party shall bear such costs in part or in full. 7.7 If the Appellant is ordered to pay the costs referred to in article 7.6 of these regulations in part or in full, these costs shall be deducted from the deposit paid by the Appellant as referred to in article 5.1 of these regulations. Any surplus shall be immediately repaid to the Appellant. If the deposit is insufficient, the Appellant shall be obliged to pay the remaining amount due within fourteen calendar days following the despatch of the arbitral award. 7.8 If the Appellant is not ordered to pay the costs referred to in article 7.6 of these regulations in part or in full, the entire deposit shall be immediately repaid in the name of the Appellant. Kiwa Nederland B.V May 2014

9 8. Accelerated proceedings 8.1 If an appeal has been lodged against a decision or measure of Kiwa whereby the right to make use of the certificate is also suspended, or a 'new' certificate is refused as a result of which the Appellant no longer has a legally valid certificate, the chairman of the Board of Appeal may, at the Appellant s request, decide that accelerated proceedings will be held in respect of the appeal against the suspension or refusal. 8.2 If the chairman decides that accelerated proceedings shall be held, he shall consult the other members of the Board of Appeal within 48 hours after the Board of Appeal is set up in conformity with article 2 of these regulations. He shall familiarise himself with the considerations by Kiwa which led to the suspension. 8.3 After consulting Kiwa within the meaning of article 8.2 of these regulations, the chairman shall decide whether the suspension should be terminated by Kiwa pending the appeal. The chairman shall inform both parties of his decision in writing. 9. Secrecy 9.1 The members of the Board of Appeal and the secretary shall be obliged to observe secrecy in respect of any information they obtain in connection with the persons, the business or the personal or business circumstances of the Appellant. 10. Final provisions 10.1 In all cases for which these regulations do not provide the Board of Appeal shall decide These regulations replace the, version 1, April These regulations may be quoted as the : Amendments to these regulations shall only take effect after publication by Kiwa, stating the effective date These regulations have been validated by Kiwa and shall take effect on 1 May This text is a translation. Only the Dutch text shall be legally binding. Kiwa Nederland B.V May 2014