IFACP Ombudsman’s Rules of Practice and Procedure

(promulgated on the authority of the Handbook, Attachment ‘A’ § 3.1)

 

In these Rules which complement and do not replace the provisions in the Governance Handbook,

Applicant means the party seeking a review

IFGB means the IATA-FIATA Governance Board

Directory means the list of IFACP Endorsed Forwarders published by the Program Secretariat.

Forwarder means an IFACP Endorsed Forwarder.

Handbook means the publication authorized by the IFGB in which are set out the IFACP   rules and procedures

Program Secretariat means the body of officers appointed by the IFGB to manage the IFACP

Respondent means the party against whose action (or inaction) the Applicant is appealing.

 

RULE 1 – Grounds for Request for Review by an applicant or by a Forwarder

1- A request for review may be made by a cargo sales intermediary in the following circumstances:

A) by one whose application to become an IFACP Forwarder has been rejected by the Program Secretariat (Handbook, Attachment ‘A’, 1.1.1);

B) by one who has acquired ownership, or is seeking to acquire ownership of an IFACP Forwarder and whose application for approval of a change of ownership has been disapproved by the Program Secretariat (Handbook, Attachment ‘A’, 1.1.2);

C) by an IFACP Forwarder who has received notice from the Program Secretariat of impending removal from the Directory, for whatever reason (Handbook, Attachment ‘A’, 1.1.3);

D) by an IFACP Forwarder who has received notice of pending action by the Program Secretariat with regard to that Forwarder that it considers unreasonably diminishes its ability to conduct business in a normal fashion (Handbook, Attachment ‘A’,  1.1.4);

E) by an IFACP Forwarder whose application for a Change of Location and/or Name has been disapproved (Handbook, Attachment ‘A’, 1.1.5);

F) by an IFACP Forwarder who considers that the Program Secretariat has not followed correct procedures, as delegated by the IFGB, to that Forwarder’s direct and serious detriment (Handbook, Attachment ‘A’, 1.1.6).

 RULE 2 – Review initiated by the Program Secretariat

2-The Program Secretariat is empowered to request a review by the Ombudsman in any of the circumstances set out in the Handbook at Attachment ‘A’, § 2.

RULE 3 – Review initiated by a Party to a Dispute

3-Where Parties to the IFACP Forwarder Agreement are in dispute and are unable to reach an amicable settlement within 30 days of commencement of their dispute, either Party may refer the matter to the Ombudsman, with a view to seeking resolution, per Article 7. of the IFACP Forwarder Agreement.

RULE 4 – Timing of Request for review

4- A) In principle, a rejected Applicant’s or a delisted Forwarder’s request for review shall be submitted within 30 calendar days of the Program Secretariat’s notice of a decision under appeal; provided that such notice informs the addressee of its right to appeal. Where that information has not been provided in the notice, the Ombudsman has the discretion to extend the period in which the request may be made.

B) A request for review submitted by the Program Secretariat, either at its own discretion, or because of a requirement in the Governance Handbook, or a Cargo Agency Conference resolution, shall be submitted within 30 calendar days of the date when the reason for seeking the review was established. However, a longer period may be authorized by the Ombudsman, for cause shown.

RULE 5 – Form of Request for Review

5- A) The request for review is to be in writing and addressed to the Ombudsman at the address given below. Email is the preferred medium for communicating requests.

B) The request shall identify the Applicant seeking the review by name and title and shall contain full contact particulars.

C) The request shall contain an adequate description of the reasons for which it has been made and shall contain the contact particulars of the persons(s) concerned on the side of the Respondent, when they are known to the Applicant.

RULE 6 – Acceptance/Rejection Procedure of Request for ReviewA)

6- A) Upon receipt of a request for review, the Ombudsman shall acknowledge the communication and determine whether or not, on the face of it, the request warrants action.

B) Where the Ombudsman determines from the request for review that review action by him would not be warranted, he shall so notify the Applicant and the matter will rest.

C) Where the Ombudsman determines from the request for review that it warrants action, he shall serve a copy of the request on the other Party and invite a written response, to be submitted within the deadline specified by him.

D) If the contents of the written response convince the Ombudsman that a review is warranted, he shall initiate a review proceeding.

E) If the written response does not satisfy the Ombudsman’s need for an adequate and meaningful answer to the request for review, he shall proceed to initiate a review proceeding. In particular, where the record relied upon by the Program Secretariat for the action taken under Rules 1A) through 1F) is not made automatically available to the Ombudsman, that shall constitute sufficient cause for him to initiate a review proceeding.

F) Where, after studying the written response, the Ombudsman determines that there is no case to be answered, he shall so notify both Parties and the matter will rest.

RULE 7 – Review Proceedings

7- A) The Handbook envisages that the Ombudsman’s review proceedings may be conducted with the parties present if such is their wish but he may waive oral hearing in favour of relying on the Parties’ written submissions to him and may render his Decision on those submissions and such further documentary evidence from the Parties as he deems necessary to ascertain the facts and instrumental in securing an informed and impartial Decision

B) Where an oral hearing is to take place the Parties and/or their representatives shall be entitled to be heard in person before the Ombudsman. If the Parties are in Agreement, such hearing may be conducted by teleconference.

C) An Applicant may, at any time before publication of the Ombudsman’s Decision, withdraw its request for review by so notifying the Ombudsman in writing with copy sent simultaneously to the Respondent. In such event, the ombudsman shall rule the matter to be at a close and may require the Applicant to meet reasonable costs incurred up until that point.

RULE 8 – Option of a Conference

8- Upon considering any material lodged with him by the Parties and if he deems that it is desirable, the Ombudsman may, with the Parties’ concurrence, direct that a conference of the Parties or their representatives take place. Such conference, which shall be in the form of a teleconference shall be chaired by the Ombudsman and if:

i) at or after such conference, agreement is reached between the Parties or their representatives as to the terms of a Decision of the Ombudsman, which shall be acceptable to the Parties; and if

ii) the terms of that agreement are put in writing, signed by the Parties and furnished to the Ombudsman; and if

iii) the Ombudsman is satisfied that a Decision in those terms is within his powers;

then the Ombudsman may, without holding a hearing, make a Decision in accordance with the terms of the agreement.

RULE 9 – Conduct of Proceedings

9- A) The rules of procedure set out in the Handbook at Attachment ‘A’,  3 apply to the Ombudsman’s hearings.

B) Proceeding shall be informal and the Parties will not be held to observing the strict rules of evidence. The Ombudsman shall be entitled to inform himself on any matter he considers relevant, in such manner as he deems appropriate.

C) At the opening of any hearing/conference the Ombudsman shall record the time, date and place of the event, as well as the names of all taking part in it. He shall also formally receive for the record the requests for review, written responses and other documentary submissions of the Parties.

D) Having disposed of all outstanding preliminary matters, the Ombudsman may, if he deems appropriate, ask for statements clarifying the issues involved.

E) The Applicant shall present its case and evidence. If there are any witnesses, they may be questioned by the Respondent.

F) The Respondent shall thereafter present its case and evidence. If there are any witnesses, they may be questioned by the Applicant.

G) The Ombudsman may adjourn the hearing/conference at his discretion.

H) The Ombudsman’s written Decision containing his findings and conclusions shall be in writing and served on each Party.

RULE 10 – Hearing

10- A) Ordinarily, when a hearing of the Parties is deemed desirable it will be conducted where the Ombudsman has his office but it may be held elsewhere at the discretion of the Ombudsman if he deems that circumstances so warrant, to meet the Parties’ needs. (Handbook, Attachment ‘A’,  3.6)

B) As a rule, the Ombudsman, except for good cause stated in writing, will schedule each review proceeding not later than 45 days after receipt of the request for review and will issue his Decision with 30 days after the close of the record of the proceedings.

C) Where a hearing of the Parties is set, not less than seven days prior notice of the time and place shall be given by the Ombudsman to the Parties.

D) Each Party shall notify the Ombudsman and the other Party, not less than five days before the hearing whether or not it plans to call one or more witnesses. If witnesses are called then their names and contact particulars are to be set out in the notification.

E) In reaching his Decision the Ombudsman shall apply the provisions of the applicable IFACP Rules.

RULE 11 – Failure by a Party to attend

11- If a Party or its designated representative fails to be present at a duly convened hearing or fails to obtain an adjournment, the Decision shall be rendered on the basis of the written submissions previously tendered by the Parties.

RULE 12 – Decision

12- The Ombudsman’s Decision shall be in writing, contain findings and conclusions and specify the date on which it will become effective. The Decision shall be served on the Parties simultaneously. Where prior concurrence of the Parties has been obtained the Decision may be published to third parties.

RULE 13 – Subsequent Appeal

13- The Ombudsman’s Decision shall point out the right of appeal to arbitration foreseen in the Rules (Handbook, Attachment ‘A’, 4)

RULE 14 – Costs

14- The Office of the Ombudsman does not normally charge the Parties for its services. However, where cause lies, either or both Parties may be billed for additional costs incurred by the Office as a consequence of an act or omission on their part in the course of the review proceedings.