Red 2017-28-144-96-100.pdf

GENERAL CONDITIONS above, shall be the agreed member(s) or replacement). This appointment shall be final and conclusive. Thereafter, the Parties and the member(s) so appointed shall be deemed to have signed and be bound by a DAAB Agreement under which: GUIDANCE (i) (ii) FORMS This docum...

GENERAL CONDITIONS above, shall be the agreed member(s) or replacement). This appointment shall be final and conclusive. Thereafter, the Parties and the member(s) so appointed shall be deemed to have signed and be bound by a DAAB Agreement under which: GUIDANCE (i) (ii) FORMS This document is restricted for distribution within the Lexis Nexis platform - NOT FOR CONTRACT USE AND NOT PRINTABLE - ORIGINAL FOR SALE AT www.fidic.org 21.3 Avoidance of Disputes the monthly services fee and daily fee shall be as stated in the terms of the appointment; and the law governing the DAAB Agreement shall be the governing law of the Contract defined in Sub-Clause 1.4 [Law and Language]. Each Party shall be responsible for paying one-half of the remuneration of the appointing entity or official. If the Contractor pays the remuneration in full, the Contractor shall include one-half of the amount of such remuneration in a Statement and the Employer shall then pay the Contractor in accordance with the Contract. If the Employer pays the remuneration in full, the Engineer shall include one-half of the amount of such remuneration as a deduction under sub-paragraph (b) of Sub-Clause 14.6.1 [The IPC]. If the Parties so agree, they may jointly request (in writing, with a copy to the Engineer) the DAAB to provide assistance and/or informally discuss and attempt to resolve any issue or disagreement that may have arisen between them during the performance of the Contract. If the DAAB becomes aware of an issue or disagreement, it may invite the Parties to make such a joint request. Such joint request may be made at any time, except during the period that the Engineer is carrying out his/her duties under Sub-Clause 3.7 [Agreement or Determination] on the matter at issue or in disagreement unless the Parties agree otherwise. Such informal assistance may take place during any meeting, Site visit or otherwise. However, unless the Parties agree otherwise, both Parties shall be present at such discussions. The Parties are not bound to act on any advice given during such informal meetings, and the DAAB shall not be bound in any future Dispute resolution process or decision by any views or advice given during the informal assistance process, whether provided orally or in writing. 21.4 Obtaining DAAB’s Decision 21.4.1 If a Dispute arises between the Parties then either Party may refer the Dispute to the DAAB for its decision (whether or not any informal discussions have been held under Sub-Clause 21.3 [Avoidance of Disputes]) and the following provisions shall apply. Reference of a Dispute to the DAAB The reference of a Dispute to the DAAB (the “reference” in this Sub-Clause 21.4) shall: (a) (b) (c) 102 © FIDIC 2017 if Sub-Clause 3.7 [Agreement or Determination] applied to the subject matter of the Dispute, be made within 42 days of giving or receiving (as the case may be) a NOD under Sub-Clause 3.7.5 [Dissatisfaction with Engineer’s determination]. If the Dispute is not referred to the DAAB within this period of 42 days, such NOD shall be deemed to have lapsed and no longer be valid; state that it is given under this Sub-Clause; set out the referring Party’s case relating to the Dispute; Conditions of Contract for Construction 21.4.2 The Parties’ obligations after the reference Both Parties shall promptly make available to the DAAB all information, access to the Site, and appropriate facilities, as the DAAB may require for the purposes of making a decision on the Dispute. Unless the Contract has already been abandoned or terminated, the Parties shall continue to perform their obligations in accordance with the Contract. 21.4.3 This document is restricted for distribution within the Lexis Nexis platform - NOT FOR CONTRACT USE AND NOT PRINTABLE - ORIGINAL FOR SALE AT www.fidic.org The DAAB’s decision The DAAB shall complete and give its decision within: (a) (b) 84 days after receiving the reference; or such period as may be proposed by the DAAB and agreed by both Parties. However, if at the end of this period, the due date(s) for payment of any DAAB member’s invoice(s) has passed but such invoice(s) remains unpaid, the DAAB shall not be obliged to give its decision until such outstanding invoice(s) have been paid in full, in which case the DAAB shall give its decision as soon as practicable after payment has been received. The decision shall be given in writing to both Parties with a copy to the Engineer, shall be reasoned, and shall state that it is given under this Sub-Clause. The decision shall be binding on both Parties, who shall promptly comply with it whether or not a Party gives a NOD with respect to such decision under this Sub-Clause. The Employer shall be responsible for the Engineer’s compliance with the DAAB decision. If the decision of the DAAB requires a payment of an amount by one Party to the other Party (i) (ii) General Conditions © FIDIC 2017 subject to sub-paragraph (ii) below, this amount shall be immediately due and payable without any certification or Notice; and the DAAB may (as part of the decision), at the request of a Party but only if there are reasonable grounds for the DAAB to believe that the payee will be unable to repay such amount in the event that the decision is reversed under Sub-Clause 21.6 [Arbitration], require the payee to provide an appropriate security (at the DAAB’s sole discretion) in respect of such amount. The DAAB proceeding shall not be deemed to be an arbitration and the DAAB shall not act as arbitrator(s). 103 GENERAL CONDITIONS The reference of a Dispute to the DAAB under this Sub-Clause shall, unless prohibited by law, be deemed to interrupt the running of any applicable statute of limitation or prescription period. GUIDANCE be in writing, with copies to the other Party and the Engineer; and for a DAAB of three persons, be deemed to have been received by the DAAB on the date it is received by the chairperson of the DAAB. FORMS (d) (e) GENERAL CONDITIONS 21.4.4 Dissatisfaction with DAAB’s decision If either Party is dissatisfied with the DAAB’s decision: (a) GUIDANCE (b) (c) If the DAAB fails to give its decision within the period stated in Sub-Clause 21.4.3 [The DAAB’s decision], then either Party may, within 28 days after this period has expired, give a NOD to the other Party in accordance with sub-paragraphs (a) and (b) above. Except as stated in the last paragraph of Sub-Clause 3.7.5 [Dissatisfaction with Engineer’s determination], in Sub-Clause 21.7 [Failure to Comply with DAAB’s Decision] and in Sub-Clause 21.8 [No DAAB In Place], neither Party shall be entitled to commence arbitration of a Dispute unless a NOD in respect of that Dispute has been given in accordance with this Sub-Clause 21.4.4. If the DAAB has given its decision as to a matter in Dispute to both Parties, and no NOD under this Sub-Clause 21.4.4 has been given by either Party within 28 days after receiving the DAAB’s decision, then the decision shall become final and binding on both Parties. If the dissatisfied Party is dissatisfied with only part(s) of the DAAB’s decision: FORMS This document is restricted for distribution within the Lexis Nexis platform - NOT FOR CONTRACT USE AND NOT PRINTABLE - ORIGINAL FOR SALE AT www.fidic.org such Party may give a NOD to the other Party, with a copy to the DAAB and to the Engineer; this NOD shall state that it is a “Notice of Dissatisfaction with the DAAB’s Decision” and shall set out the matter in Dispute and the reason(s) for dissatisfaction; and this NOD shall be given within 28 days after receiving the DAAB’s decision. (i) (ii) (iii) 21.5 Amicable Settlement 21.6 Arbitration Where a NOD has been given under Sub-Clause 21.4 [Obtaining DAAB’s Decision], both Parties shall attempt to settle the Dispute amicably before the commencement of arbitration. However, unless both Parties agree otherwise, arbitration may be commenced on or after the twenty-eighth (28th) day after the day on which this NOD was given, even if no attempt at amicable settlement has been made. Unless settled amicably, and subject to Sub-Clause 3.7.5 [Dissatisfaction with Engineer’s determination], Sub-Clause 21.4.4 [Dissatisfaction with DAAB’s decision], Sub-Clause 21.7 [Failure to Comply with DAAB’s Decision] and Sub-Clause 21.8 [No DAAB In Place], any Dispute in respect of which the DAAB’s decision (if any) has not become final and binding shall be finally settled by international arbitration. Unless otherwise agreed by both Parties: (a) (b) 104 © FIDIC 2017 this part(s) shall be clearly identified in the NOD; this part(s), and any other parts of the decision that are affected by such part(s) or rely on such part(s) for completeness, shall be deemed to be severable from the remainder of the decision; and the remainder of the decision shall become final and binding on both Parties as if the NOD had not been given. the Dispute shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce; the Dispute shall be settled by one or three arbitrators appointed in accordance with these Rules; and Conditions of Contract for Construction This document is restricted for distribution within the Lexis Nexis platform - NOT FOR CONTRACT USE AND NOT PRINTABLE - ORIGINAL FOR SALE AT www.fidic.org The arbitrator(s) shall have full power to open up, review and revise any certificate, determination (other than a final and binding determination), instruction, opinion or valuation of the Engineer, and any decision of the DAAB (other than a final and binding decision) relevant to the Dispute. Nothing shall disqualify the Engineer from being called as a witness and giving evidence before the arbitrator(s) on any matter whatsoever relevant to the Dispute. In any award dealing with costs of the arbitration, the arbitrator(s) may take account of the extent (if any) to which a Party failed to cooperate with the other Party in constituting a DAAB under Sub-Clause 21.1 [Constitution of the DAAB] and/or Sub-Clause 21.2 [Failure to Appoint DAAB Member(s)]. Neither Party shall be limited in the proceedings before the arbitrator(s) to the evidence or arguments previously put before the DAAB to obtain its decision, or to the reasons for dissatisfaction given in the Party’s NOD under Sub-Clause 21.4 [Obtaining DAAB’s Decision]. Any decision of the DAAB shall be admissible in evidence in the arbitration. Arbitration may be commenced before or after completion of the Works. The obligations of the Parties, the Engineer and the DAAB shall not be altered by reason of any arbitration being conducted during the progress of the Works. If an award requires a payment of an amount by one Party to the other Party, this amount shall be immediately due and payable without any further certification or Notice. 21.7 Failure to Comply with DAAB’s Decision In the event that a Party fails to comply with any decision of the DAAB, whether binding or final and binding, then the other Party may, without prejudice to any other rights it may have, refer the failure itself directly to arbitration under Sub-Clause 21.6 [Arbitration] in which case Sub-Clause 21.4 [Obtaining DAAB’s Decision] and Sub-Clause 21.5 [Amicable Settlement] shall not apply to this reference. The arbitral tribunal (constituted under Sub-Clause 21.6 [Arbitration]) shall have the power, by way of summary or other expedited procedure, to order, whether by an interim or provisional measure or an award (as may be appropriate under applicable law or otherwise), the enforcement of that decision. In the case of a binding but not final decision of the DAAB, such interim or provisional measure or award shall be subject to the express reservation that the rights of the Parties as to the merits of the Dispute are reserved until they are resolved by an award. Any interim or provisional measure or award enforcing a decision of the DAAB which has not been complied with, whether such decision is binding or final and binding, may also include an order or award of damages or other relief. 21.8 No DAAB In Place General Conditions © FIDIC 2017 If a Dispute arises between the Parties in connection with, or arising out of, the Contract or the execution of the Works and there is no DAAB in place (or no DAAB is being constituted), whether by reason of the expiry of the DAAB’s appointment or otherwise: 105 GENERAL CONDITIONS GUIDANCE the arbitration shall be conducted in the ruling language defined in Sub-Clause 1.4 [Law and Language]. FORMS (c) GENERAL CONDITIONS (a) This document is restricted for distribution within the Lexis Nexis platform - NOT FOR CONTRACT USE AND NOT PRINTABLE - ORIGINAL FOR SALE AT www.fidic.org FORMS GUIDANCE (b) Sub-Clause 21.4 [Obtaining DAAB’s Decision] and Sub-Clause 21.5 [Amicable Settlement] shall not apply; and the Dispute may be referred by either Party directly to arbitration under Sub-Clause 21.6 [Arbitration] without prejudice to any other rights the Party may have. 106 © FIDIC 2017 Conditions of Contract for Construction