General Conditions of Dispute Avoidance/Adjudication Agreement PDF

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 1 Definitions 1.1 “General Conditions of Dispute Avoidance/Adjudication Agreement” or “GCs” means this document entitled “General Conditions o...

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 1 Definitions 1.1 “General Conditions of Dispute Avoidance/Adjudication Agreement” or “GCs” means this document entitled “General Conditions of Dispute Avoidance/Adjudication Agreement”, as published by FIDIC. 1.2 In the DAA Agreement (as defined below) and in the GCs, words and expressions which are not otherwise defined shall have the meanings assigned to them in the Contract (as defined in the DAA Agreement). 1.3 “Dispute Avoidance/Adjudication Agreement” or “DAA Agreement” means a tripartite agreement by and between: (a) (b) (c) 1.3 “DAAB’s Activities” means the activities carried out by the DAAB in accordance with the Contract and the GCs, including all Informal Assistance, meetings (including meetings and/or discussions between the DAAB members in the case of a three-member DAAB), Site visits, hearings and decisions. 1.4 “DAAB Rules” means the document entitled “DAAB Procedural Rules” published by FIDIC which are annexed to, and form part of, the GCs. 1.5 “Informal Assistance” means the informal assistance given by the DAAB to the Parties when requested jointly by the Parties under Sub-Clause 21.3 [Avoidance of Disputes] of the Conditions of Contract. 1.6 “Term of the DAAB” means the period starting on the Effective Date (as defined in Sub-Clause 2.1 below) and finishing on the date that the term of the DAAB expires in accordance with Sub-Clause 21.1 [Constitution of the DAAB] of the Conditions of Contract. 1.7 “Notification” means a notice in writing given under the GCs, which shall be: (a) General Conditions © FIDIC 2017 the Employer; the Contractor; and the DAAB Member who is defined in the DAA Agreement as being either: (i) the sole member of the DAAB, or (ii) one of the three members (or the chairman) of the DAAB. (i) (ii) a paper-original signed by the DAAB Member or the authorised representative of the Contractor or of the Employer (as the case may be); or an electronic original generated from the system of electronic transmission agreed between the Parties and the DAAB, which electronic original is transmitted by the electronic address uniquely assigned to the DAAB Member or each such authorised representative (as the case may be); 107 GENERAL CONDITIONS GUIDANCE General Conditions of Dispute Avoidance/Adjudication Agreement FORMS APPENDIX GUIDANCE GENERAL CONDITIONS (b) (c) 2 General Provisions 2.1 The DAA Agreement shall take effect: (a) (b) FORMS delivered by hand (against receipt), or sent by mail or courier (against receipt), or transmitted using the system of electronic transmission under sub-paragraph (a)(ii) above; and delivered, sent or transmitted to the address for the recipient’s communications as stated in the DAA Agreement. However, if the recipient gives a Notification of another address, all Notifications shall be delivered accordingly after the sender receives such Notification. in the case of a sole-member DAAB, on the date when the Employer, the Contractor and the DAAB Member have each signed (or, under the Contract, are deemed to have signed) the DAA Agreement; or in the case of a three-member DAAB, on the date when the Employer, the Contractor, the DAAB Member and the Other Members have each signed (or under the Contract are deemed to have signed) a DAA Agreement. 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 “Effective Date” in the GCs). 3 Warranties 2.2 Immediately after the Effective Date, either or both Parties shall give a Notification to the DAAB Member that the DAA Agreement has come into effect. If the DAAB Member does not receive such a notice within 182 days after entering into the DAA Agreement, it shall be void and ineffective. 2.3 The employment of the DAAB Member is a personal appointment. No assignment of, or subcontracting or delegation of the DAAB Member’s rights and/or obligations under the DAA Agreement is permitted. 3.1 The DAAB Member warrants and agrees that he/she is, and will remain at all times during the Term of the DAAB, impartial and independent of the Employer, the Contractor, the Employer’s Personnel and the Contractor’s Personnel (including in accordance with Sub-Clause 4.1 below). 3.2 If, after signing the DAA Agreement (or after he/she is deemed to have signed the DAA Agreement under the Contract), the DAAB Member becomes aware of any fact or circumstance which might: (a) (b) 3.3 the DAAB Member warrants and agrees that he/she shall immediately disclose this in writing to the Parties and the Other Members (if any). When appointing the DAAB Member, each Party relies on the DAAB Member’s representations that he/she is: (a) (b) (c) 108 © FIDIC 2017 call into question his/her independence or impartiality; and/or be, or appear to be, inconsistent with his/her warranty and agreement under Sub-Clause 3.1 above experienced and/or knowledgeable in the type of work which the Contractor is to carry out under the Contract; experienced in the interpretation of construction and/or engineering contract documentation; and fluent in the language for communications stated in the Contract Data (or the language as agreed between the Parties and the DAAB). Conditions of Contract for Construction (a) (b) (c) (d) (e) 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 (f) the Employer, the Contractor, the Employer’s Personnel or the Contractor’s Personnel, except as may be agreed by the Employer, the Contractor and the Other Members (if any); and/or (g) 5 General Obligations of the DAAB Member 5.1 (b) (c) (d) © FIDIC 2017 not solicit, accept or receive (directly or indirectly) any gift, gratuity, commission or other thing of value from the Employer, the Contractor, the Employer’s Personnel or the Contractor’s Personnel, except for payment under the DAA Agreement. The DAAB Member shall: (a) General Conditions have no financial interest in the Contract, or in the project of which the Works are part, except for payment under the DAA Agreement; have no interest whatsoever (financial or otherwise) in the Employer, the Contractor, the Employer’s Personnel or the Contractor’s Personnel; in the ten years before signing the DAA Agreement, not have been employed as a consultant or otherwise by the Employer, the Contractor, the Employer’s Personnel or the Contractor’s Personnel; not previously have acted, and shall not act, in any judicial or arbitral capacity in relation to the Contract; have disclosed in writing to the Employer, the Contractor and the Other Members (if any), before signing the DAA Agreement (or before he/she is deemed to have signed the DAA Agreement under the Contract) and to his/her best knowledge and recollection, any: (i) existing and/or past professional or personal relationships with any director, officer or employee of the Employer, the Contractor, the Employer’s Personnel or the Contractor’s Personnel (including as a dispute resolution practitioner on another project), (ii) facts or circumstances which might call into question his/her independence or impartiality, and (iii) previous involvement in the project of which the Contract forms part; not, while a DAAB Member and for the Term of the DAAB: (i) be employed as a consultant or otherwise by, and/or (ii) enter into discussions or make any agreement regarding future employment with comply with the GCs, the DAAB Rules and the Conditions of Contract that are relevant to the DAAB’s Activities; not give advice to the Employer, the Contractor, the Employer’s Personnel or the Contractor’s Personnel concerning the conduct of the Contract, except as required to carry out the DAAB’s Activities; ensure his/her availability during the Term of the DAAB (except in exceptional circumstances, in which case the DAAB Member shall give a Notification without delay to the Parties and the Other Members (if any) detailing the exceptional circumstances) for all meetings, Site visits, hearings and as is necessary to comply with sub-paragraph (a) above; become, and shall remain for the duration of the Term of the DAAB, knowledgeable about the Contract and informed about: 109 GENERAL CONDITIONS Further to Sub-Clauses 3.1 and 3.2 above, the DAAB Member shall: GUIDANCE 4.1 FORMS 4 Independence and Impartiality GENERAL CONDITIONS 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 including by visiting the Site, meeting with the Parties and by studying all documents received from either Party under Rule 4.3 of the DAAB Rules (which shall be maintained in a current working file, in hard-copy or electronic format at the DAAB Member’s discretion); and (e) 6 General Obligations of the Parties Each Party shall comply with the GCs, the DAAB Rules and the Conditions of Contract that are relevant to the DAAB’s Activities. The Employer and the Contractor shall be responsible for compliance with this provision by the Employer’s Personnel and the Contractor’s Personnel, respectively. 6.2 Each Party shall cooperate with the other Party in constituting the DAAB, under Sub-Clause 21.1 [Constitution of the DAAB] and/or Sub-Clause 21.2 [Failure to Appoint DAAB Member(s)] of the Conditions of Contract, without delay. 6.3 In connection with the DAAB’s Activities, each Party shall: 110 © FIDIC 2017 be available to give Informal Assistance when requested jointly by the Parties. 6.1 (a) (b) 7 Confidentiality (i) the Parties’ performance of the Contract; (ii) the Site and its surroundings; and (iii) the progress of the Works (and of any other parts of the project of which the Contract forms part) cooperate in good faith with the DAAB; and fulfil its duties, and exercise any right or entitlement, under the Contract, the GCs and the DAAB Rules and/or otherwise in the manner necessary to achieve the objectives under Rule 1 of the DAAB Rules. 6.4 The Parties, the Employer’s Personnel and the Contractor’s Personnel shall not request advice from or consultation with the DAAB Member regarding the Contract, except as required for the DAAB Member to carry out the DAAB’s Activities. 6.5 At all times when interacting with the DAAB, each Party shall not compromise the DAAB’s warranty of independence and impartiality under Sub-Clause 3.1 above. 6.6 In addition to providing documents under Rule 4.3 of the DAAB Rules, each Party shall ensure that the DAAB Member remains informed as is necessary to enable him/her to comply with sub-paragraph (d) of Sub-Clause 5.1 above. 7.1 Subject to Sub-Clause 7.4 below, the DAAB Member shall treat the details of the Contract, all the DAAB’s Activities and the documents provided under Rule 4.3 of the DAAB Rules as private and confidential, and shall not publish or disclose them without the prior written consent of the Parties and the Other Members (if any). 7.2 Subject to Sub-Clause 7.4 below, the Employer, the Contractor, the Employer’s Personnel and the Contractor’s Personnel shall treat the details of all the DAAB’s Activities as private and confidential. Conditions of Contract for Construction (b) (c) 7.4 If a DAAB Member is replaced under the Contract, the Parties and/or the Other Members (if any) shall disclose details of the Contract, the documents provided under Rule 4.3 of the DAAB Rules and previous DAAB’s Activities (including decisions, if any) to the replacement DAAB Member as is necessary in order to: (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 (b) 8 The Parties’ undertaking and indemnity 8.1 (c) The Employer and the Contractor hereby jointly and severally indemnify and hold the DAAB Member harmless against and from all damages, losses and expenses (including legal fees and expenses) resulting from any claim from which he/she is relieved from liability under Sub-Clause 8.1 above. 9.1 The DAAB Member shall be paid as follows, in the currency named in the DAA Agreement: © FIDIC 2017 be appointed as an arbitrator in any arbitration under the Contract; be called as a witness to give evidence concerning any Dispute in any arbitration under the Contract; or be liable for any claims for anything done or omitted in the discharge or purported discharge of the DAAB Member’s functions, except in any case of fraud, gross negligence, deliberate default or reckless misconduct by him/her. 8.2 (a) General Conditions enable the replacement DAAB Member to comply with sub-paragraph (d) of Sub-Clause 5.1 above; and ensure consistency in the manner in which the DAAB’s Activities are conducted following such replacement. The Employer and the Contractor undertake to each other and to the DAAB Member that the DAAB Member shall not: (a) (b) 9 Fees and Expenses was already in that person’s possession without an obligation of confidentiality before receipt under the DAA Agreement; becomes generally available to the public through no breach of the GCs; or is lawfully obtained by the person from a third party which is not bound by an obligation of confidentiality. a monthly fee, which shall be a fixed fee as payment in full for: (i) being available on 28-days’ notice for all meetings, Site visits and hearings under the DAAB Rules (and, in the event of a request under Rule 3.6 of the DAAB Rules, being available for an urgent meeting or Site visit); (ii) becoming and remaining knowledgeable about the Contract, informed about the progress of the Works and maintaining a current working file of documents, in accordance with sub-paragraph (d) of Clause 5.1 above; (iii) all office and overhead expenses including secretarial services, photocopying and office supplies incurred in connection with his/ her duties; and 111 GENERAL CONDITIONS (a) GUIDANCE Each person’s obligation of confidentiality under Sub-Clause 7.1 or Sub-Clause 7.2 above (as the case may be) shall not apply where the information: FORMS 7.3