Daab Procedural Rules PDF

The objectives of these Rules are: (a) (b) 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 GENERAL CONDITIONS 1.1 to facilitate the avoidance of Disputes that might otherwise arise between...

The objectives of these Rules are: (a) (b) 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 GENERAL CONDITIONS 1.1 to facilitate the avoidance of Disputes that might otherwise arise between the Parties; and to achieve the expeditious, efficient and cost effective resolution of any Dispute that arises between the Parties. 1.2 These Rules shall be interpreted, the DAAB’s Activities shall be conducted and the DAAB shall use its powers under the Contract and these Rules, in the manner necessary to achieve the above objectives. Rule 2 Avoidance of Disputes 2.1 Where Sub-Clause 21.3 [Avoidance of Disputes] of the Conditions of Contract applies, the DAAB (in the case of a three-member DAAB, all three DAAB Members acting together) may give Informal Assistance during discussions at any meeting with the Parties (whether face-to-face or by telephone or by video conference) or at any Site visit or by an informal written note to the Parties. Rule 3 Meetings and Site Visits 3.1 The purpose of meetings with the Parties and Site visits by the DAAB is to enable the DAAB to: (a) (b) (c) 3.2 As soon as practicable after the DAAB is appointed, the DAAB shall convene a face-to-face meeting with the Parties. At this meeting, the DAAB shall establish a schedule of planned meetings and Site visits in consultation with the Parties, which schedule shall reflect the requirements of Rule 3.3 below and shall be subject to adjustment by the DAAB in consultation with the Parties. 3.3 The DAAB shall hold face-to-face meetings with the Parties, and/or visit the Site, at regular intervals and/or at the written request of either Party. The frequency of such meetings and/or Site visits shall be: (a) (b) (c) 3.4 General Conditions © FIDIC 2017 become and remain informed about the matters described in sub-paragraphs (d)(i) to (d)(iii) of Sub-Clause 5.1 of the GCs; become aware of, and remain informed about, any actual or potential issue or disagreement between the Parties; and give Informal Assistance if and when jointly requested by the Parties. sufficient to achieve the purpose under Rule 3.1 above; at intervals of not more than 140 days unless otherwise agreed jointly by the Parties and the DAAB; and at intervals of not less than 70 days, subject to Rules 3.5 and 3.6 below and except as required to conduct a hearing as described under Rule 7 below, unless otherwise agreed jointly by the Parties and the DAAB. In addition to the face-to-face meetings referred to in Rules 3.2 and 3.3 above, the DAAB may also hold meetings with the Parties by telephone or video conference as agreed with the Parties (in which case each Party bears the risk of interrupted or faulty telephone or video conference transmission and reception). 117 GUIDANCE Rule 1 Objectives DAAB PROCEDURAL RULES FORMS Annex GENERAL CONDITIONS At times of critical construction events (which may include suspension of the Works or termination of the Contract), the DAAB shall visit the Site at the written request of either Party. This request shall describe the critical construction event. If the DAAB becomes aware of an upcoming critical construction event, it may invite the Parties to make such a request. 3.6 Either Party may request an urgent meeting or Site visit by the DAAB. This shall be a written request and shall give reasons for the urgency of the meeting or Site visit. If the DAAB agrees that such a meeting or Site visit is urgent, the DAAB Members shall use all reasonable endeavours to: GUIDANCE 3.5 (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 (b) 3.7 The time of, and agenda for, each meeting and Site visit shall be set by the DAAB in consultation with the Parties. 3.8 Each meeting and Site visit shall be attended by the Employer, the Contractor and the Engineer. 3.9 Each meeting and Site visit shall be co-ordinated by the Contractor in co-operation with the Employer and the Engineer. The Contractor shall ensure the provision of appropriate: (a) (b) (c) Rule 4 Communications and Documentation At the conclusion of each meeting and Site visit and, if possible before leaving the venue of the face-to-face meeting or the Site (as the case may be) but in any event within 7 days, the DAAB shall prepare a report on its activities during the meeting or Site visit and shall send copies of this report to the Parties and the Engineer. 4.1 The language to be used: (b) (c) 4.2 © FIDIC 2017 personal safety equipment, security controls (if necessary) and site transport for each Site visit; meeting room/conference facilities and secretarial and copying services for each face-to-face meeting; and telephone conference or video conference facilities for each meeting by telephone or video conference. 3.10 (a) 118 hold a meeting with the Parties by telephone or video conference (as agreed with the Parties under Rule 3.4 above) within 3 days after receiving the request; and if requested and (having given the other Party opportunity at this meeting to respond to or oppose this request) the DAAB agrees that a Site visit is necessary, visit the Site within 14 days after the date of this meeting. in all communications to and from the DAAB and the Parties (and, in the case of a three-member DAAB, between the DAAB Members); in all reports and decisions issued by the DAAB; and during all Site visits, meetings and hearings relating to the DAAB’s Activities shall be the language for communications defined in Sub-Clause 1.4 [Law and Language] of the Conditions of Contract, unless otherwise agreed jointly by the Parties and the DAAB. All communications and/or documents sent between the DAAB and a Party shall simultaneously be copied to the other Party. In the case of a 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) (g) Rule 5 Powers of the DAAB 5.1 and any other document relevant to the performance of the Contract and/ or necessary to enable the DAAB to become and remain informed about the matters described in sub-paragraphs (d)(i) to (d)(iii) of Sub-Clause 5.1 of the GCs. In addition to the powers granted to the DAAB under the Conditions of Contract, the General Conditions of the DAA Agreement and elsewhere in these Rules, the Parties empower the DAAB to: (a) (b) (c) (d) (e) (f) (g) (h) (k) (l) General Conditions © FIDIC 2017 the documents forming the Contract; progress reports under Sub-Clause 4.20 [Progress Reports] of the Conditions of Contract; the initial programme and each revised programme under Sub-Clause 8.3 [Programme] of the Conditions of Contract; relevant instructions given by the Engineer, and Variations under Clause 13.3 [Variation Procedure] of the Conditions of Contract; Statements submitted by the Contractor, and all certificates issued by the Engineer under the Contract; relevant Notices; relevant communications between the Parties and between either Party and the Engineer establish the procedure to be applied in making Site visits and/or giving Informal Assistance; establish the procedure to be applied in giving decisions under the Conditions of Contract; decide on the DAAB’s own jurisdiction, and the scope of any Dispute referred to the DAAB; appoint one or more experts (including legal and technical expert(s)), with the agreement of the Parties; decide whether or not there shall be a hearing (or more than one hearing, if necessary) in respect of any Dispute referred to the DAAB; conduct any meeting with the Parties and/or any hearing as the DAAB thinks fit, not being bound by any rules or procedures for the hearing other than those contained in the Contract and in these Rules; take the initiative in ascertaining the facts and matters required for a DAAB decision; make use of a DAAB Member’s own specialist knowledge, if any; (i) decide on the payment of financing charges in accordance with the Contract; (j) decide on any provisional relief such as interim or conservatory measures; open up, review and revise any certificate, decision, determination, instruction, opinion or valuation of (or acceptance, agreement, approval, consent, disapproval, No-objection, permission, or similar act by) the Engineer that is relevant to the Dispute; and proceed with the DAAB’s Activities in the absence of a Party who, 119 GENERAL CONDITIONS The Parties shall provide the DAAB with a copy of all documents which the DAAB may request, including: GUIDANCE 4.3 FORMS three-member DAAB, the sending Party shall send all communications and/ or documents to the chairman of the DAAB and simultaneously send copies of these communications and/or documents to the Other Members. Rule 6 Disputes FORMS GUIDANCE GENERAL CONDITIONS after receiving a Notification from the DAAB, fails to comply with Sub-Clause 6.3 of the GCs. 5.2 The DAAB shall have discretion to decide whether and to what extent any powers granted to the DAAB, under the Conditions of Contract, the GCs and these Rules, may be exercised. 6.1 If any Dispute is referred to the DAAB in accordance with Sub-Clause 21.4.1 [Reference of a Dispute to the DAAB] of the Conditions of Contract, the DAAB shall proceed in accordance with Sub-Clause 21.4 [Obtaining DAAB’s Decision] of the Conditions of Contract and these DAAB Rules, or as otherwise agreed by the Parties in writing. 6.2 The DAAB shall act fairly and impartially between the Parties and, taking due regard of the period under Sub-Clause 21.4.3 [The DAAB’s decision] of the Conditions of Contract and other relevant circumstances, the DAAB shall: 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 (a) (b) Rule 7 Hearings 7.1 In addition to the powers under Rule 5.1 above, and except as otherwise agreed in writing by the Parties, the DAAB shall have power to: (a) (b) (c) (d) (e) (f) (g) (h) (i) 120 © FIDIC 2017 give each Party a reasonable opportunity (consistent with the expedited nature of the DAAB proceeding) of putting forward its case and responding to the other Party’s case; and adopt a procedure in coming to its decision that is suitable to the Dispute, avoiding unnecessary delay and/or expense. decide on the date and place for any hearing, in consultation with the Parties; decide on the duration of any hearing; request that written documentation and arguments from the Parties be submitted to it prior to the hearing; adopt an inquisitorial procedure during any hearing: request the production of documents, and/or oral submissions by the Parties, at any hearing that the DAAB considers may assist in exercising the DAAB’s power under sub-paragraph (g) of Rule 5.1 above; request the attendance of persons at any hearing that the DAAB considers may assist in exercising the DAAB’s power under sub-paragraph (g) of Rule 5.1 above; refuse admission to any hearing, or audience at any hearing, to any persons other than representatives of the Employer, the Contractor and the Engineer; proceed in the absence of any party who the DAAB is satisfied received timely notice of the hearing; adjourn any hearing as and when the DAAB considers further investigation by one Party or both Parties would benefit resolution of the Dispute, for such time as the investigation is carried out, and resume the hearing promptly thereafter. 7.2 The DAAB shall not express any opinions during any hearing concerning the merits of any arguments advanced by either Party in respect of the Dispute. 7.3 The DAAB shall not give any Informal Assistance during a hearing, but if the Parties request Informal Assistance during any hearing: Conditions of Contract for Construction (c) 8.1 The DAAB shall make and give its decision within the time allowed under Sub-Clause 21.4 [Obtaining DAAB’s Decision] of the Conditions of Contract, or other time as may be proposed by the DAAB and agreed by the Parties in writing. 8.2 In the case of a three-member DAAB: (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) (c) (d) it shall meet in private (after the hearing, if any) in order to have discussions and to start preparation of its decision; the DAAB Members shall use all reasonable endeavours to reach a unanimous decision; if it is not possible for the DAAB Members to reach a unanimous decision, the applicable decision shall be made by a majority of the DAAB Members, who may require the minority DAAB Member to prepare a separate written report (with reasons and supporting particulars) which shall be issued to the Parties; and if a DAAB Member fails to: (i) attend a hearing (if any) or a DAAB Members’ meeting; or (ii) fulfil any required function (other than agreeing to a unanimous decision) the Other Members shall nevertheless proceed to make a decision, unless: • • • 8.3 General Conditions © FIDIC 2017 such failure has been caused by exceptional circumstances, of which the Other Members and the Parties have received a Notification from the DAAB Member; the DAAB Member has suspended his services under sub-paragraph (a) of Sub-Clause 9.7 of the GCs; or otherwise agreed by the Parties in writing. If, after giving a decision, the DAAB finds (and, in the case of a three-member DAAB, they agree unanimously or by majority) that the decision contained any error: (a) (b) FORMS Rule 8 The DAAB’s Decision GENERAL CONDITIONS (b) the hearing shall be adjourned for such time as the DAAB is giving Informal Assistance; if the hearing is so adjourned for longer than 2 days, the period under Sub-Clause 21.4.3 [The DAAB’s decision] of the Conditions of Contract shall be temporarily suspended until the date that the hearing is resumed; and the hearing shall be resumed promptly after the DAAB has given such Informal Assistance. GUIDANCE (a) of a typographical or clerical nature; or of an arithmetical nature the chairman of the DAAB or the sole DAAB Member (as the case may be) shall, within 14 days after giving this decision, advise the Parties of the error and issue an addendum to its original decision in writing to the Parties. 8.4 If, within 14 days of receiving a decision from the DAAB, either Party finds a typographical, clerical or arithmetical error in the decision, that Party may request the DAAB to correct such error. This shall be a written request and shall clearly identify the error. 8.5 If, within 14 days of receiving a decision from the DAAB, either Party believes that such decision contains an ambiguity, that Party may request clarification 121 8.6 The DAAB shall respond to a request under Rule 8.4 or Rule 8.5 above within 14 days of receiving the request. The DAAB may decline (at its sole discretion and with no requirement to give reasons) any request for clarification under Rule 8.5. If the DAAB agrees (in the case of a three-member DAAB they agree unanimously or by majority) that the decision did contain the error or ambiguity as described in the request, it may correct its decision by issuing an addendum to its original decision in writing to the Parties, in which case this addendum shall be issued together with the DAAB’s response under this Rule. 8.7 If the DAAB issues an addendum to its original decision under Rule 8.3 or 8.6 above, such an addendum shall form part of the decision and the period stated in sub-paragraph (c) of Sub-Clause 21.4.4 [Dissatisfaction with DAAB’s decision] of the Conditions of Contract shall be calculated from the date the Parties receive this addendum. 9.1 If, on the date of termination of a DAAB Member’s DAA Agreement arising from resignation or termination under Clause 10 of the GCs, the DAAB is dealing with any Dispute under Sub-Clause 21.4 [Obtaining DAAB’s Decision] of the Conditions of Contract: 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 GENERAL CONDITIONS from the DAAB. This shall be a written request and shall clearly identify the ambiguity. Rule 9 In the event of Termination of DAA Agreement (a) (b) Rule 10 Objection Procedure 9.2 In the case of a three-member DAAB and if one DAAB Member’s DAA Agreement is terminated as a result of resignation or termination under Clause 10 of the GCs, the Other Members shall continue as members of the DAAB except that they shall not conduct any hearing or make any decision prior to the replacement of the DAAB Member unless otherwise agreed jointly by the Parties and the Other Members. 10.1 The following procedure shall apply to any objection against a DAAB Member: (a) (b) 122 © FIDIC 2017 the period under Sub-Clause 21.4.3 [The DAAB’s decision] of the Conditions of Contract shall be temporarily suspended; and when a replacement DAAB Member is appointed in accordance with Sub-Clause 21.1 [Constitution of the DAAB] of the Conditions of Contract, the full period under Sub-Clause 21.4.3 [The DAAB’s decision] of the Conditions of Contract shall apply from the date of this replacement DAAB Member’s appointment. the objecting Party shall, within 7 days of becoming aware of the facts and/or events giving rise to the objection, give a Notification to the DAAB Member of its objection. This Notification shall: (i) state that it is given under this Rule; (ii) state the reason(s) for the objection; (iii) substantiate the objection by setting out the facts, and describing the events, on which the objection is based, with supporting particulars; and (iv) be simultaneously copied to the other Party and the Other Members; within 7 days after receiving a notice under sub-paragraph (a) above, the objected DAAB Member shall respond to the objecting Party. 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 Rule 11 Challenge Procedure General Conditions © FIDIC 2017 11.1 If and when the objecting Party challenges a DAAB Member, within 21 days of learning of the facts upon which the challenge is based, the provisions of this Rule shall apply. Any challenge is to be decided by the International Chamber of Commerce (ICC) and administered by the ICC International Centre for ADR. 11.2 The procedure for such challenge and information on associated charges to be paid are set out at http://fidic.org and http://iccwbo.org. 123 GENERAL CONDITIONS GUIDANCE (d) FORMS (c) This response shall be simultaneously copied to the other Party and the Other Members. If no response is given by the DAAB Member within this period of 7 days, the DAAB Member shall be deemed to have given a response denying the matters on which the objection is based; within 7 days after receiving the objected DAAB Member’s response under sub-paragraph (b) above (or, if there is no such response, after expiry of the period of 7 days stated in sub-paragraph (b) above) the objecting Party may formally challenge a DAAB member in accordance with Rule 11 below; if the challenge is not referred within the period of 7 days stated in sub-paragraph (c) above, the objecting Party shall be deemed to have agreed to the DAAB Member remaining on the DAAB and shall not be entitled to object and/or challenge him/her thereafter on the basis of any of the facts and/or evidence stated in the notice given under sub-paragraph (a) above;