1. 1 DISPUTE SETTLEMENT THROUGH ADJUDICATION N D Sharma

2. 2 Dispute Definition of Dispute: An assertion of a right, claim or demand on one side, met by contrary claim or allegation or repudiation on the other An assertion of a right, claim or demand on one side, met by contrary claim or allegation or repudiation on the other

3. 3 DISPUTES Managing Disputes:  Managing disputes would involve efficient Contract Management and Good Working Environment  Settlement involves Amicable settlement/direct negotiations between the parties at an early stage

4. 4 DISPUTE SETTLEMENT THROUGH ADJUDICATION If no Resolution is Found: Establish in a letter the facts which constitute the basis of the dispute resort to dispute resolution, through adjudication, failing which final resort is to arbitration or litigation Establish in a letter the facts which constitute the basis of the dispute resort to dispute resolution, through adjudication, failing which final resort is to arbitration or litigation

5. 5 DISPUTE SETTLEMENT THROUGH ADJUDICATION Adjudicator/DRC/DRB/DB :  Is constituted – 3 members or a single member called adjudicator  Permanent or Ad hoc  Parties to constitute as per contract; failing which appointing authority comes into play

6. 6 DISPUTE SETTLEMENT THROUGH ADJUDICATION PPMO SBD-Based Contracts: The Employer and the Contractor shall attempt to settle amicably by direct negotiation any disagreement or dispute arising between them under or in connection with the Contract. The Employer and the Contractor shall attempt to settle amicably by direct negotiation any disagreement or dispute arising between them under or in connection with the Contract.

7. 7 DISPUTE SETTLEMENT THROUGH ADJUDICATION  Any dispute between the Parties as to matters arising pursuant to this Contract which cannot be settled amicably within thirty (30) days after receipt by one Party of the other Party’s request for such amicable settlement may be referred to the Adjudicator or Dispute Resolution Committee (DRC) by either Party as specified in the SCC within 15 days after the expiration of amicable settlement period..

8. 8 DISPUTE SETTLEMENT THROUGH ADJUDICATION Adjudicator’s Appointment:  The Adjudicator, if specified in the SCC, shall be appointed by the consensus of the Client and the Contractor. If the parties cannot reach an agreement on the appointment of the Adjudicator, the Client will request the Appointing Authority designated in the SCC, to appoint the Adjudicator within 15 days of receipt of such request.

9. 9 DISPUTE SETTLEMENT THROUGH ADJUDICATION Adjudicator/DRC:  DRC shall be formed which comprise of three members. Each Party shall appoint one member each and the third member who shall act as the Chairman shall be appointed by the two members appointed by the Parties.

10. 10 DISPUTE SETTLEMENT THROUGH ADJUDICATION Replying to notice of adjudication:  When you receive a notice of adjudication you need to react very quickly to make sure that you have a say in nomination and your side of the case is heard. you need to react very quickly to make sure that you have a say in nomination and your side of the case is heard.  Check if there is a dispute arising out of or under the contract

11. 11 DISPUTE SETTLEMENT THROUGH ADJUDICATION  Decide if you need any external techno-legal assistance  Begin preparing your response  Identify documents referred to in the notice  Consider whether the Adjudicator/DRC has jurisdiction  Take the matter seriously as Adjudicator's decisions will usually be upheld in Arbitration

12. 12 DISPUTE SETTLEMENT THROUGH ADJUDICATION If a dispute is referred to the adjudicator or the DRC then the Adjudicator or the DRC shall give a decision in writing within 30 days of receipt of a reference of the dispute. If a dispute is referred to the adjudicator or the DRC then the Adjudicator or the DRC shall give a decision in writing within 30 days of receipt of a reference of the dispute.

13. 13 DISPUTE SETTLEMENT THROUGH ADJUDICATION Adjudicator/DRC:  Either party may refer a decision of the Adjudicator or DRC to an Arbitrator within 30 days of the Adjudicator’s or DRC’s written decision. If neither party refers the dispute to arbitration within the above 30 days, the Adjudicator’s or the DRC’s decision will be final and binding.

14. 14 DISPUTE SETTLEMENT THROUGH ADJUDICATION  The Adjudicator or the DRC Members shall be paid by the hour at the rate specified in the SCC, together with reimbursable expenses of the types specified in the SCC, and the cost shall be divided equally between the Client and the Contractor, whatever decision is reached by the Adjudicator or DRC

15. 15 DRB/DB FIDIC Version Provision:  FIDIC Version has more organized provisions  Has provision of a tripartite DB agreement which includes: - Duties, impartiality and remuneration - Duties, impartiality and remuneration - Procedure Methods and rules of DB - Procedure Methods and rules of DB operation operation - In addition to the DB, parties shall respect - In addition to the DB, parties shall respect these rules these rules

16. 16 DRB/DB Management of Disputes:  DB agreement is a tripartite  Includes duties, impartiality and remuneration  Procedure Methods and rules of DB operation  In addition to the DB, parties shall respect these rules

17. 17 DRB/DB General Obligations of the DB members:  No conflict of interest  Disclosure of past relationship with either party  Become conversant with the contract  Be available to give advice on any matter relevant to the contract when requested by both parties subject to the unanimity of all members  Act fairly and impartially,

18. 18 DRB/DB Adjudicator/DRC/DB Procedures are:  Open and Transparent  Limited amount of Time – 30/84 days from the date of referral of dispute  Site visit and hearings  SEQUENCE:  Referral of dispute → Response → Site hearing → Further submissions (and hearings) → Decision

19. 19 DRB/DB Parties empower the DB to:  Establish the procedure  Decide upon the DB’s own jurisdiction, and as to the scope of any dispute referred to it  Conduct any hearing as it thinks fit, not being bound by any rules or procedures other than those contained in the Contract and these Rules  Take the initiative in ascertaining the facts and matters required for a decision  Make use of its own specialist knowledge, if any

20. 20 DRB/DB   Visits to be attended by Employer, Contractor and Engineer   Visits to be co-ordinated by the Employer with Contractor co-operation   Employer to organisemeeting and administration facilities   DAB to produce a site visit report   Report to be sent to Employer and Contractor

21. 21 DRB/DB Parties empower the DB to:  decide upon the payment of financing charges in accordance with the Contract  decide upon any provisional relief such as interim or conservatory measures, and  open up, review and revise any certificate, decision, determination, instruction, opinion or valuation of the Engineer, relevant to the dispute

22. 22 DRB/DB Parties empower the DB to:  Except as otherwise agreed in writing by the Parties, the DB shall have power to adopt an inquisitorial procedure, to refuse admission to hearings or audience at hearings to any persons other than representatives of the Parties and the Engineer, and to proceed in the absence of any party who the DB is satisfied received notice of the hearing; but shall have discretion to decide whether and to what extent this power may be exercised.

23. 23 DRB/DB DB’s Decision Making Procedure:  The DB shall not express any opinions during any hearing concerning the merits of any arguments advanced by the Parties. Thereafter, the DB shall make and give its decision in accordance with relevant provision or as otherwise agreed by the Employer and the Contractor in writing. If the DB comprises three persons: If the DB comprises three persons:  it shall convene in private after a hearing, in order to have discussions and prepare its decision

24. 24 DRB/DB DB’s Decision Making Procedure:  it shall endeavor to reach a unanimous decision: if this proves impossible the applicable decision shall be made by a majority of the Members, who may require the minority Member to prepare a written report for submission to the Employer and the Contractor; and

25. 25 DRB/DB DB’s Decision Making Procedure:  if a Member fails to attend a meeting or hearing, or to fulfill any required function, the other two Members may nevertheless proceed to make a decision, unless:  either the Employer or the Contractor does not agree that they do so, or  the absent Member is the chairman and he/she instructs the other Members not to make a decision

26. 26 DRB/DB   Replaces Engineer, mandatory prior to arbitration   More, informal and flexible   Its decision does not have legal backing as an arbitral award   Commonly provisioned with NEPCA as appointing authority

27. 27 DRB/DB  A good dispute resolution process is: (a) Fair; (a) Fair; (b) Economical; (b) Economical; (c) Quick ; and (d) PREDICTABLE  Informal  Flexible  Though not final and binding as arbitral Award

28. 28 DRB/DB  DRB was first used in America some 25 years ago. DRB, in America, has been credited with a 99% success rate.  Institution, including AAA, came out to provide a new look to the DRBs by developing resources such as guidelines, procedure and a panel of experts for the use of public and private owners.