SESSION THREE TYPES OF DISPUTES RESOLUTION PROCEDURES Immanuel Kant Baltic Federal University Kaliningrad, Russia John B. Tieder, Jr., Esq. McLean, Virginia.

SESSION THREE TYPES OF DISPUTES RESOLUTION PROCEDURES Immanuel Kant Baltic Federal University Kaliningrad, Russia John B. Tieder, Jr., Esq. McLean, Virginia USA jtieder@watttieder.com www.watttieder.com

METHODS OF RESOLVING DISPUTES Litigation – Court Action Arbitration Mediation Negotiation Conciliation Disputes Review Boards 2

PARTY CONTROL 3 Voluntary Maximum ControlMinimum Control Involuntary

LITIGATION Advantages Final resolution subject only to appeal No expense for judge Disadvantages Lengthy period of time Expense of legal fees Possibly corruptible Will decision be accepted outside the Court’s country? No expertise in field in dispute 4

NEGOTIATION Advantages Inexpensive Fast Minimum level of antagonism Disadvantages No risk in failure Limited incentives to conclude 5

MEDIATION Advantages Inexpensive Fast Minimum level of antagonism Some “feel” for Third Party evaluation Disadvantages Not final 6

CONCILIATION Advantages Inexpensive Fast 3 rd Party view Disadvantages 3 rd Party view without finality 7

DISPUTES ADJUDICATION OR REVIEW BOARDS Advantages Expert determination Clear ruling Disadvantages Determination is not based on full set of circumstances Not final 8

ARBITRATION Advantages Truly international and impartial Less susceptible to corruption Experts in the field in dispute Typically faster than court Final decision Enforceable throughout the world Disadvantages Expensive Time consuming 9

MULTI-LEVEL DISPUTES RESOLUTION PROCEDURE FIDIC CONDITIONS OF CONTRACT FOR CONSTRUCTION Clause 20 – Claim, Disputes and Arbitration 20.1 Contractor’s Claims If the Contractor considers himself to be entitled to any extension of the Time for Completion and/or any additional payment, under any Clause of these Conditions or otherwise in connection with the Contract, the Contractor shall give notice to the Engineer, describing the event or circumstance giving rise to the claim. The notice shall be given as soon as practicable, and not later than 28 days after the Contractor became aware, or should have become aware, of the event or circumstance. If the Contractor fails to give notice of a claim within such period of 28 days, the Time for Completion shall not be extended, the Contractor shall not be entitled to additional payment, and the Employer shall be discharged from all liability in connection with the claim. Otherwise, the following provisions of this Sub-Clause shall apply. 10

MULTI-LEVEL DISPUTES RESOLUTION PROCEDURE FIDIC CONDITIONS OF CONTRACT FOR CONSTRUCTION Clause 20 – Claim, Disputes and Arbitration 20.1 Contractor’s Claims The Contractor shall also submit any other notices which are required by the Contract, and supporting particulars for the claim, all as relevant to such event or circumstance. The Contractor shall keep such contemporary records as may be necessary to substantiate any claim, either on the Site or at another location acceptable to the Engineer. Without admitting the Employer's liability, the Engineer may, after receiving any notice under this Sub-Clause, monitor the record-keeping and/or instruct the Contractor to keep further contemporary records. The Contractor shall permit the Engineer to inspect all these records, and shall (if instructed) submit copies to the Engineer. 11

MULTI-LEVEL DISPUTES RESOLUTION PROCEDURE FIDIC CONDITIONS OF CONTRACT FOR CONSTRUCTION Clause 20 – Claim, Disputes and Arbitration 20.1 Contractor’s Claims Within 42 days after the Contractor became aware (or should have become aware) of the event or circumstance giving rise to the claim, or within such other period as may be proposed by the Contractor and approved by the Engineer, the Contractor shall send to the Engineer a fully detailed claim which includes full supporting particulars of the basis of the claim and of the extension of time and/or additional payment claimed. If the event or circumstance giving rise to the claim has a continuing effect: a)this fully detailed claim shall be considered as interim; b)the Contractor shall send further interim claims at monthly intervals, giving the accumulated delay and/or amount claimed, and such further particulars as the Engineer may reasonably require; and the Contractor shall send a final claim within 28 days after the end of the effects resulting from the event or circumstance, or within such other period as may be proposed by the Contractor and approved by the Engineer. 12

MULTI-LEVEL DISPUTES RESOLUTION PROCEDURE FIDIC CONDITIONS OF CONTRACT FOR CONSTRUCTION Clause 20 – Claim, Disputes and Arbitration 20.1 Contractor’s Claims Within 42 days after receiving a claim or any further particulars supporting a previous claim, or within such other period as may be proposed by the Engineer and approved by the Contractor, the Engineer shall respond with approval, or with disapproval and detailed comments. He may also request any necessary further particulars, but shall nevertheless give his response on the principles of the claim within such time. Each Payment Certificate shall include such amounts for any claim as have been reasonably substantiated as due under the relevant provision of the Contract. Unless and until the particulars supplied are sufficient to substantiate the whole of the claim, the Contractor shall only be entitled to payment for such part of the claim as he has been able to substantiate. 13

MULTI-LEVEL DISPUTES RESOLUTION PROCEDURE FIDIC CONDITIONS OF CONTRACT FOR CONSTRUCTION Clause 20 – Claim, Disputes and Arbitration 20.1 Contractor’s Claims The Engineer shall proceed in accordance with Sub-Clause 3.5 [Determinations] to agree or determine (i) the extension (if any) of the Time for Completion (before or after its expiry) in accordance with Sub-Clause 8.4 [Extension of Time for Completion], and/or (ii) the additional payment (if any) to which the Contractor is entitled under the Contract. The requirements of this Sub-Clause are in addition to those of any other Sub-Clause which may apply to a claim. If the Contractor fails to comply with this or another Sub-Clause in relation to any claim, any extension of time and/or additional payment shall take account of the extent (if any) to which the failure has prevented or prejudiced proper investigation of the claim, unless the claim is excluded under the second paragraph of this Sub-Clause. 14

MULTI-LEVEL DISPUTES RESOLUTION PROCEDURE FIDIC CONDITIONS OF CONTRACT FOR CONSTRUCTION Clause 20 – Claim, Disputes and Arbitration 20.2 Appointment of the Dispute Adjudication Board Disputes shall be adjudicated by a DAB in accordance with Sub-Clause 20.4 [Obtaining Dispute Adjudication Board's Decision]. The Parties shall jointly appoint a DAB by the date stated in the Appendix to Tender. The DAB shall comprise, as stated in the Appendix to Tender, either one or three suitably qualified persons ("the members"). If the number is not so stated and the Parties do not agree otherwise, the DAB shall comprise three persons. If the DAB is to comprise three persons, each Party shall nominate one member for the approval of the other Party. The Parties shall consult both these members and shall agree upon the third member, who shall be appointed to act as chairman. 15

MULTI-LEVEL DISPUTES RESOLUTION PROCEDURE FIDIC CONDITIONS OF CONTRACT FOR CONSTRUCTION Clause 20 – Claim, Disputes and Arbitration 20.2 Appointment of the Dispute Adjudication Board However, if a list of potential members is included in the Contract, the members shall be selected from those on the list, other than anyone who is unable or unwilling to accept appointment to the DAB. The agreement between the Parties and either the sole member ("adjudicator") or each of the three members shall incorporate by reference the General Conditions of Dispute Adjudication Agreement contained in the Appendix to these General Conditions, with such amendments as are agreed between them. The terms of the remuneration of either the sole member or each of the three members, including the remuneration of any expert whom the DAB consults, shall be mutually agreed upon by the Parties when agreeing the terms of appointment. Each Party shall be responsible for paying one-half of this remuneration. 16

MULTI-LEVEL DISPUTES RESOLUTION PROCEDURE FIDIC CONDITIONS OF CONTRACT FOR CONSTRUCTION Clause 20 – Claim, Disputes and Arbitration 20.2 Appointment of the Dispute Adjudication Board If at any time the Parties so agree, they may appoint a suitably qualified person or persons to replace (or to be available to replace) any one or more members of the DAB. Unless the Parties agree otherwise, the appointment will come into effect if a member declines to act or is unable to act as a result of death, disability, resignation or termination of appointment. If any of these circumstances occurs and no such replacement is available, a replacement shall be appointed in the same manner as the replaced person was required to have been nominated or agreed upon, as described in this Sub-Clause. 17

MULTI-LEVEL DISPUTES RESOLUTION PROCEDURE FIDIC CONDITIONS OF CONTRACT FOR CONSTRUCTION Clause 20 – Claim, Disputes and Arbitration 20.2 Appointment of the Dispute Adjudication Board The appointment of any member may be terminated by mutual agreement of both Parties, but not by the Employer or the Contractor acting alone. Unless otherwise agreed by both Parties, the appointment of the DAB (including each member) shall expire when the discharge referred to in Sub-Clause 14.12 [Discharge] shall have become effective. 18

MULTI-LEVEL DISPUTES RESOLUTION PROCEDURE FIDIC CONDITIONS OF CONTRACT FOR CONSTRUCTION Clause 20 – Claim, Disputes and Arbitration 20.3 Failure to Agree Dispute Adjudication Board If any of the following conditions apply, namely: a)the Parties fail to agree upon the appointment of the sole member of the DAB by the date stated in the first paragraph of Sub-Clause 20.2, b)either Party fails to nominate a member (for approval by the other Party) of a DAB of three persons by such date, c)the Parties fail to agree upon the appointment of the third member (to act as chairman) of the DAB by such date, or d)the Parties fail to agree upon the appointment of a replacement person within 42 days after the date on which the sole member or one of the three members declines to act or is unable to act as a result of death, disability, resignation or termination of appointment, then the appointing entity or official named in the Appendix to Tender shall, upon the request of either or both of the Parties and after due consultation with both Parties, appoint this member of the DAB. This appointment shall be final and conclusive. Each Party shall be responsible for paying one-half of the remuneration of the appointing entity or official. 19

MULTI-LEVEL DISPUTES RESOLUTION PROCEDURE FIDIC CONDITIONS OF CONTRACT FOR CONSTRUCTION Clause 20 – Claim, Disputes and Arbitration 20.4 Obtaining Dispute Adjudication Board’s Decision If a dispute (of any kind whatsoever) arises between the Parties in connection with, or arising out of, the Contract or the execution of the Works, including any dispute as to any certificate, determination, instruction, opinion or valuation of the Engineer, either Party may refer the dispute in writing to the DAB for its decision, with copies to the other Party and the Engineer. Such reference shall state that it is given under this Sub-Clause. For a DAB of three persons, the DAB shall be deemed to have received such reference on the date when it is received by the chairman of the DAB. 20

MULTI-LEVEL DISPUTES RESOLUTION PROCEDURE FIDIC CONDITIONS OF CONTRACT FOR CONSTRUCTION Clause 20 – Claim, Disputes and Arbitration 20.4 Obtaining Dispute Adjudication Board’s Decision Both Parties shall promptly make available to the DAB all such additional information, further access to the Site, and appropriate facilities, as the DAB may require for the purposes of making a decision on such dispute. The DAB shall be deemed to be not acting as arbitrator(s). Within 84 days after receiving such reference, or within such other period as may be proposed by the DAB and approved by both Parties, the DAB shall give its decision, which 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 give effect to it unless and until it shall be revised in an amicable settlement or an arbitral award as described below. Unless the Contract has already been abandoned, repudiated or terminated, the Contractor shall continue to proceed with the Works in accordance with the Contract. 21

MULTI-LEVEL DISPUTES RESOLUTION PROCEDURE FIDIC CONDITIONS OF CONTRACT FOR CONSTRUCTION Clause 20 – Claim, Disputes and Arbitration 20.4 Obtaining Dispute Adjudication Board’s Decision If either Party is dissatisfied with the DAB's decision, then either Party may, within 28 days after receiving the decision, give notice to the other Party of its dissatisfaction. If the DAB fails to give its decision within the period of 84 days (or as otherwise approved) after receiving such reference, then either Party may, within 28 days after this period has expired, give notice to the other Party of its dissatisfaction. 22

MULTI-LEVEL DISPUTES RESOLUTION PROCEDURE FIDIC CONDITIONS OF CONTRACT FOR CONSTRUCTION Clause 20 – Claim, Disputes and Arbitration 20.4 Obtaining Dispute Adjudication Board’s Decision In either event, this notice of dissatisfaction shall state that it is given under this Sub-Clause, and shall set out the matter in dispute and the reason(s) for dissatisfaction. Except as stated in Sub-Clause 20.7 [Failure to Comply with Dispute Adjudication Board's Decision] and Sub-Clause 20.8 [Expiry of Dispute Adjudication Board's Appointment], neither Party shall be entitled to commence arbitration of a dispute unless a notice of dissatisfaction has been given in accordance with this Sub-Clause. If the DAB has given its decision as to a matter in dispute to both Parties, and no notice of dissatisfaction has been given by either Party within 28 days after it received the DAB's decision, then the decision shall become final and binding upon both Parties. 23

MULTI-LEVEL DISPUTES RESOLUTION PROCEDURE FIDIC CONDITIONS OF CONTRACT FOR CONSTRUCTION Clause 20 – Claim, Disputes and Arbitration 20.5 Amicable Settlement Where notice of dissatisfaction has been given under Sub- Clause 20.4 above, 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 fifty-sixth day after the day on which notice of dissatisfaction was given, even if no attempt at amicable settlement has been made. 24

MULTI-LEVEL DISPUTES RESOLUTION PROCEDURE FIDIC CONDITIONS OF CONTRACT FOR CONSTRUCTION Clause 20 – Claim, Disputes and Arbitration 20.6 Arbitration Unless settled amicably, any dispute in respect of which the DAB's decision (if any) has not become final and binding shall be finally settled by international arbitration. Unless otherwise agreed by both Parties: a)the dispute shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce, b)the dispute shall be settled by three arbitrators appointed in accordance with these Rules, and c)the arbitration shall be conducted in the language for communications defined in Sub-Clause 1.4 [Law and Language]. 25

MULTI-LEVEL DISPUTES RESOLUTION PROCEDURE FIDIC CONDITIONS OF CONTRACT FOR CONSTRUCTION Clause 20 – Claim, Disputes and Arbitration 20.6 Arbitration The arbitrator(s) shall have full power to open up, review and revise any certificate, determination, instruction, opinion or valuation of the Engineer, and any decision of the DAB, 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. Neither Party shall be limited in the proceedings before the arbitrator(s) to the evidence or arguments previously put before the DAB to obtain its decision, or to the reasons for dissatisfaction given in its notice of dissatisfaction. Any decision of the DAB shall be admissible in evidence in the arbitration. Arbitration may be commenced prior to or after completion of the Works. The obligations of the Parties, the Engineer and the DAB shall not be altered by reason of any arbitration being conducted during the progress of the Works. 26

MULTI-LEVEL DISPUTES RESOLUTION PROCEDURE FIDIC CONDITIONS OF CONTRACT FOR CONSTRUCTION Clause 20 – Claim, Disputes and Arbitration 20.7 Failure to comply with Dispute Adjudication Board’s Decision In the event that: a)neither Party has given notice of dissatisfaction within the period stated in Sub-Clause 20.4 [Obtaining Dispute Adjudication Board's Decision], b)the DAB's related decision (if any) has become final and binding, and c)a Party fails to comply with this decision, then the other Party may, without prejudice to any other rights it may have, refer the failure itself to arbitration under Sub- Clause 20.6 [Arbitration]. Sub-Clause 20.4 [Obtaining Dispute Adjudication Board's Decision] and Sub-Clause 20.5 [Amicable Settlement] shall not apply to this reference. 27

MULTI-LEVEL DISPUTES RESOLUTION PROCEDURE FIDIC CONDITIONS OF CONTRACT FOR CONSTRUCTION Clause 20 – Claim, Disputes and Arbitration 20.8 Expiry of Dispute Adjudication Board’s Appointment 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 DAB in place, whether by reason of the expiry of the DAB's appointment or otherwise: a)Sub-Clause 20.4 [Obtaining Dispute Adjudication Board's Decision] and Sub-Clause 20.5 [Amicable Settlement] shall not apply, and b)the dispute may be referred directly to arbitration under Sub- Clause 20.6 [Arbitration]. 28

MEDIATION DEFINITION n. the attempt to settle a legal dispute through active participation of a third party (mediator) who works to find points of agreement and make those in conflict agree on a fair result. Mediation differs from arbitration in which the third party (arbitrator) acts much like a judge but in an out-of-court less formal setting but does not actively participate in the discussion. Mediation has become very common in trying to resolve domestic relations disputes (divorce, child custody, visitation), and is often ordered by the judge in such cases. Mediation also has become more frequent in contract and civil damage cases. There are professional mediators, or lawyers who do some mediation for substantial fees, but the financial cost is less than fighting the matter out in court and may achieve early settlement and an end to anxiety. However, mediation does not always result in a settlement. 29

MEDIATION - ICDR INTERNATIONAL DISPUTE RESOLUTION PROCEDURES 1.Agreement of Parties Whenever parties have agreed in writing to mediate disputes under these International Mediation Rules or have provided for mediation or conciliation of existing or future international disputes under the auspices of the International Centre for Dispute Resolution (ICDR), the international division of the American Arbitration Association (AAA), or the AAA without designating particular Rules, they shall be deemed to have made these Rules, as amended and in effect as of the date of the submission of the dispute, a part of their agreement. The parties by mutual agreement may vary any part of these Rules including, but not limited to, agreeing to conduct the mediation via telephone or other electronic or technical means. 30

MEDIATION - ICDR INTERNATIONAL DISPUTE RESOLUTION PROCEDURES 2.Initiation of Mediation 1.Any party or parties to a dispute may initiate mediation under the ICDR's auspices by making a request for mediation to any ICDR or AAA office or case management center via telephone, email, regular mail, or fax. Requests for mediation may also be filed online via AAA WebFile at www.icdr.org.www.icdr.org 31

MEDIATION - ICDR INTERNATIONAL DISPUTE RESOLUTION PROCEDURES 2.Initiation of Mediation 2.The party initiating the mediation shall simultaneously notify the other party or parties of the request. The initiating party shall provide the following information to the ICDR and the other party or parties as applicable: a)a copy of the mediation provision of the parties' contract or the parties' stipulation to mediate; b)the names, regular mail addresses, email addresses, and telephone numbers of all parties to the dispute and representatives, if any, in the mediation; c)a brief statement of the nature of the dispute and the relief requested; d)any specific qualifications the mediator should possess. 32

MEDIATION - ICDR INTERNATIONAL DISPUTE RESOLUTION PROCEDURES 2.Initiation of Mediation 3.Where there is no preexisting stipulation or contract by which the parties have provided for mediation of existing or future disputes under the auspices of the ICDR, a party may request the ICDR to invite another party to participate in "mediation by voluntary submission." Upon receipt of such a request, the ICDR will contact the other party or parties involved in the dispute and attempt to obtain a submission to mediation. 33

MEDIATION - ICDR INTERNATIONAL DISPUTE RESOLUTION PROCEDURES 4.Appointment of the Mediator If the parties have not agreed to the appointment of a mediator and have not provided any other method of appointment, the mediator shall be appointed in the following manner: a)Upon receipt of a request for mediation, the ICDR will send to each party a list of mediators from the ICDR's Panel of Mediators. The parties are encouraged to agree to a mediator from the submitted list and to advise the ICDR of their agreement. 34

MEDIATION - ICDR INTERNATIONAL DISPUTE RESOLUTION PROCEDURES 4.Appointment of the Mediator b)If the parties are unable to agree upon a mediator, each party shall strike unacceptable names from the list, number the remaining names in order of preference, and return the list to the ICDR. If a party does not return the list within the time specified, all mediators on the list shall be deemed acceptable. From among the mediators who have been mutually approved by the parties, and in accordance with the designated order of mutual preference, the ICDR shall invite a mediator to serve. c)If the parties fail to agree on any of the mediators listed, or if acceptable mediators are unable to serve, or if for any other reason the appointment cannot be made from the submitted list, the ICDR shall have the authority to make the appointment from among other members of the Panel of Mediators without the submission of additional lists. 35

MEDIATION - ICDR INTERNATIONAL DISPUTE RESOLUTION PROCEDURES 5.Mediator’s Impartiality and Duty to Disclose 1.ICDR mediators are required to abide by the Model Standards of Conduct for Mediators in effect at the time a mediator is appointed to a case. Where there is a conflict between the Model Standards and any provision of these Mediation Rules, these Mediation Rules shall govern. The Standards require mediators to (i) decline a mediation if the mediator cannot conduct it in an impartial manner, and (ii) disclose, as soon as practicable, all actual and potential conflicts of interest that are reasonably known to the mediator and could reasonably be seen as raising a question about the mediator's impartiality. 36

MEDIATION - ICDR INTERNATIONAL DISPUTE RESOLUTION PROCEDURES 5.Mediator’s Impartiality and Duty to Disclose 2.Prior to accepting an appointment, ICDR mediators are required to make a reasonable inquiry to determine whether there are any facts that a reasonable individual would consider likely to create a potential or actual conflict of interest for the mediator. ICDR mediators are required to disclose any circumstance likely to create a presumption of bias or prevent a resolution of the parties' dispute within the time frame desired by the parties. Upon receipt of such disclosures, the ICDR shall immediately communicate the disclosures to the parties for their comments. 37

MEDIATION - ICDR INTERNATIONAL DISPUTE RESOLUTION PROCEDURES 5.Mediator’s Impartiality and Duty to Disclose 3.The parties may, upon receiving disclosure of actual or potential conflicts of interest of the mediator, waive such conflicts and proceed with the mediation. In the event that a party disagrees as to whether the mediator shall serve, or in the event that the mediator's conflict of interest might reasonably be viewed as undermining the integrity of the mediation, the mediator shall be replaced. 38

MEDIATION - ICDR INTERNATIONAL DISPUTE RESOLUTION PROCEDURES 7.Duties and Responsibilities of the Mediator 1.The mediator shall conduct the mediation based on the principle of party self-determination. Self-determination is the act of coming to a voluntary, un-coerced decision in which each party makes free and informed choices as to process and outcome. 2.The mediator is authorized to conduct separate or ex parte meetings and other communications with the parties and/or their representatives, before, during, and after any scheduled mediation conference. Such communications may be conducted via telephone, in writing, via email, online, in person, or otherwise. 39

MEDIATION - ICDR INTERNATIONAL DISPUTE RESOLUTION PROCEDURES 7.Duties and Responsibilities of the Mediator 3.The parties are encouraged to exchange all documents pertinent to the relief requested. The mediator may request the exchange of memoranda on issues, including the underlying interests and the history of the parties' negotiations. Information that a party wishes to keep confidential may be sent to the mediator, as necessary, in a separate communication with the mediator. 4.The mediator does not have the authority to impose a settlement on the parties but will attempt to help them reach a satisfactory resolution of their dispute. Subject to the discretion of the mediator, the mediator may make oral or written recommendations for settlement to a party privately or, if the parties agree, to all parties jointly. 40

MEDIATION - ICDR INTERNATIONAL DISPUTE RESOLUTION PROCEDURES 7.Duties and Responsibilities of the Mediator 5.In the event that a complete settlement of all or some issues in dispute is not achieved within the scheduled mediation conference(s), the mediator may continue to communicate with the parties for a period of time in an ongoing effort to facilitate a complete settlement. 6.The mediator is not a legal representative of any party and has no fiduciary duty to any party. 41

MEDIATION - ICDR INTERNATIONAL DISPUTE RESOLUTION PROCEDURES 8.Responsibilities of the Parties 1.The parties shall ensure that appropriate representatives of each party having authority to consummate a settlement attend the mediation conference. 2.Prior to and during the scheduled mediation conference(s), the parties and their representatives shall, as appropriate to each party's circumstances, exercise their best efforts to prepare for and engage in a meaningful and productive mediation. 42

MEDIATION - ICDR INTERNATIONAL DISPUTE RESOLUTION PROCEDURES 9.Privacy Mediation conferences and related mediation communications are private proceedings. The parties and their representatives may attend mediation conferences. Other persons may attend only with the permission of the parties and with the consent of the mediator. 43

MEDIATION - ICDR INTERNATIONAL DISPUTE RESOLUTION PROCEDURES 10.Confidentiality 1.Subject to applicable law or the parties' agreement, confidential information disclosed to a mediator by the parties or by other participants (witnesses) in the course of the mediation shall not be divulged by the mediator. The mediator shall maintain the confidentiality of all information obtained in the mediation, and all records, reports, or other documents received by a mediator while serving in that capacity shall be confidential. 2.The mediator shall not be compelled to divulge such records or to testify in regard to the mediation in any adversary proceeding or judicial forum. 44

MEDIATION - ICDR INTERNATIONAL DISPUTE RESOLUTION PROCEDURES 10.Confidentiality 3.The parties shall maintain the confidentiality of the mediation and shall not rely on, or introduce as evidence in any arbitral, judicial, or other proceeding the following, unless agreed to by the parties or required by applicable law: a.views expressed or suggestions made by a party or other participant with respect to a possible settlement of the dispute; b.admissions made by a party or other participant in the course of the mediation proceedings; c.proposals made or views expressed by the mediator; or d.the fact that a party had or had not indicated willingness to accept a proposal for settlement made by the mediator. 45

MEDIATION - ICDR INTERNATIONAL DISPUTE RESOLUTION PROCEDURES 11.No Stenographic Record There shall be no stenographic record of the mediation process. 46

MEDIATION - ICDR INTERNATIONAL DISPUTE RESOLUTION PROCEDURES 12.Termination of Mediation The mediation shall be terminated: a.by the execution of a settlement agreement by the parties; or b.by a written or verbal declaration of the mediator to the effect that further efforts at mediation would not contribute to a resolution of the parties' dispute; or c.by a written or verbal declaration of all parties to the effect that the mediation proceedings are terminated; or d.when there has been no communication between the mediator and any party or party's representative for 21 days following the conclusion of the mediation conference. 47

CONCILIATION - DEFINITION Conciliation is the act of adjusting or settling disputes in a friendly manner through out of court means. Conciliation means bringing two opposing sides together to reach a compromise in an attempt to avoid taking a case to trial. Conciliation is a method under alternate dispute resolution. In the U.S., conciliation is admissible previous to any submission in court. In conciliation, both the parties select a third party who hears both sides and then prepares a compromise that the conciliator feels as a fair disposition of the matter in dispute. 48

UNCITRAL MODEL LAW ON INTERNATIONAL COMMERCIAL CONCILIATION (2002) Article 1. Scope of application and definitions 1.This Law applies to international commercial conciliation. 2.For the purposes of this Law, “conciliator” means a sole conciliator or two or more conciliators, as the case may be. 3.For the purposes of this Law, “conciliation” means a process, whether referred to by the expression conciliation, mediation or an expression of similar import, whereby parties request a third person or persons (“the conciliator”) to assist them in their attempt to reach an amicable settlement of their dispute arising out of or relating to a contractual or other legal relationship. The conciliator does not have the authority to impose upon the parties a solution to the dispute. 49

UNCITRAL MODEL LAW ON INTERNATIONAL COMMERCIAL CONCILIATION (2002) Article 1. Scope of application and definitions 4.A conciliation is international if: a)The parties to an agreement to conciliate have, at the time of the conclusion of that agreement, their places of business in different States; or b)The State in which the parties have their places of business is different from either: i.The State in which a substantial part of the obligations of the commercial relationship is to be performed; or ii.The State with which the subject matter of the dispute is most closely connected. 50

UNCITRAL MODEL LAW ON INTERNATIONAL COMMERCIAL CONCILIATION (2002) Article 1. Scope of application and definitions 5.For the purposes of this article: a)If a party has more than one place of business, the place of business is that which has the closest relationship to the agreement to conciliate; b)If a party does not have a place of business, reference is to be made to the party’s habitual residence. 6.This Law also applies to a commercial conciliation when the parties agree that the conciliation is international or agree to the applicability of this Law. 7.The parties are free to agree to exclude the applicability of this Law. 51

UNCITRAL MODEL LAW ON INTERNATIONAL COMMERCIAL CONCILIATION (2002) Article 1. Scope of application and definitions 8.Subject to the provisions of paragraph 9 of this article, this Law applies irrespective of the basis upon which the conciliation is carried out, including agreement between the parties whether reached before or after a dispute has arisen, an obligation established by law, or a direction or suggestion of a court, arbitral tribunal or competent governmental entity. 9.This Law does not apply to: a)Cases where a judge or an arbitrator, in the course of judicial or arbitral proceedings, attempts to facilitate a settlement; and b)[...] 52

UNCITRAL MODEL LAW ON INTERNATIONAL COMMERCIAL CONCILIATION (2002) Article 2. Interpretation 1.In the interpretation of this Law, regard is to be had to its international origin and to the need to promote uniformity in its application and the observance of good faith. 2.Questions concerning matters governed by this Law which are not expressly settled in it are to be settled in conformity with the general principles on which this Law is based. 53

UNCITRAL MODEL LAW ON INTERNATIONAL COMMERCIAL CONCILIATION (2002) Article 3. Variation by agreement Except for the provisions of article 2 and article 6, paragraph 3, the parties may agree to exclude or vary any of the provisions of this Law. 54

UNCITRAL MODEL LAW ON INTERNATIONAL COMMERCIAL CONCILIATION (2002) Article 4. Commencement of conciliation proceedings 1.Conciliation proceedings in respect of a dispute that has arisen commence on the day on which the parties to that dispute agree to engage in conciliation proceedings. 2.If a party that invited another party to conciliate does not receive an acceptance of the invitation within thirty days from the day on which the invitation was sent, or within such other period of time as specified in the invitation, the party may elect to treat this as a rejection of the invitation to conciliate. 55

UNCITRAL MODEL LAW ON INTERNATIONAL COMMERCIAL CONCILIATION (2002) Article 5. Number and appointment of conciliators 1.There shall be one conciliator, unless the parties agree that there shall be two or more conciliators. 2.The parties shall endeavour to reach agreement on a conciliator or conciliators, unless a different procedure for their appointment has been agreed upon. 3.Parties may seek the assistance of an institution or person in connection with the appointment of conciliators. In particular: a)A party may request such an institution or person to recommend suitable persons to act as conciliator; or b)The parties may agree that the appointment of one or more conciliators be made directly by such an institution or person. 56

UNCITRAL MODEL LAW ON INTERNATIONAL COMMERCIAL CONCILIATION (2002) Article 5. Number and appointment of conciliators 5.When a person is approached in connection with his or her possible appointment as conciliator, he or she shall disclose any circumstances likely to give rise to justifiable doubts as to his or her impartiality or independence. A conciliator, from the time of his or her appointment and throughout the conciliation proceedings, shall without delay disclose any such circumstances to the parties unless they have already been informed of them by him or her. 57

UNCITRAL MODEL LAW ON INTERNATIONAL COMMERCIAL CONCILIATION (2002) Article 6. Conduct of conciliation 1.The parties are free to agree, by reference to a set of rules or otherwise, on the manner in which the conciliation is to be conducted. 2.Failing agreement on the manner in which the conciliation is to be conducted, the conciliator may conduct the conciliation proceedings in such a manner as the conciliator considers appropriate, taking into account the circumstances of the case, any wishes that the parties may express and the need for a speedy settlement of the dispute. 3.In any case, in conducting the proceedings, the conciliator shall seek to maintain fair treatment of the parties and, in so doing, shall take into account the circumstances of the case. 4.The conciliator may, at any stage of the conciliation proceedings, make proposals for a settlement of the dispute. 58

UNCITRAL MODEL LAW ON INTERNATIONAL COMMERCIAL CONCILIATION (2002) Article 7. Communication between conciliator and parties The conciliator may meet or communicate with the parties together or with each of them separately. 59

UNCITRAL MODEL LAW ON INTERNATIONAL COMMERCIAL CONCILIATION (2002) Article 8. Disclosure of information When the conciliator receives information concerning the dispute from a party, the conciliator may disclose the substance of that information to any other party to the conciliation. However, when a party gives any information to the conciliator, subject to a specific condition that it be kept confidential, that information shall not be disclosed to any other party to the conciliation. 60

UNCITRAL MODEL LAW ON INTERNATIONAL COMMERCIAL CONCILIATION (2002) Article 9. Confidentiality Unless otherwise agreed by the parties, all information relating to the conciliation proceedings shall be kept confidential, except where disclosure is required under the law or for the purposes of implementation or enforcement of a settlement agreement. 61

UNCITRAL MODEL LAW ON INTERNATIONAL COMMERCIAL CONCILIATION (2002) Article 10. Admissibility of evidence in other proceedings 1.A party to the conciliation proceedings, the conciliator and any third person, including those involved in the administration of the conciliation proceedings, shall not in arbitral, judicial or similar proceedings rely on, introduce as evidence or give testimony or evidence regarding any of the following: a)An invitation by a party to engage in conciliation proceedings or the fact that a party was willing to participate in conciliation proceedings; b)Views expressed or suggestions made by a party in the conciliation in respect of a possible settlement of the dispute; c)Statements or admissions made by a party in the course of the conciliation proceedings; 62

UNCITRAL MODEL LAW ON INTERNATIONAL COMMERCIAL CONCILIATION (2002) Article 10. Admissibility of evidence in other proceedings d)Proposals made by the conciliator; e)The fact that a party had indicated its willingness to accept a proposal for settlement made by the conciliator; f)A document prepared solely for purposes of the conciliation proceedings. 2.Paragraph 1 of this article applies irrespective of the form of the information or evidence referred to therein. 63

UNCITRAL MODEL LAW ON INTERNATIONAL COMMERCIAL CONCILIATION (2002) Article 10. Admissibility of evidence in other proceedings 3.The disclosure of the information referred to in paragraph 1 of this article shall not be ordered by an arbitral tribunal, court or other competent governmental authority and, if such information is offered as evidence in contravention of paragraph 1 of this article, that evidence shall be treated as inadmissible. Nevertheless, such information may be disclosed or admitted in evidence to the extent required under the law or for the purposes of implementation or enforcement of a settlement agreement. 64

UNCITRAL MODEL LAW ON INTERNATIONAL COMMERCIAL CONCILIATION (2002) Article 10. Admissibility of evidence in other proceedings 4.The provisions of paragraphs 1, 2 and 3 of this article apply whether or not the arbitral, judicial or similar proceedings relate to the dispute that is or was the subject matter of the conciliation proceedings. 5.Subject to the limitations of paragraph 1 of this article, evidence that is otherwise admissible in arbitral or judicial or similar proceedings does not become inadmissible as a consequence of having been used in a conciliation. 65

UNCITRAL MODEL LAW ON INTERNATIONAL COMMERCIAL CONCILIATION (2002) Article 11. Termination of conciliation proceedings The conciliation proceedings are terminated: a)By the conclusion of a settlement agreement by the parties, on the date of the agreement; b)By a declaration of the conciliator, after consultation with the parties, to the effect that further efforts at conciliation are no longer justified, on the date of the declaration; c)By a declaration of the parties addressed to the conciliator to the effect that the conciliation proceedings are terminated, on the date of the declaration; or d)By a declaration of a party to the other party or parties and the conciliator, if appointed, to the effect that the conciliation proceedings are terminated, on the date of the declaration. 66

UNCITRAL MODEL LAW ON INTERNATIONAL COMMERCIAL CONCILIATION (2002) Article 12. Conciliator acting as arbitrator Unless otherwise agreed by the parties, the conciliator shall not act as an arbitrator in respect of a dispute that was or is the subject of the conciliation proceedings or in respect of another dispute that has arisen from the same contract or legal relationship or any related contract or legal relationship. 67

UNCITRAL MODEL LAW ON INTERNATIONAL COMMERCIAL CONCILIATION (2002) Article 13. Resort to arbitral or judicial proceedings Where the parties have agreed to conciliate and have expressly undertaken not to initiate during a specified period of time or until a specified event has occurred arbitral or judicial proceedings with respect to an existing or future dispute, such an undertaking shall be given effect by the arbitral tribunal or the court until the terms of the undertaking have been complied with, except to the extent necessary for a party, in its opinion, to preserve its rights. Initiation of such proceedings is not of itself to be regarded as a waiver of the agreement to conciliate or as a termination of the conciliation proceedings. 68

DISPUTES ADJUDICATION OR REVIEW BOARDS FIDIC CONDITIONS OF CONTRACT FOR CONSTRUCTION General Conditions of Dispute Adjudication Agreement 1.Definitions Each "Dispute Adjudication Agreement" is a tripartite agreement by and between: a)the "Employer"; b)the "Contractor"; and c)the "Member" who is defined in the Dispute Adjudication Agreement as being: i.the sole member of the "DAB" (or "adjudicator") and, where this is the case, all references to the "Other Members" do not apply, or ii.one of the three persons who are jointly called the "DAB" (or "dispute adjudication board") and, where this is the case, the other two persons are called the "Other Members". 69

DISPUTES ADJUDICATION OR REVIEW BOARDS FIDIC CONDITIONS OF CONTRACT FOR CONSTRUCTION General Conditions of Dispute Adjudication Agreement 1.Definitions The Employer and the Contractor have entered (or intend to enter) into a contract, which is called the "Contract" and is defined in the Dispute Adjudication Agreement, which incorporates this Appendix. In the Dispute Adjudication Agreement, words and expressions which are not otherwise defined shall have the meanings assigned to them in the Contract. 70

DISPUTES ADJUDICATION OR REVIEW BOARDS FIDIC CONDITIONS OF CONTRACT FOR CONSTRUCTION General Conditions of Dispute Adjudication Agreement 2. General Provisions Unless otherwise stated in the Dispute Adjudication Agreement, it shall take effect on the latest of the following dates: a)the Commencement Date defined in the Contract, b)when the Employer, the Contractor and the Member have each signed the Dispute Adjudication Agreement, or c)when the Employer, the Contractor and each of the Other Members (if any) have respectively each signed a dispute adjudication agreement. 71

DISPUTES ADJUDICATION OR REVIEW BOARDS FIDIC CONDITIONS OF CONTRACT FOR CONSTRUCTION General Conditions of Dispute Adjudication Agreement 2.General Provisions When the Dispute Adjudication Agreement has taken effect, the Employer and the Contractor shall each give notice to the Member accordingly. If the Member does not receive either notice within six months after entering into the Dispute Adjudication Agreement, it shall be void and ineffective. This employment of the Member is a personal appointment. At any time, the Member may give not less than 70 days' notice of resignation to the Employer and to the Contractor, and the Dispute Adjudication Agreement shall terminate upon the expiry of this period. No assignment or subcontracting of the Dispute Adjudication Agreement is permitted without the prior written agreement of all the parties to it and of the Other Members (if any). 72

DISPUTES ADJUDICATION OR REVIEW BOARDS FIDIC CONDITIONS OF CONTRACT FOR CONSTRUCTION General Conditions of Dispute Adjudication Agreement 3.Warranties The Member warrants and agrees that he/she is and shall be impartial and independent of the Employer, the Contractor and the Engineer. The Member shall promptly disclose, to each of them and to the Other Members (if any), any fact or circumstance which might appear inconsistent with his/her warranty and agreement of impartiality and independence. When appointing the Member, the Employer and the Contractor relied upon the Member's representations that he/she is: a)experienced in the work which the Contractor is to carry out under the Contract, b)experienced in the interpretation of contract documentation, and c)fluent in the language for communications defined in the Contract. 73

DISPUTES ADJUDICATION OR REVIEW BOARDS FIDIC CONDITIONS OF CONTRACT FOR CONSTRUCTION General Conditions of Dispute Adjudication Agreement 4.General Obligations The Member shall: a)have no interest financial or otherwise in the Employer, the Contractor or the Engineer, nor any financial interest in the Contract except for payment under the Dispute Adjudication Agreement; b)not previously have been employed as a consultant or otherwise by the Employer, the Contractor or the Engineer, except in such circumstances as were disclosed in writing to the Employer and the Contractor before they signed the Dispute Adjudication Agreement; 74

DISPUTES ADJUDICATION OR REVIEW BOARDS FIDIC CONDITIONS OF CONTRACT FOR CONSTRUCTION General Conditions of Dispute Adjudication Agreement 4.General Obligations The Member shall: c)have disclosed in writing to the Employer, the Contractor and the Other Members (if any), before entering into the Dispute Adjudication Agreement and to his/her best knowledge and recollection, any professional or personal relationships with any director, officer or employee of the Employer, the Contractor or the Engineer, and any previous involvement in the overall project of which the Contract forms part; d)not, for the duration of the Dispute Adjudication Agreement, be employed as a consultant or otherwise by the Employer, the Contractor or the Engineer, except as may be agreed in writing by the Employer, the Contractor and the Other Members (if any); e)comply with the annexed procedural rules and with Sub-Clause 20.4 of the Conditions of Contract; 75

DISPUTES ADJUDICATION OR REVIEW BOARDS FIDIC CONDITIONS OF CONTRACT FOR CONSTRUCTION General Conditions of Dispute Adjudication Agreement 4.General Obligations The Member shall: f)not give advice to the Employer, the Contractor, the Employer's Personnel or the Contractor's Personnel concerning the conduct of the Contract, other than in accordance with the annexed procedural rules; g)not while a Member enter into discussions or make any agreement with the Employer, the Contractor or the Engineer regarding employment by any of them, whether as a consultant or otherwise, after ceasing to act under the Dispute Adjudication Agreement; h)ensure his/her availability for all site visits and hearings as are necessary; 76

DISPUTES ADJUDICATION OR REVIEW BOARDS FIDIC CONDITIONS OF CONTRACT FOR CONSTRUCTION General Conditions of Dispute Adjudication Agreement 4.General Obligations The Member shall: i)become conversant with the Contract and with the progress of the Works (and of any other parts of the project of which the Contract forms part) by studying all documents received which shall be maintained in a current working file; j)treat the details of the Contract and all the DAB's activities and hearings as private and confidential, and not publish or disclose them without the prior written consent of the Employer, the Contractor and the Other Members (if any); and k)be available to give advice and opinions, on any matter relevant to the Contract when requested by both the Employer and the Contractor, subject to the agreement of the Other Members (if any). 77

DISPUTES ADJUDICATION OR REVIEW BOARDS FIDIC CONDITIONS OF CONTRACT FOR CONSTRUCTION General Conditions of Dispute Adjudication Agreement 5.General Obligations of the Employer and the Contractor The Employer, the Contractor, the Employer's Personnel and the Contractor's Personnel shall not request advice from or consultation with the Member regarding the Contract, otherwise than in the normal course of the DAB's activities under the Contract and the Dispute Adjudication Agreement, and except to the extent that prior agreement is given by the Employer, the Contractor and the Other Members (if any). The Employer and the Contractor shall be responsible for compliance with this provision, by the Employer's Personnel and the Contractor's Personnel respectively. 78

DISPUTES ADJUDICATION OR REVIEW BOARDS FIDIC CONDITIONS OF CONTRACT FOR CONSTRUCTION General Conditions of Dispute Adjudication Agreement 5.General Obligations of the Employer and the Contractor The Employer and the Contractor undertake to each other and to the Member that the Member shall not, except as otherwise agreed in writing by the Employer, the Contractor, the Member and the Other Members (if any): a)be appointed as an arbitrator in any arbitration under the Contract; b)be called as a witness to give evidence concerning any dispute before arbitrator(s) appointed for any arbitration under the Contract; or c)be liable for any claims for anything done or omitted in the discharge or purported discharge of the Member's functions, unless the act or omission is shown to have been in bad faith. 79

DISPUTES ADJUDICATION OR REVIEW BOARDS FIDIC CONDITIONS OF CONTRACT FOR CONSTRUCTION General Conditions of Dispute Adjudication Agreement 5.General Obligations of the Employer and the Contractor The Employer and the Contractor hereby jointly and severally indemnify and hold the Member harmless against and from claims from which he/she is relieved from liability under the preceding paragraph. Whenever the Employer or the Contractor refers a dispute to the DAB under Sub-Clause 20.4 of the Conditions of Contract, which will require the Member to make a site visit and attend a hearing, the Employer or the Contractor shall provide appropriate security for a sum equivalent to the reasonable expenses to be incurred by the Member. No account shall be taken of any other payments due or paid to the Member. 80

DISPUTES ADJUDICATION OR REVIEW BOARDS FIDIC CONDITIONS OF CONTRACT FOR CONSTRUCTION General Conditions of Dispute Adjudication Agreement 6.Payment The Member shall be paid as follows, in the currency named in the Dispute Adjudication Agreement: a)a retainer fee per calendar month, which shall be considered as payment in full for: i.being available on 28 days' notice for all site visits and hearings; ii.becoming and remaining conversant with all project developments and maintaining relevant files; iii.all office and overhead expenses including secretarial services, photocopying and office supplies incurred in connection with his duties; and iv.all services performed hereunder except those referred to in subparagraphs (b) and (c) of this Clause. 81

DISPUTES ADJUDICATION OR REVIEW BOARDS FIDIC CONDITIONS OF CONTRACT FOR CONSTRUCTION General Conditions of Dispute Adjudication Agreement 6.Payment The retainer fee shall be paid with effect from the last day of the calendar month in which the Dispute Adjudication Agreement becomes effective; until the last day of the calendar month in which the Taking-Over Certificate is issued for the whole of the Works. With effect from the first day of the calendar month following the month in which Taking-Over Certificate is issued for the whole of the Works, the retainer fee shall be reduced by 50%. This reduced fee shall be paid until the first day of the calendar month in which the Member resigns or the Dispute Adjudication Agreement is otherwise terminated. 82

DISPUTES ADJUDICATION OR REVIEW BOARDS FIDIC CONDITIONS OF CONTRACT FOR CONSTRUCTION General Conditions of Dispute Adjudication Agreement 6.Payment b)a daily fee which shall be considered as payment in full for: i.each day or part of a day up to a maximum of two days' travel time in each direction for the journey between the Member's home and the site, or another location of a meeting with the Other Members (if any); ii.each working day on site visits, hearings or preparing decisions; and iii.each day spent reading submissions in preparation for a hearing. 83

DISPUTES ADJUDICATION OR REVIEW BOARDS FIDIC CONDITIONS OF CONTRACT FOR CONSTRUCTION General Conditions of Dispute Adjudication Agreement 6.Payment c)all reasonable expenses incurred in connection with the Member's duties, including the cost of telephone calls, courier charges, faxes and telexes, travel expenses, hotel and subsistence costs: a receipt shall be required for each item in excess of five percent of the daily fee referred to in sub- paragraph (b) of this Clause; d)any taxes properly levied in the Country on payments made to the Member (unless a national or permanent resident of the Country) under this Clause 6. 84

DISPUTES ADJUDICATION OR REVIEW BOARDS FIDIC CONDITIONS OF CONTRACT FOR CONSTRUCTION General Conditions of Dispute Adjudication Agreement 6.Payment The retainer and daily fees shall be as specified in the Dispute Adjudication Agreement. Unless it specifies otherwise, these fees shall remain fixed for the first 24 calendar months, and shall thereafter be adjusted by agreement between the Employer, the Contractor and the Member, at each anniversary of the date on which the Dispute Adjudication Agreement became effective. 85

DISPUTES ADJUDICATION OR REVIEW BOARDS FIDIC CONDITIONS OF CONTRACT FOR CONSTRUCTION General Conditions of Dispute Adjudication Agreement 6.Payment The Member shall submit invoices for payment of the monthly retainer and air fares quarterly in advance. Invoices for other expenses and for daily fees shall be submitted following the conclusion of a site visit or hearing. All invoices shall be accompanied by a brief description of activities performed during the relevant period and shall be addressed to the Contractor. The Contractor shall pay each of the Member's invoices in full within 56 calendar days after receiving each invoice and shall apply to the Employer (in the Statements under the Contract) for reimbursement of one-half of the amounts of these invoices. The Employer shall then pay the Contractor in accordance with the Contract. 86

DISPUTES ADJUDICATION OR REVIEW BOARDS FIDIC CONDITIONS OF CONTRACT FOR CONSTRUCTION General Conditions of Dispute Adjudication Agreement 6.Payment If the Contractor fails to pay to the Member the amount to which he/she is entitled under the Dispute Adjudication Agreement, the Employer shall pay the amount due to the Member and any other amount which may be required to maintain the operation of the DAB; and without prejudice to the Employer's rights or remedies. In addition to all other rights arising from this default, the Employer shall be entitled to reimbursement of all sums paid in excess of one-half of these payments, plus all costs of recovering these sums and financing charges calculated at the rate specified in Sub-Clause 14.8 of the Conditions of Contract. 87

DISPUTES ADJUDICATION OR REVIEW BOARDS FIDIC CONDITIONS OF CONTRACT FOR CONSTRUCTION General Conditions of Dispute Adjudication Agreement 6.Payment If the Member does not receive payment of the amount due within 70 days after submitting a valid invoice, the Member may (i) suspend his/her services (without notice) until the payment is received, and/or (ii) resign his/her appointment by giving notice under Clause 7. 88

DISPUTES ADJUDICATION OR REVIEW BOARDS FIDIC CONDITIONS OF CONTRACT FOR CONSTRUCTION General Conditions of Dispute Adjudication Agreement 7.Termination At any time: (i) the Employer and the Contractor may jointly terminate the Dispute Adjudication Agreement by giving 42 days' notice to the Member; or (ii) the Member may resign as provided for in Clause 2. If the Member fails to comply with the Dispute Adjudication Agreement, the Employer and the Contractor may, without prejudice to their other rights, terminate it by notice to the Member. The notice shall take effect when received by the Member. 89

DISPUTES ADJUDICATION OR REVIEW BOARDS FIDIC CONDITIONS OF CONTRACT FOR CONSTRUCTION General Conditions of Dispute Adjudication Agreement 7.Termination If the Employer or the Contractor fails to comply with the Dispute Adjudication Agreement, the Member may, without prejudice to his/her other rights, terminate it by notice to the Employer and the Contractor. The notice shall take effect when received by them both. Any such notice, resignation and termination shall be final and binding on the Employer, the Contractor and the Member. However, a notice by the Employer or the Contractor, but not by both, shall be of no effect. 90

DISPUTES ADJUDICATION OR REVIEW BOARDS FIDIC CONDITIONS OF CONTRACT FOR CONSTRUCTION General Conditions of Dispute Adjudication Agreement 8.Default of the Member If the Member fails to comply with any obligation under Clause 4, he/she shall not be entitled to any fees or expenses hereunder and shall, without prejudice to their other rights, reimburse each of the Employer and the Contractor for any fees and expenses received by the Member and the Other Members (if any), for proceedings or decisions (if any) of the DAB which are rendered void or ineffective. 91

DISPUTES ADJUDICATION OR REVIEW BOARDS FIDIC CONDITIONS OF CONTRACT FOR CONSTRUCTION General Conditions of Dispute Adjudication Agreement 9.Disputes Any dispute or claim arising out of or in connection with this Dispute Adjudication Agreement, or the breach, termination or invalidity thereof, shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one arbitrator appointed in accordance with these Rules of Arbitration. 92

DISPUTES ADJUDICATION OR REVIEW BOARDS FIDIC CONDITIONS OF CONTRACT FOR CONSTRUCTION Annex – Procedural Rules 1.Unless otherwise agreed by the Employer and the Contractor, the DAB shall visit the site at intervals of not more than 140 days, including times of critical construction events, at the request of either the Employer or the Contractor. Unless otherwise agreed by the Employer, the Contractor and the DAB, the period between consecutive visits shall not be less than 70 days, except as required to convene a hearing as described below. 93

DISPUTES ADJUDICATION OR REVIEW BOARDS FIDIC CONDITIONS OF CONTRACT FOR CONSTRUCTION Annex – Procedural Rules 2.The timing of and agenda for each site visit shall be as agreed jointly by the DAB, the Employer and the Contractor, or in the absence of agreement, shall be decided by the DAB. The purpose of site visits is to enable the DAB to become and remain acquainted with the progress of the Works and of any actual or potential problems or claims. 3.Site visits shall be attended by the Employer, the Contractor and the Engineer and shall be coordinated by the. Employer in co-operation with the Contractor. The Employer shall ensure the provision of appropriate conference facilities and secretarial and copying services. At the conclusion of each site visit and before leaving the site, the DAB shall prepare a report on its activities during the visit and shall send copies to the Employer and the Contractor. 94

DISPUTES ADJUDICATION OR REVIEW BOARDS FIDIC CONDITIONS OF CONTRACT FOR CONSTRUCTION Annex – Procedural Rules 4.The Employer and the Contractor shall furnish to the DAB one copy of all documents which the DAB may request, including Contract documents, progress reports, variation instructions, certificates and other documents pertinent to the performance of the Contract. All communications between the DAB and the Employer or the Contractor shall be copied to the other Party. If the DAB comprises three persons, the Employer and the Contractor shall send copies of these requested documents and these communications to each of these persons. 95

DISPUTES ADJUDICATION OR REVIEW BOARDS FIDIC CONDITIONS OF CONTRACT FOR CONSTRUCTION Annex – Procedural Rules 5.If any dispute is referred to the DAB in accordance with Sub-Clause 20.4 of the Conditions of Contract, the DAB shall proceed in accordance with Sub-Clause 20.4 and these Rules. Subject to the time allowed to give notice of a decision and other relevant factors, the DAB shall: a)act fairly and impartially as between the Employer and the Contractor, giving each of them a reasonable opportunity of putting his case and responding to the other's case, and b)adopt procedures suitable to the dispute, avoiding unnecessary delay or expense. 96

DISPUTES ADJUDICATION OR REVIEW BOARDS FIDIC CONDITIONS OF CONTRACT FOR CONSTRUCTION Annex – Procedural Rules 6.The DAB may conduct a hearing on the dispute, in which event it will decide on the date and place for the hearing and may request that written documentation and arguments from the Employer and the Contractor be presented to it prior to or at the hearing. 97

DISPUTES ADJUDICATION OR REVIEW BOARDS FIDIC CONDITIONS OF CONTRACT FOR CONSTRUCTION Annex – Procedural Rules 7.Except as otherwise agreed in writing by the Employer and the Contractor, the DAB 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 Employer, the Contractor and the Engineer, and to proceed in the absence of any party who the DAB is satisfied received notice of the hearing; but shall have discretion to decide whether and to what extent this power may be exercised. 98

DISPUTES ADJUDICATION OR REVIEW BOARDS FIDIC CONDITIONS OF CONTRACT FOR CONSTRUCTION Annex – Procedural Rules 8.Employer and the Contractor empower the DAB, among other things, to: a)establish the procedure to be applied in deciding a dispute, b)decide upon the DAB's own jurisdiction, and as to the scope of any dispute referred to it, c)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, d)take the initiative in ascertaining the facts and matters required for a decision, make use of its own specialist knowledge, if any, e)decide upon the payment of financing charges in accordance with the Contract, f)decide upon any provisional relief such as interim or conservatory measures, and g)open up, review and revise any certificate, decision, determination, instruction, opinion or valuation of the Engineer, relevant to the dispute. 99

DISPUTES ADJUDICATION OR REVIEW BOARDS FIDIC CONDITIONS OF CONTRACT FOR CONSTRUCTION Annex – Procedural Rules 8.The DAB shall not express any opinions during any hearing concerning the merits of any arguments advanced by the Parties. Thereafter, the DAB shall make and give its decision in accordance with Sub-Clause 20.4, or as otherwise agreed by the Employer and the Contractor in writing. If the DAB comprises three persons: a)it shall convene in private after a hearing, in order to have discussions and prepare its decision; b)it shall endeavour 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 100

DISPUTES ADJUDICATION OR REVIEW BOARDS FIDIC CONDITIONS OF CONTRACT FOR CONSTRUCTION Annex – Procedural Rules c)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: 8.either the Employer or the Contractor does not agree that they do so, or 9.the absent Member is the chairman and he/she instructs the other Members to not make a decision. 101

SESSION THREE TYPES OF DISPUTES RESOLUTION PROCEDURES Immanuel Kant Baltic Federal University Kaliningrad, Russia John B. Tieder, Jr., Esq. McLean, Virginia USA jtieder@watttieder.com www.watttieder.com

SESSION THREE TYPES OF DISPUTES RESOLUTION PROCEDURES Immanuel Kant Baltic Federal University Kaliningrad, Russia John B. Tieder, Jr., Esq. McLean, Virginia.

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SESSION THREE TYPES OF DISPUTES RESOLUTION PROCEDURES Immanuel Kant Baltic Federal University Kaliningrad, Russia John B. Tieder, Jr., Esq. McLean, Virginia.

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Presentation on theme: "SESSION THREE TYPES OF DISPUTES RESOLUTION PROCEDURES Immanuel Kant Baltic Federal University Kaliningrad, Russia John B. Tieder, Jr., Esq. McLean, Virginia."— Presentation transcript:

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