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04 drbf event almaty 2018 ddc eng

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David Carmichael presentation. Networking that was made jointly by DRBF and Artyushenko & Partners law firm (Kazakhstan) in Almaty (Kazakhstan) - DAB in Construction, April 25, 2018. Details are here https://a-p.legal/en/2018/05/01/report-on-our-networking-on-april-25-2018/

David Carmichael presentation. Networking that was made jointly by DRBF and Artyushenko & Partners law firm (Kazakhstan) in Almaty (Kazakhstan) - DAB in Construction, April 25, 2018. Details are here https://a-p.legal/en/2018/05/01/report-on-our-networking-on-april-25-2018/

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04 drbf event almaty 2018 ddc eng

  1. 1. Dispute Boards 25.04.2018 Almaty, Kazakhstan
  2. 2. Who can be a member of the Dispute Board? What does FIDIC say? The second paragraph of Sub-Clause 20.2 [Appointment of the Dispute Board]  “The DB shall comprise, as stated in the Contract Data, either one or three suitably qualified persons (“the members”), each of whom shall be fluent in the language for communication defined in the Contract and shall be a professional experienced in the type of construction involved in the Works and with the interpretation of contractual documents” © FIDIC Conditions of Contract for Construction for Building and Engineering Works Designed by the Employer, Multilateral Development Bank Harmonised Edition, 2010, General Conditions.
  3. 3. Who can be a member of the Dispute Board? What does FIDIC say? APPENDIX – General Conditions of Dispute Board Agreement – Sub-Clause 4  “The Member shall: a) Have no interest financial or otherwise in the Employer, the Contractor or Engineer, nor any financial interest in the Contract except for payment under the Dispute Board Agreement b) Not previously been employed as a consultant or otherwise by the Employer, except in such circumstances as were disclosed in writing to the Employer and the Contractor before they signed the Dispute Board Agreement © FIDIC Conditions of Contract for Construction for Building and Engineering Works Designed by the Employer, Multilateral Development Bank Harmonised Edition, 2010, General Conditions.
  4. 4. APPENDIX – General Conditions of Dispute Board Agreement – Sub-Clause 4  “The Member shall: c) Have disclosed in writing to the Employer, the Contractor and the Other Members (if any), before entering into the Dispute Board 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 Engineer, and any previous involvement in the overall project of which the Contract forms part d) Not, for the duration of the Dispute Board 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) © FIDIC Conditions of Contract for Construction for Building and Engineering Works Designed by the Employer, Multilateral Development Bank Harmonised Edition, 2010, General Conditions.
  5. 5. What are the main attributes of a DB Member 1. Qualifications 2. Language 3. Experienced in the type of Works being constructed 4. Contract Knowledge 5. Impartiality 6. Independence 7. Availability 8. DB Experience 9. Procedural Knowledge 10. Knowledge of country law.
  6. 6. How should you select a DB Member? The FIDIC President’s List Approved Dispute Adjudicators http://fidic.org/about-fidic/adjudicators FIDIC National Lists - http://fidic.org/node/812 Other sources: DRBF Data Base - drb.org

Editor's Notes

  • Good afternoon everyone. I am David Carmichael and I have been working in the road construction industry for more than 40 years of which 30 years were with international consultants and the rest with major contractors. I have worked in many parts of the world including Europe, the Middle East, Africa, the Far East and now In Kazakhstan where I have spent most of the last 17 years. Currently I am a branch director with Todini Costruzioni Generali S.p.A in Aktobe. I have been asked today to talk on the subject of “Who can be a member of the Dispute Board. During this presentation I shall be referring to FIDIC, Conditions of Contract for Building and Engineering Works Designed by the Employer, Multilateral Development Bank Harmonised Edition, 2010, General Condition as this appears to be the Contract currently in use in Kazakhstan where Dispute Boards are active. I have served as the Contractor’s Party Representative on 15 Dispute Boards, in Kazakhstan, since 2010
  • Well, what does FIDIC say – The second paragraph of Sub-Clause 20.2 [Appointment of the Dispute Board]
    “The DB shall comprise, as stated in the Contract Data, either one or three suitably qualified persons (“the members”), each of whom shall be fluent in the language for communication defined in the Contract and shall be a professional experienced in the type of construction involved in the Works and with the interpretation of contractual documents.
  • The APPENDIX – General Conditions of Dispute Board Agreement – Sub-Clause 4
    “The Member shall:
    a) Have no interest financial or otherwise in the Employer, the Contractor or Engineer, nor any financial interest in the Contract except for payment under the Dispute Board Agreement
    b) Not previously been employed as a consultant or otherwise by the Employer, except in such circumstances as were disclosed in writing to the Employer and the Contractor before they signed the Dispute Board Agreement
  • C)Have disclosed in writing to the Employer, the Contractor and the Other Members (if any), before entering into the Dispute Board 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 Engineer, and any previous involvement in the overall project of which the Contract forms part, and
    d) Not, for the duration of the Dispute Board 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)
  • So, what do we ascertain from Fidic – points 1 to 4 reflect Sub-Clause 20.2 and points 5 and 6 reflect the Appendix
    The Candidate must be qualified
    The Candidate must be fluent in the language for communications
    The Candidate must have experience in the type of works being carried out – this helps the DB to understand the situation better and perhaps to help identify future complications
    The candidate must have knowledge of the Contract and be experienced in dealing with contractual issues
    The Candidate must be impartial and
    Independent and have no undisclosed relationship with either of the Parties, the Engineer or indeed Other Members of a 3 person DB
    Availability, It is very important that the candidate is available to carry out the obligations for a member of the DB stipulated under the Contract
    It is, of course, very useful for a DB member to have experience in DBs and
    Knowledge of DB procedures – this may seem a bit strange at first – how do new people manage to get DB positions – experience of DBs and DB procedures can be gained by training, attending conferences and workshops and even by being a Party Representative at DB meetings and hearings
    Knowledge of country law.
  • How should you select a DB member? This, of course depends on the type of DB being considered. Is it a standing boards and Ad Hoc boards and the number of DB members? There are a number of alternative lists that are available to identify DB members but probably the most important is the FIDIC President’s List where it is pretty much guaranteed that the person you select will have the necessary training and knowledge to perform as a DB member. FIDIC also have National Lists for different countries and I have shown the web link here. I also show the link to the DRBF Data Base where different key words can be used to find, for example, people with experience in Kazakhstan or in a relevant sector
    There are occasionally discussions as to whether a DB should be a lawyer or a non-lawyer and what is the best combination for a 3-person DB. Both lawyers and non-lawyers can make excellent DB members – remember they are all professionals in their own field and who has the authority to say what profession is the “best”. Look for a DB member who is good for your particular project.
    Thank you very much for listening.

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