FIDIC Adjudicator Appointment Rules

FIDIC CONTRACT

Adjudicator Appointment Rules

1. Introduction

1.1. In the first instance, Parties to a FIDIC contract are to appoint the members of a DAAB, DAB, DB or an Adjudicator by agreement. Where that is not possible, FIDIC contracts provide that an “appointing entity or official” will make an appointment upon request of either or both Parties. The default mechanism is that the President of FIDIC or a person appointed by the President, shall be the appointing official

1.2. The President of FIDIC is prepared to make appointments if by agreement of the Parties this authority is delegated to the President of FIDIC and all pre requisites in the contract have been met

1.3. FIDIC maintains a President’s List of Approved Dispute Adjudicators and will only select or appoint members or Adjudicator from this List

1.4. These rules apply where FIDIC is asked to make appointment.

2. Filing a request

2.1. A request for FIDIC President to appoint a member, or members of a Dispute Adjudication Board (DAB), a Dispute Board (DB), or a Dispute Avoidance/Adjudication Board (DAAB), or an Adjudicator as the case may be, must be submitted to FIDIC Secretariat in the English language by completing a request form on the FIDIC website.

2.2. A request for appointment can be made by either or both parties to the contract.

2.3. Details to be provided to FIDIC include:

• details of the project, full contact details of both Parties, their representatives and the Engineer including postal addresses, email addresses and telephone number;

• evidence that there is a FIDIC contract between the Parties (contract based on FIDIC standard form of contract or bespoke contract under licence from FIDIC);

• evidence of the Parties’ agreement that provides for a DAB or a DB or a DAAB or an Adjudicator, as the case may be;

• evidence of the Parties’ agreement that FIDIC or the President of FIDIC is named as appointing entity or official in the contract;

• evidence that the pre conditions set out in the contract have been met. This may, depending on the FIDIC Contract used, include the evidence, that the Parties have: failed to agree (or a Party has failed to select) a member or members of the DAB or DB or DAAB, or failed to agree it’s replacement; or failed to agree the Adjudicator, or have failed to agree the replacement member; or

the appointment cannot be effected because one Party refuses or fails to sign a DAAB Agreement with any agreed member or replacement.

• area of Works or Services under the Parties’ contract, location of the project, ruling and communication language(s), governing law of the contract;

• brief details of the nature and value of the dispute, and of the issues in dispute where a dispute has already arisen;

• contractually specified and/or desired criteria for the person/s to be appointed;

• evidence that the fee for the requested appointment has been paid;

2.4. FIDIC may request missing or additional information.

3. Consultation with the Parties

3.1. Prior to making an appointment, FIDIC will consult with the parties to the Contract.

3.2. Consultation may take place prior to the selection of potential appointee/s or after selecting a potential appointee or at both stages.

3.3. Where the appointment request is made by one party alone, the request form filed with FIDIC and the supporting documents will be provided to the other party in order for FIDIC to duly consult with the other party to the contract.

4. Selection and Appointment

4.1. Once the required information and documents are received and FIDIC is satisfied that it has the power to make an appointment, FIDIC will proceed to the selection of prospective appointee(s).

4.2. FIDIC and the appointee rely upon the accuracy of the information provided to FIDIC to make the selection and for the appointee to make enquiries about potential conflicts of interest.

4.3. FIDIC will make selection from its President’s List of Approved Dispute Adjudicators. FIDIC reserves the right to reject appointment request if the request cannot be accommodated and this decision is final.

4.4. When selecting a prospective appointee, FIDIC will take the following into account:

• Experience and knowledge in the type of works or services under the Parties’ contract;

• Knowledge and experience in the interpretation of construction and engineering contracts;

• language fluency;

• any other requirements of the contract it may deem appropriate.

4.5. FIDIC will consider the prospective appointee’s further attributes, including but not limited to nationality, place of residence and qualifications and will take reasonable efforts to select a suitable candidate.

4.6. Notwithstanding any criteria for the selection of a person, FIDIC will only select someone who is currently on the President’s List of Approved Adjudicators and shall have the right to appoint the person of their choosing regardless of any selection criteria expressed in the contract or otherwise

4.7. FIDIC often receives representations from one or both Parties as to selecting a certain individual or individuals. FIDIC always considers each case on its own merits and will not be bound by any representation made. Neither will FIDIC be bound to make appointment from the list of potential members agreed by the Parties under the contract or otherwise.

4.8. FIDIC acting independently of the Parties will take reasonable steps to enquire that the prospective appointee is available to carry out its duties under the contract and is free from any conflict of interest. FIDIC will discharge this duty by requesting each appointee to sign a written statement of acceptance, independence, impartiality, and availability prior to undertaking any appointment. This written statement, along with any disclosures made by the prospective appointee, will be sent to the Parties, also for the attention of the other members (if any).

4.9. After due consultation with the parties, and after consulting with the potential appointee, FIDIC will confirm the appointment.

4.10. While FIDIC will take reasonable efforts to select a suitable candidate, FIDIC does not guarantee the suitability or capability of any appointee and accepts no responsibility or liability whatsoever for any appointment made. FIDIC will not be responsible for any errors or omissions of the appointee.

5. Setting the fees of DAAB member/s

5.1. FIDIC does not set or recommend the adjudicator’s fee scales. Once the appointment is made by FIDIC, the terms of appointment are to be agreed between the appointed member/s and the Parties, unless this authority is specifically vested to FIDIC, under relevant FIDIC contract, in which case, FIDIC will include, in the terms of appointment, the monthly services fee and the daily fee to be paid to the appointee.

5.2. FIDIC will give due cognisance to the fees proposed by prospective appointees, however, the suitability or appointment of a member will not be determined by their fees.

6. Communications

6.1. All communication with the Parties will be through FIDIC Website or by email provided by the applicant /requesting Party.

7. Appointment Service Fee

7.1. FIDIC charges a non refundable fee for its appointments.

7.2. The fee applies for appointment of each member of the DAB or DB or DAAB or the Adjudicator or its replacement, as the case may, and amounts to:

• EUR4000 for appointments made under contract based on FIDIC contract;

• EUR5500 for appointments made under bespoke contract based on FIDIC contract under license from FIDIC.

7.3. Payment is made either by bank transfer or credit card authorisation by the applicant at the time the request is made.

7.4. No action will be taken by FIDIC until the full fee is paid.

7.5. The payment is non refundable whether or not, an appointment is made, for whatever reason.

About FIDIC

FIDIC, the International Federation of Consulting Engineers, is the global representative body for national associations of consulting engineers and represents over one million engineering professionals and 40,000 firms in more than 100 countries worldwide.

Founded in 1913, FIDIC is charged with promoting and implementing the consulting engineering industry’s strategic goals on behalf of its Member Associations and to disseminate information and resources of interest to its members. Today, FIDIC membership covers over 100 countries of the world.

FIDIC Member Associations operate in over 100 countries with a combined population in excess of 6.5bn people and a combined GDP in excess of $30tn. The global industry, including construction, is estimated to be worth over $22tn. This means that FIDIC member associations across the various countries are worth over $8.5tn.

International Federation of Consulting Engineers (FIDIC) World Trade Center II, Geneva Airport P.O. Box 311 CH 1215 Geneva 15 Switzerland Tel. +41 22 799 4900 Fax +41 22 799 4901 Email: FIDIC@FIDIC.org # www.FIDIC.org

Disclaimer

This document was produced by FIDIC and is provided for informative purposes only. The contents of this document are general in nature and therefore should not be applied to the specific circumstances of individuals. Whilst we undertake every effort to ensure that the information within this document is complete and up to date, it should not be relied upon as the basis for investment, commercial, professional, or legal decisions.

FIDIC accepts no liability in respect to any direct, implied, statutory, and/or consequential loss arising from the use of this document or its contents.