FIDIC 1999 - Dispute process

Clause 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."

Clause 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

Clause 20.4 Obtaining Dispute Adjudication Board’s Decision

• The DAB will give it’s decision within 84 days after receiving such reference or any such period proposed by the DAB
• The decision will be reasoned and shall state that it is given under this Sub Clause.
• The decision will be binding on both Parties who shall give prompt effect, unless and until it is revised in an amicable settlement or an arbitral award as described below.
• Unless the contract has been abandoned, repudiated or terminated, the Contractor will continue to proceed with the Works in accordance with the Contract.
• If either party is dissatisfied with the DAB’s decision, then 28 days after receiving the decision, either party can give notice to the other party of its dissatisfaction
• If the DAB doesn’t give it’s decision within the 84 days (or as otherwise approved), after receiving the reference, either Party can within 28 days after the period has expired, give notice to the other party of it’s dissatisfaction.
• This notice of dissatisfaction shall state that it is given under this Sub Clause, and will 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 can commence arbitration of a dispute unless a notice of dissatisfaction has been given in accordance with this Sub Clause.
• If the DAB has given it’s decision to both parties, and no notice of dissatisfaction has been given by either Party within 28 days after they received the decision, then the decision becomes final and binding on both Parties

Clause 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.”

Clause 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:

• The dispute shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce,
• “The dispute shall be settled by three arbitrators appointed in accordance with these Rules, and
  
• The arbitration shall be conducted in the language for communications defined in Sub Clause 1.4 [ Law and Language
  

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.”

Clause 20.8 - If there is no DAB in place at the time a dispute arises the dispute may be referred directly to arbitration and the provisions regarding the DAB and amicable settlement will not apply