Histones: un objecte material de recerca
5.8. Estructura i evolució de les histones
Any dispute in respect of which:
(a) the decision, if any, of the Engineer has not become final and binding pursuant to Sub- Clause 67.1, and
(b) amicable settlement has not been reached within the period stated in Sub-Clause 67.2 shall be finally settled, unless otherwise specified in the Contract, under the Rules of Conciliation and Arbitration of the International Chamber of Commerce by one or more arbitrators appointed under such Rules. The said arbitrator/s shall have full power to open up, review and revise any decision, opinion, instruction, determination, certificate or valuation of the Engineer related to the dispute.
Neither party shall be limited in the proceedings before such arbitrator/s to the evidence or arguments put before the Engineer for the purpose of obtaining his said decision pursuant to Sub-Clause 67.1. No such decision 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.
Arbitration may be commenced prior to or after completion of the Works, provided that the obligations of the Employer, the Engineer and the Contractor shall not be altered by reason of the arbitration being conducted during the progress of the Works.
Modifications
The modifications being introduced to Sub-Clause 67.3 can be summarized in the following table:
Modification
Selection
Criteria
Sources Total A d o p tion Organizati o n 1 Organizati o n 2 Organizati o n 3 Organizati o n 4 Organizati o n 5 Organizati o n 6 Organizati o n 7 Majority MRI = 3 (previously considered) 3 3 2 3 3 2 3Modification Description Organizations Adoption
Delete and replace this Sub-Clause by considering concise wording for the Arbitration sub-clause
X X X 3
Delete and replace this Sub-Clause by considering a litigation for dispute resolution
X 1
Delete this Sub-Clause X 1
Keep the original wording of this Sub-Clause and include arbitration details
X X -
From the above table, three of the five modifications consider concise wording for the Arbitration sub-clause. Accordingly, the modification being put into further analysis considers the same.
Modifications to be analyzed
Delete sub-Clause 67.3 and substitute with the following:
Any dispute, controversy or claim arising out of or relating to this agreement or the breach, termination or invalidity thereof shall be finally settled by arbitration held according to the Rules of XXXXXXXXX (by which the Parties undertake to abide) by a sole arbitrator appointed in accordance with the said Rules.
The arbitration proceedings shall be held in XXXXXXX and conducted in the English language. The arbitral award shall be binding upon the Parties and shall not be subject to any appeal in any court. It shall deal with the question of costs of arbitration and all matters related therewith.
The Arbitrator will determine the amount of the Arbitration fees and costs and the party who should bear the payment.
A. Why the specific modification is being introduced?
The semi structured interview highlighted that the governing reasons behind the said modification is to simplify the clause into a supposedly more straightforward procedure that direct the parties to the rules of arbitration, the use of a sole arbitrator, the place of arbitration and the baring of any appeal. In agreement, Responder O5 commented “the procedure for Arbitration as stated in its original wording is lengthy”
B. What are the implications of such modification?
The implications received in relation to the introduced modification noted that despite the fact that the given modification does basically simplify the process that would direct the parties to Arbitration, the same is not conventional and has the following impacts:
1. The modification eliminates the intricate relationship with clauses 67.1 and 67.2. While a dispute is carefully channeled in the 4th FIDIC from its conception thru the Engineer, who has to make his determination prior to allowing the parties to escalate their difference to amicable settlement and then to arbitration, this modification annuls such procedure. Therefore, the parties are now at liberty to call any issue a dispute and to pursue it under arbitration. In doing so, the Engineer is totally bypassed and any dispute shall directly be referred to Arbitration without trying other simpler alternatives. exhaustively trying to resolve the same prior
2. The elimination of the terms “The said arbitrator/s shall have full power to open up, review and revise any decision, opinion, instruction, determination, certificate or valuation of the Engineer related to the dispute” and “Neither party shall be limited in the proceedings before such arbitrator/s to the evidence or arguments put before the Engineer for the purpose of obtaining his said decision pursuant to Sub-Clause 67.1”
Are likely to cause the parties to differ as to what matters and evidence can and cannot be admitted in the arbitration process.
3. The elimination of the term “No such decision 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” adds confusion as to what role the Engineer can still have in the arbitration. One party may argue any involvement of the Engineer in
the arbitration since it is not mentioned in the Contract, thus causing the loss of an essential source of evidence in the arbitration.
4. The elimination of the term ”Arbitration may be commenced prior to or after completion of the Works, provided that the obligations of the Employer, the Engineer and the Contractor shall not be altered by reason of the arbitration being conducted during the progress of the Works.” Is likely to cause the parties to differ on when the arbitration can be started and whether the progress of the Works is affected. In one case, the Contractor may utilize the modification to its advantage by stopping the Works until the dispute is resolved. Another scenario would be the Employer discontinuing its payment until the arbitration process is over. Both cases are detrimental to the Project and to both Parties.
5. The feedback received from the seven companies considers and average increase in the project duration of half a month for a three years project duration since a lot of essential process details are being skipped in that specific modification. The average project cost should be increased by 1 % to cater for the unfamiliarity with the being introduced procedure for arbitration.
C. What consequences of the modifications can be drawn?
Throughout the semi structured interview it was recorded that the modification takes away several of the benefits that are provided by the original clause. Those can be summarized as follows:
1. Elimination of the clarification of the extent of scope of matters covered in the arbitration.
2. Elimination of the role of the Engineer in the phases leading to the disputes. 3. Elimination of the intricate relationship that exists with clauses 67.1 and 67.2. 4. Elimination of the role of the Engineer as a source of evidence in the arbitration 5. Elimination of the Parties to continue the performance of their obligations under the
Contract while the arbitration is in progress
6. Elimination of the provision as to when arbitration can be started.
The above issues do form an important aspect of the original sub-clause and need not to be skipped.
D. Any other proposition/ recommendation concerning the modifications being witnessed
From the above, as an obvious answer to this question is to maintain the version of the 4th
edition and add any specificity that Employer and Contractor need to consider in the Arbitration.
E. Benchmarking the Sub-Clause Modification
This standard guide consider that “where it is decided that a settlement of dispute procedure, other than that of the International Chamber of Commerce (ICC), should be used the Clause may be varied.” and provides example in relation to the same. Also, the guide notes that “Where alternatives to ICC are considered care should be taken to establish that the favored alternative is appropriate for the circumstances of the Contract and that the wording of Clause 67 is checked and amended as may be necessary to avoid any ambiguity with the alternative.”
F. Conclusion(s) about the Modification
Based on the above, the modification introduced eliminates major benefits that did exist in the original sub-clause wording. Accordingly, the original wording needs to be kept with some detailed particulars to be introduced if need be and being different than ICC.
Proposed Modification- Guideline(s) for this sub-Clause
Keep the original wording of the Sub-Clause and add the followings at the End:
Add at the end the following:
The venue of the Arbitration shall be XXXXXXXX The Language of the Arbitration shall be XXXXXX The Law of the Arbitration shall be the XXXXXX Laws