Article 66 exclusive remedies - all claims of all types are to be determined by these provisions

Claims by either Party

Article 66 - Exclusive Remedies

66.1 The intention of this Article is to provide a system for the resolution of all or any disputes that might arise under the Subcontract. The ICC ADR Rules provide for the appointment and administration of an amicable dispute resolution mechanism and the Parties are encouraged to consider their use. The Party notifying the dispute in such notice must specify whether or not it intends to activate the procedures of the ICC ADR Rules. In the event that it does not, it must specify whether it wishes to activate Option A or B hereunder.

66.2 All claims, differences or disputes (“Disputes”) arising out of or in connection with this Subcontract are agreed to be resolved solely by the procedures set out in this Subcontract.

OPTION A

66.3 Where a Party gives a notice that it wishes to have a Dispute resolved under Option A, then the following provisions shall apply:

66.3.1 The Parties establish an Ad Hoc Dispute Board (“DB”) in accordance with the ICC Dispute Board rules in force at the Subcontract Date (the “Rules”), which are incorporated herein by reference save that rules [insert] shall not apply. The DB is therefore empowered and expected to decide the Dispute referred to it, including any question or issue regarding the Subcontract’s existence, validity or termination. Terms used in Article 66.3 shall – where the context so requires - have the meanings given to them in the Rules. The DB shall have three member(s). Each Party shall nominate one DB member. The Party requiring that the Dispute be solved by the DB shall nominate a DB member in writing when submitting its statement of case. The other Party shall nominate its DB member in writing within a period of thirty (30) days after it has been notified of the nomination of the first DB member. In respect of the third DB member who shall become the chairman of the DB Article 7 paragraph 5 of the Rules shall apply. Should a Party not nominate a DB member within the time limits mentioned before, the respective DB member shall be appointed by the Dispute Board Centre of the ICC pursuant to the Rules upon the request by the other Party.

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66.3.2 Any Disputes shall be submitted to the DB in accordance with the Rules. For any given Dispute, the DB shall issue a recommendation unless this Subcontract requires a decision or the Parties agree that it shall render a decision or it decides to do so upon the request of a Party and in accordance with the Rules.

66.3.3 If any Party fails to comply with a recommendation or a decision when required to do so pursuant to the Rules, the other Party may refer the failure itself to arbitration under the Rules of Arbitration of the ICC by one or more arbitrators appointed in accordance with the said Rules of Arbitration.

66.3.4 If any Party sends a notice to the other Party and the DB expressing its dissatisfaction with a recommendation or a decision as provided for in the Rules, or if the DB does not issue the recommendation or decision within the time limit provided for in the Rules, or if the DB is disbanded pursuant to the Rules, the Dispute shall be finally settled under the Rules or Arbitration of the ICC by one or more arbitrators appointed in accordance with the said Rules of Arbitration.

OPTION B

66.4 A Party giving a notice of a Dispute which it wishes to have resolved under Option B shall proceed as follows:

66.4.1 Within seven Days it shall give notice in writing to the other Party of the representative of its organisation who is empowered to resolve the Dispute.

66.4.2 Within 14 Days of receipt of such notice the receiving Party shall likewise nominate a similar representative.

66.4.3 The respective representatives shall meet within 14 Days or such longer period if both agree with a view to resolving the Dispute between them. The respective representatives shall conduct such discussions in such names as they may agree subject to the overriding obligations of good faith and fairness between them.

66.4.4 In the event of such discussions not leading to a resolution of the matter it shall be open but not a requirement to either Party within 35 Days to seek the appointment of an independent person (to be agreed between the Parties) to assist in the amicable resolution of the Dispute. 66.4.5 In the further event that the procedure in Articles 66.4.1 through 66.4.4 above does not lead to any form of amicable resolution of the Dispute it shall be open but not a requirement to either Party to give formal notice that they require the Dispute to be referred to Arbitration under the ICC Rules of Arbitration at that time in force.

66.5 When Option A applies, until the Dispute is finally settled by arbitration or by agreement of the Parties, they shall remain bound by any decision, whether or not dissatisfaction has been expressed, unless the Parties themselves agree otherwise. All sums of money agreed or ordered to be paid will be paiimmediately and not held back pending resolution of the Dispute or for any other reason.

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66.6 Each Party hereby indemnifies the other Party for any and all Costs or losses caused by breach of Articles 66.2 through 66.4.

66.7 The language of the DB proceeding and the arbitral proceeding shall be the ruling language of the Subcontract unless otherwise provided for.

Article 67 supplemental provisions relating to arbitration

67.1 No arbitral tribunal can open up review or revise any decision of the DB which has become final and binding in accordance with the Rules, but an arbitral tribunal may, if considered appropriate by the arbitral tribunal and permitted under applicable law, as provided hereafter, make interim awards for the purpose of enforcement of the DB decision.

67.2 Any Notice of dissatisfaction shall be specific as to what part of a decision or recommendation it refers to and disputes (if there are identifiable elements to the decision) and what parts of any decision or recommendation are not disputed. Once the time period for serving notices of dissatisfaction has passed, neither Party may subsequently argue that a decision or part of a decision is not binding, if neither Party served a notice of dissatisfaction in respect of the decision or any part of it.

Res judicata, sequential arbitrations and the contractual effects of the DB

67.3 If and to the extent that they have become final and binding, the dispositive provisions of earlier decisions (if any) of a DB constituted under this Subcontract shall be binding on a later DB and arbitral tribunals.

67.4 Neither Party shall be limited in arbitration to views, evidence or arguments put to the DB or to the reasons for dissatisfaction given in its notice of dissatisfaction with a DB decision, if there was such a notice. Any determination of a DB shall be admissible in evidence in the arbitration.

67.5 Earlier decisions (if any) of a DB constituted under the Main Contract shall not be binding on a later DB and arbitral tribunals constituted under this Subcontract. However, any argument or submission by the Subcontractor, that the Main Contractor’s liability towards the Employer or a third party could have been avoided had it conducted the defence with due diligence, may be disregarded by the DB or arbitral tribunal constituted under this Subcontract, if the Subcontractor was requested by the Main Contractor to assist pursuant to Article 67.8 and omitted or declined such assistance.

67.6 If an arbitral tribunal has been appointed and the arbitral tribunal has not declared the proceedings closed, subject to the rules governing the conduct of the arbitral tribunal, any further disputes in respect of which a DB decision has not been rendered or has not become final and binding, as the case may be, may be referred to the arbitral tribunal.

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67.7 Following Taking-Over of the Subcontract Works, the Parties may, entirely in their own discretion, refer Disputes directly to arbitration under the Rules of Arbitration of the ICC by one or more arbitrators appointed in accordance with the said Rules of Arbitration.

Subcontractor participation in Main Contract disputes

67.8 If the Main Contractor has a claim or dispute of any kind involving the Employer or a third party which relates to the Subcontract Works or rights of the Subcontractor, the Main Contractor may notify the Subcontractor and request the assistance of the Subcontractor. In such case,

  1. the Subcontractor shall give any and all reasonable assistance for the pursuit of the claim or dispute, at the Subcontractor’s choice. That assistance may include, with the consent of the DB or arbitral tribunal, participation as a witness to the DB claim or arbitration; and
  2. the Main Contractor, if it has received compensation or an extension of time relating to the Subcontract Works or the Subcontractor’s rights, shall inform the Subcontractor thereof within 14 days and shall share the benefits, to the extent they accrue to the Subcontractor, of any compensation or time extension with the Subcontractor. Such sharing will be agreed by the Parties or established by a DB or arbitral tribunal considering all the relevant circumstances; however, unless otherwise agreed, any agreement or decision on such sharing shall not prejudice or limit the Subcontractor’s rights under this Subcontract.

67.9 Where the Subcontractor agrees pursuant to Article 67.8, or is otherwise obliged, to

  1. provide such documentation relating to the issues in dispute as may be reasonably requested by the Main Contractor other than documentation of a confidential nature; or
  2. make available such witnesses as may reasonably be required by the Main Contractor for any hearing of the Main Contractor in connection with the issues in dispute,

the Main Contractor shall pay the Subcontractor the Subcontractor’s reasonable costs in providing such assistance for the pursuit or defence of the instant claim or dispute.

67.10 A dispute between the Main Contractor and the Subcontractor as to any matter arising out of Articles 67.8 or 67.9 above shall be a matter that either Party may refer to such dispute mechanism as has been agreed by them under Article 66.

[END OF CONDITIONS OF SUBCONTRACT]