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Article 1 Definitions and Interpretation

Agreement means this Joint-Venture Agreement consisting of the Main Agreement Form, Section I Special Conditions, Section II General Conditions of Contract and the Annexes listed in the contents section.

Authorised Representatives is defined in Article 4.2.1.1.

Contract means the contract for the Project to be entered into by the Employer and all Joint- Venture Members or awarded by the Employer to all Joint-Venture Members as the case may be. Contribution is what a Joint-Venture Member brings into the Joint Venture that has monetary value such as tangible and intangible assets including know-how and intellectual property, services, material, equipment and other resources including cash resources, pursuant to Annex 1 — Contributions.

Day, Days or Date/s mean, unless otherwise agreed, references to a 24-hour calendar day in the Gregorian calendar with “year” meaning 365 days under that calendar, unless it is a 366-day leap year. Periods of time are calculated from the day after receipt of the relevant instruction or other action requiring an activity to commence.

DB means the Dispute Board.

DB Rules mean the ICC Dispute Board Rules in force at the time of signing the Agreement.

Deadlock means the situation that arises when in two consecutive Steering Committee meetings there is no unanimity in votes on a particular issue, or as this agreement may require, no qualified majority in accordance with the Special Conditions in relation to Article 4.2.3.1 hereof can be reached.

Disagreement means any difference between the Joint-Venture Members arising out of or in connection with the Agreement that has not yet become a Dispute. Dispute means any Disagreement that is formally referred to a Dispute Board, another form of alternative dispute resolution if specified in Section I Special Conditions or to arbitration in accordance with Article 15.4, as applicable.

Employer shall have the meaning given to it in Section I Special Conditions. Expulsion is defined in Article 13.1.

Good Practice means the exercise of that degree of skill, diligence, prudence, foresight and engineering and construction practice which would reasonably and ordinarily be expected from a skilled contractor under circumstances the same as or similar to the Project.

Gross Negligence means the conscious and reckless disregard for the need for and the use of Good Practice.

HSE means Health, Safety and Environment.

ICC means the International Chamber of Commerce.

Joint Venture means the temporary association of the Joint-Venture Members established under this Agreement pursuing the objectives described in Article 2.1.

Joint-Venture Member means any party to this Agreement as described hereinabove.

Negligence means any act or omission which is not in line with Good Practice.

Offer means the offer to be submitted by the Joint-Venture Members to the Employer for the Project pursuant to Article 6.1.

Project shall have the meaning given to it in Section I Special Conditions.

Project Management is defined in Article 4.3.

Proportionate Value is the percentage ratio of the value of the Contribution of a Joint-Venture Member in proportion to the Total Value of the Work as specified in the Agreement.

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Site is the piece of land where Work supplied under the Contract is to be erected and commissioned.

Steering Committee is defined in Article 4.2.

Total Value of the Work is the Contract’s price as amended during the implementation of the Project.

Work means the supplies and/or services to be provided by the Joint-Venture Members to the Employer pursuant to the Contract.

1.1 Wording of the Agreement

In the Agreement, except where the context requires otherwise:

1. the Agreement and language are neutral in relation to gender;
2. words indicating the singular also include the plural and words indicating the plural also include the singular;
3. provisions including the word “agree”, “agreed” or “agreement” require the agreement to be either in writing or recorded in writing (before or after the agreement);
4. in understanding this Agreement, the Sections, Chapters, Articles and other headings are intended to be included in the Agreement and its interpretation; and
5. all notices, notifications, certificates, consents, approvals, decisions and requests under this Agreement shall indicate the sections(s) of this Agreement under which they are given or made.

Article 2 Formation of the Joint Venture

2.1 Object and Purposes

The Joint-Venture Members hereby agree to form a Joint Venture having the following object:

1. to prepare and submit the Offer,
2. to conduct any necessary negotiations with the aim to agree on the Contract,
3. to execute and perform the Contract jointly, and
4. to share or bear the rights, obligations, liabilities, risks and all net profits or net losses of their joint performance of the Contract in proportion to their Proportionate Value in this Joint Venture as referred to in the Main Agreement Form.

2.2 Administrative Office

The administrative office of the Joint Venture shall be at as specified in Section I Special Conditions.

Article 3 Financial Plans, Contributions, Profit and Loss Sharing

3.1 Financial plans

The Joint-Venture Members have agreed on Financial Plans for the Joint Venture that include forecasts for the balance sheet, income statement, and cash-flow analysis of the joint operation, as such are appended in Annex 2.

The management, supervision, amendment and control of the Financial Plans are effected by the decision-making bodies of the Joint Venture as detailed below in Article 4.

As and when required by the Financial Plans and upon the call for funds made by the Steering Committee the Joint-Venture Members shall make advances in cash into the Joint-Venture Bank Account as detailed below in Article 9.

3.2 Contributions

The Joint-Venture Members shall make the Contributions set out in Annex 1 by way of granting to the Joint Venture a right of use and, as the case may be, right of disposal or consumption of such Contributions for the needs and duration of the Joint-Venture Agreement and to the extent required by the Contract.

The nature and extent of such Contributions may be amended from time to time and any resulting consequences (for example relating to the Proportionate Values) shall require a unanimous decision of the Steering Committee. Such decision shall take the form of an amendment to Annex 1 — Contributions to this Agreement and shall be signed by all Joint-Venture Members

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3.3 Warranties on Contributions

Each Joint-Venture Member warrants that its respective Contribution fully complies with the requirements of the Contract related to the scope of such Contribution and shall fully indemnify and hold harmless the other Joint-Venture Members for any detrimental consequence to the Joint Venture of any grossly negligent or wilful breach of such warranty, without prejudice to the application of Article 13 — Expulsion which may be decided by the Steering Committee according to the procedure set out in Article 13.2, within the limits set out in Article 3.5.

3.4 Profit and Loss Sharing and Distribution

The Joint-Venture Members shall share or bear the rights, obligations, liabilities, risks and all net profits or net losses of their joint performance of the Contract in proportion to their respective Proportionate Value.⁴

1. On payment to the Joint Venture by the Employer of all monies due to it under the Contract and on realisation of all assets of the Joint Venture and the settlement of all its outstanding obligations and liabilities, the Steering Committee shall cause a final account to be prepared, showing the total net profit earned or total net loss incurred by the Joint Venture and upon such account being agreed by the Steering Committee, each of the Joint-Venture Members shall, under the direction of the Steering Committee, receive from or pay to the Joint Venture its proportionate share of the net profit or net loss of the Joint Venture, calculated in accordance with the terms of this Agreement after taking into account any interim distribution on account of profit.
2. The total net profit or net loss shall be the sum remaining or outstanding after deducting from the total of amounts received (excluding all working capital contributions) by the Joint Venture of all costs properly incurred including:

1. The cost of any special service performed by any of the Joint-Venture Members at the prior request of the Steering Committee.

2. The costs of travelling and out-of-pocket expenses (but not the salaries) incurred by members of the Head Office staff of any of the Joint-Venture Members not engaged full-time on the Contract, in visiting the Site in the interest of the execution of the Contract.

3. All rates, taxes or duties levied on the Joint Venture.

4. Fees expressly agreed by the Steering Committee prior to their incurrence, which are paid to third parties in connection with the preparation of the Offer and the performance of the Contract and the settlement of claims arising under the Contract.

3.5 Shared Assets

The Joint Venture will have the ownership and legal title⁵over any tangible and/or intangible outputs which have been generated jointly by the Joint-Venture Members during the performance of the Contract (such as data, knowledge and information regardless their form or nature, whether or not they may be protected, as well as any rights attached to them, including intellectual property rights subsequently generated as derivations of the same).

The Joint-Venture Member generating such tangible or intangible outputs during the performance of the Contract but without the co-operation of any other Joint-Venture Member, will have the exclusive ownership, being obliged to make the relevant output available to the other Joint- Venture Members for the exclusive purpose of the performance of the Contract.

3.6 At the Termination of the Joint Venture:

i. the Contributions made by the Joint-Venture Members by way of a right of use only, in both tangible and/or intangible assets shall be returned to their owner (and all licenses or leases, if any, shall be automatically terminated); and

ii. any asset owned⁶by the Joint Venture shall be sold (and any Joint-Venture Member may be a purchaser of all or any portion thereof), according to Article 4.3.3 iv. and the eventually remaining assets distributed to and among the Joint-Venture Members pro rata in proportion to their participation in this Joint Venture, without undue delay.

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Article 4 Organisation and Decision Making

4.1 General Organisation⁷

4.1.1 The bodies of the Joint Venture shall be:

i. The Steering Committee as further provided in 4.2.

ii. The Project Management as provided in 4.3.

4.2 Steering Committee

The decision-making body of the Joint Venture is the Steering Committee.

4.2.1 Constitution of the Steering Committee

4.2.1.1 The Steering Committee shall be comprised of a minimum of⁸one Authorised Representative of each Joint-Venture Member. Authorised Representatives shall have the authority to bind the respective Joint-Venture Member by whom they have been appointed, for the purposes of this Joint-Venture Agreement.

4.2.1.2 Unless designated in the Special Conditions, each Joint-Venture Member shall, no later than 15 Days after the award of the Contract, appoint its Authorised Representative(s) by giving notice to the other Joint-Venture Members of the particulars of its Authorised Representative(s) and of an alternate Authorised Representative as the case may be.

4.2.1.3 In the interest of optimal knowledge management and coordination, the Joint-Venture Members shall use all reasonable efforts to avoid any change of their Authorised Representatives during the performance of the Contract. If a change must take place, the Joint-Venture Member changing one or the other of its Authorised Representatives shall give to the other Joint-Venture Members the earliest advance notice reasonably feasible.

4.2.1.4 The Chair of the Steering Committee shall be the Authorised Representative of the Joint-Venture Member designated in the Special Conditions.

4.2.1.5 The voting rights of the Joint-Venture Members at the meetings of the Steering Committee, shall be in proportion of each Joint-Venture Member’s Proportionate Value, irrespective of the number of Authorised Representatives and/or alternates of such Member who shall attend the meeting.

4.2.1.6 The costs and expenses of Authorised Representatives and other Joint-Venture Member representatives for attending Steering Committee meetings shall be borne by each relevant Joint-Venture Member respectively. Unless otherwise agreed, no Authorised Representative of any Joint-Venture Member shall receive any remuneration from the Joint Venture for Steering Committee business.

4.2.1.7 A first meeting of the Steering Committee shall take place no later than 15 Days from the date of the award of the Contract. At that first meeting at the latest, the Joint-Venture Members shall finalize the overall project coordination procedure, which shall be submitted to the approval of the Steering Committee and shall be used throughout the execution of the Work.

4.2.2 Powers of the Steering Committee

The Steering Committee shall:

i. be in charge of the strategic management of the Joint Venture and of the communication with the Employer in relation to the Contract including in the event of the negotiation of changes to the Contract or termination thereof, and

ii. set the overall Project coordination procedure and control the actions of the Project Management; in addition to all specific matters which are reserved for its decisions under this Agreement, generally examine and decide on all issues relevant to the Joint Venture as and when requested by the Project Management. [Page19:]

4.2.3 Decision Making and Steering Committee Meetings⁹

4.2.3.1 General Principle of Decision Making

Decisions will be made by the Steering Committee, and decision making shall require the unanimous consent of the Authorised Representatives unless a majority decision is provided for in Section I Special Conditions, by specifying the percentage of votes required for majority decisions, or elsewhere in this Agreement.¹⁰

4.2.3.2 Event of Deadlock

In the event of a Deadlock at a Steering Committee meeting, the meeting shall be adjourned and shall reconvene not more than 3 Days later. In the event of a continued Deadlock, the matter shall forthwith be referred, in writing, by the Chair of the Steering Committee, to the chief executive officers of each of the Joint-Venture Members or to another person of suitable standing and authority chosen by the respective Joint-Venture Members who shall meet within 21 Days of the matter being referred to them. They shall work together to reach a unanimous decision which shall be binding on all Joint-Venture Members, failing which the disagreement shall be referred to the agreed dispute resolution process.

However, in the event of a Deadlock with the potential to severely delay or harm the Project, the Chair of the Steering Committee is empowered to make unilateral decisions binding on the other(s) provided that the impact and consequences of such unilateral decisions will be jointly examined by the decision-making bodies in due course, and will necessarily be subjected to the agreed dispute resolution process as per Article 16.

4.2.3.3 Form

Decisions to be taken by the Steering Committee shall be passed at a meeting. In the absence of a meeting, where a decision is taken by telephone, video conference or e-mail, there will be written confirmation of the decision taken within 5 Days.

4.2.3.4 Convening of Meetings

The Steering Committee shall meet according to need and at least every month unless a different minimum periodicity had been agreed in writing. Meetings shall be convened by the Chair of the Steering Committee at the agreed intervals or upon written request of an Authorised Representative of another Joint-Venture Member or the Project Management. Such request shall be notified to the Chair of the Steering Committee with a copy to all other Joint-Venture Members. If reasonably possible, the Chair of the Steering Committee shall give the Authorised Representatives of the other Joint-Venture Members 7 Days’ prior written notice of meetings and provide a written agenda as well as the relevant information and documentation as the case may be. Additions or corrections to such written agenda by other Joint-Venture Members shall be taken into account if they are submitted by the Joint-Venture Member to the Chair of the Steering Committee, with a copy to the other Joint-Venture Members, at least 4 Days prior to the scheduled Joint-Venture meeting. If agreed by the Authorised Representatives, the Committee meetings may be held by telephone, video or web conference, or any other state-of-the-art method of communication.

4.2.3.5 Obligation to Attend Meetings

Joint-Venture Members shall procure that their respective Authorised Representative(s) shall attend the properly convened meetings of the Steering Committee. If an Authorised Representative fails to attend a Steering Committee meeting without justification despite a correct and timely invitation, the Chair of the Steering Committee shall immediately reconvene such a meeting pursuant to

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Article 4.2.3.4. If the Authorised Representative that did not attend the first meeting fails to attend the reconvened meeting without justification, decisions which have a direct impact on the continuation of the Work may be passed by the attending Authorised Representatives alone even if the non-attending Joint-Venture Member is affected by such decisions.

4.2.3.6 Records of Meetings

The Chair of the Steering Committee shall:

1. keep minutes of the Steering Committee meetings,
2. record decisions made by said Steering Committee, and
3. circulate such minutes and records to the other Joint-Venture Members without delay, but in no event later than 10 Days after the meeting was held and the decision(s) taken. Unless the Chair of the Steering Committee receives a written objection to any such minute or record within 10 Days of the date of receipt of the minutes by the Joint-Venture Members, such record shall be deemed to be correct and complete.

4.3 Project Management

The executive body of the Joint venture is the Project Management who is in charge of the operation of the Joint Venture and timely execution of the Contract and Works, subject to the overriding authority of the Steering Committee.

4.3.1 Appointment of the Project Management

Appointment of the Project Management is as stated in Section I Special Conditions subject to changes which may be decided subsequently by the Steering Committee.

4.3.2 Powers of the Project Management

The Project Management shall, subject to the overriding authority of the Steering Committee, be empowered to manage the operations of the Joint Venture.

4.3.3 Rights and Duties of the Project Management

The rights and duties of the Project Management shall include:

1. implementing of the decisions of the Steering Committee;
2. opening the joint bank account(s), and — together with one other Joint-Venture Member, which shall be appointed by the Steering Committee — operation of the same;
3. representation of the Joint Venture in its relations with the Employer and other third parties, including in particular with respect to all correspondence of the Joint-Venture Members with the Employer which shall be sent via the Project Management who shall prepare drafts of the correspondence to be sent to the Employer, as well as in respect of the entering into contracts, such as subcontracts on behalf of the Joint Venture as and when authorised by the Steering Committee under a general or special authorisation;
4. upon special authorisation of the Steering Committee, the purchase of any equipment and/or materials required to perform the Works, not provided by the Joint-Venture Members hereunder. Upon completion of the Works or at any earlier time decided by the Project Management, such equipment and/or materials shall be sold at the highest possible price in such manner as shall be decided by the Steering Committee;
5. providing technical, commercial and organizational coordination of the Joint-Venture Members in the bidding phase and during the performance of the Contract;
6. to the extent applicable, and subject to Article 6.1, submission of the Offer for the Joint Venture and coordination of the necessary formalities, in particular regarding a potential mandatory registration of the Joint Venture;
7. keeping the necessary accounting books, and, preparing and submitting tax returns for the Joint Venture as applicable;
8. making proposals for joint insurance coverage of all the Joint-Venture Members pursuant to Article 8.1.4;
9. coordinating the establishment of the joint construction site(s);
10. coordinating the preparation of progress reports and other documentation to be submitted to the Employer and generally keeping records of meetings with the Employer and/or third parties in relation to the Project;
11. in the event of changes with respect to the Works that are required by the Employer, coordinating the preparation of proposal for the approval of the Steering Committee and upon approval by the Steering Committee to negotiate with the Employer; Section II | General Conditions[Page21:]
12. if and as required, keeping an integrated information and digital¹¹documentation system and organizing the sharing of such information and documentation with the Joint-Venture Members and with the Employer as required; and
13. collecting data for invoicing the Employer and to collect payments from the Employer to the extent and in the way foreseen in Article 10.2; and performing any other duties assigned to the Project Management through this Agreement or through a decision of the Steering Committee having such effect.

4.3.4 Mutual Duties to Inform and Co-operate

The Project Management shall advise the Joint-Venture Members without delay of all matters of which it becomes aware in the course of its duties, and which may materially affect the performance of the Contract or any Joint-Venture Member’s Contribution, and provide the Joint- Venture Members with copies of all important correspondence in its possession relating to the Project, particularly those relating to each Joint-Venture Member's Contribution.

To this effect, each Joint-Venture Member may take part in meetings organized by the Project Management with the Employer or third parties in relation to the Project.

The Joint-Venture Members agree to co-operate fully and in good faith with the Joint-Venture Project Management, with a view to allowing the Project Management to discharge its duties in a time- and cost-effective manner. In particular, the duties of the Joint-Venture Members shall be to:

1. inform the Joint-Venture Project Management of progress, difficulties and corrective action occurring in the context of their respective Contribution and they shall hand over all required documentation timely, complete, in the required digital format as the case may be and correct in content;
2. abstain from direct contact with the Employer and channel all correspondence with the Employer through the Project Management subject only to the exception that, after the conclusion of the Contract, technical questions of minor importance which clearly concern the supplies or services of one Joint-Venture Member only may, if the Employer agrees, be handled by the Joint-Venture Member concerned directly with the Employer with the provision that the Project Management will be informed in real time and copied into all correspondence; and
3. forward any information and correspondence received from the Employer to the Project Management.

4.3.5 Compensation of the Project Management

The Project Management shall not be entitled to a fee in consideration for its duties until the Contract is awarded to the Joint Venture. Thereafter, the Project Management shall be entitled to charge the Joint-Venture Members a fee which is a percentage as defined in Section I Special Conditions of each Joint-Venture Member’s part of the Total Value of the Work and increased by any applicable value-added tax. The agreed lump sum fee shall be included in the estimate of the contract price towards the Employer in the Contract. The terms of payment of the fee of the Joint-Venture Project Management shall be specified in Section I Special Conditions.

Article 5 Principles of Joint Operation

5.1 Good Faith and Fair Dealing

In carrying out their obligations under this Agreement the Joint-Venture Members will act in accordance with the principles of good faith and fair dealing. The provisions of the Contract, as well as any statements made by the Joint-Venture Members in connection with it, shall be interpreted in accordance with the principles of good faith and fair dealing.

5.2 Duty to Inform and Co-operate

Each Joint-Venture Member shall promptly inform the other Joint-Venture Members of any matters of which it becomes aware and which may materially affect the preparation of the Offer, performance of the Contract or the execution of the Works or, in any way, reasonably be required or necessary for the other Joint-Venture Members to prepare the Offer, perform the Contract and execute the Works.

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Each Joint-Venture Member shall co-operate in the joint performance of the Contract in accordance with this Agreement, in particular by complying with the decisions of the Steering Committee and/or the Project Management, and the requirements of the Contract, in terms of time and otherwise.

5.3 Exclusivity

The Joint-Venture Members shall co-operate on an exclusive basis to achieve the objectives set forth in Article 2.1 hereof. In particular, no Joint-Venture Member shall by itself or with third parties, either make offers or enter into agreements concerning the Project or any part thereof. The foregoing exclusivity obligation applies to the Contribution of the Joint Venture. This exclusivity obligation shall apply until the Joint Venture is wound up pursuant to Article 14.2 hereof. If a Joint-Venture Member voluntarily leaves or is expelled from the Joint Venture for any reason for which it is responsible this obligation shall bind it until the Joint Venture is wound up pursuant to Article 14.2 hereof.

5.4 Same Regard to the Best Interests of the Joint Venture as to Individual Interests of the Joint-Venture Members¹²

Throughout the life of the Joint-Venture Agreement, each Joint-Venture Member will act in a manner consistent with the agreed common purpose and best interests of the Joint Venture and will have the same regard to the legitimate expectations of the other Joint-Venture Members in respect of the Joint Venture as for its own interests therein.

5.5 Non-payment by Employer

Failure of the Employer to make payments does not entitle any Joint-Venture Member to suspend or reduce the delivery or performance of its Contribution unless such suspension or reduction is decided by the Steering Committee.

5.6 No Authority to Represent¹³

Unless otherwise agreed in writing in this Agreement, no Joint-Venture Member is authorised to or shall enter commitments on behalf or in the name of the Joint Venture or the Joint-Venture Members and no Joint-Venture Member or any of its respective agents, employees, contractors, or representatives shall:

1. be considered an agent, employee or representative of any other Joint-Venture Member for any purpose whatsoever, or
2. have any authority to make any agreement or commitment for any other Joint-Venture Member, nor to incur any liability or obligation in the other Joint-Venture Member’s name or on its behalf, or
3. represent to third parties that they have any right so to bind any other Joint-Venture Member, or
4. have the authority to recognize, without prior written approval of the affected Joint-Venture Member, claims of the Employer or third parties for which the Joint Venture or other Joint-Venture Members are wholly or partly responsible.

5.7 Prohibition of Corruption

5.7.1 Each Joint-Venture Member hereby undertakes that, at the date of the entering into force of the Agreement, itself, its directors, officers or employees have not offered, promised, given, authorised, solicited or accepted any undue pecuniary or other advantage of any kind (or implied that they will or might do any such thing at any time in the future) in any way connected with the Agreement, and that it has taken reasonable measures to prevent subcontractors, agents or any other third parties, subject to its control or determining influence, from doing so.

5.7.2 The Joint-Venture Members agree that, at all times in connection with and throughout the course of the Agreement and thereafter, they will comply with and that they will take reasonable measures to ensure that their subcontractors, agents or other third parties, subject to their control[Page23:] or determining influence, will comply with Part I of the then-current version of the ICC Rules on Combating Corruption, as set out in full in Option II of the ICC Anti-corruption Clause 2012, which is attached as Appendix I, forming, as a whole, part of this Agreement.

5.7.3 If a Joint-Venture Member, as a result of the exercise of a contractually-provided audit right, if any, of another Joint-Venture Member’s accounting books and financial records, or otherwise, brings evidence that the latter Joint-Venture Member has been engaging in material or several repeated breaches of the provisions of Part I of the then-current version of the ICC Rules on Combating Corruption, it will notify the latter Joint-Venture Member accordingly and require such Joint-Venture Member to take the necessary remedial action in a reasonable time and to inform it about such action. If the latter Joint-Venture Member fails to take the necessary remedial action, or if such remedial action is not possible, it may invoke a defence by proving that by the time the evidence of breach(es) had arisen, it had put into place adequate anti-corruption preventive measures, as described in Article 10 of the ICC Rules on Combating Corruption 2011, adapted to its particular circumstances and capable of detecting corruption and of promoting a culture of integrity in its organization. If no remedial action is taken or, as the case may be, the defence is not effectively invoked, the first Joint-Venture Member may, at its discretion, either suspend the Agreement or terminate it, it being understood that all amounts contractually due at the time of suspension or termination of the Agreement will remain payable, as far as permitted by applicable law.

5.7.4 Any entity, whether an arbitral tribunal or other dispute resolution body, rendering a decision in accordance with the dispute resolution provisions of the Agreement, shall have the authority to determine the contractual consequences of any alleged non-compliance with this ICC Anti- Corruption Article.

5.8 Compliance with Applicable Laws and Standards of Ethics

Joint-Venture Member hereby undertakes that it shall perform its obligations under this Agreement in a legal manner, and in line with the applicable standards of ethics originating from its self-imposed obligations or from the applicable international treaties, including the prohibition of fraud, coercion, collusion to achieve an illicit purpose and the violation of human rights.

Article 6 Preparation, Submission and Acceptance of the Offer

6.1 Preparation of the Offer¹⁴

i. The Joint-Venture Members shall prepare and submit the Offer to the Employer. Such Offer, shall be in such form and shall contain such terms and conditions as the Employer shall require and as the Joint-Venture Members shall mutually agree, and after its preparation and submission, the Joint-Venture Members shall be jointly and severally bound by its provisions and none of them shall vary or seek to vary the same without the previous written consent of the others.

ii. The Joint-Venture Members shall prepare the Offer in accordance with a timetable, agenda and programme to be established forthwith after the signing of this Agreement. The Joint-Venture Members agree to share as closely as practical, in proportion to their participation in this Joint Venture, in all work required for the preparation of the proposal and to make services available from their own resources wherever possible. No Joint-Venture Member(s) shall engage external services without the prior written agreement of the other Joint-Venture Member(s). Each Joint-Venture Member shall bear its own costs and expenses incurred in preparing the Proposal, regardless of whether the Proposal and/or negotiations are successful. External services appointed by prior written agreement between the Joint-Venture Members shall be shared in the proportion defined in Article 1 of the Special Conditions.

iii. The withholding of approval of the Offer by either of the Joint-Venture Members shall not be subject to arbitration, but shall automatically terminate this Agreement with the exception of the provisions of Article 6.2 hereof which shall then apply.

iv. Any bonds, guarantees or indemnities required by or arising out of the terms and conditions of the Offer shall be arranged by and shall be paid for by the Joint-Venture Members in the proportions of their financial interests as referred to in Section I Special Conditions hereof.[Page24:]

v.

a. None of the Joint-Venture Members shall in any way act either alone, or jointly with, by or through any other party in a manner likely to be detrimental to the Offer or cause loss or injury to the Joint Venture.

b. While this Agreement is in force each Joint-Venture Member shall be prohibited from participating in any other Offer for the Work, either directly or through any subsidiary or other associated company or otherwise without the prior written consent of the other Joint-Venture Members.

6.2 Non-award of Contract

No Joint-Venture Member shall be responsible to the other Joint-Venture Members where the Contract is not awarded, except in case of Gross Negligence and/or wilful misconduct.

If the Joint-Venture Members fail to agree on the terms and conditions of the Offer according to the process provided in Article 14.2 v., or if the Offer is not accepted by the Employer within the period for acceptance specified in the Offer or such further periods as may be agreed upon between the Joint Venture and the Employer, or if the Contract is awarded to a third party, then this Agreement and all of its provisions shall automatically cease and terminate — except for those that due to their nature shall survive the termination of the Agreement pursuant to Article 17.14, and in the event of such termination each of the Joint-Venture Members shall be separately and solely liable for all costs and expenses it may have expended or incurred in connection with the preparation and submission of the Offer, except as where otherwise agreed, but without affecting the rights of either Joint-Venture Member against the other, as provided in the preceding paragraph.

If the Offer is rejected or cancelled, notwithstanding the provisions for termination in the preceding paragraph and if, within a period of 12 months after such cancellation or rejection of the original Offer, a new call for Offers is be made by the Employer, the Parties shall remain bound by the terms of this Agreement.¹⁵

Article 7 Securities

Any and all securities, bonds or guarantees, required by or arising out of the terms and conditions of the Contract, shall be provided by the Joint Venture and the cost of such bonds, securities guarantees or counter-guarantees shall be borne by the Joint Venture. Any and all counterguarantees required shall be issued by the Joint-Venture Members within twenty-eight days of receipt of notice from the Steering Committee requiring them to do so.¹⁶

Article 8 Insurance¹⁷

8.1 Work Insurance

8.1.1 General Principles

Any insurance cover shall be on terms and conditions as are reasonably available in the insurance market and that are customarily purchased by contractors on similar projects with regard to size, technology and location. Any insurance proceeds under the Work Insurance under Article 8.1 shall be paid from the insurers to the Joint Venture account and shall be applied for the repair or rectification of any damage that has occurred. Deductibles, if any, shall be borne by the Joint Venture.

8.1.2 Marine Cargo/Transportation Insurance

Marine Cargo/Transportation Insurance, where applicable, shall be maintained for not less than 110 % of the Incoterms® rule (latest edition) CIF value to cover loss or damage to the Work during transportation with conveyances of whatsoever kind from any warehouse worldwide until and including unloading at the Site. This cover shall not be less than the internationally known Institute Cargo Clauses (A) of the Institute of London Underwriters, provided war risks are available at base[Page25:]rate and the deductible shall not be higher than the amount per occurrence specified (if any) in Section I Special Conditions.

8.1.3 Construction/Erection All Risk Insurance

Construction/Erection All Risk Insurance shall cover loss or damage to the Work on all risks basis for not less than the full reinstatement cost, subject to sub-limits as are reasonably commercially available and with exclusions customarily required by the insurance market, such as the exclusion of the terrorism risk. This insurance shall cover any Site activity after unloading of the Work at the Site, including storage on or near the Site, construction, erection, assembly, cold and hot commissioning and testing until the Works are accepted or deemed to be accepted under the Contract.

8.1.4 If not taken out by the Employer, then unless otherwise agreed, the Project Management shall effect and maintain the insurance cover as set out in Articles 8.1 in the joint names of the Joint- Venture Members and shall provide for a waiver of recourse from the insurers against all insured parties, in which case the cost of the cover shall be treated as cost to the Joint Venture.

8.2 Other Insurance

8.2.1 Each Joint-Venture Member shall effect and maintain at its own expense, or shall cause its Subcontractorsto effect and maintain at their own expense, the following insurance cover with reputable insurance carriers authorised to do business in the country of the Site:

1. Employer’s liability and workman’s compensation insurance in accordance with any applicable law(s). If the law does not provide for any obligations in this respect or requires only some minimum limits, then the Joint-Venture Member shall arrange this insurance in a manner and with limits as a prudent and reasonable contractor in the same circumstances and environment would so do. This insurance shall be maintained in full force and effect during the whole time that Joint- Venture’s Personnel are working in the execution of the Work on Site.

2. Automobile liability insurance in the country of the Site in accordance with any applicable law(s). If the law does not provide for any obligations in this respect or requires only some minimum limits, then the Joint-Venture Member shall arrange this insurance in a manner and with limits as a prudent and reasonable contractor in the same circumstances and environment would so do.

3. Comprehensive third-party liability insurance to cover the Joint-Venture Member’s legal liability with a limit, unless otherwise agreed, of indemnity of not less than specified in Section I Special Conditions.

4. Joint-Venture Member’s equipment insurance to cover loss or damage to Joint-Venture Member’s equipment on an all risks basis for not less than the full replacement value, during any activity on the Site and including delivery to Site.

8.2.2 On request of another Joint-Venture Member, a Joint-Venture Member shall provide evidence to the other Joint-Venture Members that the Joint-Venture Member’s Other Insurance is in place at the latest within 30 Days after such request.

Article 9 Financials and Accounting

9.1 Joint-Venture Account

On behalf of the Joint Venture, the Project Management, where required, is authorised and obliged to open and — together with one other Joint-Venture Member who shall be appointed by the Steering Committee — to operate a joint-venture bank account. The Project Management shall use best efforts to ensure that payments by the Employer under the Contract are effected through the Joint-Venture account. The authority to operate the account shall be revocable at any time by the Steering Committee.

The bank account shall be operated in accordance with the instructions laid down by the Steering Committee at its first meeting or as subsequently amended by the Steering Committee from time to time.

9.2 Invoicing

The Project Management shall invoice the Employer on behalf of the Joint-Venture Members to the extent permitted by the Contract and by applicable tax regulations.

9.3 Payments

Any monies received on the Joint-Venture account in excess of what is needed by the Joint Venture as working capital, shall be distributed to the Joint-Venture Members pro rata their Proportionate Value unless otherwise decided by the Steering Committee. [Page26:]

All sums received by any Joint-Venture Member in connection with the Contract shall promptly be paid into the Joint-Venture account and all monies to be paid to the Joint-Venture Members shall be paid from the Joint-Venture account.

9.4 Financing

The Joint-Venture Members shall, in proportion to their respective Proportionate Value, provide guarantees to the bank(s) for the banking facilities or shall provide such funds as the Steering Committee shall, from time to time, declare to be necessary in order to provide working capital for the performance of the Contract in accordance with the Financial Plans. Working capital shall not earn interest against the Joint Venture.

Unpaid Working Capital

1. Should one of the Joint-Venture Members fail to pay its proportionate share of any sum or sums declared necessary to provide working capital, or agreed guarantee(s) within a period of 21 days after having received written notice to do so from the Steering Committee, the defaulting Joint- Venture Member shall be liable to pay interest to the other Joint-Venture Member(s), on the amount of its proportionate share remaining unpaid or on the amount of its proportionate share of a guarantee or guarantees not provided. The amount of interest shall be as set in the Special Conditions. The payment of interest shall be without prejudice to any rights under this Agreement of the Joint-Venture Member(s) not in default.
2. Should the defaulting Joint-Venture Member not have made payment of its proportionate share within a further period of twenty-eight days, it shall not be entitled to pay any further sum to provide working capital during the course of the Contract, except to the extent previously approved in writing by the other Joint-Venture Member(s) and the respective shares of the Joint-Venture Members in the profits as referred to in Article 6 shall be adjusted and if necessary re-adjusted pro rata the sum or sums respectively, from time to time, provided by each of the Joint-Venture Member(s) as working capital, or as a guarantee or guarantees. Notwithstanding the above, the proportionate liability of the defaulting Joint-Venture Member for losses, costs, expenses risks and obligations shall remain unchanged from what is stated in Article 12 hereof.
3. So long as a Joint-Venture Member remains in default under this Article, its Authorised Representatives shall not be entitled to vote at the meetings of the Steering Committee and the decisions of the Steering Committee shall be validly taken and shall be binding, including upon the Joint-Venture Member in default, by the exercise of the voting rights of the Joint-Venture Members not in default.

Accounts

1. The Project Management shall keep the accounts of the Joint Venture in compliance with applicable laws and internationally accepted general accounting principles and according to the accrual method of accounting unless specified in more detail in Section I Special Conditions or otherwise decided by the Steering Committee.

2. The books of accounts and records shall be open for inspection of and copy or extract by the other Joint-Venture Members at all reasonable times.

3. The periodicity of accounting, issuance of profit and loss statement and balance sheet shall be determined by the Steering Committee in accordance with international standards and the respective requirements of the Joint-Venture Members.

4. Unless otherwise decided by the Steering Committee, the accounts of the Joint Venture shall be rendered by the Project Management to the Joint-Venture Members on a quarterly basis, with accounts for the last Gregorian calendar quarter being due no later than the end of the month following the respective quarter.

5. Unless otherwise decided by the Steering Committee, any objection by the Joint-Venture Members will have to be raised in writing no later than the end of the month following that of the rendition. If no objection has been raised within the specified time, the balance sheet and the profit and loss account shall be final and binding upon the Joint-Venture Members.

6. The Steering Committee shall appoint the Joint Venture’s Independent Auditors and determine the scope of their mission.

Article 10 Taxes

10.1 Tax Obligations

Each Joint-Venture Member shall co-operate with the Project Management so that the Joint Venture may comply with all tax regulations. In particular, each Joint-Venture Member shall be Section II | General Conditions[Page27:]responsible for supplying all such information necessary for preparing and submitting all necessary tax returns and tax payments, as legally required.

10.2 Value-Added Tax

If the Joint Venture is subject to sales or value-added tax, the relevant tax obligations shall be satisfied by the Project Management on behalf of the Joint Venture.

Details of necessary procedures (with regard to invoicing procedure, tax declarations, documents and respective tax payments) will be agreed upon separately.

10.3 Taxation of the Joint Venture

It is the Joint-Venture Members’ common understanding that the implementation of the Project based on the principles of co-operation in this Agreement will not cause the Joint Venture to register for corporate income tax purposes, whether as taxable entity or in another form. No Joint-Venture Member shall take any action that may contradict such common understanding of the Joint-Venture Members.

If the tax authorities nevertheless should tax the Joint Venture on the basis of income from the entire Contract, the Joint-Venture Members shall closely co-operate and agree on a joint approach in responding to the tax authorities’ position. If the Joint Venture should be taxable, the Joint- Venture Project Management will coordinate the tax filing and tax payment process. Details will be agreed upon separately.

Taxes other than corporate income tax assessed on the Joint Venture shall be borne by the Joint-Venture Members pursuant to their Proportionate Values.

Article 11 Confidentiality

11.1 Each Joint-Venture Member shall use all business and technical information received from the other Joint-Venture Member in connection with this Agreement, the Offer, the Project and the Works, and which the disclosing Joint-Venture Member expressly states to be confidential or the confidential nature of which can be assumed on the basis of the circumstances of its disclosure or its contents, solely for the purposes for which it was provided; and shall treat it in the same way as its own business secrets; and not make it available to third parties, unless the business or technical information in question:

1. is generally available from public sources or in the public domain;
2. is received at any time from any third party without a non-disclosure obligation to the disclosing Joint-Venture Member;
3. is shown either to have been developed independently by the receiving Joint-Venture Member without reliance on the disclosing Joint-Venture Member’s confidential information or to have been known to the receiving Joint-Venture Member prior to its disclosure by the disclosing Joint- Venture Member; or
4. must be disclosed to third parties for the purpose of performing this Contract, provided such third parties are or become subject to an equivalent confidentiality obligation.

11.2 Notwithstanding the provisions of Article 11.1, any Joint-Venture Member may disclose any confidential information if, and to the extent that, it is required to do so by the disclosure requirements of any law, rule, or regulation or any order, decree, subpoena, or ruling or other similar process of any court, tribunal, arbitral tribunal or governmental instrumentality or of any regulatory body having jurisdiction. Prior to making or permitting any Joint-Venture Member to make such disclosure the disclosing Joint-Venture Member shall — to the extent possible — provide the Joint-Venture Member that initially provided such information with written notice of any such requirement so that that Joint-Venture Member may seek a protective order or other appropriate remedy. The Joint-Venture Member required to make such disclosure shall co-operate with the Joint-Venture Member that initially provided the information, in order to minimize and protect against the disclosure of the confidential information and with any efforts by the Joint-Venture Member seeking to protect the information from disclosure to obtain proprietary or confidential treatment for such confidential information by the third party to whom the confidential information is disclosed or to seek protective orders limiting the dissemination and use of the confidential [Page28:] information. Nothing herein shall prevent any Joint-Venture Member from objecting to the rule, regulation, or order requiring the disclosure.

11.3 The foregoing confidentiality obligation shall also apply to the contents of this Agreement.

11.4 The confidentiality obligation created by this Article 11 shall continue for a period as described in Section I Special Conditions after termination of the Joint Venture.

11.5 Publications of any kind on or in any media (including electronic media) by a Joint-Venture Member or initiated by a Joint-Venture Member referring to the Works shall require the prior written approval of the other Joint-Venture Members, which approval shall not unreasonably be withheld.

Article 12 Liability

12.1 Liability towards the Employer and/or Third Parties

To the extent provided for in the Contract or in the law governing the Contract, the Joint-Venture Members shall be jointly and severally liable to the Employer for timely performance of the Contract and to third parties in relation to the execution of the Project, and all rights, obligations, liabilities and risks shall be shared between the Joint-Venture Members in accordance with the Proportionate Values set out in the Main Agreement form.

12.2 Liability towards the other Joint-Venture Members

Towards each other the Joint-Venture Members shall only be liable in the event of Gross Negligence or wilful misconduct by any Joint-Venture Member causing a loss to the Joint Venture, except as otherwise agreed in this Agreement. This provision will apply in all instances of liability amongst the Joint-Venture Members, including in the event of recourse for indemnification.

12.3 Liability of the Joint-Venture Project Management and Limitation of Liability

The Joint-Venture Project Management shall be liable for damage caused to any and all of the Joint-Venture Members through Negligence with respect to the performance of its duties as described in Article 4.3. Such liability shall in aggregate be limited to the amount of the fee of the Joint-Venture Project Management. In no event shall the Joint-Venture Project Management be liable for loss of profit, loss of use, loss of data or information, loss of contracts or business opportunities or any punitive damages. This limitation and exclusion of liability shall apply to the extent consistent with mandatory law and regardless of whether the liability claim is based on breach of contract, breach of warranty, negligence, strict liability, tort or any other legal theory and shall also apply for the benefit of the employees of the Joint-Venture Project Management. Any excess damage will be divided among the affected Joint-Venture Members in proportion to their participation in the Joint Venture.

12.4 Exclusion of further Claims

Amongst each other, the Joint-Venture Members shall have no claims for damages and cost reimbursement other than those set forth in this Agreement to the extent consistent with mandatory law.

Article 13 Expulsion

A Joint-Venture Member may be expelled in certain circumstances, as established in this Article 13.

13.1 Grounds for Expulsion

Unless prohibited under the Contract, a Joint-Venture Member may be expelled from the Joint Venture if the other Joint-Venture Member(s) cannot continue the Joint Venture with such a Joint-Venture Member (“Expulsion”). Relevant circumstances giving rise to such Expulsion include, but are not limited to:

1. at any time whether before the award or during the Contract a Joint-Venture Member being acquired by or merged with an entity having a conflict of interest with the pursuit of the Project; or
2. at any time whether before the award or during the Contract if a Joint-Venture Member is disqualified by the Employer; or
3. if a Joint-Venture Member is lawfully excluded from the Contract by the Employer; or
4. the Joint-Venture Member commits a material breach or persistent breaches of the Agreement, the Contract or applicable laws and regulations which is irremediable or (if such breach is remediable) where it fails to remedy that breach without undue delay after having been given Section II | General Conditions[Page29:] written notice by the Project Manager of it requiring such remedy. Such a breach might be in particular, but is not limited to, (i) a breach by a Joint-Venture Member of the undertakings under Article 5; or (ii) non-provision of the security stipulated in Article 7; or
5. a Joint-Venture Member ceases to hold any qualification, certification or registration required for the performance of its duties as a Joint-Venture Member, or becomes unfit to carry on his or her duties and obligations as a Joint-Venture Member; or
6. if, in the opinion of the Steering Committee, which shall be reasonable and justified, the behaviour of a Joint-Venture Member seriously endangers the successful performance of the Agreement and/or Contract; or
7. a Joint-Venture Member has bankruptcy, composition or reorganization proceedings or any other insolvency proceedings¹⁸opened against it by court or other public authority; or has an order entered against it either appointing a receiver or trustee for, or issuing a levy attachment against a substantial portion of its assets, without this order being vacated, set aside or stayed within 60 Days from the date of entry; voluntarily files a petition under the bankruptcy or equivalent insolvency law; becomes insolvent or faces a substantial deterioration (actual or imminent) in its assets; or has payment claims (existing under the terms of the Contract) or its membership interest in this Joint Venture seized by a creditor; consents to or applies for reorganization under the bankruptcy or equivalent insolvency law; makes an assignment for the benefit of its creditors; or has involuntarily filed against it, a petition under the bankruptcy or equivalent insolvency law, which is not dismissed within 90 Days after filing.

13.2 Procedure of Expulsion

Expulsion shall be effected by a decision adopted by the Steering Committee. The concerned Joint-Venture Member must be given the opportunity to defend itself, but its presence in the meeting is not required and in no case, will it have a voting right. Expulsion shall become effective on the day of the decision of the Steering Committee and it shall become binding if the Joint- Venture Member to be expelled has not, within 30 Days of receipt of such decision, initiated DB proceedings in accordance with Article 15.3 or arbitration proceedings if the application of the DB has not been agreed upon. Expulsion shall not affect any of the existing rights or obligations of the Joint-Venture Member to be expelled or any claims against it.

13.3 Continuation of the Joint Venture

If a Joint-Venture Member is expelled from the Joint Venture, then the Joint Venture shall continue with the remaining Joint-Venture Members.

13.4 Use of Property

The Joint-Venture Members remaining in the Joint Venture may use the expelled Joint-Venture Member’s physical property (such as equipment, materials, system components) and intellectual property (such as drawings and know-how), for which no substitute can be obtained at a reasonable cost and in due time. The expelled Joint-Venture Member shall make every effort to facilitate such utilization. The expelled Joint-Venture Member shall be entitled to a reasonable compensation for such use by the other Joint-Venture Members. The compensation for such utilization shall only become payable once all accounts have been settled between the remaining Joint-Venture Members and the Employer.

The departing Joint-Venture Member shall have the duty without undue delay to:

>> make upon written request of the Project Manager a full disclosure all information relevant for the continuation of the Project, including disclosure of information regarding sub-contractor(s) and sub-contract(s) relevant to that Joint-Venture Member’s Contribution.

>> sign and execute all documents and perform all acts that the Joint Venture requires for the purpose of enabling the Joint Venture to recover any outstanding interest or right, or the property of or in connection with the Joint Venture or the remaining Joint-Venture Members; and

>> return to the Joint Venture or Joint-Venture Members all documents, records, papers, or other property (in whatever form held) which are not owned by itself but may be in its possession or under its control, which relate in any way to the Contribution or the Joint Venture’s business affairs, and it shall not retain any copies thereof.

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13.5 Liability for Work Provided

The expelled Joint-Venture Member(s) shall not be relieved from any of its liability for or in connection with its performance of its Contribution up to the date of Expulsion, subject to the limitations and/or exclusions of liability under the Agreement and/or the Contract. The remuneration of the departing Joint-Venture Member for such supplies and services shall be paid in accordance with Article 9. The other Joint-Venture Members shall be entitled to require such payments to the departing Joint-Venture Member on such conditions as it thinks fit including provision of securities covering possible claims in accordance with this Agreement.

13.6 Liability for Damages

To the extent the expulsion is due to causes within the control of the expelled Joint-Venture Member it shall be liable to the other Joint-Venture Members for damages (for example for the increase in cost to finalize the Project and for compensation payable to the Employer for delay to the extent they result from the expulsion).

13.7 Execution by Substitution

If Expulsion is prohibited under the Contract, and therefore the above-mentioned procedure 13.2 to 13.6 is not possible, then the remaining Joint-Venture Members may decide to reduce the Contribution and where appropriate the liability of the concerned Joint-Venture Member(s) to 0 (zero) and remove its voting rights in the Joint Venture. Where legal and practical the consequences as per the Articles 13.2 to 13.6 shall apply mutatis mutandis when this provision is applied.

Article 14 Duration and Termination

14.1 Effective Date

This Agreement shall become effective on the date as specified in Section I Special Conditions regardless of the date of signature of the Joint-Venture Members and continue until it is terminated.

14.2 Causes for Termination

Upon a Joint-Venture Member’s exercise of its right under mandatory law to terminate the Joint Venture, it shall leave the Joint Venture, and the remaining Joint-Venture Members shall continue the Joint Venture.

The Joint Venture shall be automatically terminated in the following events:

1. withdrawal of the invitation to bid by the Employer or announcement by the Employer that it will not award the Contract to any of the bidding parties; provided, that if the Employer announces within one hundred and eighty (180) Days of such withdrawal or announcement of non-award that it will re-bid the Project, then this Agreement shall remain in effect for the re-bid unless otherwise agreed by the Joint-Venture Members; or
2. the expiry of the period of validity of the Offer unless the Joint-Venture Members have agreed in writing to prolong the validity of this Agreement beyond such period; or
3. if the final Offer of the Joint-Venture Members is not accepted and no further negotiations are carried out between the Employer and the Joint Venture; or
4. when the Joint-Venture Members have unanimously so decided, and recorded such decision in writing; or
5. failure of the Joint-Venture Members to agree on an Offer after negotiating in good faith for a reasonable time, provided that jointly two Joint-Venture Members or the Joint Venture Project Management give the other Members 5 Days written notice of the intention to terminate the Agreement; or
6. in the event that the Contract is awarded to the Joint Venture, once the Contract has been performed or terminated and the Joint-Venture Members have fulfilled all their obligations and received their rights in accordance with the Contract and this Agreement.

14.3 Consequences of Termination

Upon termination Article 3.6 shall — to the extent applicable — apply.

The termination of this Agreement shall not affect any of the rights and obligations of the Joint- Venture Members accrued up to the date of the event causing the termination of the Agreement, including in respect of the sharing of profit and loss.

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Article 15 Claims, Dispute Resolution and Arbitration

15.1 All Disagreements and Disputes shall be resolved solely by the procedures set out in this Agreement.

15.2 If a Disagreement arises out of or in connection with this Agreement during the time period described in Article 6, the respective Joint-Venture Members shall attempt, in fair dealing and good faith, to settle such dispute amicably. The Joint-Venture Members shall be free to organize the procedure of their settlement negotiations and to include senior management representatives as the case may be. Any of the Joint-Venture Members involved in the negotiation process may terminate the settlement negotiations at all times by written notification to the other Joint-Venture Member(s).

15.3 In order to avoid and resolve Dispute(s) amongst the Joint-Venture Members, which can impede the continuation of the Works, the Joint-Venture Members hereby agree, if selected in Section I Special Conditions, to establish a Dispute Board as specified in Section I Special Conditions, (DB) in accordance with the ICC Dispute Board Rules in force at the date of signing this Agreement (the Rules), which are incorporated herein by reference. The selected DB shall be established within 30 Days after commencement of the Project and shall have 1 or 3 member(s) as specified in Section I Special Conditions. Where the Joint-Venture Members have not otherwise agreed, there shall be a Combined Dispute Board of 3 members.

15.4 All Dispute(s) arising out of or in connection with the present Agreement which are not resolved in accordance with the procedure as described in Article 15.2 and/or 15.3 shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by 1 or more arbitrators as specified in Section I Special Conditions appointed in accordance with the said Rules. The place of arbitration and the language of the arbitral proceedings shall be specified in Section I Special Conditions.

Article 16 Choice of Law

This Agreement shall be governed by, and all disputes in connection with it shall be resolved in accordance with the substantive law of the country as specified in Section I Special Conditions without regard to this jurisdiction’s conflicts of law provisions.

Article 17 Miscellaneous

17.1 Duty to Mitigate

The Joint-Venture Members acknowledge that in the event of damage, the Joint-Venture Members shall exert all reasonable efforts to mitigate the damage accruing from such event.

17.2 Assignment

No Joint-Venture Member shall assign its rights under this Agreement to any third party, without the prior written consent of all Joint-Venture Members, and any attempted assignment without this consent shall be void. Should the Contract additionally require Employer’s authorisation for such an assignment, the latter will only be effective upon prior approval of all Joint-Venture Members and Employer.

17.3 Amendments

No modification to this Agreement will be binding, unless made in writing and signed in the form of a separate amendment by Authorised Representatives of all Joint-Venture Members. Any waiver of this requirement for the written form shall likewise be issued in writing thereby.

17.4 Communications in Writing

All correspondence, notices and other communications to be given to any of the Joint-Venture Members pursuant to this Agreement in writing or written form, shall be sent, delivered or transmitted by courier, in person (against receipt), or by facsimile or e-mail with confirmation of receipt, at the respective addresses set forth below. However, if Joint-Venture Members designate other addresses by notice given in accordance herewith, all correspondence, notices and other communications to be given to the respective Joint-Venture Members shall thereafter be delivered accordingly.

Any correspondence, notice or other communication served as provided in this section shall be deemed to have been received: [Page32:]

1. in the case of delivery by hand or by courier, when delivered against an acknowledgement of receipt; or

2. in the case of fax or e-mail (with confirmation of receipt requested) sent to the correct delivery address, the next local business day in the Country of the intended recipient (day on which banks are open for general business), following the day of successful transmission.
   
   Approvals, certificates, consents, decisions, requests, notices and/or notifications shall not be unreasonably withheld or delayed by Joint-Venture Members.

17.5 Written Form

Written form or in writing shall mean that the respective notification, statement, agreement, or decision is signed by one or more representative(s) of the Joint-Venture Member. An e-mail message shall only be considered in writing if it results in a record with a confirmation of receipt.

All correspondence, notices and other written communications shall be delivered by authorised individuals of the Joint-Venture Member, as follows: legal representatives of each Joint-Venture Member, project managers and site managers thereof and all other individuals which authorisation is previously informed to all Joint-Venture Members.

Addresses for notifications will be as set out in Article 17.5 of the Special Conditions.

17.6 Partial Invalidity, Omissions

Any individual provision of this Agreement which is or becomes invalid, or any omission to provide for any subject matter, shall not affect the validity of the remaining provisions of this Agreement. In such cases, the Joint-Venture Members shall seek effective solutions as closely as possible approximating (in economic effect) to the invalid provisions.

17.7 Language of the Agreement, Correspondence, Documentation

The language of this Agreement shall be English. Correspondence, technical and commercial documents as well as any other information exchanged between the Joint-Venture Members relating to this Agreement shall be in English. If another language is agreed with the Employer in respect of the Contract, correspondence, technical and commercial documents and other information — including any drafts thereof — to be exchanged between the Joint-Venture Members and which are intended to be passed on to or to be used towards the Employer may be in the language that is agreed with the Employer.

17.8 Waivers

Any waiver on the part of any Joint-Venture Member of any right or interest shall be in writing and shall not imply the waiver of any other right or interest or any subsequent waiver.

17.9 Entire Agreement

This Agreement is the Joint-Venture Members’ entire agreement relating to the subject matter hereof. It supersedes all prior or contemporaneous agreements, oral or written communications, proposals, drafts and representations with respect to its subject matter. Such prior or contemporaneous agreements, oral or written communications, proposals, drafts and representations may however be used for the interpretation of the Agreement where the Agreement is unclear or ambiguous.

17.10 Counterparts

This Agreement may be executed in any number of counterparts, all of which, taken together shall constitute one and the same Agreement.

17.11 Announcements

No Joint-Venture Member shall make any public announcement or communicate any information to third parties concerning the subject matter of this Agreement without the prior approval of the other Joint-Venture Members.

17.12 Alleging Lack of Capacity

Each Joint-Venture Member warrants that, once this Agreement is executed, it will not allege that the person or persons who signed the Agreement on behalf of that Joint-Venture Member lacked the capacity or authority to execute the Agreement, or that there was some other formal invalidity or incapacity that affected the validity or enforceability of the Agreement against that Joint- Venture Member. In particular, actual or alleged lack of governmental or managing board [Page33:]authorisations or permits shall not excuse non-performance or non-observance of the Agreement by a Joint-Venture Member.

17.13 Waiver of Sovereign Immunity and Similar Privileges

Any sovereign immunity or immunity from execution or attachment is hereby waived by Joint- Venture Members. It is agreed that this Agreement is a commercial transaction under international law and that governmental or state bodies entering into this Agreement do so with the intention of making the Agreement effective in accordance with its terms and so hereby waive any and all sovereign immunity, immunity from attachment or administrative law requirements that otherwise might have applied to them.

17.14 Provisions to Continue

The expiration or termination of this Agreement shall not affect such provisions of this Agreement which expressly provide that they will operate after any such expiration or termination, or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this.

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