PART 8 - DISPUTE RESOLUTION Flashcards
GC 8.1 AUTHORITY OF THE CONSULTANT
8.1.1
Differences between the parties to the contract as to the interpretation, application or administration of the contract or any failure to agree where agreement between the parties is called for, herein collectively called disputes, which are not resolved in the first instance by findings of the consultant as provided in GC 2.2 - ROLE OF THE CONSULTANT, SHALL be settled in accordance with the requirements of part 8 of the general conditions - DISPUTE RESOLUTION.
GC 8.1 AUTHORITY OF THE CONSULTANT
8.1.2
If a dispute arises under the contract in respect of a matter in which the consultant has no authority under the contract to make a finding, the procedures set out in paragraph 8.1.3 and paragraphs 8.3.3 to 8.3.8 of GC 8.3 - NEGOTIATION, MEDIATION AND ARBITRATION, and in GC 8.4 - RETENTION OF RIGHTS apply to that dispute with the necessary changes to detail as may be required.
GC 8.1 AUTHORITY OF THE CONSULTANT
8.1.3
If a dispute is not resolved promptly, the consultant will give such instructions as in the consultant’s opinion are necessary for the proper performance of the work and to prevent delays pending settlement of the dispute.
The parties SHALL act immediately according to such instructions, it being understood that by so doing neither party will jeopardize any claim the party may have. If it is subsequently determined that such instructions were in error or at variance with the contract documents, the owner SHALL pay the contractor costs incurred by the contractor in carrying out such instructions which the contractor was required to do beyond what the contract documents correctly understood and interpreted would have required, including costs resulting from interruption of the work.
GC 8.2 ADJUDICATION
8.2.1
Nothing in this contract SHALL be deemed to affect the rights of the parties to resolve any dispute by adjudication as may be prescribed by applicable legislation.
GC 8.3 NEGOTIATION, MEDIATION AND ARBITRATION
8.3.1
In accordance, with the rules for mediation as provided in CCDC 40 ‘Rules for mediation and arbitration of construction industry disputes’ in effect at the time of bid closing, the parties SHALL appoint a project mediator:
1) Within 20 working days after the contract was awarded, or
2) If the parties neglected to make an appointment within 20 working days, within 10 working days after either party by notice in writing requests that the project mediator be appointed.
GC 8.3 NEGOTIATION, MEDIATION AND ARBITRATION
8.3.2
A party SHALL be conclusively deemed to have accepted a finding of the consultant under GC 2.2 - ROLE OF THE CONSULTANT and to have expressly waived and released the other party from any claims in respect of the particular matter dealt with in that finding unless, within 15 working days after receipt of that finding, the party sends a notice in writing of dispute to the other party and to the consultant, which contains the particulars of the matter in dispute and the relevant provisions of the contract documents.
The responding party SHALL send a notice in writing of reply to the dispute within 10 working days after receipt of such notice in writing setting out particulars of this response and any relevant provisions of the contract documents.
GC 8.3 NEGOTIATION, MEDIATION AND ARBITRATION
8.3.3
The parties SHALL make all reasonable efforts to resolve their dispute by amicable negotiations and agree to provide, without prejudice, frank, candid, and timely disclosure of relevant facts, information and documents to facilitate these negotiations.
GC 8.3 NEGOTIATION, MEDIATION AND ARBITRATION
8.3.4
After a period of 10 working days following receipt of a responding party’s notice in writing of reply under paragraph 8.3.2, the parties SHALL request the project mediator to assist the parties to reach agreement on any unresolved dispute.
The mediated negotiations SHALL be conducted in accordance with the rules for mediation as provided in CCDC 40 in effect at the time of bid closing.
GC 8.3 NEGOTIATION, MEDIATION AND ARBITRATION
8.3.5
If the dispute has not been resolved at the mediation or within such further period as is agreed by the parties, the project mediator will terminate the mediated negotiations by giving notice in writing to the owner, the contractor and the consultant.
GC 8.3 NEGOTIATION, MEDIATION AND ARBITRATION
8.3.6
By giving a notice in writing to the other party and the consultant, no later than 10 working days after the date of termination of the mediated negotiations under paragraph 8.3.5, either party may refer the dispute to be finally resolved by arbitration under the rules of arbitration as provided in CCDC 40 in effect at the time of bid closing. The arbitration, which they have agreed to use.
GC 8.3 NEGOTIATION, MEDIATION AND ARBITRATION
8.3.7
On expiration of the 10 working days, the arbitration agreement under paragraph 8.3.6 is not binding on the parties and, if a notice in writing is not given under paragraph 8.3.6 within the required time, the parties may refer the unresolved dispute to the courts or to any other form of dispute resolution, including arbitration, which they have agreed to use.
GC 8.3 NEGOTIATION, MEDIATION AND ARBITRATION
8.3.8
If neither party, by notice in writing, given within 10 working days of the date of notice in writing requesting arbitration in paragraph 8.3.6, required that a dispute be arbitrated immediately, all disputes referred to arbitration as provided in paragraph 8.3.6 SHALL be:
1) Held in abeyance until:
a) Ready for takeover
b) The contract has been terminated, or
c) The contractor has abandoned the work, whichever is earlier, and
2) Consolidated into a single arbitration under the rules governing the arbitration under paragraph 8.3.6.
GC 8.4 RETENTION OF RIGHTS
8.4.1
It is agreed that no act by either party SHALL be construed as a renunciation of waiver of any rights or resources, provided the party has given the notice in writing required under part 8 of the general conditions - DISPUTE RESOLUTION and has carried out the instructions as provided in paragraph 8.1.3 of GC 8.1 - AUTHORITY OF THE CONSULTANT.
GC 8.4 RETENTION OF RIGHTS
8.4.2
Nothing in part 8 of the general conditions - DISPUTE RESOLUTION SHALL be construed in any way to limit a party from asserting any statutory right to a lien under applicable lien legislation of the jurisdiction of the place of the work and the assertion of such right by initiating judicial proceedings is not to be construed as a waiver of any right that the party may have under paragraph 8.3.6 of GC 8.3 - NEGOTIATION, MEDIATION, AND ARBITRATION to proceed by way of arbitration to adjudicate the merits of the claim upon which such a lien is based.
