ALTERNATIVE DISPUTE RESOLUTION RULES FOR THE CONSTRUCTION INDUSTRY

Transcription

1 Alternative Dispute Resolution Rules for Construction Industry (ADR Construction) 1 ALTERNATIVE DISPUTE RESOLUTION RULES FOR THE CONSTRUCTION INDUSTRY Mediation Conciliation Adjudication Arbitration Version as of 1 January 2010 ADR Construction

2 Alternative Dispute Resolution Rules for Construction Industry (ADR Construction) 2 Disclaimer: The translation has been prepared with great care; re is no guarantee for accuracy of translation by authors. Die Übersetzung ist mit aller Sorgfalt erstellt worden, es wird keine Garantie für die Richtigkeit der Übersetzung durch die Verfasser übernommen. Alternative Dispute Resolution Rules for Construction Industry (ADR Construction) Deutsche Gesellschaft für Baurecht e.v., Frankfurt am Main, 1 January 2010 Deutscher Beton- und Bautechnik-Verein E.V., Berlin 1 January 2010 English Version sponsored by: Your specialists for Mediation, Conciliation, Adjudication, Arbitration Contract- and Change-Order-Management, Project-Management Publishers: Deutsche Gesellschaft für Baurecht e.v. Deutscher Beton- und Bautechnik-Verein E.V. Kettenhofweg 126 Kurfürstenstrasse 129, Berlin Frankfurt am Main Postfach , Berlin Tel.: Tel.: Fax: Fax: mail@baurecht-ges.de info@betonverein.de Cover picture/source: Getty Images Deutschland GmbH, Munich

3 Alternative Dispute Resolution Rules for Construction Industry (ADR Construction) 3 Alternative Dispute Resolution Rules for Construction Industry (ADR Construction) Version as of 1 January 2010 Deutsche Gesellschaft für Baurecht e.v. Deutscher Beton- und Bautechnik-Verein E.V.

4 Alternative Dispute Resolution Rules for Construction Industry (ADR Construction) 4

5 Alternative Dispute Resolution Rules for Construction Industry (ADR Construction) 5 Preface In 1909, i.e. more than 100 years ago, Deutsche Beton- und Bautechnik-Verein E.V. (German Association for Concrete and Construction Technology) published Arbitration Rules. From 1974 onwards, se Rules became a joint effort in association with Deutsche Gesellschaft für Baurecht e.v. (German Association for Building Regulations). The motivating factor in preparation of such Rules for extrajudicial dispute resolution was that many property developers, contractors and or parties involved in construction industry were dissatisfied with working methods applied by public courts. These Rules have been and are amended on a regular basis. The need to prevent emergence of disputes or to not have m hinder construction process resulted in preparation of furr dispute resolution rules. Therefore, both publishers, i.e. Deutsche Gesellschaft für Baurecht e.v. und Deutsche Beton- und Bautechnik-Verein E.V., have added provisions for mediation and conciliation to threecolumn model of amended Arbitration Rules as presented on 1 July They were soon used in practice as were Arbitration Rules. Now, Alternative Dispute Resolution Rules for Construction Industry (ADR Construction) will be published on 1 January This is a completely new set of rules. Disputing parties may choose between four different dispute resolution proceedings. These proceedings may be selected individually or cumulatively. The objective of Mediation is to support disputing parties, through help of a Mediator, to reach a mutually amicable solution. Conciliation may result in an award, whose effectiveness is, however, subject to acceptance of disputing parties. Arbitration decisions regarding disputes are legally binding. Arbitration now provides for and decides upon third-party notices and intervention of third parties and upon nature of this intervention. The call from construction industry to make assertive, temporarily binding resolution of disputes available directly on site i.e. during planning and construction stage - was complied with. We provide construction industry with so-called Adjudication proceedings. They enable swift decisions which are temporarily binding for disputing parties. Decisions made in Adjudication may, if needed, be validated subsequently by an Arbitration Tribunal or in a public court. ADR Construction was developed with practical use for practical people in mind, which should promote necessary cooperational willingness during construction and a partnerbased mode of thinking. Our thanks go to persons involved in drafting. The Permanent Commission chaired by Lawyer Prof. Horst Franke, consists of following members of Deutsche Gesellschaft für Baurecht e.v.: Dr. Johan Kuffer, judge at Federal High Court (VII. Senate); Michael Halstenberg, former under-secretary of state; Lawyer Eva-Martina Meyer-Postelt.

6 Alternative Dispute Resolution Rules for Construction Industry (ADR Construction) 6 And following members of Deutsche Beton- und Bautechnik-Verein e.v.: Lawyer Prof. Dr. jur. Klaus Englert Lawyer Dietmar Ludolph Lawyer Dr. jur. Helmut Miernik The new Rules are supplemented by sample agreements, to provide disputing parties with templates to be bound on complete ADR Construction or individual dispute resolution proceedings defined rein. Sample contracts for agreements to be concluded between parties and a Mediator, Conciliator, Adjudicator or Arbitrator are also attached hereto in Annex. Deutsche Gesellschaft für Baurecht and Deutsche Beton- und Bautechnik-Verein endeavour to generate a list of Mediators, Conciliators and Adjudicators in addition to list of Arbitrators which has been known for years. Clear and transparent requirements and strict selection criteria will ensure selection of suitable persons. We are certain, that ADR Construction published on 1 January 2010 will also successfully continue history of procedural rules developed and published by Deutsche Beton- und Bautechnik-Verein and Deutsche Gesellschaft für Baurecht in newly dawning 2 nd century of extrajudicial dispute resolution and dispute prevention within construction industry. We wish ADR Construction wide reaching distribution. Prof. Dr.-Ing. E.h. Manfred Nußbaumer M.Sc. Chairman Deutscher Beton- und Bautechnik-Verein E.V. Lawyer Prof. Horst Franke Chairman Deutsche Gesellschaft für Baurecht e.v.

7 Alternative Dispute Resolution Rules for Construction Industry (ADR Construction) 7 Table of Contents Page Preface...5 Preamble...9 Section I: General Provisions...9 Art. 1 Scope of Application Art. 2 General Principles Art. 3 Deadlines and Timeframes Art. 4 Correspondence Art. 5 Amicable Settlement Art. 6 Rejection of Dispute Resolver and Inability of Performance of Duties Art. 7 Exclusion of Ordinary Court Proceedings or Arbitration Proceedings Art. 8 Remuneration and Expenses Art. 9 Costs and Advance Payment Art. 10 Liability of Dispute Resolver Section II: Mediation...13 Art. 11 Mediator Contract Art. 12 Procedure of Mediation Art. 13 Conclusion of Proceedings Art. 14 Statute of Limitations Section III: Conciliation...14 Art. 15 Conciliator Contract Art. 16 Rights and Duties of Conciliator Art. 17 Initiation and Performance of Conciliation Proceedings Art. 18 Conciliation Award Art. 19 Conclusion of Proceedings Art. 20 Statute of Limitations Art. 21 Expert Determination Section IV: Adjudication...15 Art. 22 Adjudication Agreement and Appointment of an Adjudicator Art. 23 Initiation of Adjudication Proceedings Art. 24 Rights and Duties of Adjudicator Art. 25 Adjudication Decision Art. 26 Effects of Adjudication Decision Art. 27 Conclusion of Adjudication Proceedings Art. 28 Legal Validity of Decision Art. 29 Statute of Limitations

8 Alternative Dispute Resolution Rules for Construction Industry (ADR Construction) 8 Section V: Arbitration...19 Art. 30 Arbitrator Contract Art. 31 Initiation of Arbitration Proceedings Art. 32 Appointment of a Three-Person Arbitration Tribunal Art. 33 Appointment of a Single Individual Arbitrator Art. 34 Rejection of Arbitrators Art. 35 Principles of Proceedings Art. 36 Minutes Art. 37 Extension, Amendment, Withdrawal of Action Art. 38 Counterclaim, Offsetting Art. 39 Temporary Regulations Art. 40 Form, Contents and Effect of Arbitrator s Award Art. 41 Settlement Art. 42 Conclusion of Arbitration Proceedings Art. 43 Retention of Files Art. 44 Intervention of Third Parties Art. 45 Third Party Notice Art. 46 Effect of Intervention and Third Party Notice Art. 47 Costs of Arbitration Proceedings Art. 48 Value in Dispute and Charges Annex: Model Agreements and Model Contracts...26

9 Alternative Dispute Resolution Rules for Construction Industry (ADR Construction) 9 Preamble The Alternative Dispute Resolution Rules for Construction Industry (ADR Construction 1 ) aim at preventing and settling disputes which arise in connection with any type of planning and construction services, in particular, erection, repair, modernisation, demolition and deconstruction of buildings, without involvement of national courts. Mediation, Conciliation, Adjudication and Arbitration are proceedings used for this purpose. ADR Construction enables disputing parties to select following dispute resolution method(s): The objective of Mediation is to prevent conflicts in construction and to support parties in finding an independent and mutually amicable solution. Conciliation promotes a cooperative behaviour from side of disputing parties by aiming for a mutual resolution of disputed situations in question. It results in a conciliation award whose effectiveness is subject to acceptance of disputing parties. During Conciliation, disputing parties may request that certain facts be bindingly established through presentation of an expert determination. Adjudication helps to bring about a fast decision on matters in dispute which is temporarily binding for disputing parties, and can later be revised by arbitration or a court. Arbitration decisions regarding disputes are legally binding, and are without recourse to legal action. The intervention of third parties is possible. Section I: General Provisions Art. 1 Scope of Application (1) Objective of ADR Construction is to prevent and settle disputes according to provisions set out below, by taking into consideration agreement made between parties. This agreement shall be made in writing. (2) The options for alternative dispute resolution are: - Mediation ; - Conciliation ; - Adjudication ; - Arbitration. (3) The persons involved in such proceedings are disputing parties and, depending on proceedings selected, Mediator, Conciliator, Adjudicator and Arbitrator as a tribunal, where appropriate (hereinafter jointly referred to as Dispute Resolvers ) and any third parties involved in proceedings (experts, legal representatives, intervening parties, recipients of third-party notices). 1 These Alternative Dispute Resolution Rules replace Arbitration Rules for Construction Industry, including Plant Construction (SGO Bau) applicable to date and published by Deutsche Beton- und Bautechnik-Verein E.V. and Deutsche Gesellschaft für Baurecht e.v. and Mediation and Conciliation Rules of Deutsche Gesellschaft für Baurecht e.v. as amended on 1 July 2005.

10 Alternative Dispute Resolution Rules for Construction Industry (ADR Construction) 10 Art. 2 General Principles (1) The language of proceedings shall be German. The parties may agree on a different language. (2) If Parties have not agreed on place of proceedings, it shall be specified by Dispute Resolver, taking into consideration interests of those involved. In principle, place of fulfilment of construction service shall be decisive. (3) The proceedings shall be confidential and closed to public. Upon his/her appointment, Dispute Resolver shall commit to persons involved that he/she will comply with obligation of secrecy. He/she shall ensure that or persons involved, in particular experts and competent third parties, undertake to comply with this obligation of secrecy. (4) The Parties will, in principle, take part in proceedings in person. In exceptional cases, a party may appoint anor person as a contact person with authorisation to take decisions on ir behalf and party in question shall inform Dispute Resolver of such a person in writing. The Parties may be represented by legal representatives. Such persons are obliged to provide evidence of ir power of representation, upon request of any person involved. (5) The Parties agree to refrain from calling Dispute Resolver as a witness or expert, if subjects regarding dispute are in question. (6) The Dispute Resolver must not advise or represent any of persons involved both during and after conclusion of dispute resolution proceedings if such advisory or representative activities would refer to matters which are subject of dispute resolution. Art. 3 Deadlines and Timeframes All persons involved are obliged to work towards a rapid and target-oriented execution of proceedings. They are bound by deadlines specified. The parties and any joining third parties shall state all facts on matter and perform required procedural activities within periods specified. An extension of such deadlines may be granted in exceptional cases only. Art. 4 Correspondence The Dispute Resolver will prescribe type of transfer of documents and proof of delivery. Orwise, representations made by persons involved will be transferred in writing against proof of delivery (e.g. registered letter, acknowledgement of receipt by authorised recipient). The effectiveness of written notifications delivered any or way remains unaffected. Art. 126 a of BGB (German Civil Code) shall apply to transfer of notifications in electronic form.

11 Alternative Dispute Resolution Rules for Construction Industry (ADR Construction) 11 Art. 5 Amicable Settlement All persons involved shall work towards an amicable settlement even for parts of matters in dispute at all times during proceedings. Art. 6 Rejection of Dispute Resolver and Inability of Performance of Duties (1) The Dispute Resolver will perform his/her duties in an impartial and independent manner. Prior to his/her appointment or nomination, he/she shall disclose all facts which might raise doubts as to his/her impartiality or independence. The same applies following acceptance of office until conclusion of relating dispute resolution proceedings. (2) He/she may only be rejected under circumstances which might raise doubts as to his/her impartiality or independence or if Dispute Resolver fails to comply with preconditions as agreed between parties. (3) Any rejection of Dispute Resolver shall be inadmissible, unless it is made immediately upon becoming aware of reason for rejection. (4) The parties may only reject a Dispute Resolver to whose appointment y contributed, for reasons of which parties first became aware of after having already made such an appointment. (5) Following an admissible rejection of a Mediator or Conciliator, parties shall jointly enter into a written contract with a new Mediator or Conciliator. In failure reof, proceedings shall be concluded. Art. 22, sec. 4 applies to Adjudication, Art. 34 applies to Arbitration. (6) If a Dispute Resolver is, indeed, unable to perform duties of office or if he/she fails to perform his/her duties within a reasonable period of time, he/she will resign by providing parties with a written declaration of resignation or parties will agree on his/her resignation. Orwise, sec. 5 shall apply accordingly. Art of ZPO (German Code of Civil Procedure) shall apply to Arbitration. Art. 7 Exclusion of Ordinary Court Proceedings or Arbitration Proceedings (1) The parties shall refrain from invocation of regular court proceedings or arbitration proceedings from date y entered into an agreement to perform Mediation, Conciliation or Adjudication until conclusion of such proceedings. Legal detention (Articles 916 et. seq. of ZPO, injunction (Articles 935 et. seq. of ZPO) and independent proof of evidence procedures (Articles 485 et. seq. of ZPO) are exempted re from. (2) Art of ZPO shall apply to Arbitration.

12 Alternative Dispute Resolution Rules for Construction Industry (ADR Construction) 12 Art. 8 Remuneration and Expenses (1) The remuneration of Mediator, Conciliator or Adjudicator shall be based on hourly or daily rates. The amount of hourly or daily rate and reimbursement of expenses shall be defined in Mediator / Conciliator or Adjudicator Contract. (2) Art. 48 shall apply to Arbitration proceedings. Art. 9 Costs and Advance Payment (1) The parties shall bear costs for remuneration and all necessary expenses of Dispute Resolver and costs arisen by hearing of witnesses and experts, procurement of expert opinions and or information in connection with Mediation, Conciliation or Adjudication in equal parts, unless orwise agreed. Eir party shall bear its own costs in Mediation, Conciliation or Adjudication, unless parties have agreed orwise. Art. 47 shall apply to Arbitration. (2) The Dispute Resolver may specify that commencement and continuation of his/her activities depend on a reasonable advance payment of remunerations, expenses and or costs which have arisen or are expected to arise. Precondition is preparation of correct invoices in compliance with all applicable tax provisions. (3) The parties will be liable to Dispute Resolver as joint debtors. Art. 10 Liability of Dispute Resolver Mediators, Conciliators and Adjudicators shall exclusively be liable in case of intent and gross negligence. This shall not apply in case of injury to life, body or health. The Arbitration Tribunal shall be liable as defined in Art. 839, sec. 2 of BGB.

13 Alternative Dispute Resolution Rules for Construction Industry (ADR Construction) 13 Section II: Mediation Art. 11 Mediator Contract (1) If parties have agreed upon performance Mediation, in accordance with Art. 1, sec. 2 hereof, y will jointly enter into a written contract with one or several Mediators (Mediator). (2) The Mediator is responsible for proceedings and will pursue a resolution of dispute without being authorised to make a decision. (3) Depending on subject matter in dispute, Mediator should have knowledge of construction technology, construction management and/or construction law and extrajudicial dispute resolution. (4) The Mediator may call on competent third-party experts, subject to parties agreement. Art. 12 Procedure of Mediation (1) The parties will inform Mediator in writing that y are negotiating on or wish to negotiate on a matter in dispute. The Mediator shall document receipt of such an application. (2) The Mediator will prepare minutes on results of meetings which he/she will immediately send to parties for approval. (3) Settlements shall be composed in writing and be signed by parties. (4) The Mediator shall be entitled to conduct individual discussions with parties, insofar as relating or party is informed reof prior to such discussions. Art. 13 Conclusion of Proceedings The Mediation Proceedings will be concluded, in whole or in part, - by a (partial) settlement being reached between parties; - by a written declaration of Mediator or a party that proceedings should be discontinued (Art. 4); or - if proceedings have been suspended for more than six months. The Mediator shall lay out such a conclusion in writing, by stating date of conclusion, and shall provide parties with a copy of this document. Art. 14 Statute of Limitations With preparation of documents as defined in Art. 12, sec. 1, hereof, limitation of claims asserted shall be suspended until conclusion of proceedings.

14 Alternative Dispute Resolution Rules for Construction Industry (ADR Construction) 14 Section III: Conciliation Art. 15 Conciliator Contract (1) If parties have agreed upon performance of Conciliation, in accordance with Art. 1, sec. 2 hereof, y will jointly enter into a written contract with one or several Conciliators (Conciliator). They will specify duration and scope of Conciliation rein. (2) Depending on subject matter in dispute, Conciliator should have specific knowledge of construction technology, construction management and/or construction law and of extrajudicial dispute resolution. Art. 16 Rights and Duties of Conciliator (1) The Conciliator is responsible for proceedings. (2) If necessary, Conciliator shall familiarise himself/herself with matter in dispute, on site. He/she shall be entitled to access construction site. (3) The Conciliator may call in competent third-party experts, subject to parties agreement. Art. 17 Initiation and Performance of Conciliation Proceedings (1) After having mutually appointed a Conciliator, eir party may file a written application with Conciliator. Simultaneously, such party shall inform Conciliator of subject matter in dispute. The Conciliator will immediately send a copy of such letter to or party and will give it opportunity to make representations. (2) The Conciliator shall immediately investigate facts and circumstances which he/she requires to be able to reach a decision. He/she will convene meetings, in consultation with parties. (3) At his/her request, Conciliator shall be given any information and provided with documents which he/she deems necessary to perform his/her duties. He/she may also obtain information from third parties with cooperation of parties. (4) The state of affairs and of dispute shall be discussed with parties in a meeting, before Conciliator prepares a conciliation award. (5) The proceedings and essential contents of discussion shall be documented. Art. 18 Conciliation Award (1) As a general rule, Conciliator is obliged to prepare conciliation award two weeks after discussion date as defined in Art. 17, sec. 4. This term may be extended with mutual agreement of parties.

15 Alternative Dispute Resolution Rules for Construction Industry (ADR Construction) 15 (2) The conciliation award shall be made in writing and must be justified. It shall be delivered to parties. (3) The conciliation award is binding, unless one of parties files an objection within two weeks following its receipt by providing Conciliator with a written declaration of objection. The Conciliator shall immediately inform or party of objection. Art. 19 Conclusion of Proceedings The Conciliation will be concluded, in whole or in part, - by reaching of a written (partial) settlement of parties; - by conciliation award; - by written declaration of Conciliator that Conciliation has failed; or - if proceedings have been suspended for more than six months. The Conciliator shall compose such a conclusion in writing, by stating date of conclusion, and shall provide parties with such a document. Art. 20 Statute of Limitations Upon invocation of Conciliator as defined in Art. 17, sec. 1, limitation of claims asserted will be suspended until conclusion of proceedings. Art. 21 Expert Determination (1) The parties may request Conciliator to procure an expert determination. An expert determination agreement may also be entered into during Conciliation proceedings. (2) For this purpose, parties shall specify facts as to which Conciliator should prepare binding ascertainments. (3) The right to use expert determination after end of Conciliation proceedings shall remain unaffected even in consideration of Art. 2, sec. 5. Section IV: Adjudication Art. 22 Adjudication Agreement and Appointment of an Adjudicator (1) If parties have agreed on performance of adjudication proceedings in accordance with Art. 1, sec. 2, y shall, simultaneously, agree on person(s) of Adjudicator or Adjudicators (Adjudicator). They will enter into a joint written agreement with such a person.

16 Alternative Dispute Resolution Rules for Construction Industry (ADR Construction) 16 (2) If, in exceptional cases, parties have not yet agreed upon person of Adjudicator at time of entering into Adjudication Contract, and if parties fail to agree on an Adjudicator within ten calendar days after one of parties having provided a written proposal for person of Adjudicator to or party, eir party may apply for binding appointment of such person by Deutscher Beton- und Bautechnik-Verein E.V. (DBV). The DBV will immediately appoint Adjudicator and will notify parties in writing of this person s name. The Adjudicator shall declare acceptance of such office to parties. Upon such a declaration, a contract having contents of existing Adjudicator contract takes effect between parties and this Adjudicator. If no such contract should exist, parties shall immediately agree with appointed Adjudicator upon contents of an Adjudicator contract to be concluded. The same appointment procedure will apply if contractually appointed Adjudicator is unable or unwilling to accept this office. Orwise, Art. 48, sec. 4 shall apply accordingly. (3) Depending on subject matter in dispute, Adjudicator should have knowledge of construction technology, construction management and/or construction law and extrajudicial dispute resolution. (4) The Adjudicator decides upon rejection in accordance with Art. 6, sec. 2 to 4. In case of a justified rejection, Adjudicator s office shall end. Sec. 2 will apply accordingly to furr proceedings. Art. 23 Initiation of Adjudication Proceedings Eir party may inform Adjudicator of matter in dispute and apply for him/her to make a decision concerning this matter. The applicant shall deliver application letter to respondent within a period of time to be specified by Adjudicator and in number of copies to be specified by same and provide evidence of such delivery to Adjudicator. Following delivery of application, Adjudicator will set a deadline for a response to be provided by respondent. Art. 24 Rights and Duties of Adjudicator (1) Following initiation of Adjudication Proceedings in accordance with Art. 23, Adjudicator shall immediately inform himself/herself regarding project and matter in dispute and investigate all facts and circumstances necessary for him/her to make his/her decision. Within scope of decision making process, he/she may, in particular, take part in project meetings, inspect documents and access construction site. (2) At Adjudicator s request, he/she shall be provided with any information and documentation which he/she deems necessary for performance of his/her activities. He/she may obtain information from third parties, with cooperation of contract parties.

17 Alternative Dispute Resolution Rules for Construction Industry (ADR Construction) 17 (3) The Adjudicator may call upon competent third party experts, subject to parties agreement. (4) Prior to formulation of an adjudication decision, state of affairs and of dispute shall be discussed with parties. (5) The proceedings and essential contents of discussion shall be documented. Art. 25 Adjudication Decision (1) The Adjudicator shall immediately make a decision regarding dispute. If Adjudicator should need more than two weeks to make decision, from date of discussion as defined in Art. 24, sec. 4, any extension of this period of time shall be subject to agreement of parties. (2) The Adjudicator shall make a provisional binding decision, unless parties come to an amicable agreement. This comprises of, amongst ors, payment orders, acceleration measures, and a ban on cessation of work and determinations on acceptability of work (in part) completed. A precondition is that claim is highly probable according to state of affairs and of dispute and that benefiting party provides adequate security as instructed to do so by Adjudicator. The security shall be determined pursuant to provisions of Vergabe- und Vertragsordnung für Bauleistungen (VOB/B German Construction Tendering and Contract Regulations) as amended at time when such an order was issued. For this purpose, disadvantages which might result for a party in case of a subsequent amendment of adjudication decision in course of (arbitration) court proceedings shall, in particular, be taken into consideration. (3) The adjudication decision shall be set out in writing and must include explanatory points outlining justification for decision reached. It shall be delivered to parties. (4) The parties shall be made aware as to legal consequences of decision as defined in Articles 26, 28 and 29. Art. 26 Effects of Adjudication Decision (1) The party which has an obligation imposed upon it as a result of adjudication decision shall be obliged to fulfil it within 6 working days following notification of decision. (2) Should a party fail to fulfil its duties resulting from decision within period specified and if or party has provided security specified as defined in Art. 25, sec. 2, Adjudicator may make anor adjudication decision in accordance with Art. 25 and specify, at its own discretion and through a written petition, a financial penalty of up to 5 % of value of awarded claims, after having granted anor grace period of 6 working days. Such financial penalty shall serve as a sanction for party failing to comply with decision and will be in favour of or party. The financial penalty may be determined one more time, upon request.

18 Alternative Dispute Resolution Rules for Construction Industry (ADR Construction) 18 If party which has been subjected to penalty still fails to fulfil it s duties in due time, despite determination of a financial penalty, benefiting party has eir right to discontinue services or to extraordinary termination of contract, where or party may not derive subsequent claims through exertion of such rights, provided that Adjudicator has informed sanctioned party of legal consequences at time of determination of penalty. (3) The adjudication decision will become final and legally binding, unless one of parties files a written declaration with Adjudicator objecting to ir decision, within one month following notification of decision. The same shall apply if an illustrated objection is withdrawn. (4) Objections have no suspensory effect. Art. 27 Conclusion of Adjudication Proceedings (1) The Adjudication will be concluded when parties present Adjudicator with a mutual written declaration of conclusion. (2) Orwise, proceedings will be concluded when a joint written settlement from parties or an adjudication decision exists or if proceedings have been suspended for more than six months and if Adjudicator documents conclusion in writing, by stating date of such conclusion, and has provided parties with such documentation. Art. 28 Legal Validity of Decision (1) If a party has filed an objection against adjudication decision as defined in Art. 26, sec. 3, it may only have it appraised by an (arbitration) court following acceptance of all services or following final rejection of acceptance or following conclusion of service contract concluded between parties. (2) The Adjudicator s decision will become final and legally binding within six months, at latest, unless an action is filed with an (arbitration) court following acceptance of all services, final rejection of acceptance or conclusion of service contract.

19 Alternative Dispute Resolution Rules for Construction Industry (ADR Construction) 19 Art. 29 Statute of Limitations The limitation of claims asserted will be suspended from time an application is filed with Adjudicator in accordance with Art. 23 until such time as proceedings are brought to a conclusion. The statute of limitations will also be suspended from time an objection (Art. 26, sec.3) is filed until institution of legal proceedings. Section V: Arbitration Art. 30 Arbitrator Contract (1) If parties have agreed upon opening of arbitration proceedings in accordance with Art. 1, sec. 2, y will enter into a joint written contract with arbitration tribunal/arbitrator (Arbitration Tribunal). (2) The Arbitration Tribunal is made up of three Arbitrators. The parties may agree orwise. In case of a foreseeable value in dispute of less than EUR 100,000, parties should agree upon a single individual Arbitrator. (3) The provisions of Zivilprozessordnung, in particular Articles 1029 et. seq. of ZPO shall apply to proceedings, unless orwise provided for below. (4) The single individual Arbitrator and chairman shall be qualified to carry out functions of a judge. Arbitrators should have special knowledge of construction technology, construction management and construction law and in extrajudicial dispute resolution. Art. 31 Initiation of Arbitration Proceedings (1) The party wishing to initiate arbitration proceedings (plaintiff in arbitration) shall notify or party (respondent in arbitration) reof in writing. (2) The arbitration proceedings commence on day when respondent in arbitration proceedings receives notification on initiation of arbitration proceedings. (3) This notification shall contain: 1. names and addresses of parties; 2. matter in dispute (application and facts), unless a statement of claim as defined in Art. 253 of ZPO is presented; 3. information regarding arbitration agreement; 4. application for resolution of matter before an arbitration tribunal; 5. name of Arbitrator appointed by plaintiff in arbitration and declaration of acceptance by this Arbitrator; 6. one or more proposals for an individual Arbitrator, if parties have agreed on an Arbitration Tribunal consisting of one Arbitrator without having determined person who should fulfil role of Arbitrator.

20 Alternative Dispute Resolution Rules for Construction Industry (ADR Construction) 20 Art. 32 Appointment of a Three-Person Arbitration Tribunal (1) Upon opening of arbitration proceedings, plaintiff in arbitration calls upon respondent in arbitration to also appoint one Arbitrator within a period of two weeks following receipt of written submissions of initiation and to provide plaintiff in arbitration with a written declaration that proposed Arbitrator has accepted to fulfil role of Arbitrator. The respondent in arbitration shall comply with this request even if he/she rejects Arbitrator appointed by plaintiff in arbitration. (2) If respondent in arbitration fails to make such appointment in due time, plaintiff in arbitration may apply for appointment of Arbitrator by DBV (appointment of a replacing Arbitrator). In addition to information required under Art. 31, application shall also contain declaration that respondent in arbitration is in default. The DBV shall provide respondent in arbitration with opportunity to respond to application and Arbitrator to be appointed, by specifying a grace period of one week. Following end of this term, DBV will immediately appoint Arbitrator and will inform persons involved in writing of his/her name and his/her declaration of acceptance. (3) Following a hearing involving parties, Arbitrators will appoint a chairman. Such appointment shall be made within two weeks following notification that second Arbitrator has been appointed. The Arbitration Tribunal shall be deemed to be constituted after having provided parties involved with a written declaration of acceptance. (4) If Arbitrators are unable to agree on person of chairman, y will immediately inform parties and DBV reof. Any Arbitrator may request appointment of chairman by DBV (appointment of a replacing arbitrator). Such a request must include information as set out in Art. 31 and names of persons put forward to chair Arbitration Tribunal. The DBV will immediately appoint chairman and will notify parties involved in writing of that person s name and his/her declaration of acceptance. The Arbitration Tribunal will thus be deemed to be constituted. (5) If one of Arbitrators or chairman is prevented from exercising office (Art of ZPO), sections 1 to 4 will apply accordingly. Art. 33 Appointment of a Single Individual Arbitrator (1) Upon opening of arbitration proceedings, plaintiff in arbitration will request that respondent in arbitration select one of proposed persons (Art. 31, sec. 3, item 6) or to make a counterproposal within a period of two weeks following receipt of written submissions. The plaintiff in arbitration shall make a statement on counterproposal within one week of receipt. (2) If parties have agreed on a single individual Arbitrator, eir party may inform this person in writing of his/her appointment. The Arbitration Tribunal shall be deemed to be constituted when individual Arbitrator has informed parties in writing of his/her acceptance of role.

21 Alternative Dispute Resolution Rules for Construction Industry (ADR Construction) 21 (3) If one of parties fails to make a pronouncement in due time or if parties fail to agree on a proposal, an application shall be filed with DBV for a legally binding appointment of single individual arbitrator (appointment of a replacing Arbitrator). Orwise, Art. 32, sec. 2 shall apply. Art. 34 Rejection of Arbitrators (1) An Arbitrator is obliged to reject his/her appointment if re are doubts as to his/her impartiality or independence (Art of ZPO). The same applies if an Arbitrator is unable to immediately exercise his/her role. Orwise, Art. 6, sec. 1 applies. (2) An Arbitrator may be rejected if circumstances exist which might raise justified doubts as to his/her impartiality or independence (Art. 6, sec. 2), or if he/she fails to comply with preconditions agreed upon by parties. (3) If one of parties is aware of grounds for rejection, it shall make Arbitration Tribunal aware of it s rejection of Arbitrator within two weeks, with a statement outlining reasons for rejection. (4) If parties fail to agree on dismissal of an Arbitrator or if an Arbitrator does not resign from his/her role, Arbitration Tribunal will decide upon rejection in writing by way of a justified resolution; in case of a threeperson Arbitration Tribunal, this shall be done without involvement of rejected person. (5) If application for rejection remains unsuccessful, rejecting party may challenge decision before a competent court within one week following receipt of decision. The Arbitration Tribunal, including rejected Arbitrator, may continue with arbitration proceedings and pronounce an arbitrator s award until such time as a decision is reached by court. Art. 35 Principles of Proceedings (1) Following constitution of Arbitration Tribunal, plaintiff in arbitration shall deliver written submissions to all parties involved within a period to be specified by Arbitration Tribunal and including number of copies of such submissions as specified by such tribunal and it shall present evidence of deliverance to Arbitration Tribunal. (2) The chairman will determine timeframes, specify deadlines (Art. 3) and decide upon or procedural questions. He/she will prepare summons and request advances on costs. A period of two weeks must be given between receipt of summons and date for first hearing.

22 Alternative Dispute Resolution Rules for Construction Industry (ADR Construction) 22 (3) Following delivery of written submissions, chairman will give respondent in arbitration a period of time to respond which is reasonable for proceedings of this nature. (4) The dispute should be resolved in one session when possible. The chairman will take all steps required in this regard. Therefore, he/she may, in particular - request that parties appear in person; - order parties to have available during session any witness, experts and or sources of evidence to which parties referred; - order that session will include an inspection of site. The chairman may provide preliminary legal information and pass resolutions on evidence in preparation of oral proceedings. (5) Art. 1052, sec. 1 and 2 of ZPO apply to voting and passing of resolutions. Art. 36 Minutes Minutes as defined in Art. 160 of ZPO shall be kept of oral proceedings and shall be signed by chairman. The documentation of testimonies made by witnesses, experts and of hearing of parties as well as of results of a visual inspection shall be subject to Arbitrator s discretion. Art. 37 Extension, Amendment, Withdrawal of Action (1) The plaintiff in arbitration may extend or supplement action during proceedings in accordance with scope of arbitration agreement (Art. 264 of ZPO). An amendment of action is admissible if respondent in arbitration approves and if Arbitration Tribunal deems it relevant (Art. 263 of ZPO). (2) Art. 269 of ZPO applies for withdrawal of action. Art. 38 Counterclaim, Offsetting (1) The respondent in arbitration may file a counterclaim, if matter in dispute is subject to Arbitration Agreement. If this fact is in dispute, Arbitration Tribunal shall decide. The provisions regarding action apply accordingly to counterclaim. (2) Subject to parties approval, Arbitration Tribunal may also decide on a claim regarding offsetting to which Arbitration Agreement does not apply.

23 Alternative Dispute Resolution Rules for Construction Industry (ADR Construction) 23 Art. 39 Temporary Regulations At request of one of parties, Arbitration Tribunal may order provisional and safeguarding measures which it deems necessary with regard to matter in dispute. Art of ZPO applies accordingly to furr procedure. Art. 40 Form, Contents and Effect of Arbitrators Award (1) The Arbitrators Award shall be made in writing, be substantiated and signed by Arbitration Tribunal. Orwise, Art of ZPO applies. (2) The day on which decision regarding Arbitrators Award was passed and place where arbitration proceedings took place shall be specified in Award. The decisions regarding Arbitrators Award shall be deemed to be passed at this date and place. (3) An Arbitrators Award signed by Arbitrators shall be delivered to all of parties. Art. 41 Settlement If parties have agreed on a settlement, Arbitration Tribunal shall bring proceedings to a close. At parties request, it will document settlement in form of an Arbitrators Award with an agreed wording (Art of ZPO). Art. 42 Conclusion of Arbitration Proceedings (1) The arbitration proceedings will be concluded with final Arbitrators Award or with a resolution of Arbitration Tribunal in accordance with Art. 1056, sec. 2 of ZPO. (2) Subject to Art. 1056, sec. 3 of ZPO, jurisdiction of Arbitration Tribunal will end upon conclusion of arbitration proceedings. Art. 43 Retention of Files Files may be returned to persons involved following conclusion of proceedings. Art. 44 Intervention of Third Parties (1) If parties have agreed on opportunity of third parties to intervene, y may intervene, at any time during proceedings, to support one of parties if y have a legitimate interest in a beneficial outcome of proceedings from view point of this party.

24 Alternative Dispute Resolution Rules for Construction Industry (ADR Construction) 24 (2) Such intervention will be undertaken by submission of a document with Arbitration Tribunal. This document shall include: 1. name of parties and of subject matter under arbitration; 2. a specification as to nature of interest of intervening party; 3. declaration of intervention. The chairman will specify to which persons and in what number of copies document must be delivered against receipt. (3) The intervening party must accept proceedings according to stage y are at, at time of intervention. Insofar as his/her representations do not contradict party to be supported, intervening party is authorised to make representations and to take an active role in proceedings. (4) In case of a dispute, Arbitration Tribunal will decide on admissibility of intervention. Art. 45 Third Party Notice (1) If one of parties has agreed on ADR Construction with third parties, it is entitled to notify m of dispute at any time during proceedings, if it believes to be able to assert a claim against m in case that proceedings end unfavourably for it or if it asserts claim on behalf of a third party. (2) Such third party notice is performed by filing a document with Arbitration Tribunal stating reason for third party notice, Arbitration Tribunal and status of arbitration. The party shall deliver this document to or party, recipient of third party notice and any or intervening parties eir directly involved or indirectly in an assisting role for a directly involved party. The third party notice takes effect upon delivery to recipient of third party notice. (3) If recipient of third party notice enters arbitration, Art. 44 shall apply accordingly to him/her. If recipient of third party notice has agreed upon ADR Construction with anor party, this recipient may also notify it of dispute. (4) In case that admissibility of third party notice is in dispute, Arbitration Tribunal shall make a decision in this regard (Art of ZPO). Art. 46 Effect of Intervention and Third Party Notice (1) In cases described in Articles 44 and 45, actual and legal determinations made by Arbitration Tribunal which favour party are legally binding for party intervening and recipient of third party notice in ir relation to party, insofar as Arbitration Award is based on m. The same applies to determinations actually made if proceedings will not be concluded with an Arbitrators Award.

25 Alternative Dispute Resolution Rules for Construction Industry (ADR Construction) 25 This effect will apply to recipient of third party notice even if he/she did not intervene in proceedings. Sentence 1 and 2 hereof do not apply if determinations were made prior to intervention or third party notice or if third party was prevented from making representations or performing actions without consent of insurance companies if such third party is obliged to m. (2) Articles 204 et. seq. of BGB applies accordingly to suspension of statute of limitations for recipient of third party notice. Art. 47 Costs of Arbitration Proceedings (1) The Arbitration Tribunal will decide on costs of arbitration proceedings and ir allocation to parties in accordance with Art of ZPO by way of an Arbitrators Award. (2) Any costs arising from intervention and dispute assistance shall be borne by opponent of party, if and insofar as he/she shall bear it by applying Articles 91 to 98 of ZPO; orwise, dispute assistant shall bear costs himself/herself (Art. 101 of ZPO). Art. 48 Value in Dispute and Charges (1) The Arbitration Tribunal determines value in dispute according to calculation rates of Gerichtskostengesetz (GKG Litigation Cost Act) in connection with Zivilprozessordnung (ZPO). (2) The Arbitrators fee is determined by applying provisions of Rechtsanwaltsvergütungsgesetzes (RVG Attorney Remuneration Law) with Vergütungsverzeichnis (VV List of Applicable Fees) as amended at time of initiation of arbitration proceedings (Art. 31). (3) The compensation according to sec. 2 for chairman and single individual Arbitrator will be increased by 30 percent. (4) A charge of EUR 500 will apply for each appointment of an Arbitrator by DBV. The DBV may request this charge and its expenses in form of an advance payment. This charge and expenses shall be borne by party which failed to comply with its obligation of appointment, irrespective of outcome of arbitration proceedings. If chairman of an Arbitration Tribunal is to be appointed, charge and expenses will be part of costs of proceedings.

26 Alternative Dispute Resolution Rules for Construction Industry (ADR Construction) 26 Annex: Model Agreements and Model Contracts - Mediation Agreement According to Alternative Dispute Resolution Rules for Construction Industry (ADR Construction) - Mediator Contract (ADR Construction) - Conciliation Agreement According to Alternative Dispute Resolution Rules for Construction Industry (ADR Construction) - Conciliator Contract (ADR Construction) - Adjudication Agreement According to Alternative Dispute Resolution Rules for Construction Industry (ADR Construction) - Adjudicator Contract (ADR Construction) - Arbitration Agreement According to Alternative Dispute Resolution Rules for Construction Industry (ADR Construction) - Arbitrator Contract (ADR Construction)

27 Alternative Dispute Resolution Rules for Construction Industry (ADR Construction) 27 Mediation Agreement According to Alternative Dispute Resolution Rules for Construction Industry (ADR Construction) (Model, proposed by Deutscher Beton- und Bautechnik-Verein E.V. (DBV) and by Deutsche Gesellschaft für Baurecht e.v.) This Agreement is entered into between (full name, representation, address) and (full name, representation, address) and 1 (full name, representation, address) The Parties hereby agree to conduct Mediation Proceedings according to ADR Construction, as amended on 1 January 2010, sections I and II. The ADR Construction attached hereto forms an integral part hereof. Articles stated herein refer to this ADR Construction. I. Subject Matter of Mediation 2 The Mediation Proceedings will be conducted for any dispute arising in connection with Agreement on construction project. The Mediation Proceedings will be conducted in connection with Agreement on construction project to solve subject(s) of which is/are in dispute. 1 if more than two parties 2 please identify applicable alternative with a cross

28 Alternative Dispute Resolution Rules for Construction Industry (ADR Construction) 28 II. Selection of Mediators The Parties agree to appoint Ms. /Mr. as single individual Mediator. as Mediator Committee. For rejection of Mediator and/or inability to perform duties, please refer to Art. 6. III. Court Proceedings and Statute of Limitations of Claims 1. The limitation of claims asserted will be suspended (Art. 14) from time Mediator documents receipt of statement of claims (Art. 12, sec. 1) until conclusion of proceedings. 2. Furrmore, Parties agree to refrain from invoking ordinary courts or arbitration courts during conduction of and until conclusion of Mediation. Detention (Articles 916 et. seq. of ZPO [German Code of Civil Procedure], injunction (Articles 935 et. seq. of ZPO) and independent proof of evidence procedures (Articles 485 et. seq. of ZPO) are to be exempted refrom. 3. The Parties agree that any ongoing legal proceedings regarding dispute being subject matter of Mediation; will be suspended for term of Mediation. IV. Calling as Witness or Expert The Parties agree to refrain from calling Mediator as witness or expert, if such calling would refer to matters which are subject of Mediation. V. Or Agreements

29 Alternative Dispute Resolution Rules for Construction Industry (ADR Construction) 29 VI. Failure of Mediation Furrmore, Parties agree on following in case of failure of Mediation Conciliation according to ADR Construction, as amended on 1 January 2010, according to agreement attached. Adjudication according to ADR Construction, as amended on 1 January 2010, according to agreement attached. Arbitration proceedings according to ADR Construction, as amended on 1 January 2010, according to agreement attached, precluding ordinary court proceedings. Place, Date Place, Date Signature Signature Place, Date Signature Annex ADR Construction

30 Alternative Dispute Resolution Rules for Construction Industry (ADR Construction) 30 Mediator Contract (ADR Construction) (Model, proposed by Deutscher Beton- und Bautechnik-Verein E.V. (DBV) and by Deutsche Gesellschaft für Baurecht e.v.) This Contract is entered into between (full name, representation, address) and and 1 (full name, representation, address) (full name, representation, address) hereinafter referred to as Parties and (full name, address) and 2 (full name, address) hereinafter referred to as Mediator The Parties have entered into a Mediation Agreement on incorporating Alternative Dispute Resolution Rules for Construction Industry (ADR Construction) as amended on 1 January Articles mentioned herein refer to Articles in ADR Construction. The Parties and Mediator agree to perform Mediation Proceedings in accordance with section I and II of ADR Construction. 1 if more than two parties 2 in case of several Mediators

31 Alternative Dispute Resolution Rules for Construction Industry (ADR Construction) 31 I. Subject Matter of Mediation 3 The Mediator is appointed for all disputes arising in connection with Agreement on construction project. The Mediator is appointed in connection with Agreement, on construction project to solve subject(s) of which is/are in dispute. II. Obligations of Parties and Mediator The Parties and Mediator hereby explicitly assume as a personal obligation duties allocated to m in ADR Construction; Mediator, in particular, obligation of neutrality and secrecy. The Mediator represents that re are no facts which might raise doubts as to his/her impartiality or independence. In Mediation Agreement, Parties undertook to not call Mediator as a witness or experts in subsequent arbitration or court proceedings regarding subjects which were disclosed to him/her during Mediation proceedings. III. Authorisations The Party appoints as authorised contact: The Party appoints as authorised contact: IV. Conclusion of Mediator Contract This Contract will be concluded - upon conclusion of proceedings according to Art. 13; or - by an agreement between Parties according to Art. 6, sec. 6; or - by a notice of resignation from Mediator according to Art. 6 sec please identify applicable alternative with a cross

32 Alternative Dispute Resolution Rules for Construction Industry (ADR Construction) 32 Following conclusion of contract, Mediator shall immediately return to Parties any and all documents provided to him/her. V. Mediator s Remuneration The remuneration and expenses shall be subject to provisions in Articles 8 and 9. The Mediator s activities will be compensated with an hourly rate of EUR plus Value Added Tax. The Mediator s activities will be compensated with a daily rate of EUR plus Value Added Tax. The Parties will reimburse Mediator for necessary travelling expenses as follows - per km in his/her own car - class for rail journeys - class for flights - rental car and expenses incurred by Mediator as well as procedural costs, against receipt. The Parties will bear remuneration, costs and expenses in equal parts. The Parties will be liable to Mediator as joint debtors. The billing will be carried out on a monthly basis, using hourly/daily time sheets and against receipts. The Parties undertake to make payments within four weeks.

33 Alternative Dispute Resolution Rules for Construction Industry (ADR Construction) 33 VI. Special Arrangements Place, Date Place, Date Signature Signature Place, Date Signature Annex ADR Construction

34 Alternative Dispute Resolution Rules for Construction Industry (ADR Construction) 34 Conciliation Agreement According to Alternative Dispute Resolution Rules for Construction Industry (ADR Construction) (Model, proposed by Deutscher Beton- und Bautechnik-Verein E.V. (DBV) and by Deutsche Gesellschaft für Baurecht e.v.) This Agreement is entered into between (full name, representation, address) and (full name, representation, address) and 4 (full name, representation, address) The Parties hereby agree to conduct Conciliation Proceedings according to ADR Construction, as amended on 1 January 2010, sections I and III. The ADR Construction attached hereto forms an integral part hereof. Articles stated herein refer to this ADR Construction. I. Subject Matter of Conciliation Proceedings 5 The Conciliation Proceedings will be conducted for any dispute arising in connection with Agreement on construction project. The Conciliation Proceedings will be conducted in connection with Agreement on construction project to solve subject(s) of which is/are in dispute. 4 if more than two parties 5 please identify applicable alternative with a cross

35 Alternative Dispute Resolution Rules for Construction Industry (ADR Construction) 35 II. Selection of Conciliators The Parties agree to appoint Ms. /Mr. as single individual Conciliator. as Conciliation Committee. For rejection of Conciliator and/or Conciliator s inability to perform duties, please refer to Art. 6. III. Court Proceedings and Statute of Limitations of Claims 1. The limitation of claims asserted will be suspended (Art. 20) from time an application is filed with Conciliator as defined in Art. 17 until conclusion of proceedings. 2. Furrmore, Parties agree to refrain from invoking ordinary courts or arbitration courts during conduction of and until conclusion of Conciliation. Detention (Articles 916 et. seq. of ZPO [German Code of Civil Procedure], injunction (Articles 935 et. seq. of ZPO) and independent proof of evidence procedures (Articles 485 et. seq. of ZPO) are to be exempted refrom. 3. The Parties agree that any ongoing legal proceedings regarding dispute being subject matter of Conciliation, will be suspended for term of Conciliation. IV. Calling as Witness or Expert The Parties agree to refrain from calling Conciliator as witness or expert, if such calling would refer to matters which are subject of Conciliation. V. Conciliation Award In accordance with Art. 18, sec. 3, conciliation award shall be binding between parties, unless one of parties files an objection within two weeks following its receipt by providing Conciliator with a written declaration of objection. VI. Expert Determination In accordance with Art. 21, parties may request Conciliator to procure an expert determination. A separate expert determination agreement shall be entered into for this purpose.

36 Alternative Dispute Resolution Rules for Construction Industry (ADR Construction) 36 VI. Or Agreements VII. Conclusion/Failure of Conciliation Furrmore, Parties agree on following, in case of failure of Conciliation or in case of an objection against conciliation award: Adjudication according to ADR Construction, as amended on 1 January 2010, according to agreement attached. Arbitration proceedings according to ADR Construction, as amended on 1 January 2010, according to agreement attached, precluding ordinary court proceedings. Place, Date Place, Date Signature Signature Place, Date Signature Annex ADR Construction

37 Alternative Dispute Resolution Rules for Construction Industry (ADR Construction) 37 Conciliator Contract (ADR Construction) (Model, proposed by Deutscher Beton- und Bautechnik-Verein E.V. (DBV) and by Deutsche Gesellschaft für Baurecht e.v.) This Contract is entered into between (full name, representation, address) and (full name, representation, address) and 1 (full name, representation, address) hereinafter referred to as Parties and (full name, address) and 2 (full name, address) hereinafter referred to as Conciliator The Parties have entered into a Conciliation Agreement on incorporating Alternative Dispute Resolution Rules for Construction Industry (ADR Construction) as amended on 1 January Articles mentioned herein refer to Articles in ADR Construction. The Parties and Conciliator agree to perform Conciliation Proceedings in accordance with section I and III of ADR Construction. 1 if more than two parties 2 in case of several Conciliators

38 Alternative Dispute Resolution Rules for Construction Industry (ADR Construction) 38 I. Subject Matter of Conciliation 3 The Conciliator is appointed for all disputes arising in connection with Agreement on construction project. The Conciliator is appointed in connection with Agreement, on construction project to solve subject(s) of which is/are in dispute. II. Obligations of Parties and Conciliator The Parties and Conciliator hereby explicitly assume as a personal obligation duties allocated to m in ADR Construction; Conciliator in particular, obligation of neutrality and secrecy. The Conciliator represents that re are no facts which might raise doubts as to his/her impartiality or independence. In Conciliation Agreement, Parties undertook to not call Conciliator as a witness or experts in subsequent arbitration or court proceedings regarding subjects which were disclosed to him/her during Conciliation proceedings. III. Authorisations The Party appoints as authorised contact: The Party appoints as authorised contact: IV. Conclusion of Conciliator Contract This Contract will be concluded - upon conclusion of proceedings according to Art. 19; or - by an agreement between Parties according to Art. 6, sec. 6 or - by a notice of resignation from Conciliator according to Art. 6, sec please identify applicable alternative with a cross

39 Alternative Dispute Resolution Rules for Construction Industry (ADR Construction) 39 Following conclusion of contract, Conciliator shall immediately return to Parties any and all documents provided to him/her. V. Conciliator s Remuneration The remuneration and expenses shall be subject to provisions in Articles 8 and 9. The Conciliator s activities will be compensated with an hourly rate of EUR plus Value Added Tax. The Conciliator s activities will be compensated with a daily rate of EUR plus Value Added Tax. The Parties will reimburse Conciliator for necessary travelling expenses as follows - per km in his/her own car - class for rail journeys - class for flights - rental car and expenses incurred by Conciliator as well as procedural costs, against receipt. The Parties will bear remuneration, costs and expenses in equal parts. The Parties will be liable to Conciliator as joint debtors. The billing will be carried out on a monthly basis, using hourly/daily time sheets and against receipts. The Parties undertake to make payments within four weeks. VI. Expert Determination In accordance with Art. 21, Parties may request Conciliator to procure an expert determination. The Conciliator agrees to enter into an expert determination agreement with Parties and to prepare an expert determination.

40 Alternative Dispute Resolution Rules for Construction Industry (ADR Construction) 40 VII. Special Arrangements Place, Date Place, Date Signature Signature Place, Date Signature Annex ADR Construction

41 Alternative Dispute Resolution Rules for Construction Industry (ADR Construction) 41 Adjudication Agreement According to Alternative Dispute Resolution Rules for Construction Industry (ADR Construction) (Model, proposed by Deutscher Beton- und Bautechnik-Verein E.V. (DBV) and by Deutsche Gesellschaft für Baurecht e.v.) This Agreement is entered into between (full name, representation, address) and (full name, representation, address) and 1 (full name, representation, address) The Parties hereby agree to conduct Adjudication Proceedings according to ADR Construction, as amended on 1 January 2010, sections I and IV. The ADR Construction attached hereto forms an integral part hereof. Articles stated herein refer to this ADR Construction. I. Subject Matter of Adjudication 2 The Adjudication Proceedings will be conducted for any dispute arising in connection with Agreement on construction project. The Adjudication Proceedings will be conducted in connection with Agreement on construction project to solve subject(s) of which is/are in dispute. 1 if more than two parties 2 please identify applicable alternative with a cross

42 Alternative Dispute Resolution Rules for Construction Industry (ADR Construction) 42 II. Selection of Adjudicators The Parties agree to appoint Ms. /Mr. as single individual Adjudicator. as Adjudication Committee. The Deutscher Beton- und Bautechnik-Verein E.V. (DBV) has a right to appoint such Adjudicator following an application by one of Parties, as defined in Art. 22, sec. 2. III. Court Proceedings and Statute of Limitations of Claims 1. The limitation of claims asserted will be suspended (Art. 29) from time an application is filed with Adjudicator as defined in Art. 23 until conclusion of proceedings. 2. Furrmore, Parties agree to refrain from invoking ordinary courts or arbitration courts during conduction of and until conclusion of Adjudication. Detention (Articles 916 et. seq. of ZPO [German Code of Civil Procedure], injunction (Articles 935 et. seq. of ZPO) and independent proof of evidence procedures (Articles 485 et. seq. of ZPO) are to be exempted refrom. 3. The Parties agree that any ongoing legal proceedings regarding dispute being subject matter of Adjudication, will be suspended for term of Adjudication. IV. Calling as Witness or Expert The Parties agree to refrain from calling Adjudicator as witness or expert, if such calling would refer to matters which are subject of Adjudication. V. Adjudication Decision and its Effects The Parties represent expressively to have taken note of provisions set out in Articles 25, 26 and 28.

43 Alternative Dispute Resolution Rules for Construction Industry (ADR Construction) 43 VI. Lawyer s Settlement In case Parties are represented by lawyers, y should enter into an agreement concluding dispute in form of an enforceable lawyer s settlement (Art. 796 a of ZPO). VII. Or Agreements VIII. Conclusion / Failure of Adjudication The Parties agree on following, in case one of parties files an objection against an Adjudication Decision as defined in Articles 26, sec. 3, 28, sec. 1, or in case of a conclusion in accordance with Art 27. Arbitration proceedings according to ADR Construction, as amended on 1 January 2010, according to agreement attached, precluding ordinary court proceedings. Place, Date Place, Date Signature Signature Place, Date Signature Annex ADR Construction

44 Alternative Dispute Resolution Rules for Construction Industry (ADR Construction) 44 Adjudicator Contract (ADR Construction) (Model, proposed by Deutscher Beton- und Bautechnik-Verein E.V. (DBV) and by Deutsche Gesellschaft für Baurecht e.v.) This Contract is entered into between (full name, representation, address) and (full name, representation, address) and 1 (full name, representation, address) hereinafter referred to as Parties and (full name, address) and 2 (full name, address) hereinafter referred to as Adjudicator The Parties have entered into an Adjudication Agreement on incorporating Alternative Dispute Resolution Rules for Construction Industry (ADR Construction) as amended on 1 January Articles mentioned herein refer to Articles in ADR Construction. The Parties and Adjudicator agree to perform Adjudication Proceedings in accordance with section I and IV of ADR Construction. 1 if more than two parties 2 in case of several Adjudicators

45 Alternative Dispute Resolution Rules for Construction Industry (ADR Construction) 45 I. Subject Matter of Adjudicator Contract 3 The Adjudicator is appointed for all disputes arising in connection with Agreement on construction project. The Adjudicator is appointed in connection with Agreement, on construction project to solve subject(s) of which is/are in dispute. II. Obligations of Parties and Adjudicator The Parties and Adjudicator hereby explicitly assume as a personal obligation duties allocated to m in ADR Construction; Adjudicator in particular, obligation of neutrality and secrecy. The Adjudicator represents that re are no facts which might raise doubts as to his/her impartiality or independence. In Adjudication Agreement, Parties undertook to not call Adjudicator as a witness or experts in subsequent arbitration or court proceedings regarding subjects which were disclosed to him/her during Adjudication proceedings. III. Authorisations The Party appoints as authorised contact: The Party appoints as authorised contact: IV. Conclusion of Adjudicator Contract This Contract will be concluded - upon conclusion of proceedings according to Art. 27; or - by an agreement between Parties according to Art. 6, sec. 6; or - by a notice of resignation from Adjudicator according to Art. 6, sec please identify applicable alternative with a cross

46 Alternative Dispute Resolution Rules for Construction Industry (ADR Construction) 46 Following conclusion of contract, Adjudicator shall immediately return to Parties any and all documents provided to him/her. V. Adjudicator s Remuneration The remuneration and expenses shall be subject to provisions in Articles 8 and 9. The Adjudicator s activities will be compensated with an hourly rate of EUR plus Value Added Tax. The Adjudicator s activities will be compensated with a daily rate of EUR plus Value Added Tax. The Parties will reimburse Adjudicator for necessary travelling expenses as follows - per km in his/her own car - class for rail journeys - class for flights - rental car and expenses incurred by Adjudicator as well as procedural costs, against receipt. The Parties will bear remuneration, costs and expenses in equal parts. The Parties will be liable to Adjudicator as joint debtors. The billing will be carried out on a monthly basis, using hourly/daily time sheets and against receipts. The Parties undertake to make payments within four weeks.

47 Alternative Dispute Resolution Rules for Construction Industry (ADR Construction) 47 VI. Special Arrangements Place, Date Place, Date Signature Signature Place, Date Signature Annex ADR Construction

48 Alternative Dispute Resolution Rules for Construction Industry (ADR Construction) 48 Arbitration Agreement According to Alternative Dispute Resolution Rules for Construction Industry (ADR Construction) (Model, proposed by Deutscher Beton- und Bautechnik-Verein E.V. (DBV) and by Deutsche Gesellschaft für Baurecht e.v.) This Agreement is entered into between (full name, representation, address) and (full name, representation, address) and 1 (full name, representation, address) The Parties hereby agree to conduct Arbitration Proceedings according to ADR Construction, as amended on 1 January 2010, sections I and V, precluding ordinary court proceedings. The ADR Construction attached hereto forms an integral part hereof. Articles stated herein refer to this ADR Construction. I. Subject Matter of Arbitration Proceedings 2 The Arbitration Proceedings will be conducted for any dispute arising in connection with Agreement on construction project. The Arbitration Proceedings will be conducted in connection with Agreement on construction project to solve subject(s) of which is/are in dispute. 1 if more than two parties 2 please identify applicable alternative with a cross

49 Alternative Dispute Resolution Rules for Construction Industry (ADR Construction) 49 The Arbitration will also decide on legal effectiveness and scope of applicability of Arbitration Agreement. If an ordinary court annuls Arbitrator s Award, party wishing to continue to assert a claim against or party will only be allowed to do this by initiating renewed arbitration proceedings. This Arbitration Agreement will apply accordingly to new Arbitration. II. Number of Arbitrators The Arbitration Tribunal will consist of three Arbitrators. The Arbitration Tribunal will consist of a single individual Arbitrator 3. III. Place of Proceedings The Parties agree on following place for proceedings: IV. Intervention of Third Parties / Third Party Notice ADR Construction explicitly provides for intervention of third parties and for third party notices (Articles 44 46). The Parties agree that third parties may intervene in proceedings to support one of parties if y have a legitimate interest in prevalence of this party. If one of Parties has agreed on ADR Construction with third parties, it shall be entitled to notify m of dispute. Articles apply with regard to procedures and effects of intervention and third party notice. 3 In case of a foreseeable value in dispute of less than 100,000, Parties should agree on an individual Arbitrator.

50 Alternative Dispute Resolution Rules for Construction Industry (ADR Construction) 50 V. Or Agreements Place, Date Place, Date Signature Signature Place, Date Signature Annex ADR Construction

51 Alternative Dispute Resolution Rules for Construction Industry (ADR Construction) 51 Arbitrator Contract (ADR Construction) (Model, proposed by Deutscher Beton- und Bautechnik-Verein E.V. (DBV) and by Deutsche Gesellschaft für Baurecht e.v.) This Contract is entered into between (full name, representation, address) and (full name, representation, address) and 1 (full name, representation, address) hereinafter referred to as Parties and (full name, address) and (full name, address) and (full name, address) hereinafter referred to as Arbitrator 1 if more than two parties

52 Alternative Dispute Resolution Rules for Construction Industry (ADR Construction) 52 The Parties have entered into an Arbitration Agreement on incorporating Alternative Dispute Resolution Rules for Construction Industry (ADR Construction) as amended on 1 January Articles mentioned herein refer to Articles in ADR Construction. The Parties and Adjudicator agree to perform Arbitration Proceedings in accordance with sections I and V of ADR Construction. I. Subject Matter of Arbitrator Contract The Arbitrator(s) is/are appointed for all disputes arising in connection with Agreement on construction project. The Arbitrator(s) is/are appointed in connection with Agreement on construction project to solve subject(s) of which is/are in dispute. II. Obligations of Parties and Arbitrator(s) The Parties and Arbitrator(s) hereby explicitly assume as a personal obligation duties allocated to m in ADR Construction; Arbitrator(s) in particular, obligation of impartiality and independence as defined in Articles 1036 et. seq. of ZPO. The Arbitrator(s) represent(s) that re are no facts which might raise doubts as to ir impartiality or independence. III. Liability of Arbitrator(s) The liability of Arbitrator(s) shall be subject to provisions in Art. 839 sec. 2 of BGB.

53 Alternative Dispute Resolution Rules for Construction Industry (ADR Construction) 53 IV. Remuneration of Arbitrator(s) The remuneration of Arbitrator(s) shall be subject to provisions in Art. 48, by applying provisions of Rechtsanwaltsvergütungsgesetzes (RVG German Attorney Remuneration Law) with Vergütungsverzeichnis (VV List of Applicable Fees) as amended at time of initiation of arbitration proceedings (Art. 31). The remuneration for chairman and single individual Arbitrator shall be increased by 30 percent. Place, Date Place, Date Signature Signature Place, Date Signature Annex ADR Construction

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