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Alternative Dispute Resolution Rules for the Construction Industry (ADR Construction) 1

Mediation Conciliation Adjudication Arbitration Version as of 1 January 2010

ADR Construction

ALTERNATIVE DISPUTE RESOLUTION RULES FOR THE CONSTRUCTION INDUSTRY


Disclaimer: The translation has been prepared with great care; there is no guarantee for the accuracy of the translation by the 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 the 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, 10785 Berlin 60325 Frankfurt am Main Postfach 11 05 12, 10835 Berlin Tel.: 069 748893 Tel.: 030 236096-0 Fax: 069 70609899 Fax: 030 236096-23 www.baurecht-ges.de www.betonverein.de [email protected] [email protected] Cover picture/source: Getty Images Deutschland GmbH, Munich

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


Preface In 1909, i.e. more than 100 years ago, the Deutsche Beton- und Bautechnik-Verein E.V. (German Association for Concrete and Construction Technology) published Arbitration Rules. From 1974 onwards, these Rules became a joint effort in association with the Deutsche Gesellschaft für Baurecht e.V. (German Association for Building Regulations). The motivating factor in the preparation of such Rules for extrajudicial dispute resolution was that many property developers, contractors and other parties involved in the construction industry were dissatisfied with the working methods applied by the public courts. These Rules have been and are amended on a regular basis. The need to prevent the emergence of disputes or to not have them hinder the construction process resulted in the preparation of further dispute resolution rules. Therefore, both publishers, i.e. the Deutsche Gesellschaft für Baurecht e.V. und Deutsche Beton- und Bautechnik-Verein E.V., have added provisions for mediation and conciliation to the three-column model of the amended Arbitration Rules as presented on 1 July 2005. They were soon used in practice as were the Arbitration Rules. Now, the “Alternative Dispute Resolution Rules for the Construction Industry (ADR Construction)” will be published on 1 January 2010. 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 the disputing parties, through the help of a Mediator, to reach a mutually amicable solution. Conciliation may result in an award, whose effectiveness is, however, subject to the acceptance of the disputing parties. Arbitration decisions regarding disputes are legally binding. Arbitration now provides for and decides upon third-party notices and the intervention of third parties and upon the nature of this intervention. The call from the construction industry to make assertive, temporarily binding resolution of disputes available directly “on site” – i.e. during the planning and construction stage - was complied with. We provide the construction industry with so-called Adjudication proceedings. They enable swift decisions which are temporarily binding for the 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 the necessary cooperational willingness during construction and a partner-based mode of thinking. Our thanks go to the persons involved in the drafting. The Permanent Commission chaired by Lawyer Prof. Horst Franke, consists of the following members of the Deutsche Gesellschaft für Baurecht e.V.: • Dr. Johan Kuffer, judge at the Federal High Court (VII. Senate); • Michael Halstenberg, former under-secretary of state; • Lawyer Eva-Martina Meyer-Postelt.


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


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 the 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 the Dispute Resolver Section II: Mediation ............................................................................................................13 Art. 11 Mediator Contract Art. 12 Procedure of Mediation Art. 13 Conclusion of the Proceedings Art. 14 Statute of Limitations Section III: Conciliation........................................................................................................14 Art. 15 Conciliator Contract Art. 16 Rights and Duties of the Conciliator Art. 17 Initiation and Performance of the Conciliation Proceedings Art. 18 Conciliation Award Art. 19 Conclusion of the 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 the Adjudication Proceedings Art. 24 Rights and Duties of the Adjudicator Art. 25 Adjudication Decision Art. 26 Effects of the Adjudication Decision Art. 27 Conclusion of the Adjudication Proceedings Art. 28 Legal Validity of the Decision Art. 29 Statute of Limitations


Section V: Arbitration ..........................................................................................................19 Art. 30 Arbitrator Contract Art. 31 Initiation of the 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 the Proceedings Art. 36 Minutes Art. 37 Extension, Amendment, Withdrawal of the Action Art. 38 Counterclaim, Offsetting Art. 39 Temporary Regulations Art. 40 Form, Contents and Effect of the Arbitrator’s Award Art. 41 Settlement Art. 42 Conclusion of the 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 the Arbitration Proceedings Art. 48 Value in Dispute and Charges Annex: Model Agreements and Model Contracts .............................................................26


Preamble The Alternative Dispute Resolution Rules for the Construction Industry (ADR Construction1) aim at preventing and settling disputes which arise in connection with any type of planning and construction services, in particular, the erection, repair, modernisation, demolition and deconstruction of buildings, without the involvement of national courts. Mediation, Conciliation, Adjudication and Arbitration are the proceedings used for this purpose. ADR Construction enables the disputing parties to select the following dispute resolution method(s): The objective of Mediation is to prevent conflicts in construction and to support the parties in finding an independent and mutually amicable solution. Conciliation promotes a cooperative behaviour from the side of the disputing parties by aiming for a mutual resolution of the disputed situations in question. It results in a conciliation award whose effectiveness is subject to the acceptance of the disputing parties. During Conciliation, the disputing parties may request that certain facts be bindingly established through the presentation of an expert determination. Adjudication helps to bring about a fast decision on matters in dispute which is temporarily binding for the 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 the ADR Construction is to prevent and settle disputes according

to the provisions set out below, by taking into consideration the agreement made between the 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 the disputing parties and,

depending on the proceedings selected, the Mediator, Conciliator, Adjudicator and Arbitrator – as a tribunal, where appropriate – (hereinafter jointly referred to as “Dispute Resolvers”) and any third parties involved in the proceedings (experts, legal representatives, intervening parties, recipients of third-party notices).

1 These Alternative Dispute Resolution Rules replace the Arbitration Rules for the Construction Industry, including Plant Construction (SGO Bau) applicable to date and published by the Deutsche Beton- und Bautechnik-Verein E.V. and Deutsche Gesellschaft für Baurecht e.V. and the Mediation and Conciliation Rules of the Deutsche Gesellschaft für Baurecht e.V. as amended on 1 July 2005.


Art. 2 General Principles (1) The language of the proceedings shall be German. The parties may agree on

a different language. (2) If the Parties have not agreed on the place of the proceedings, it shall be

specified by the Dispute Resolver, taking into consideration the interests of those involved. In principle, the place of fulfilment of the construction service shall be decisive.

(3) The proceedings shall be confidential and closed to the public. Upon his/her

appointment, the Dispute Resolver shall commit to the persons involved that he/she will comply with the obligation of secrecy. He/she shall ensure that other 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 the proceedings in person. In

exceptional cases, a party may appoint another person as a contact person with the authorisation to take decisions on their behalf and the party in question shall inform the Dispute Resolver of such a person in writing.

The Parties may be represented by legal representatives. Such persons are

obliged to provide evidence of their power of representation, upon the request of any person involved.

(5) The Parties agree to refrain from calling the Dispute Resolver as a witness or

expert, if subjects regarding the dispute are in question. (6) The Dispute Resolver must not advise or represent any of the persons

involved both during and after the conclusion of the dispute resolution proceedings if such advisory or representative activities would refer to matters which are subject of the dispute resolution.

Art. 3 Deadlines and Timeframes All persons involved are obliged to work towards a rapid and target-oriented

execution of the proceedings. They are bound by the deadlines specified. The parties and any joining third parties shall state all facts on the matter and perform the required procedural activities within the periods specified. An extension of such deadlines may be granted in exceptional cases only.

Art. 4 Correspondence The Dispute Resolver will prescribe the type of transfer of documents and the

proof of delivery. Otherwise, representations made by the persons involved will be transferred in writing against proof of delivery (e.g. registered letter, acknowledgement of receipt by the authorised recipient). The effectiveness of written notifications delivered any other way remains unaffected. Art. 126 a of the BGB (German Civil Code) shall apply to the transfer of notifications in electronic form.


Art. 5 Amicable Settlement All persons involved shall work towards an amicable settlement – even for

parts of the matters in dispute – at all times during the proceedings. Art. 6 Rejection of the 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 the office until the conclusion of the 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 the Dispute Resolver fails to comply with the preconditions as agreed between the parties.

(3) Any rejection of the Dispute Resolver shall be inadmissible, unless it is made

immediately upon becoming aware of the reason for rejection. (4) The parties may only reject a Dispute Resolver to whose appointment they

contributed, for reasons of which the parties first became aware of after having already made such an appointment.

(5) Following an admissible rejection of a Mediator or Conciliator, the parties shall

jointly enter into a written contract with a new Mediator or Conciliator. In failure thereof, the 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 the 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 the parties with a written declaration of resignation or the parties will agree on his/her resignation. Otherwise, sec. 5 shall apply accordingly. Art. 1039 of the 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 the invocation of regular court proceedings or

arbitration proceedings from the date they entered into an agreement to perform Mediation, Conciliation or Adjudication until the conclusion of such proceedings. Legal detention (Articles 916 et. seq. of the ZPO, injunction (Articles 935 et. seq. of the ZPO) and independent proof of evidence procedures (Articles 485 et. seq. of the ZPO) are exempted there from.

(2) Art. 1032 of the ZPO shall apply to Arbitration.


Art. 8 Remuneration and Expenses (1) The remuneration of Mediator, Conciliator or Adjudicator shall be based on

hourly or daily rates. The amount of the hourly or daily rate and the reimbursement of expenses shall be defined in the Mediator / Conciliator or Adjudicator Contract.

(2) Art. 48 shall apply to Arbitration proceedings. Art. 9 Costs and Advance Payment (1) The parties shall bear the costs for the remuneration and all necessary

expenses of the Dispute Resolver and the costs arisen by the hearing of witnesses and experts, procurement of expert opinions and other information in connection with Mediation, Conciliation or Adjudication in equal parts, unless otherwise agreed. Either party shall bear its own costs in Mediation, Conciliation or Adjudication, unless the parties have agreed otherwise. Art. 47 shall apply to Arbitration.

(2) The Dispute Resolver may specify that the commencement and continuation

of his/her activities depend on a reasonable advance payment of the remunerations, expenses and other costs which have arisen or are expected to arise. Precondition is the preparation of correct invoices in compliance with all applicable tax provisions.

(3) The parties will be liable to the Dispute Resolver as joint debtors. Art. 10 Liability of the Dispute Resolver Mediators, Conciliators and Adjudicators shall exclusively be liable in the case

of intent and gross negligence. This shall not apply in the case of injury to life, body or health. The Arbitration Tribunal shall be liable as defined in Art. 839, sec. 2 of the BGB.


Section II: Mediation Art. 11 Mediator Contract (1) If the parties have agreed upon the performance Mediation, in accordance

with Art. 1, sec. 2 hereof, they will jointly enter into a written contract with one or several Mediators (Mediator).

(2) The Mediator is responsible for the proceedings and will pursue a resolution of

the dispute without being authorised to make a decision. (3) Depending on the subject matter in dispute, the 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 the parties’

agreement. Art. 12 Procedure of Mediation (1) The parties will inform the Mediator in writing that they are negotiating on or

wish to negotiate on a matter in dispute. The Mediator shall document the receipt of such an application.

(2) The Mediator will prepare minutes on the results of meetings which he/she will

immediately send to the parties for approval. (3) Settlements shall be composed in writing and be signed by the parties. (4) The Mediator shall be entitled to conduct individual discussions with the

parties, insofar as the relating other party is informed thereof prior to such discussions.

Art. 13 Conclusion of the Proceedings The Mediation Proceedings will be concluded, in whole or in part,

- by a (partial) settlement being reached between the parties; - by a written declaration of the Mediator or a party that the proceedings

should be discontinued (Art. 4); or - if the proceedings have been suspended for more than six months. The Mediator shall lay out such a conclusion in writing, by stating the date of conclusion, and shall provide the parties with a copy of this document.

Art. 14 Statute of Limitations

With the preparation of the documents as defined in Art. 12, sec. 1, hereof, the limitation of the claims asserted shall be suspended until the conclusion of the proceedings.


Section III: Conciliation Art. 15 Conciliator Contract (1) If the parties have agreed upon the performance of Conciliation, in

accordance with Art. 1, sec. 2 hereof, they will jointly enter into a written contract with one or several Conciliators (Conciliator). They will specify the duration and scope of the Conciliation therein.

(2) Depending on the subject matter in dispute, the 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 the Conciliator (1) The Conciliator is responsible for the proceedings. (2) If necessary, the Conciliator shall familiarise himself/herself with the matter in

dispute, on site. He/she shall be entitled to access the construction site. (3) The Conciliator may call in competent third-party experts, subject to the

parties’ agreement. Art. 17 Initiation and Performance of the Conciliation Proceedings (1) After having mutually appointed a Conciliator, either party may file a written

application with the Conciliator. Simultaneously, such party shall inform the Conciliator of the subject matter in dispute. The Conciliator will immediately send a copy of such letter to the other party and will give it the opportunity to make representations.

(2) The Conciliator shall immediately investigate the facts and circumstances

which he/she requires to be able to reach a decision. He/she will convene meetings, in consultation with the parties.

(3) At his/her request, the Conciliator shall be given any information and provided

with the documents which he/she deems necessary to perform his/her duties. He/she may also obtain information from third parties with the cooperation of the parties.

(4) The state of affairs and of the dispute shall be discussed with the parties in a

meeting, before the Conciliator prepares a conciliation award. (5) The proceedings and the essential contents of the discussion shall be

documented. Art. 18 Conciliation Award (1) As a general rule, the Conciliator is obliged to prepare the conciliation award

two weeks after the discussion date as defined in Art. 17, sec. 4. This term may be extended with the mutual agreement of the parties.


(2) The conciliation award shall be made in writing and must be justified. It shall be delivered to the parties.

(3) The conciliation award is binding, unless one of the parties files an objection

within two weeks following its receipt by providing the Conciliator with a written declaration of objection. The Conciliator shall immediately inform the other party of the objection.

Art. 19 Conclusion of the Proceedings The Conciliation will be concluded, in whole or in part,

- by the reaching of a written (partial) settlement of the parties; - by the conciliation award; - by the written declaration of the Conciliator that the Conciliation has failed;

or - if the proceedings have been suspended for more than six months. The Conciliator shall compose such a conclusion in writing, by stating the date of conclusion, and shall provide the parties with such a document.

Art. 20 Statute of Limitations

Upon invocation of the Conciliator as defined in Art. 17, sec. 1, the limitation of the claims asserted will be suspended until the conclusion of the proceedings.

Art. 21 Expert Determination (1) The parties may request the Conciliator to procure an expert determination.

An expert determination agreement may also be entered into during the Conciliation proceedings.

(2) For this purpose, the parties shall specify the facts as to which the Conciliator

should prepare binding ascertainments. (3) The right to use the expert determination after the end of the 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 the parties have agreed on the performance of adjudication proceedings in

accordance with Art. 1, sec. 2, they shall, simultaneously, agree on the person(s) of the Adjudicator or Adjudicators (Adjudicator). They will enter into a joint written agreement with such a person.


(2) If, in exceptional cases, the parties have not yet agreed upon the person of the Adjudicator at the time of entering into the Adjudication Contract, and if the parties fail to agree on an Adjudicator within ten calendar days after one of the parties having provided a written proposal for the person of the Adjudicator to the other party, either party may apply for the binding appointment of such person by the Deutscher Beton- und Bautechnik-Verein E.V. (DBV). The DBV will immediately appoint the Adjudicator and will notify the parties in writing of this person’s name. The Adjudicator shall declare the acceptance of such office to the parties. Upon such a declaration, a contract having the contents of the existing Adjudicator contract takes effect between the parties and this Adjudicator. If no such contract should exist, the parties shall immediately agree with the appointed Adjudicator upon the contents of an Adjudicator contract to be concluded. The same appointment procedure will apply if the contractually appointed Adjudicator is unable or unwilling to accept this office. Otherwise, Art. 48, sec. 4 shall apply accordingly.

(3) Depending on the subject matter in dispute, the Adjudicator should have

knowledge of construction technology, construction management and/or construction law and extrajudicial dispute resolution.

(4) The Adjudicator decides upon the rejection in accordance with Art. 6, sec. 2 to

4. In the case of a justified rejection, the Adjudicator’s office shall end. Sec. 2 will apply accordingly to the further proceedings.

Art. 23 Initiation of the Adjudication Proceedings Either party may inform the Adjudicator of the matter in dispute and apply for

him/her to make a decision concerning this matter. The applicant shall deliver the application letter to the respondent within a period of time to be specified by the Adjudicator and in the number of copies to be specified by the same and provide evidence of such delivery to the Adjudicator. Following delivery of the application, the Adjudicator will set a deadline for a response to be provided by the respondent.

Art. 24 Rights and Duties of the Adjudicator (1) Following initiation of the Adjudication Proceedings in accordance with Art. 23,

the Adjudicator shall immediately inform himself/herself regarding the project and the matter in dispute and investigate all facts and circumstances necessary for him/her to make his/her decision. Within the scope of the decision making process, he/she may, in particular, take part in project meetings, inspect documents and access the construction site.

(2) At the Adjudicator’s request, he/she shall be provided with any information

and documentation which he/she deems necessary for the performance of his/her activities. He/she may obtain information from third parties, with the cooperation of the contract parties.


(3) The Adjudicator may call upon competent third party experts, subject to the parties’ agreement.

(4) Prior to the formulation of an adjudication decision, the state of affairs and of

the dispute shall be discussed with the parties. (5) The proceedings and the essential contents of the discussion shall be

documented. Art. 25 Adjudication Decision (1) The Adjudicator shall immediately make a decision regarding the dispute. If

the Adjudicator should need more than the two weeks to make the decision, from the date of discussion as defined in Art. 24, sec. 4, any extension of this period of time shall be subject to the agreement of the parties.

(2) The Adjudicator shall make a provisional binding decision, unless the parties

come to an amicable agreement. This comprises of, amongst others, payment orders, acceleration measures, and a ban on the cessation of work and determinations on the acceptability of work (in part) completed. A precondition is that the claim is highly probable according to the state of affairs and of the dispute and that the benefiting party provides adequate security as instructed to do so by the Adjudicator. The security shall be determined pursuant to the provisions of the Vergabe- und Vertragsordnung für Bauleistungen (VOB/B – German Construction Tendering and Contract Regulations) as amended at the time when such an order was issued. For this purpose, the disadvantages which might result for a party in the case of a subsequent amendment of the adjudication decision in the 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 the justification for the decision reached. It shall be delivered to the parties.

(4) The parties shall be made aware as to the legal consequences of the decision

as defined in Articles 26, 28 and 29. Art. 26 Effects of the Adjudication Decision (1) The party which has an obligation imposed upon it as a result of the

adjudication decision shall be obliged to fulfil it within 6 working days following notification of the decision.

(2) Should a party fail to fulfil its duties resulting from the decision within the

period specified and if the other party has provided the security specified as defined in Art. 25, sec. 2, the Adjudicator may make another 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 the value of the awarded claims, after having granted another grace period of 6 working days. Such financial penalty shall serve as a sanction for the party failing to comply with the decision and will be in favour of the other party. The financial penalty may be determined one more time, upon request.


If the party which has been subjected to penalty still fails to fulfil it’s duties in due time, despite the determination of a financial penalty, the benefiting party has either the right to discontinue the services or to the extraordinary termination of the contract, where the other party may not derive subsequent claims through the exertion of such rights, provided that the Adjudicator has informed the sanctioned party of the legal consequences at the time of determination of the penalty.

(3) The adjudication decision will become final and legally binding, unless one of

the parties files a written declaration with the Adjudicator objecting to their decision, within one month following notification of the decision. The same shall apply if an illustrated objection is withdrawn.

(4) Objections have no suspensory effect. Art. 27 Conclusion of the Adjudication Proceedings (1) The Adjudication will be concluded when the parties present the Adjudicator

with a mutual written declaration of conclusion. (2) Otherwise, the proceedings will be concluded when a joint written settlement

from the parties or an adjudication decision exists or if the proceedings have been suspended for more than six months and if the Adjudicator documents the conclusion in writing, by stating the date of such conclusion, and has provided the parties with such documentation.

Art. 28 Legal Validity of the Decision (1) If a party has filed an objection against the adjudication decision as defined in

Art. 26, sec. 3, it may only have it appraised by an (arbitration) court following the acceptance of all services or following the final rejection of acceptance or following the conclusion of the service contract concluded between the parties.

(2) The Adjudicator’s decision will become final and legally binding within six

months, at the latest, unless an action is filed with an (arbitration) court following the acceptance of all services, the final rejection of acceptance or the conclusion of the service contract.


Art. 29 Statute of Limitations The limitation of the claims asserted will be suspended from the time an

application is filed with the Adjudicator in accordance with Art. 23 until such time as the proceedings are brought to a conclusion. The statute of limitations will also be suspended from the time an objection (Art. 26, sec.3) is filed until the institution of legal proceedings.

Section V: Arbitration Art. 30 Arbitrator Contract (1) If the parties have agreed upon the opening of arbitration proceedings in

accordance with Art. 1, sec. 2, they will enter into a joint written contract with the arbitration tribunal/arbitrator (Arbitration Tribunal).

(2) The Arbitration Tribunal is made up of three Arbitrators. The parties may

agree otherwise. In the case of a foreseeable value in dispute of less than EUR 100,000, the parties should agree upon a single individual Arbitrator.

(3) The provisions of the Zivilprozessordnung, in particular Articles 1029 et. seq.

of the ZPO shall apply to the proceedings, unless otherwise provided for below.

(4) The single individual Arbitrator and the chairman shall be qualified to carry out

the 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 the Arbitration Proceedings (1) The party wishing to initiate arbitration proceedings (plaintiff in arbitration)

shall notify the other party (respondent in arbitration) thereof in writing. (2) The arbitration proceedings commence on the day when the respondent in

arbitration proceedings receives the notification on the initiation of the arbitration proceedings.

(3) This notification shall contain:

1. the names and addresses of the parties; 2. the matter in dispute (application and facts), unless a statement of claim as

defined in Art. 253 of the ZPO is presented; 3. the information regarding the arbitration agreement; 4. the application for the resolution of the matter before an arbitration tribunal; 5. the name of the Arbitrator appointed by the plaintiff in arbitration and the

declaration of acceptance by this Arbitrator; 6. one or more proposals for an individual Arbitrator, if the parties have

agreed on an Arbitration Tribunal consisting of one Arbitrator without having determined the person who should fulfil the role of the Arbitrator.


Art. 32 Appointment of a Three-Person Arbitration Tribunal (1) Upon the opening of the arbitration proceedings, the plaintiff in arbitration calls

upon the respondent in arbitration to also appoint one Arbitrator within a period of two weeks following receipt of the written submissions of initiation and to provide the plaintiff in arbitration with a written declaration that the proposed Arbitrator has accepted to fulfil the role of Arbitrator. The respondent in arbitration shall comply with this request even if he/she rejects the Arbitrator appointed by the plaintiff in arbitration.

(2) If the respondent in arbitration fails to make such appointment in due time, the

plaintiff in arbitration may apply for the appointment of the Arbitrator by the DBV (appointment of a replacing Arbitrator). In addition to the information required under Art. 31, the application shall also contain the declaration that the respondent in arbitration is in default. The DBV shall provide the respondent in arbitration with the opportunity to respond to the application and the Arbitrator to be appointed, by specifying a grace period of one week. Following the end of this term, the DBV will immediately appoint the Arbitrator and will inform the persons involved in writing of his/her name and his/her declaration of acceptance.

(3) Following a hearing involving the parties, the Arbitrators will appoint a

chairman. Such appointment shall be made within two weeks following the notification that the second Arbitrator has been appointed. The Arbitration Tribunal shall be deemed to be constituted after having provided the parties involved with a written declaration of acceptance.

(4) If the Arbitrators are unable to agree on the person of the chairman, they will

immediately inform the parties and the DBV thereof. Any Arbitrator may request the appointment of the chairman by the DBV (appointment of a replacing arbitrator). Such a request must include the information as set out in Art. 31 and the names of the persons put forward to chair the Arbitration Tribunal. The DBV will immediately appoint the chairman and will notify the 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 the Arbitrators or the chairman is prevented from exercising the office

(Art. 1038 of the ZPO), sections 1 to 4 will apply accordingly. Art. 33 Appointment of a Single Individual Arbitrator (1) Upon opening of the arbitration proceedings, the plaintiff in arbitration will

request that the respondent in arbitration select one of the proposed persons (Art. 31, sec. 3, item 6) or to make a counterproposal within a period of two weeks following receipt of the written submissions. The plaintiff in arbitration shall make a statement on the counterproposal within one week of receipt.

(2) If the parties have agreed on a single individual Arbitrator, either party may

inform this person in writing of his/her appointment. The Arbitration Tribunal shall be deemed to be constituted when the individual Arbitrator has informed the parties in writing of his/her acceptance of the role.


(3) If one of the parties fails to make a pronouncement in due time or if the parties fail to agree on a proposal, an application shall be filed with DBV for a legally binding appointment of the single individual arbitrator (appointment of a replacing Arbitrator). Otherwise, Art. 32, sec. 2 shall apply.

Art. 34 Rejection of Arbitrators (1) An Arbitrator is obliged to reject his/her appointment if there are doubts as to

his/her impartiality or independence (Art. 1036 of the ZPO). The same applies if an Arbitrator is unable to immediately exercise his/her role. Otherwise, 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 the preconditions agreed upon by the parties.

(3) If one of the parties is aware of grounds for rejection, it shall make the

Arbitration Tribunal aware of it’s rejection of the Arbitrator within two weeks, with a statement outlining the reasons for rejection.

(4) If the parties fail to agree on the dismissal of an Arbitrator or if an Arbitrator

does not resign from his/her role, the Arbitration Tribunal will decide upon the rejection in writing by way of a justified resolution; in the case of a three-person Arbitration Tribunal, this shall be done without the involvement of the rejected person.

(5) If the application for rejection remains unsuccessful, the rejecting party may

challenge the decision before a competent court within one week following receipt of the decision. The Arbitration Tribunal, including the rejected Arbitrator, may continue with the arbitration proceedings and pronounce an arbitrator’s award until such time as a decision is reached by the court.

Art. 35 Principles of the Proceedings (1) Following the constitution of the Arbitration Tribunal, the plaintiff in arbitration

shall deliver written submissions to all parties involved within a period to be specified by the Arbitration Tribunal and including the number of copies of such submissions as specified by such tribunal and it shall present evidence of deliverance to the Arbitration Tribunal.

(2) The chairman will determine the timeframes, specify the deadlines (Art. 3) and

decide upon other procedural questions. He/she will prepare the summons and request the advances on costs. A period of two weeks must be given between the receipt of the summons and the date for the first hearing.


(3) Following delivery of written submissions, the chairman will give the 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 the steps required in this regard. Therefore, he/she may, in particular

- request that the parties appear in person; - order the parties to have available during the session any witness,

experts and other sources of evidence to which the parties referred; - order that the session will include an inspection of the site.

The chairman may provide preliminary legal information and pass resolutions on evidence in preparation of the oral proceedings.

(5) Art. 1052, sec. 1 and 2 of the ZPO apply to the voting and the passing of

resolutions. Art. 36 Minutes

Minutes as defined in Art. 160 of the ZPO shall be kept of the oral proceedings and shall be signed by the chairman. The documentation of testimonies made by witnesses, experts and of the hearing of the parties as well as of the results of a visual inspection shall be subject to the Arbitrator’s discretion.

Art. 37 Extension, Amendment, Withdrawal of the Action (1) The plaintiff in arbitration may extend or supplement the action during the

proceedings in accordance with the scope of the arbitration agreement (Art. 264 of the ZPO). An amendment of the action is admissible if the respondent in arbitration approves and if the Arbitration Tribunal deems it relevant (Art. 263 of the ZPO).

(2) Art. 269 of the ZPO applies for the withdrawal of the action. Art. 38 Counterclaim, Offsetting (1) The respondent in arbitration may file a counterclaim, if the matter in dispute

is subject to the Arbitration Agreement. If this fact is in dispute, the Arbitration Tribunal shall decide. The provisions regarding the action apply accordingly to the counterclaim.

(2) Subject to the parties’ approval, the Arbitration Tribunal may also decide on a

claim regarding offsetting to which the Arbitration Agreement does not apply.


Art. 39 Temporary Regulations

At the request of one of the parties, the Arbitration Tribunal may order provisional and safeguarding measures which it deems necessary with regard to the matter in dispute. Art. 1041 of the ZPO applies accordingly to the further procedure.

Art. 40 Form, Contents and Effect of the Arbitrators’ Award (1) The Arbitrators’ Award shall be made in writing, be substantiated and signed

by the Arbitration Tribunal. Otherwise, Art. 1054 of the ZPO applies. (2) The day on which the decision regarding the Arbitrators’ Award was passed

and the place where the arbitration proceedings took place shall be specified in the Award. The decisions regarding the Arbitrators’ Award shall be deemed to be passed at this date and place.

(3) An Arbitrators’ Award signed by the Arbitrators shall be delivered to all of the

parties. Art. 41 Settlement

If the parties have agreed on a settlement, the Arbitration Tribunal shall bring the proceedings to a close. At the parties’ request, it will document the settlement in form of an Arbitrators’ Award with an agreed wording (Art. 1053 of the ZPO).

Art. 42 Conclusion of the Arbitration Proceedings (1) The arbitration proceedings will be concluded with the final Arbitrators’ Award

or with a resolution of the Arbitration Tribunal in accordance with Art. 1056, sec. 2 of the ZPO.

(2) Subject to Art. 1056, sec. 3 of the ZPO, the jurisdiction of the Arbitration

Tribunal will end upon the conclusion of the arbitration proceedings. Art. 43 Retention of Files Files may be returned to the persons involved following the conclusion of the

proceedings. Art. 44 Intervention of Third Parties (1) If the parties have agreed on the opportunity of third parties to intervene, they

may intervene, at any time during the proceedings, to support one of the parties if they have a legitimate interest in a beneficial outcome of the proceedings from the view point of this party.


(2) Such intervention will be undertaken by the submission of a document with the Arbitration Tribunal. This document shall include:

1. the name of the parties and of the subject matter under arbitration; 2. a specification as to the nature of the interest of the intervening party; 3. the declaration of intervention. The chairman will specify to which persons and in what number of copies the document must be delivered against receipt.

(3) The intervening party must accept the proceedings according to the stage they are at, at the time of intervention. Insofar as his/her representations do not contradict the party to be supported, the intervening party is authorised to make representations and to take an active role in the proceedings.

(4) In the case of a dispute, the Arbitration Tribunal will decide on the admissibility

of the intervention. Art. 45 Third Party Notice (1) If one of the parties has agreed on the ADR Construction with third parties, it

is entitled to notify them of the dispute at any time during the proceedings, if it believes to be able to assert a claim against them in the case that the proceedings end unfavourably for it or if it asserts the claim on behalf of a third party.

(2) Such third party notice is performed by filing a document with the Arbitration

Tribunal stating the reason for the third party notice, the Arbitration Tribunal and the status of the arbitration. The party shall deliver this document to the other party, the recipient of the third party notice and any other intervening parties either directly involved or indirectly in an assisting role for a directly involved party. The third party notice takes effect upon delivery to the recipient of the third party notice.

(3) If the recipient of the third party notice enters the arbitration, Art. 44 shall

apply accordingly to him/her. If the recipient of the third party notice has agreed upon the ADR Construction with another party, this recipient may also notify it of the dispute.

(4) In the case that the admissibility of the third party notice is in dispute, the

Arbitration Tribunal shall make a decision in this regard (Art. 1040 of the ZPO).

Art. 46 Effect of Intervention and Third Party Notice (1) In the cases described in Articles 44 and 45, the actual and legal

determinations made by the Arbitration Tribunal which favour the party are legally binding for the party intervening and the recipient of the third party notice in their relation to the party, insofar as the Arbitration Award is based on them. The same applies to the determinations actually made if the proceedings will not be concluded with an Arbitrators’ Award.


This effect will apply to the recipient of the third party notice even if he/she did not intervene in the proceedings. Sentence 1 and 2 hereof do not apply if the determinations were made prior to the intervention or the third party notice or if the third party was prevented from making representations or performing actions without the consent of insurance companies if such third party is obliged to them.

(2) Articles 204 et. seq. of the BGB applies accordingly to the suspension of the

statute of limitations for the recipient of the third party notice. Art. 47 Costs of the Arbitration Proceedings (1) The Arbitration Tribunal will decide on the costs of the arbitration proceedings

and their allocation to the parties in accordance with Art. 1057 of the ZPO by way of an Arbitrators’ Award.

(2) Any costs arising from the intervention and the dispute assistance shall be

borne by the opponent of the party, if and insofar as he/she shall bear it by applying the Articles 91 to 98 of the ZPO; otherwise, the dispute assistant shall bear the costs himself/herself (Art. 101 of the ZPO).

Art. 48 Value in Dispute and Charges (1) The Arbitration Tribunal determines the value in dispute according to the

calculation rates of the Gerichtskostengesetz (GKG – Litigation Cost Act) in connection with the Zivilprozessordnung (ZPO).

(2) The Arbitrators’ fee is determined by applying the provisions of the

Rechtsanwaltsvergütungsgesetzes (RVG – Attorney Remuneration Law) with Vergütungsverzeichnis (VV – List of Applicable Fees) as amended at the time of initiation of the arbitration proceedings (Art. 31).

(3) The compensation according to sec. 2 for the chairman and the single

individual Arbitrator will be increased by 30 percent. (4) A charge of EUR 500 will apply for each appointment of an Arbitrator by the

DBV. The DBV may request this charge and its expenses in form of an advance payment. This charge and the expenses shall be borne by the party which failed to comply with its obligation of appointment, irrespective of the outcome of the arbitration proceedings. If the chairman of an Arbitration Tribunal is to be appointed, the charge and the expenses will be part of the costs of the proceedings.


Annex: Model Agreements and Model Contracts - Mediation Agreement According to the Alternative Dispute Resolution Rules for the

Construction Industry (ADR Construction) - Mediator Contract (ADR Construction) - Conciliation Agreement According to the Alternative Dispute Resolution Rules for the

Construction Industry (ADR Construction) - Conciliator Contract (ADR Construction) - Adjudication Agreement According to the Alternative Dispute Resolution Rules for the

Construction Industry (ADR Construction) - Adjudicator Contract (ADR Construction) - Arbitration Agreement According to the Alternative Dispute Resolution Rules for the

Construction Industry (ADR Construction) - Arbitrator Contract (ADR Construction)


Mediation Agreement According to the Alternative Dispute Resolution Rules for the 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 the (full name, representation, address) and the (full name, representation, address) and1 the (full name, representation, address) The Parties hereby agree to conduct Mediation Proceedings according to the 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 Mediation2

The Mediation Proceedings will be conducted for any dispute arising in connection with the Agreement ____________ on the construction project ____________.

The Mediation Proceedings will be conducted in connection with the Agreement ____________ on the construction project ____________ to solve the subject(s) of ____________ which is/are in dispute.

1 if more than two parties 2 please identify the applicable alternative with a cross


II. Selection of Mediators

The Parties agree to appoint Ms. /Mr. _____________________________________________________________________ as single individual Mediator. as Mediator Committee. For the rejection of the Mediator and/or the inability to perform the duties, please refer to Art. 6.

III. Court Proceedings and Statute of Limitations of Claims

1. The limitation of the claims asserted will be suspended (Art. 14) from the time the

Mediator documents the receipt of the statement of claims (Art. 12, sec. 1) until the conclusion of the proceedings.

2. Furthermore, the Parties agree to refrain from invoking ordinary courts or

arbitration courts during the conduction of and until the conclusion of Mediation. Detention (Articles 916 et. seq. of the ZPO [German Code of Civil Procedure], injunction (Articles 935 et. seq. of the ZPO) and independent proof of evidence procedures (Articles 485 et. seq. of the ZPO) are to be exempted therefrom.

3. The Parties agree that any ongoing legal proceedings regarding the dispute being

the subject matter of Mediation; will be suspended for the term of Mediation.

IV. Calling as Witness or Expert

The Parties agree to refrain from calling the Mediator as witness or expert, if such calling would refer to matters which are subject of the Mediation.

V. Other Agreements


VI. Failure of the Mediation

Furthermore, the Parties agree on the following in the case of failure of the Mediation

Conciliation according to ADR Construction, as amended on 1 January 2010, according to the agreement attached.

Adjudication according to ADR Construction, as amended on 1 January 2010, according to the agreement attached.

Arbitration proceedings according to ADR Construction, as amended on 1 January 2010, according to the agreement attached, precluding ordinary court proceedings.

Place, Date Place, Date

Signature Signature

Place, Date

Signature Annex ADR Construction


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 the (full name, representation, address)

and

the (full name, representation, address) and1

the (full name, representation, address) – hereinafter referred to as Parties – and the (full name, address) and2 the (full name, address) – hereinafter referred to as Mediator – The Parties have entered into a Mediation Agreement on ____________ incorporating the Alternative Dispute Resolution Rules for the Construction Industry (ADR Construction) as amended on 1 January 2010. Articles mentioned herein refer to Articles in the ADR Construction. The Parties and the 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


I. Subject Matter of the Mediation3

The Mediator is appointed for all disputes arising in connection with the Agreement ____________ on the construction project ____________.

The Mediator is appointed in connection with the Agreement ____________, on the construction project ____________ to solve the subject(s) of ____________ which is/are in dispute.

II. Obligations of the Parties and the Mediator

The Parties and the Mediator hereby explicitly assume as a personal obligation the duties allocated to them in ADR Construction; the Mediator, in particular, the obligation of neutrality and secrecy. The Mediator represents that there are no facts which might raise doubts as to his/her impartiality or independence. In the Mediation Agreement, the Parties undertook to not call the Mediator as a witness or experts in subsequent arbitration or court proceedings regarding subjects which were disclosed to him/her during the Mediation proceedings.

III. Authorisations

The Party __________________________________ appoints as authorised contact:

_____________________________________________________________________ The Party __________________________________ appoints as authorised contact:

_____________________________________________________________________

IV. Conclusion of the Mediator Contract

This Contract will be concluded - upon conclusion of the proceedings according to Art. 13; or - by an agreement between the Parties according to Art. 6, sec. 6; or - by a notice of resignation from the Mediator according to Art. 6 sec. 6.

3 please identify the applicable alternative with a cross


Following the conclusion of contract, the Mediator shall immediately return to the Parties any and all documents provided to him/her.

V. Mediator’s Remuneration

The remuneration and expenses shall be subject to the 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 the Mediator for the 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 the Mediator as well as the procedural costs, against receipt. The Parties will bear the remuneration, costs and expenses in equal parts. The Parties will be liable to the 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.


VI. Special Arrangements Place, Date Place, Date

Signature Signature

Place, Date



Conciliation Agreement According to the Alternative Dispute Resolution Rules for the Construction Industry (ADR Construction)


This Agreement is entered into between the (full name, representation, address) and the (full name, representation, address) and4 the (full name, representation, address) The Parties hereby agree to conduct Conciliation Proceedings according to the 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 the Conciliation Proceedings5

The Conciliation Proceedings will be conducted for any dispute arising in

connection with the Agreement ____________ on the construction project ____________.

The Conciliation Proceedings will be conducted in connection with the Agreement ____________ on the construction project ____________ to solve the subject(s) of ____________ which is/are in dispute.



II. Selection of Conciliators

The Parties agree to appoint Ms. /Mr. _____________________________________________________________________ as single individual Conciliator. as Conciliation Committee. For the rejection of the Conciliator and/or the Conciliator’s inability to perform the duties, please refer to Art. 6.


1. The limitation of the claims asserted will be suspended (Art. 20) from the time an application is filed with the Conciliator as defined in Art. 17 until the conclusion of the proceedings.


arbitration courts during the conduction of and until the conclusion of the Conciliation. Detention (Articles 916 et. seq. of the ZPO [German Code of Civil Procedure], injunction (Articles 935 et. seq. of the ZPO) and independent proof of evidence procedures (Articles 485 et. seq. of the ZPO) are to be exempted therefrom.


the subject matter of Conciliation, will be suspended for the term of Conciliation.

IV. Calling as Witness or Expert

The Parties agree to refrain from calling the Conciliator as witness or expert, if such calling would refer to matters which are subject of the Conciliation.

V. Conciliation Award

In accordance with Art. 18, sec. 3, the conciliation award shall be binding between the

parties, unless one of the parties files an objection within two weeks following its receipt by providing the Conciliator with a written declaration of objection.

VI. Expert Determination In accordance with Art. 21, the parties may request the Conciliator to procure an expert

determination. A separate expert determination agreement shall be entered into for this purpose.


VI. Other Agreements VII. Conclusion/Failure of the Conciliation

Furthermore, the Parties agree on the following, in case of failure of the Conciliation or in case of an objection against the conciliation award:

Adjudication according to ADR Construction, as amended on 1 January 2010,

according to the agreement attached.



Signature Signature

Place, Date



Conciliator Contract (ADR Construction) (Model, proposed by Deutscher Beton- und Bautechnik-Verein E.V. (DBV)


and


the (full name, representation, address) – hereinafter referred to as Parties – and the (full name, address) and2 the (full name, address)

– hereinafter referred to as Conciliator – The Parties have entered into a Conciliation Agreement on ____________ incorporating the Alternative Dispute Resolution Rules for the Construction Industry (ADR Construction) as amended on 1 January 2010. Articles mentioned herein refer to Articles in the ADR Construction. The Parties and the 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


I. Subject Matter of the Conciliation3

The Conciliator is appointed for all disputes arising in connection with the Agreement ____________ on the construction project ____________.

The Conciliator is appointed in connection with the Agreement ____________, on the construction project ____________ to solve the subject(s) of ____________ which is/are in dispute.

II. Obligations of the Parties and the Conciliator

The Parties and the Conciliator hereby explicitly assume as a personal obligation the duties allocated to them in ADR Construction; the Conciliator in particular, the obligation of neutrality and secrecy. The Conciliator represents that there are no facts which might raise doubts as to his/her impartiality or independence. In the Conciliation Agreement, the Parties undertook to not call the Conciliator as a witness or experts in subsequent arbitration or court proceedings regarding subjects which were disclosed to him/her during the Conciliation proceedings.

III. Authorisations



_____________________________________________________________________

IV. Conclusion of the Conciliator Contract

This Contract will be concluded - upon conclusion of the proceedings according to Art. 19;

or - by an agreement between the Parties according to Art. 6, sec. 6 or - by a notice of resignation from the Conciliator according to Art. 6, sec. 6.



Following the conclusion of contract, the Conciliator shall immediately return to the Parties any and all documents provided to him/her.

V. Conciliator’s Remuneration

The remuneration and expenses shall be subject to the 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 the Conciliator for the 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 the Conciliator as well as the procedural costs, against receipt. The Parties will bear the remuneration, costs and expenses in equal parts. The Parties will be liable to the 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, the Parties may request the Conciliator to procure an expert determination. The Conciliator agrees to enter into an expert determination agreement with the Parties and to prepare an expert determination.


VII. Special Arrangements Place, Date Place, Date

Signature Signature

Place, Date



Adjudication Agreement According to the Alternative Dispute Resolution Rules for the Construction Industry (ADR Construction)

Adjudication Agreement According to the Alternative Dispute Resolution Rules for the Construction Industry (ADR Construction)



This Agreement is entered into between This Agreement is entered into between the the (full name, representation, address) (full name, representation, address) and the (full name, representation, address) and1 the (full name, representation, address) The Parties hereby agree to conduct Adjudication Proceedings according to the 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 the Adjudication2

The Adjudication Proceedings will be conducted for any dispute arising in connection with the Agreement ____________ on the construction project ____________.

The Adjudication Proceedings will be conducted in connection with the Agreement ____________ on the construction project ____________ to solve the subject(s) of ____________ which is/are in dispute.



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 the Parties, as defined in Art. 22, sec. 2.


1. The limitation of the claims asserted will be suspended (Art. 29) from the time an

application is filed with the Adjudicator as defined in Art. 23 until the conclusion of the proceedings.


arbitration courts during the conduction of and until the conclusion of the Adjudication. Detention (Articles 916 et. seq. of the ZPO [German Code of Civil Procedure], injunction (Articles 935 et. seq. of the ZPO) and independent proof of evidence procedures (Articles 485 et. seq. of the ZPO) are to be exempted therefrom.


the subject matter of Adjudication, will be suspended for the term of Adjudication.

IV. Calling as Witness or Expert The Parties agree to refrain from calling the Adjudicator as witness or expert, if such calling would refer to matters which are subject of the Adjudication.

V. Adjudication Decision and its Effects

The Parties represent expressively to have taken note of the provisions set out in Articles 25, 26 and 28.


VI. Lawyer’s Settlement In case the Parties are represented by lawyers, they should enter into an agreement concluding the dispute in the form of an enforceable lawyer’s settlement (Art. 796 a of the ZPO).

VII. Other Agreements VIII. Conclusion / Failure of the Adjudication

The Parties agree on the following, in case one of the 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.



Signature Signature

Place, Date



Adjudicator Contract (ADR Construction) (Model, proposed by Deutscher Beton- und Bautechnik-Verein E.V. (DBV)


and


the (full name, representation, address) – hereinafter referred to as Parties – and the (full name, address) and2 the (full name, address) – hereinafter referred to as Adjudicator – The Parties have entered into an Adjudication Agreement on ____________ incorporating the Alternative Dispute Resolution Rules for the Construction Industry (ADR Construction) as amended on 1 January 2010. Articles mentioned herein refer to Articles in the ADR Construction. The Parties and the 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


I. Subject Matter of the Adjudicator Contract3

The Adjudicator is appointed for all disputes arising in connection with the Agreement ____________ on the construction project ____________.

The Adjudicator is appointed in connection with the Agreement ____________, on the construction project ____________ to solve the subject(s) of ____________ which is/are in dispute.

II. Obligations of the Parties and the Adjudicator

The Parties and the Adjudicator hereby explicitly assume as a personal obligation the duties allocated to them in ADR Construction; the Adjudicator in particular, the obligation of neutrality and secrecy. The Adjudicator represents that there are no facts which might raise doubts as to his/her impartiality or independence. In the Adjudication Agreement, the Parties undertook to not call the Adjudicator as a witness or experts in subsequent arbitration or court proceedings regarding subjects which were disclosed to him/her during the Adjudication proceedings.

III. Authorisations



_____________________________________________________________________

IV. Conclusion of the Adjudicator Contract

This Contract will be concluded - upon conclusion of the proceedings according to Art. 27;

or - by an agreement between the Parties according to Art. 6, sec. 6; or - by a notice of resignation from the Adjudicator according to Art. 6, sec. 6.



Following the conclusion of contract, the Adjudicator shall immediately return to the Parties any and all documents provided to him/her.

V. Adjudicator’s Remuneration

The remuneration and expenses shall be subject to the 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 the Adjudicator for the 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 the Adjudicator as well as the procedural costs, against receipt. The Parties will bear the remuneration, costs and expenses in equal parts. The Parties will be liable to the 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.


VI. Special Arrangements Place, Date Place, Date

Signature Signature

Place, Date



Arbitration Agreement According to the Alternative Dispute Resolution Rules for the Construction Industry (ADR Construction)


This Agreement is entered into between the (full name, representation, address) and the (full name, representation, address) and1 the (full name, representation, address) The Parties hereby agree to conduct Arbitration Proceedings according to the 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 the Arbitration Proceedings2

The Arbitration Proceedings will be conducted for any dispute arising in connection with the Agreement ____________ on the construction project ____________.

The Arbitration Proceedings will be conducted in connection with the Agreement ____________ on the construction project ____________ to solve the subject(s) of ____________ which is/are in dispute.



The Arbitration will also decide on the legal effectiveness and the scope of applicability of the Arbitration Agreement. If an ordinary court annuls the Arbitrator’s Award, the party wishing to continue to assert a claim against the other party will only be allowed to do this by initiating renewed arbitration proceedings. This Arbitration Agreement will apply accordingly to the new Arbitration.

II. Number of Arbitrators

The Arbitration Tribunal will consist of three Arbitrators.

The Arbitration Tribunal will consist of a single individual Arbitrator3.

III. Place of the Proceedings

The Parties agree on the following place for the proceedings: ____________________

IV. Intervention of Third Parties / Third Party Notice

ADR Construction explicitly provides for the intervention of third parties and for third party notices (Articles 44 – 46). The Parties agree that third parties may intervene in the proceedings to support one of the parties if they have a legitimate interest in the prevalence of this party. If one of the Parties has agreed on the ADR Construction with third parties, it shall be entitled to notify them of the dispute. Articles 44 – 46 apply with regard to the procedures and effects of the intervention and the third party notice.

3 In case of a foreseeable value in dispute of less than € 100,000, the Parties should agree on an individual Arbitrator.


V. Other Agreements Place, Date Place, Date

Signature Signature

Place, Date



Arbitrator Contract (ADR Construction) (Model, proposed by Deutscher Beton- und Bautechnik-Verein E.V. (DBV)


and

the

(full name, representation, address) and1

the

(full name, representation, address) – hereinafter referred to as Parties – and

the

(full name, address)

and

the (full name, address)

and

the

(full name, address) – hereinafter referred to as Arbitrator –

1 if more than two parties


The Parties have entered into an Arbitration Agreement on ____________ incorporating the Alternative Dispute Resolution Rules for the Construction Industry (ADR Construction) as amended on 1 January 2010. Articles mentioned herein refer to Articles in the ADR Construction. The Parties and the Adjudicator agree to perform Arbitration Proceedings in accordance with sections I and V of ADR Construction. I. Subject Matter of the Arbitrator Contract

The Arbitrator(s) is/are appointed for all disputes arising in connection with the Agreement ____________ on the construction project ____________.

The Arbitrator(s) is/are appointed in connection with the Agreement ____________ on the construction project ____________ to solve the subject(s) of ____________ which is/are in dispute.

II. Obligations of the Parties and the Arbitrator(s)

The Parties and the Arbitrator(s) hereby explicitly assume as a personal obligation the duties allocated to them in ADR Construction; the Arbitrator(s) in particular, the obligation of impartiality and independence as defined in Articles 1036 et. seq. of the ZPO. The Arbitrator(s) represent(s) that there are no facts which might raise doubts as to their impartiality or independence.

III. Liability of the Arbitrator(s) The liability of the Arbitrator(s) shall be subject to the provisions in Art. 839 sec. 2 of the BGB.


IV. Remuneration of the Arbitrator(s)

The remuneration of the Arbitrator(s) shall be subject to the provisions in Art. 48, by applying the provisions of the Rechtsanwaltsvergütungsgesetzes (RVG – German Attorney Remuneration Law) with Vergütungsverzeichnis (VV – List of Applicable Fees) as amended at the time of initiation of the arbitration proceedings (Art. 31). The remuneration for the chairman and the single individual Arbitrator shall be increased by 30 percent.


Signature Signature

Place, Date


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