Appointment of a NEC Adjudicator
The NEC contracts require that notification of a dispute and submission of information to the Adjudicator be done within tight time frames. If an Adjudicator has not already been appointed or cannot be appointed very quickly when a dispute is notified, the time frames will probably not be met.
An Adjudicator should ideally be appointed at the same time as the contract between the Parties is awarded. If this is not done and the Parties cannot subsequently agree after award on the person to be appointed or cannot agree on a new adjudicator should one be required, there is a fall back reference to an adjudicator nominating body to select an adjudicator.
The ICE-SA Panel of NEC Adjudicators has been established to facilitate the timeous appointment of adjudicators using one of two methods. (See Using the ICE-SA Panel of NEC Adjudicators)
The standard payment option provided in the NEC3 Adjudicators Contract is for the Parties referring the matter to dispute to pay the Adjudicator an advance payment that is stated in the Contract Data and to share any amount due in equal proportions.
To enable consolidation of related disputes across the whole project it may be appropriate for the main contract to specify that the subcontract terms should name the same adjudicator as also acting in subcontract disputes.
Adjudicator’s Contract
The parties to the dispute are required to appoint an Adjudicator in terms of the NEC3 Adjudicator’s Contract.
The Chairman of ICE-SA may be called upon to nominate an Adjudicator where an Adjudicator resigns or becomes unable to act and the Parties cannot agree on a replacement.
Using the Panel
Parties to an NEC contract can use the ICE-SA Panel of NEC Adjudicators in one of two ways:
Panel Information
Option 1
The Employer selects a listed person and inserts his name in the Contract Data provided by the Employer. The Contractor then either accepts the person chosen or may suggest another listed person. The Parties agree on the person chosen prior to award of the contract between them.
Option 2
Make reference to the ICE-SA Panel of NEC Adjudicators in the Contract Data provided by the Employer and after contract award, the Party intending to refer the first dispute to adjudication selects two listed persons who have confirmed their availability to act as an Adjudicator, the other Party selects one of these two persons to be the Adjudicator and the Parties make the necessary arrangements for his immediate appointment.
The facility for an external Adjudicator nominating body to make a selection is still available in the event any of the two options should fail e.g. the Adjudicator resigns or becomes unable to act and the Parties cannot agree on a replacement. (see Nomination of an Adjudicator) It should be noted that clause F.3.17 (Complete adjudicator's contract) of the CIDB Standard Conditions of Tender state that: Unless alternative arrangements have been agreed or otherwise provided for in the contract, arrange for both parties to complete formalities for appointing the selected adjudicator at the same time as the main contract is signed. This requires the successful tenderer (Contractor) as a condition of tender to conclude the contract with the Adjudicator with the Employer, should this be required.
Preparing Contract Data
Preparing Contract Data - Option 1
The following data should be inserted into the Contract Data provided by the Employer for an ECC3 contract. Other contracts in the NEC3 family will be similar.
Option 1: Choosing the Adjudicator before contract award: The Employer nominates the Adjudicator in the Contract Data for Option W1 by choosing a person from the ICE-SA Panel of NEC Adjudicators
| Data for option w1 | Guidance notes | |
| The Adjudicator is | Insert data | |
| Name | . . . . . . . . . . . | |
| Address | . . . . . . . . . . . | |
| Tel No. | . . . . . . . . . . . | |
| Fax No. | . . . . . . . . . . . | |
| . . . . . . . . . . . | ||
| The Adjudicator nominating body is: | The Chairman of ICE-SA – a Joint Division of the Institution of Civil Engineering and the South African Institution of Civil Engineering (see Chairman to Nominate an Adjudicator).. | |
| The tribunal is: | . . . . . . . . . . . | Insert either “arbitration” or “a South African Court of Law” |
If the tribunal is arbitration, add the following:
| The arbitration procedure is | As set out in the Rules for the Conduct of Arbitrations Fifth Edition 2005 published by the Association of Arbitrators (Southern Africa) | Alternatively state: As set out in the Rules of the Arbitration Foundation of Southern Africa. Or, in the case of an international contract, As set out in the UNCITRAL Arbitration Rules. |
| The place where arbitration is to be held is | . . . . . . . . . . . | Insert town or city where arbitration is to be held |
The person or organisation who will choose an arbitrator if the Parties cannot agree a choice or if the arbitration procedure does not state who selects an arbitrator, is | The Chairman of the Association of Arbitrators (Southern Africa) | Alternatively state: The Chairman of the Arbitration Foundation of Southern Africa |
It should be noted that the various NEC3 contracts state that “The Parties appoint the Adjudicator under the NEC Adjudicators Contract current at the starting date”
Preparing Contract Data - Option 2
The following data should be inserted into the Contract Data provided by the Employer for an ECC3 contract.Other contracts in the NEC3 family will be similar.
Option 2: Choosing an Adjudicator after contract award: The Party intending to refer the first dispute to adjudication selects two persons from the ICE-SA Panel of NEC Adjudicators, confirms their availability. The other Party selects which of the two is to be the Adjudicator
| Data for option w1 | Guidance notes | |
The Adjudicator is | the person selected by the Parties in terms of the relevant Z Clause from the Panel of NEC Adjudicators set up by ICE-SA – a joint Division of the Institution of Civil Engineers and the South African Institution of Civil Engineering (see ICE-SA Panel of Adjudicators) | Insert Z clause (see below) |
The Adjudicator nominating body is: | The Chairman of ICE-SA – a joint Division of the Institution of Civil Engineering and the South African Institution of Civil Engineering (see Chairman to Nominate an Adjudicator) | |
The tribunal is: | . . . . . . . . . . . | Insert “arbitration” or a “South African Court of Law” |
If the tribunal is arbitration add:
The arbitration procedure is | As set out in the Rules for the Conduct of Arbitrations Fifth Edition 2005 published by the Association of Arbitrators (Southern Africa) | Alternatively state: As set out in the Rules of the Arbitration Foundation of Southern Africa. Or, in the case of an international contract, As set out in the UNCITRAL Arbitration Rules. |
The place where arbitration is to be held is | . . . . . . . . . . . | Insert town or city where arbitration is to be held |
The person or organisation who will choose an arbitrator – if the Parties cannot agree a choice or – if the arbitration procedure does not state who selects an arbitrator, is | The Chairman of the Association of Arbitrators (Southern Africa). | Alternatively state: The Chairman of the Arbitration Foundation of Southern Africa |
The following Z clause should be added where use is made of the ICE-SA Panel of NEC Adjudicators after award i.e. Option 2:
Z | Additional conditions of contract | |
The additional conditions of contract are: | ||
Z1 | Selection and appointment of the Adjudicator | A Party may at any time notify the other Party of the names of two persons he has chosen from the Panel of NEC Adjudicators set up by ICE-SA- a joint Division of the Institution of Civil Engineers and the South African Institution of Civil Engineering (see ICE-SA Panel of Adjudicators) whose availability to act as the Adjudicator the notifying Party has confirmed. The other Party selects one of the two persons chosen to be the Adjudicator within four days of receiving the notice, failing which the person chosen by the notifying Party will be the Adjudicator. The Parties appoint the selected Adjudicator under the NEC3 Adjudicator’s Contract, June 2005. |