Civil Engineering December 2022 | Vol 30 No 11

20 December 2022 Civil Engineering as well as travel and accommodation costs for these visits, which are charged in addition to the retainer fee. When disputes arise (in both ad-hoc and standing DABs) or when the DABs are asked to assist in resolving potential disputes (standing DABs), the time required to adjudicate the dispute is charged based on either a daily or hourly fee. WHO ARE THE ADJUDICATORS AND HOW CAN THEY BE FOUND? The CIDB best practice guidelines indicate that adjudicators are not usually practicing lawyers but rather senior engineering and construction industry persons with a sound knowledge of the technology of the industry, cost analysis, and programming techniques. Competence in contract law and general legal rights will be a requirement for an adjudicator. The FIDIC Red Book requirements for the adjudicator are pretty standard and state that the member shall: a. Have no interest financial or otherwise in the employer, the contractor or the engineer, nor any financial interest in the contract except for payment under the dispute adjudication agreement. b. Not previously have been employed as a consultant or other- wise by the employer, the contractor or the engineer, except in such circumstances as were disclosed in writing to the employer and the contractor before they signed the dispute adjudication agreement. c. Have disclosed in writing to the employer, the contractor and the other members (if any), before entering into the dispute adjudication agreement and to his/her best knowledge and recollection, any professional or personal relationships with any director, officer or employee of the employer, the con- tractor or the engineer, and any previous involvement in the overall project of which the contract form’s part. d. Not, for the duration of the dispute adjudication agreement, be employed as a consultant or otherwise by the employer, the contractor or the engineer, except as may be agreed in writing by the employer, the contractor and the other members (if any). e. Comply with the annexed procedural rules and with sub- clause 20.4 of the Conditions of Contract. f. Not give advice to the employer, the contractor, the employer’s personnel or the contractor’s personnel concerning the conduct of the contract, other than in accordance with the annexed procedural rules. g. Not while a member, enter into discussions or make any agreement with the employer, the contractor or the engineer regarding employment by any of them, whether as a con- sultant or otherwise, after ceasing to act under the dispute adjudication agreement. h. Ensure his/her availability for all site visits and hearings as are necessary. i. Become conversant with the contract and with the progress of the works (and of any other parts of the project of which the contract form’s part) by studying all documents received which shall be maintained in a current working file. j. Treat the details of the contract and all the DAB’s activities and hearings as private and confidential, and not publish or disclose them without the prior written consent of the em- ployer, the contractor, and the other members (if any). k. Be available to give advice and opinions, on any matter relevant to the contract when requested by both the employer and the contractor, subject to the agreement of the other members (if any). Generally, adjudicators belong to published panels of adjudica- tors and are restrained by codes of conduct. The ICE-SA NEC Adjudicator Panel requires that panellists comply with the following: a. Before accepting any appointment as adjudicator, the panel member shall carefully consider and ensure so far as possible that: Q Q They are competent to handle the dispute with particular reference to the scope and specialisms required. Q Q They are able to handle and to properly discharge their duty as an adjudicator within the required timescale having regard to holidays or other commitments. Q Q They know of no circumstances in which a reasonable person observing those circumstances would perceive a real possibility of them being biased, unless it relates to circumstances that they have disclosed to the parties, and they have not objected. b. Where the appointment is made by ICE-SA, the registered person will be required to make a declaration to this effect. In the event of any doubt, the registered person should decline the appointment from whatever source. c. When and however appointed to act as adjudicator, the panel member shall: Q Q Act promptly, conscientiously, diligently and with compe- tence and take all reasonable and practicable steps to avoid unnecessary expense; and in particular, – Maintain adequate records to support the fees and expenses they charge. – Apply a charging rate that is appropriate to their normal professional activities having regard to the scope and complexity of the matters in dispute. – Inform the parties and carefully consider the cost and necessity before taking external advice. – Assess expeditiously all submissions properly made to them in accordance with the relevant adjudication procedure. – Inform the parties should it become apparent that they will not be able to discharge their duty within the time required. – Inform the parties should they become aware of cir- cumstances from which a reasonable person observing those circumstances might conclude that there was a real possibility that they were biased. – Promptly give directions to, or request consent from, the parties for the conduct of the adjudication which allow the registered person to discharge their duty as adjudicator while allowing the adjudication to proceed fairly, expeditiously and economically. There are adjudication service providers in many countries in Africa and they usually have a panel of potential adjudica- tors. Examples are the FIDIC Presidents List of Adjudicators, the Construction Adjudication Association of South Africa, the abovementioned ICE-SA Panel of NEC Adjudicators, the SAICE panel of adjudicators and the Cairo Regional Centre for International Commercial Arbitration (CRCICA).