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ARCHIVED GC8 - Dispute Resolution

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GC8.1 Interpretation

GC8.2 Consultation and Co-operation

GC8.3 Notice of Dispute

GC8.4 Negotiation

GC8.5 Mediation

GC8.6 Binding Arbitration

GC8.7 Disputes not Subject to Arbitration

GC8.8 Confidentiality

GC8.9 Settlement

GC8.10 Rules for Mediation of Disputes

GC8.10.1 Interpretation

GC8.10.2 Application

GC8.10.3 Communication

GC8.10.4 Appointment of Project Mediator

GC8.10.5 Confidentiality

GC8.10.6 Time and Place of Mediation

GC8.10.7 Representation

GC8.10.8 Procedure

GC8.10.9 Settlement Agreement

GC8.10.10 Termination of Mediation

GC8.10.11 Costs

GC8.10.12 Subsequent Proceedings

GC8.11 Rules for Arbitration of Disputes

GC8.11.1 Interpretation

GC8.11.2 Arbitration Tribunal

GC8.11.3 Application

GC8.11.4 Initiation of Proceedings

GC8.11.5 Appointment of Tribunal

GC8.11.6 Preliminary Meeting

GC8.11.7 Communications

GC8.11.8 Representation

GC8.11.9 Conduct of Proceedings

GC8.11.10 Place of Arbitration

GC8.11.11 Time Limitations

GC8.11.12 Statement of Claim and Defence

GC8.11.13 Further Written Statements

GC8.11.14 Agreed Statement of Facts

GC8.11.15 Evidence

GC8.11.16 Hearings

GC8.11.17 Default

GC8.11.18 Arbitral Decision

GC8.1 (2008-05-12) Interpretation

  1. In these Dispute Resolution, an "arbitral question of law" means a question of law that
    1. is capable of determination by arbitration under the laws of Canada;
    2. does not involve interpretation or application of public law of Canada, including without limitation any matter of constitutional, administrative, criminal or tax law; and
    3. concerns
      1. the formation, validity, interpretation, application or enforceability of the Contract;
      2. the performance, breach, termination or other discharge of the Contract;
      3. the rights, duties, obligations or remedies of parties created by or pursuant to the Contract; or
      4. any other issue of private law that may arise between parties relative to performance of the Contract.
  2. "dispute" means any disagreement regarding any issue identified by the Contractor in the notice submitted to Canada in accordance with paragraph 2) of GC8. 3, "Notice of Dispute", and includes any claim by the Contractor arising from such disagreement and any counterclaim by Canada, but does not include any claim by either party for punitive or exemplary damages, injury to persons, death, or any claim based on an allegation of libel or slander; and
  3. The alternative dispute resolution procedures set out in GC8, do not apply to any claim by Canada against the Contractor except any counterclaim in a dispute as defined in paragraph 1) of GC8.1, including, but not limited to, any claim of setoff regarding any amount due to Canada under GC5.10, "Assessment and Damages for Late Completion".

GC8.2 (2007-05-25) Consultation and Co-operation

  1. The parties agree to maintain open and honest communication throughout the performance of the Contract.
  2. The parties agree to consult and co-operate with each other in the furtherance of the Work and the resolution of problems or differences that may arise.

GC8.3 (2008-05-12) Notice of Dispute

  1. Any difference between the parties to the Contract of any nature arising out of or in connection with the Contract which could result in a claim by the Contractor against Canada, and which is not settled by consultation and co-operation as envisaged in GC8.2, "Consultation and Co-operation", shall be resolved in the first instance by Canada, whose written decision or direction shall be final and binding subject only to the provisions of GC8. Such written decision or direction includes, but is not limited to, any written decision or direction by Canada under any provision of the General Conditions.
  2. The Contractor shall be deemed to have accepted the decision or direction of Canada referred to in paragraph 1) of GC8.3 and to have expressly waived and released Canada from any claim in respect of the particular matter dealt with in that decision or direction unless, within 15 working days after receipt of the decision or direction, the Contractor submits to Canada a written notice of dispute requesting formal negotiation under GC8.4, "Negotiation". Such notice shall refer specifically to GC8.4, "Negotiation", and shall specify the issues in contention and the relevant provisions of the Contract.
  3. The giving of a written notice in accordance with paragraph 2) of GC8.3 shall not relieve the Contractor from complying with the decision or direction that is the subject of the dispute. Such compliance, however, shall not be construed as an admission by the Contractor of the correctness of such decision or direction.
  4. If a dispute is not resolved promptly, Canada shall give such instructions as, in Canada's opinion, are necessary for the proper performance of the Work and to prevent delays pending a resolution of the matter. Unless Canada terminates the Contract, orders the Contractor to suspend the Work, or takes the Work out of the hands of the Contractor, the Contractor shall continue to perform the Work in accordance with the provisions and requirements of the Contract and the instructions of Canada. Such performance shall not prejudice any claim that the Contractor may have.
  5. Nothing in GC8, relieves the Contractor from its obligation to provide any other notice required by the Contract within the time specified in the Contract, including, but not limited to, any notice required under GC6.2, "Changes in Subsurface Conditions".

GC8.4 (2008-12-12) Negotiation

  1. Within ten (10) working days after receipt by Canada of a notice referred to in paragraph 2) of GC8.3, "Notice of Dispute", or within such other period of time as may be mutually agreed to, the parties shall commence formal negotiations in order to resolve the dispute. Negotiations shall occur initially between representatives of the Contractor and Canada who play a direct supervisory role in the performance, administration or management of the Contract.
  2. If the representatives referred to in paragraph 1) of GC8.4 are unable to resolve some or all of the issues which are the subject of the negotiations within 10 working days, the parties shall refer the remaining issues which are in dispute to a second level of negotiation between a principal or principals of the Contractor and a senior level manager or senior level managers representing Canada.
  3. If negotiations fail to resolve the dispute within 30 working days from the date of delivery of the notice referred to in paragraph 2) of GC8.3, "Notice of Dispute", or within such longer period as may have been agreed to by the parties, the Contractor may, by giving written notice to Canada, in accordance with GC2.3, "Notices", within 10 working days from the end of such period, request that mediation be undertaken to assist the parties to reach agreement on the outstanding issues.
  4. If the Contractor does not request mediation within the period permitted by paragraph 3) of GC8.4, the Contractor shall be deemed to have accepted the decision or direction of Canada under paragraph 1) of GC8.3 "Notice of Dispute", and to have expressly waived and released Canada from any claim in respect of the particular matter dealt with in that decision or direction.

GC8.5 (2008-05-12) Mediation

  1. If the Contractor has requested mediation in accordance with paragraph 3) of GC8.4, "Negotiation", mediation shall be conducted in accordance with GC8.10, "Rules for Mediation of Disputes".
  2. If a Project Mediator has not previously been appointed for the purposes of the Contract, a Project Mediator shall be appointed in accordance with GC8.10, "Rules for Mediation of Disputes", forthwith after delivery of a notice in accordance with paragraph 3) of GC8.4, "Negotiation", requesting mediation.
  3. If the dispute has not been resolved within
    1. 10 working days following the appointment of a Project Mediator in accordance with paragraph 2) of GC8.5, if a Project Mediator was not previously appointed;
    2. 10 working days following receipt by Canada of a written notice in accordance with paragraph 3) of GC8.4, "Negotiation", if a Project Mediator was previously appointed; or
    3. such other longer period as may have been agreed to by the parties;

    the Project Mediator shall terminate the mediation by giving written notice to the parties stating the effective date of termination.

GC8.6 (2008-05-12) Binding Arbitration

  1. If mediation of the dispute is terminated pursuant to the provisions of GC8.5, "Mediation", and
    1. the termination of mediation occurs prior to the applicable date set out in paragraph 4) of GC8.6; and
    2. the disputed issues involve issues of fact or issues of arbitral questions of law or issues of mixed fact and arbitral questions of law;

    either party, by giving notice in writing to the other party in accordance with GC2.3, "Notices", may require that the dispute be resolved by binding arbitration pursuant to GC8.6.

  2. A notice referred to in paragraph 1) of GC8.6 shall be given within 10 working days of the date of termination of mediation under GC8.5 Mediation and shall be in accordance with GC2.3, "Notices".
  3. If no notice is given within the period set out in paragraph 2) of GC8.6, or if the conditions set out in subparagraphs 1)(a) and 1)(b) of GC8.6 are not met, the arbitration provisions set out in GC8.6 do not apply to the dispute.
  4. Unless otherwise agreed, the arbitration of the dispute shall be held in abeyance until the earlier of
    1. the date of issuance of a Certificate of Substantial Performance under GC5.5, "Substantial Performance of the Work";
    2. the date the Work is taken out of the Contractor's hands; and
    3. the date of termination of the Contract;

    and consolidated with all other such disputes into a single arbitration.

  5. Arbitral proceedings under this GC8.6 shall be governed by and conducted in accordance with the Commercial Arbitration Act, R.S. 1985, c. 17 (2nd Supp.) and the provisions of GC8.11, "Rules for Arbitration of Disputes".
  6. For the purposes of calculating time under the Rules for Arbitration referred to in paragraph 5) of GC8.6, arbitration proceedings shall commence on the applicable date set out in paragraph 4) of GC8.6.
  7. Notwithstanding anything else contained in GC8.6, the arbitration provisions in GC8.6 do not apply if the aggregate amount of all claims by the Contractor required to be arbitrated on the applicable date set out in paragraph 4) of GC8.6 is less than $25,000.

GC8.7 (2008-05-12) Disputes not Subject to Arbitration

  1. Where the arbitration provisions in GC8.6, "Binding Arbitration", do not apply to a dispute as a result of paragraphs 3) or 7) of GC8.6, "Binding Arbitration", either party may take such court action or proceedings as it considers appropriate, including, without limiting the foregoing, all suits that would otherwise have been immediately available to it but for the provisions of these Dispute Resolution Conditions. Subject to the provisions of paragraph 2) of GC8.7, the Contractor shall initiate any such action or proceeding no later than three calendar months after the date that a Certificate of Completion is issued under GC5.6, "Final Completion", and not afterwards, except where it is otherwise provided by law.
  2. Any action or proceeding resulting from a direction under GC3.13, "Warranty and Rectification of Defects in Work", shall be initiated by the Contractor no later than three calendar months after the expiry of the warranty or guarantee period and not afterwards, except where it is otherwise provided by law.

GC8.8 (2008-05-12) Confidentiality

  1. All information exchanged during alternative dispute resolution procedures, by whatever means, shall be without prejudice and shall be treated as confidential by the parties and their representatives, unless otherwise required by law. However, evidence that is independently admissible or discoverable shall not be rendered inadmissible or non-discoverable by virtue of its use during an alternative dispute resolution process.

GC8.9 (2007-05-25) Settlement

  1. Any agreement to settle all or any part of a dispute, by whatever means, shall be in writing and be signed by the parties or their authorized representatives.

GC8.10 (2008-05-12) Rules for Mediation of Disputes

GC8.10.1 Interpretation

In these Rules

  1. "Coordinator" means the person designated by Canada to act as the Dispute Resolution Coordinator.

GC8.10.2 Application

  1. By mutual agreement, the parties may change or make additions to the Rules.

GC8.10.3 Communication

  1. Written communications pursuant to these Rules shall be given in accordance with GC2.3, "Notices".

GC8.10.4 Appointment of Project Mediator

  1. The parties to the Contract may, by mutual consent, at any time after entry into the Contract, appoint a mediator (the "Project Mediator") to conduct mediation proceedings in accordance with these Rules for Mediation of Disputes, in regard to any dispute that may arise with regard to the interpretation, application or administration of the Contract. In this case, they shall jointly enter into a contract with the appointed Project Mediator, which contract shall be in a form drafted by the Coordinator and agreed to by the parties.
  2. If the parties do not appoint a Project Mediator pursuant to paragraph 1) of GC8.10.4, the parties shall appoint a Project Mediator within 17 working days following receipt of a written notice from the Contractor, in accordance with GC2.3, "Notices", requesting that mediated negotiations be undertaken in accordance with these Rules to assist the parties to reach agreement on any outstanding issues that may be in dispute. Any contract entered into with the appointed Project Mediator shall meet the requirements as set out for the contract described in paragraph 1) of GC8.8.4.
  3. When mediation is requested by the Contractor pursuant to paragraph 3) of GC8.4, "Negotiation", if the parties have previously entered into a contract with a Project Mediator, the parties shall within 2 days send to both the Project Mediator and the Coordinator
    1. a copy of the notice requesting negotiation under paragraph 2) of GC8.3, "Notice of Dispute";
    2. a copy of Canada's written position in relation to the notice, the issues in contention and the relevant provisions of the contract; and
    3. a copy of the Contractor's written request for mediation required under paragraph 3 of GC8.4, "Negotiation".
  4. If the parties have not agreed on a Project Mediator, the parties shall forthwith provide the Coordinator with the written materials referred to in subparagraphs 3)(a), 3)(b) and 3)(c) of GC8.10.4 together with a request that the Coordinator assist in the appointment of a mutually acceptable Project Mediator in accordance with these Rules.
  5. Within 5 working days following receipt of the request and materials referred to in paragraph 4) of GC8.10.4, the Coordinator shall provide the parties with a list of qualified private sector mediators obtained from an independent and impartial entity, together with instructions to each party to individually and confidentially select and rank their preferred and fully acceptable choices of mediator in descending order. Each mediator listed shall be impartial and independent of the parties, and shall be an experienced and skilled commercial mediator, preferably with knowledge of the subject matter of the dispute.
  6. Within 10 working days of receipt of the list referred to in paragraph 5) of GC8.10.4 each party shall comply with the instructions accompanying the list(s) and shall deliver the completed listing to the Coordinator.
  7. Within 2 working days following receipt of the completed listings, the Coordinator shall select the highest common ranked mediator to act as Project Mediator for the purposes of the contract.
  8. In the event of a tie, the Coordinator shall consult both parties to re-evaluate their rankings in order to assist the Coordinator in selecting a Project Mediator acceptable to both parties. If the parties cannot agree upon a Project Mediator, the Coordinator shall forthwith provide the parties with a second list of mediators and the procedure shall be repeated.
  9. If the parties have not previously entered into a contract with a mutually acceptable Project Mediator, the Coordinator shall use reasonable efforts to negotiate a contract with a mutually acceptable Project Mediator on behalf of the parties, which contract shall incorporate or otherwise comply with the provisions of these Rules. If negotiations are unsuccessful, or if for other reason the individual is unwilling or unable to enter into a contract to act as Project Mediator, the Coordinator shall repeat the process with the second-highest common ranked mediator.
  10. The parties agree that, upon successful completion of the negotiations referred to in paragraph 9) of GC8.10.4, they shall jointly enter into a contract with the selected Project Mediator, which contract shall be in a form drafted by the Coordinator and agreed to by the parties.
  11. Upon execution of the contract with the Project Mediator referred to in paragraph 10) of GC8.10.4 the Coordinator shall provide the Project Mediator with copies of the documents referred to in paragraph 3) of GC8.10.4.

GC8.10.5 Confidentiality

  1. Subject to paragraph 2) of GC8.10.5, and unless otherwise agreed in writing by the parties, the Project Mediator, the parties and their counsel or representatives shall keep confidential all matters and documents disclosed during mediation proceedings except where the disclosure is necessary for any implementation of any agreement reached or is required by law.
  2. Evidence that is independently admissible or discoverable in any arbitral or judicial proceeding shall not be rendered inadmissible or non-discoverable by virtue of its use in mediation proceedings.
  3. Neither party shall make transcripts, minutes or other records of a mediation conference.
  4. The personal notes and written opinions of the Project Mediator made in relation to mediation are in the Project Mediator's sole possession and control, are confidential, and may not be used in any subsequent proceeding between the parties or where they are opposed in interest without the express written permission of the parties.
  5. All information exchanged during mediation procedures, by whatever means, shall be without prejudice and shall be treated as confidential by the parties and their representatives, unless otherwise required by law.

GC8.10.6 Time and Place of Mediation

  1. The Project Mediator, in consultation with the parties shall set the date, time and place of any mediation conference as soon as possible, bearing in mind that, subject to agreement to the contrary between the parties, only 10 working days are available within which to attempt to settle the dispute.

GC8.10.7 Representation

  1. Representatives of the parties may be accompanied at the mediation conference by legal counsel or any other person.
  2. If the Project Mediator is a lawyer, the Project Mediator shall not provide legal advice to a party during the course of the mediation conference, but may recommend that a party obtain independent legal advice before finalizing a settlement agreement.

GC8.10.8 Procedure

  1. The parties agree to an exchange of all facts, information and documents upon which they intend to rely in any oral or written presentation during the mediation. This exchange shall be completed no later than 2 working days prior to the date set for a mediation conference.
  2. The Project Mediator shall be free to meet with the parties individually during a mediation conference if the Project Mediator is of the opinion that this may improve the chances of a mediated settlement, and either party may request such an individual meeting at any time.
  3. The parties may agree to extend the 10 working days available for settlement of the dispute through mediation, and the Project Mediator shall record that agreement in writing.

GC8.10.9 Settlement Agreement

  1. The parties shall record in writing any settlement agreement reached, with sufficient detail to ensure a clear understanding of
    1. the issues resolved;
    2. any obligations assumed by each party including criteria to determine if and when these obligations have been met; and
    3. the consequences of failure to comply with the agreement reached.
  2. The parties agree to carry out the terms of a settlement agreement as soon as possible and, in any event, within any time periods specified in the agreement.

GC8.10.10 Termination of Mediation

  1. Either party may withdraw from mediation at any time without reason and, in that event, the Project Mediator shall give each party a written notice terminating the mediation and establishing the effective date of termination.
  2. If, in the opinion of the Project Mediator, either party fails to mediate in good faith or fails to comply with the terms of these Rules, or if the Project Mediator, at any time during mediation, is of the opinion that further negotiations will fail to resolve the issues outstanding, the Project Mediator may terminate the negotiations by providing the parties with a written notice of termination, stating therein the Project Mediator's reasons for the termination, and the effective date of termination.
  3. If a dispute has not been resolved within 10 working days or such other longer period as may have been agreed to by the parties, the Project Mediator shall terminate the mediation by giving written notice to the parties stating the effective date of termination.

GC8.10.11 Costs

  1. The parties agree that they will each be responsible for the costs of their own representatives and advisors and associated travel and living expenses. Fees and expenses of the Project Mediator and all administrative costs of mediation, such as the cost of the meeting room(s), if any, shall be borne equally by the parties.

GC8.10.12 Subsequent Proceedings

  1. The parties shall not rely on or introduce as evidence in any arbitral or judicial proceeding, whether or not such proceeding relates to the subject matter of mediation,
    1. any documents of other parties that are not otherwise producible in those proceedings;
    2. any views expressed or suggestions made by any party in respect of a possible settlement of issues;
    3. any admission made by any party in the course of mediation unless otherwise stipulated by the admitting party; and
    4. the fact that any party has indicated a willingness to make or accept a proposal or recommendation for settlement.
  2. The Project Mediator shall neither represent nor testify on behalf of either of the parties in any subsequent investigation, action or proceeding relating to the issues in mediation proceedings.
  3. The Project Mediator shall not be subpoenaed to give evidence relating to
    1. the Project Mediator's role in mediation; or
    2. the matters or issues in mediation;

    in any subsequent investigation, action or proceeding and the parties agree to vigorously oppose any effort to have the Mediator so subpoenaed.

GC8.11 (2008-05-12) Rules for Arbitration of Disputes

GC8.11.1 Interpretation

  1. In these Rules

    "claimant" means the Contractor;

    "Coordinator" means the person designated by Canada to act as the Dispute Resolution Coordinator"

    "respondent" means Canada.

GC8.11.2 Arbitration Tribunal

  1. Subject to these Rules, and unless otherwise agreed by the parties, the arbitration tribunal shall consist of a single arbitrator ("the Tribunal") who shall be appointed in accordance with the provisions of the Rules.

GC8.11.3 Application

  1. By mutual agreement, the parties may change or make additions to the Rules.
  2. The scope of the arbitral proceedings shall be limited to the resolution of the dispute submitted to arbitration.
  3. The dispute shall be subject to resolution pursuant to the provisions of these Rules whether or not such resolution requires determination of a question of law if such question of law is an arbitral question of law as defined in the terms and conditions of the Contract.
  4. Arbitral proceedings shall be governed by and in accordance with the Commercial Arbitration Act, R.S. 1985, c. 17 (2nd Supp.), the Code referred to therein, and the provisions of these Rules, and, subject only to the provisions of the Commercial Arbitration Act, the parties agree that the determination and award of the Tribunal shall be final and binding on both parties.
  5. The Tribunal shall not decide the dispute ex aequo et bono or as amiable compositeur.
  6. The Tribunal shall decide in accordance with the terms and conditions of the Contract and shall take into account the usage of the trade applicable to the transaction.
  7. The costs of the Tribunal and the arbitration shall be shared equally by the parties and each party shall bear its own costs.

GC8.11.4 Initiation of Proceedings

  1. Either party may submit a dispute to binding arbitration pursuant to GC8.6, "Binding Arbitration", by giving notice in writing to the other party in accordance with GC2.3, "Notices".
  2. The notice referred to in paragraph 1) of GC8.11.4 shall contain the following:
    1. a brief description of the Contract;
    2. a statement of the issue(s) in dispute;
    3. a request that the dispute be referred to binding arbitration; and
  3. A copy of the notice referred to in paragraph 1) of GC8.11.4 shall be given to the Coordinator at the same time it is given to the other party.
  4. Unless otherwise agreed, the arbitration of the dispute shall be held in abeyance and consolidated with all other such disputes into a single arbitration in accordance with paragraph 4) of GC8.6, "Binding Arbitration".

GC8.11.5 Appointment of Tribunal

  1. No later than 10 working days following the date of commencement of arbitration proceedings as set out in paragraph 6) of GC8.6, "Binding Arbitration", the Coordinator shall assemble and provide the parties with a list of qualified private sector arbitrators obtained from an independent and impartial entity, together with instructions to each party to individually and confidentially select and rank their preferred and fully acceptable choices of arbitrator in descending order.
  2. Within 10 working days of receipt of the list referred to in paragraph 1) of GC8.11.5, each party shall comply with the instructions accompanying the list(s) and shall deliver the completed listing to the Coordinator.
  3. Within 2 working days following receipt of the completed listings, the Coordinator shall select the highest common ranked arbitrator to act as the Tribunal for the purposes of the arbitration.
  4. In the event of a tie, the Coordinator shall consult both parties to re-evaluate their rankings in order to assist the Coordinator in selecting a single arbitrator acceptable to both parties. If the parties cannot agree upon an arbitrator, the Coordinator shall forthwith provide the parties with a second list of arbitrators and the procedure shall be repeated.
  5. In the event that, following the repeated procedure, the Coordinator again fails to select a single arbitrator acceptable to both parties, the Tribunal shall consist of three (3) arbitrators, one arbitrator appointed by each of the parties and the third arbitrator appointed by these two (2) arbitrators.
  6. The Tribunal shall in any event be composed of a person or persons who have experience in the subject matter of the dispute and are independent of either party. Without limiting the generality of the foregoing, the Tribunal shall be at arm's length from both parties and shall not be composed of members of any company, firm, or agency which advises either party, nor shall the Tribunal be composed of a person or persons who are otherwise regularly retained by such parties.
  7. The parties agree that they shall jointly enter into an agreement with the selected Tribunal, which agreement shall be in a form drafted by the Coordinator and agreed to by the parties.
  8. The parties agree that they shall each bear their own costs. Fees and reasonable expenses of the Tribunal and reasonable expenses associated with the conduct of the arbitration shall be borne equally by the parties.

GC8.11.6 Preliminary Meeting

  1. Unless the parties to the arbitration and the Tribunal otherwise agree, the parties shall meet with the Tribunal within 10 working days of the Tribunal's appointment to
    1. settle the location of premises for proceedings and responsibilities for the arrangement;
    2. verify addresses for the delivery of written communications to each party and to the Tribunal;
    3. present to the Tribunal the issues to be resolved by means of the arbitration;
    4. estimate the length of time the hearing might take and the number of witnesses likely to be produced;
    5. determine if a stenographic record or any other type of recording of proceedings should be kept, or if any particular services, such as interpreters, translations or security measures should be provided; and
    6. determine any other matters pertinent to conduct of the arbitration.

GC8.11.7 Communications

  1. Subject to paragraph 2) of GC8.11.7, the Tribunal shall not communicate with a party to the dispute except in the presence of the other party.
  2. Notwithstanding paragraph 1) of GC8.11.7, the Tribunal may communicate with the parties separately for the purpose of establishing procedures to be followed or setting the time of a meeting; other exceptions to the general rule shall only be made with the consent in writing of all parties.
  3. If a communication by the Tribunal to one party is in writing, a copy shall be sent to the other party.
  4. If a party sends any written communication to the Tribunal, a copy shall be sent to the other party.
  5. Any communication that is required or permitted to be given to the Tribunal or either party shall be in writing and may be given by delivering the same by facsimile, electronic mail or by mail, postage prepaid, to the address established for the purposes of the Contract in the case of the parties, and to the address provided by the Tribunal in the case of the Tribunal, and such communication shall be deemed to have been received in accordance with the provisions of GC2.3, "Notices".

GC8.11.8 Representation

  1. The parties may be represented or assisted by any person during the arbitral proceedings.

GC8.11.9 Conduct of Proceedings

  1. Subject to the provisions of these Rules, the Tribunal may conduct the arbitration in the manner it considers appropriate. The power conferred upon the Tribunal includes the power to determine the admissibility, relevance, materiality and weight of any evidence.

GC8.11.10 Place of Arbitration

  1. The Tribunal may meet at any place it considers appropriate for hearing witnesses, experts or the parties, or for inspection of documents, goods or other property. The Tribunal shall conduct on-site inspections at the request of either party. Any on-site inspections shall be made in the presence of both parties and their representatives. The proceedings of any on-site inspections shall be recorded as part of the hearing itself.

GC8.11.11 Time Limitations

  1. The Tribunal may extend or abridge a period of time required in these Rules or fixed or determined by the Tribunal where the Tribunal considers it to be reasonable and appropriate.
  2. Where any proceeding is terminated pursuant to paragraph 25(a) or 32 (2)(a) of the Code referred to in the Commercial Arbitration Act, unless the respondent agrees otherwise in writing, such termination is deemed to be a final award dismissing the claim of the claimant.

GC8.11.12 Statement of Claim and Defence

  1. Within 10 working days after the Tribunal has been appointed, the claimant shall state, in writing, the facts supporting its claim, points at issue and relief or remedy sought, and shall submit the statement to the respondent, the Coordinator, and the Tribunal.
  2. Within 10 working days after receipt of the statement of claim, the respondent shall state, in writing, its defence in respect of these particulars and any counterclaim and shall submit its statement to the claimant, the Coordinator and the Tribunal.
  3. Within 5 working days after receipt of the statement of defence, the claimant may state, in writing, its response to the defence and to any counterclaim, and shall submit its statement to the respondent, the Coordinator and the Tribunal.
  4. A party may amend or supplement its statements during the course of arbitral proceedings unless the Tribunal considers it inappropriate to allow such amendment or supplement having regard to all circumstances including delay in making the amendment or supplement.
  5. A statement may not be amended if the amended statement would fall outside the scope of the arbitration agreement.

GC8.11.13 Further Written Statements

  1. The Tribunal may require or permit the presentation of further written statements by the parties and shall fix the periods of time for submitting those statements.

GC8.11.14 Agreed Statement of Facts

  1. Within a time period specified by the Tribunal, the parties shall prepare and file with the Tribunal an agreed statement of facts including but not limited to a chronology of the project, schedules, quantities and progress payments. The Tribunal shall make itself available, upon reasonable notice, to assist the parties to arrive at agreement on as many facts as possible under the circumstances.
  2. Within a time period specified by the Tribunal, the parties shall prepare and file with the Tribunal a common book of documents including all documents referred to in an agreed statement of facts and in statements of claim, defence and response.

GC8.11.15 Evidence

  1. Each party shall prove the facts relied upon to support its claim or defence.
  2. Each party shall deliver to the Tribunal and to the other party, within such period of time that the Tribunal determines, a copy of the documents and a summary of the other evidence that party intends to present in support of the facts in issue set out in its statement of claim, defence or response.
  3. From time to time, the Tribunal may require the parties to produce documents, exhibits and other evidence within such period of time that the Tribunal may determine.

GC8.11.16 Hearings

  1. All statements, documents or other information supplied to, or applications made to, the Tribunal by one party shall be communicated to the other party, and any expert report or evidentiary document on which the Tribunal may rely in making its decision shall be communicated to the parties at least 8 working days prior to its entry in evidence.
  2. The parties shall be given reasonably sufficient advance notice of any hearing of the Tribunal and any meeting of the Tribunal for the purpose of inspection of documents, goods or other property.
  3. If a party intends to give evidence through a witness, the party shall communicate to the Tribunal and to the other party, within such period that the Tribunal determines
    1. the names, addresses and curriculum vitae of each of the witnesses it intends to present; and
    2. the subject upon which those witnesses shall give their testimony.
  4. Each party shall have the right to examine, cross-examine and re-examine all witnesses as appropriate.
  5. All oral hearings and meetings in arbitral proceedings shall be held "in camera".

GC8.11.17 Default

  1. Where, without showing sufficient cause, the claimant fails to communicate its statement of claim in accordance with these Rules or within such further period of time permitted by the Tribunal under these Rules, the Tribunal shall issue an order terminating the arbitral proceedings with respect to that claim.
  2. An order made under paragraph 1) of GC8.11.17 does not affect a counterclaim made in respect of those arbitral proceedings.
  3. Where, without showing sufficient cause, the respondent fails to communicate a statement of defence in accordance with these Rules, or within such further period of time permitted by the Tribunal under these Rules, the Tribunal shall continue the arbitral proceedings without treating that failure in itself as an admission of the claimant's allegations.
  4. Where, without showing sufficient cause, a party fails to appear at an oral hearing or produce documentary evidence, the Tribunal may continue the arbitral proceedings and make the arbitral award on the evidence before it.

GC8.11.18 Arbitral Decision

  1. Unless otherwise agreed to by the parties, the Tribunal shall make the award no later than 30 days after completion of the arbitration hearings unless that time period is extended for an express period by the Tribunal on written notice to each party, due to illness or other cause beyond the Tribunal's control.