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8
ACE Agreement 8:
Adjudicator
for the appointment of an adjudicator for use in Scotland
2009 Edition, Second Revision (Scotland)
scotland
About ACE
ACE represents the business interests of the consultancy and engineering industry in the UK.
We are the leading business association in this field, counting around 800 firms large and small,
operating across many different disciplines as our members.
There are two key strands to ACEs work. First, through powerful representation and dialogue with
government, major clients, the media and other key stakeholders, we promote the critical contribution
that consultants and engineers make to the nations development infrastructure.
Second, through direct contact, publications, events, our website, our sector and regional networks,
we provide a cohesive approach and direction for our members and the wider industry. ACE listens
to its members, understands the issues affecting them and their clients and takes the lead in representing
their interests to decision makers and opinion formers in government, client organisations and the
media.
ACE Agreements are the industry standard contract documents for consultancy appointments.
To further promote best practice and better ways of working in the industry, ACE also publishes a
range of briefing notes and policy statements for both clients and consultants. Full details can be
found on the ACE website at www.acenet.co.uk.
For further information contact:
Association for Consultancy and Engineering
Alliance House, 12 Caxton Street, London SW1H 0QL
Tel: 020 7222 6557, Fax 020 7990 9202
consult@acenet.co.uk
www.acenet.co.uk
Scottish Legal Advice Line
In association with our preferred provider in Scotland ACE is pleased to provide 15 minutes of free
legal advice to ACE members on a range of issues from standard forms of contract assistance to
alternative dispute resolution in relation to Scottish law. For more information please visit the ACE
legal section of www.acenet.co.uk.
Acknowledgements
ACE would like to thank the construction and engineering team at Brodies LLP and the members of
ACE Scotland for their expertise and assistance in producing the ACE Agreements (Scotland) 2009
editions and for their subsequent work on the 2009 Editions, Second Revision.
First published in November 2009
Revised October 2011 Incorporating the amendments made to the Housing Grants, Construction
and Regeneration Act 1996 as stated in the Local Democracy, Economic Development and Construction
Act 2009.
For details of amendments, corrections and updates, please contact ACE on 020 7222 6557
ACE can accept no liability in respect of any use to which the Agreement may be put.
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or
transmitted, in any form or by any means, electronic, mechanical, photocopying or recording, except
in accordance within the provisions of the Copyright, Designs and Patents Act 1988, without the prior
written permission of the publisher. For the avoidance of doubt the above is not an exhaustive list.
Copyright ACE 2011
Association for Consultancy and Engineering
Alliance House, 12 Caxton Street, London SW1H 0QL
Tel: 020 7222 6557
Fax: 020 7990 9202
Email: consult@acenet.co.uk
Website: www.acenet.co.uk
ACE Agreement 8:
Adjudicator (for use in Scotland)
for the appointment of an adjudicator
8
2009 Edition, Second Revision (Scotland)
of
and
of
(separately called a Party and together called the Parties)
and
of
1 A dispute has arisen between the Parties as set out in the referral notice dated
(the Dispute) which has been referred to adjudication in
accordance with
(the Procedure).
3
2 This Agreement is between the Parties and the Adjudicator and is made on the date set
out in the Memorandum.
3 The Adjudicator has agreed to accept the appointment as adjudicator in respect of the
Dispute.
4 The Parties and Adjudicator have agreed that the Adjudicators appointment shall be on
the terms set out herein.
2 lACE Agreement 8: Adjudicator (Scotland)
Copyright ACE 2011
ACE Agreement 8: Adjudicator (for use in Scotland)
The Memorandum of Agreement
BETWEEN
(the Adjudicator).
3
If the statutory
scheme applies, this
should be stated
here as the relevant
procedure.
1
Insert name and
address of referring
party.
2
Insert name and
address of other
party.
1
2
ACE Agreement 8: Adjudicator (Scotland) l3
Copyright ACE 2011
IN WITNESS WHEREOF this Agreement comprising the Memorandum, the Terms of Contract
and the Schedule is executed for and on behalf of:
They are executed for and on behalf of:
Party (1) on 20
by (print full name)
who is a Director/Company Secretary/Person Authorised/Member/Proper Officer/Partner in
Firm name/Partner/Individual
4
authorised to sign these presents for and on behalf of the Client
(signature)
Before this witness:
Signature of witness:
Full name of witness:
Address of witness:
Occupation:
Party (2) on 20
by (print full name)
who is a Director/Company Secretary/Person Authorised/Member/Proper Officer/Partner in
Firm name/Partner/Individual
4
authorised to sign these presents for and on behalf of the Client
(signature)
Before this witness:
Signature of witness:
Full name of witness:
Address of witness:
Occupation:
4
Delete
descriptions
which do not
apply.
4
Delete
descriptions
which do not
apply.
5 This Agreement comprises the Memorandum, the Terms of Contract and the Schedule, all
of which are held as incorporated in and form part of the Memorandum.
4 lACE Agreement 8: Adjudicator (Scotland)
Copyright ACE 2011
They are executed for and on behalf of:
The Adjudicator at on 20
by (print full name)
(signature)
Before this witness:
Signature of witness:
Full name of witness:
Address of witness:
Occupation:
ACE Agreement 8: Adjudicator (Scotland) l5
Copyright ACE 2011
TheTerms of Contract
1 The Adjudicator shall adjudicate in relation to the Dispute and will conduct the
adjudication in accordance with the Procedure.
2 The Adjudicator shall act impartially and may take the initiative in ascertaining the facts
and the law.
3 Unless the Procedure otherwise provides, the Adjudicator may open up, revise and review
any decision taken or any certificate given by any person referred to in the relevant
contract unless the contract states that the decision or certificate is final and conclusive.
4 The Adjudicator may act in any other disputes where the Parties or the solicitors to the
Parties are involved unless there is a direct conflict of interest.
5 If the Adjudicator intends to appoint a third party as expert, assessor or legal adviser and
is entitled to do so under the Procedure the Adjudicator shall give prior notice to the
Parties of such intention.
6 The Adjudicator shall notify the Parties as soon as he becomes aware of any conflict of
interest or any potential conflict of interest or of any other matter that means he is unable
to adjudicate in respect of the Dispute and on receipt of such notice the appointment of
the Adjudicator shall be terminated.
7 Unless the Procedure otherwise provides, the Adjudicator shall resign where the Dispute
is the same or substantially the same as one that has previously been referred to
adjudication and a decision has been made in that adjudication or where a dispute varies
significantly from the Dispute referred to him in the referral notice.
8 The Parties may, if they so agree, terminate the appointment of the Adjudicator at any
time.
9 The Parties shall comply with any request or direction of the Adjudicator in relation to the
adjudication and shall co-operate with the Adjudicator.
10 10.1 Unless the Procedure otherwise provides, the Adjudicator shall provide reasons for
his decision.
10.2 The Adjudicator may on his own initiative or on the application of a Party correct his
decision so as to remove a clerical or typographical error arising by accident or
omission.
10.3 Any such correction must be made within five days of the delivery of the decision to
the Parties.
10.4 As soon as possible after correcting his decision in accordance with this clause, the
Adjudicator shall deliver a copy of the corrected decision to each of the Parties.
10.5 Any such correction forms part of the decision.
These are the Terms of Contract referred to in the foregoing Memorandum
6 lACE Agreement 8: Adjudicator (Scotland)
Copyright ACE 2011
11 The Adjudicators fee and expenses shall be as set out in the Schedule hereto. If the
Adjudicator is entitled under the Procedure to appoint any third party as described in
clause 5 the reasonable fee of such third party shall be added to and paid with the fee of
the Adjudicator. The Adjudicator shall be entitled to submit an invoice for his fee once he
has reached his decision or upon earlier termination of the appointment under clause 6 or
clause 8 or upon the resignation of the Adjudicator under clause 7. In the event of such
earlier termination or resignation the Adjudicator shall be entitled to the payment of such
reasonable amount as the Adjudicator may determine by way of fee and expenses
reasonably incurred by him, save where the termination is due to the default or
misconduct of the Adjudicator.
12 The Parties shall comply with any direction that the Adjudicator is entitled to make in his
decision under the Procedure concerning the payment of his fee or in the absence of any
such direction the Parties shall be jointly and severally liable for the payment of such fee
and expenses and in the event that one Party only pays such fee and expenses that Party
may recover the other Partys share thereof from the other Party as a debt.
13 Payment of the Adjudicators fee and expenses shall be made by the Parties within
fourteen days of the submission of an invoice by the Adjudicator and interest shall be
added to all amounts remaining unpaid thereafter and such interest shall be calculated in
accordance with the Late Payment of Commercial Debts (Interest) Act 1998 and at the
relevant reference rate plus the statutory rate of interest.
14 Neither the Adjudicator nor the Parties shall disclose to any other person any information or
documents provided to the Adjudicator in connection with the adjudication except to the
extent that it is necessary for the purposes of or in connection with the adjudication or as
required or permitted by law.
15 Neither Party may call the Adjudicator as a witness to give evidence or provide notes in
any proceedings in which either Party seeks to challenge or review the decision of the
Adjudicator.
16 The Adjudicator may destroy all documents received during the course of the
adjudication six months after delivery of his decision or earlier termination of his
appointment provided he gives the Parties fourteen days notice of his intention to do so
and neither of the Parties makes any objection thereto. If either of the Parties so objects
the Adjudicator shall return the documents to the Party that submitted them.
17 The Adjudicator shall not be liable for anything done or omitted in the discharge or
purported discharge of his function as adjudicator unless the act or omission is in bad
faith and any employee or agent of the Adjudicator shall be similarly protected from
liability.
18 This Agreement shall be subject to the law of Scotland and the jurisdiction of the Scottish
courts.
ACE Agreement 8: Adjudicator (Scotland) l7
Copyright ACE 2011
1 The Adjudicators fee shall be on the following basis:
2 Travelling time spent by the Adjudicator in connection with the adjudication shall be
charged on the following basis:
3 The following expenses incurred by the Adjudicator shall be payable in addition to the fee:
4 The Adjudicators expenses shall be payable against valid receipts.
5 The Adjudicator is/is not
1
registered for VAT. Where the Adjudicator is so registered, VAT
shall be paid in addition and at the rate and in the manner prescribed by law.
The Schedule
1
Delete as
applicable.
This is the Schedule referred to in the foregoing Memorandum
8 lACE Agreement 8: Adjudicator (Scotland)
Copyright ACE 2011
scotland
Association for Consultancy and Engineering
Alliance House, 12 Caxton Street, London SW1H 0QL
Tel: 020 7222 6557
Fax: 020 7990 9202
Email: consult@acenet.co.uk
Website: www.acenet.co.uk
ISBN: 978-1-907660-63-4
scotland