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DIS EDR

DIS EDR  
DIS Rules on Expert Determination (2010)

20.1 Upon a party’s request, the arbitration experts may issue preliminary rulings in the following cases:
(1) Continuation of works necessary for an orderly performance of the contract;
(2) Performance of services necessary for an orderly performance of the contract and over which the parties are in dispute with respect to additional payment obligations;
(3) Performance of acceleration measures in order to avoid or reduce delays;
(4) Partial payments for services rendered;
(5) Prohibition of the liquidation of securities (bonds, guarantees, bails etc.);
(6) In other cases where the effects on the performance of the contract is tantamount to the abovementioned cases.
Such preliminary rulings must be related to the subject-matter of the expert determination proceedings.
20.2 Before issuing a preliminary ruling, the parties shall normally be granted the opportunity to present their case within a time-limit fixed by the arbitration experts. In the exceptional case where a preliminary ruling is issued without granting the parties the opportunity to present their case, the parties shall be granted this opportunity without undue delay after the issuing of the preliminary ruling. Apart from that, the arbitration experts organize the proceedings at their discretion.
20.3 The parties shall comply with the preliminary rulings until the final decision of the arbitration experts is rendered.
20.4 The arbitration experts may impose conditions on a preliminary ruling; in particular, they may issue an order for payment dependent upon the provision of security by the advantaged party or fix a provisional remuneration for services to be performed.
20.5 The arbitration experts shall decide on a request for the issuing of a preliminary ruling by way of order. Section 17 subsection 7 applies mutatis mutandis.
20.6 The non-observance of a preliminary ruling constitutes an intentional and severe breach of contract. The consequences of the breach are determined by the provisions of the Main Contract. Such breach of contract exists irrespective of whether a(n) (arbitration) court declares the preliminary decision of the arbitration experts to be justified or unjustified. In the event that the non-observance of a preliminary ruling leads to a delay of the project, the contractual party obligated to perform shall be in default even if the (arbitration) court later confirms a right to refuse performance.
20.7 No intentional and severe breach of contract shall be assumed only in those cases where the proceedings regarding the request for a preliminary ruling suffer from a defect which, in corresponding arbitration proceedings, would lead to the setting-aside of an award (section 1059 subsection 2 no. 2 German Code of Civil Procedure).
20.8 An intentional and severe breach of contract pursuant to subsection 6 does not, as such, justify a termination of the Main Contract for good cause. Further grounds for termination remain unaffected.
20.9 Preliminary rulings lose their effect upon the rendering of the final decision by the arbitration experts. To the extent that a regulation is still necessary, the arbitration experts shall make the necessary determinations in their final decision.
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