You are never in a good position when you have to appeal. It is best to resolve the dispute amicably, for example by mediation or voluntary inspection. A lawyer can advise you on the best way to make a complaint.
The parties to a works agreement may by agreement request the Arbitration Board to appoint an independent assessor to give an opinion on technical, financial, administrative, or legal issues arising between the parties. The parties shall submit with the request a brief statement of the issues to be adjudicated. The procedure will end with a meeting at which the assessor will give an oral opinion. Depending on the circumstances, the statement may be that the questions could not be answered or must be referred for judicial decision. On the recommendation of the adjudicator, the Arbitration Board shall determine the apportionment of costs between the parties. However, the parties shall be jointly and severally liable for the costs.
Appraisals are used in disputes where the work carried out does not correspond to the expectations and the agreement concluded. In the case of disputes concerning building damage, defects in workmanship, defects in tenders for works, financial disputes concerning building works, one can:
- Request voluntary inspection and assessment where the parties agree on the assessor.
- Request an expert opinion where the expert is appointed by the court on the recommendation of one or more of the parties to the case.
- Request an inspection and assessment of the construction to clarify whether there are grounds for a case.
In the case of a voluntary survey, the parties conclude a written agreement to accept the surveyor’s opinion.
The craftsman, the supplier, or the client may submit a request to the Arbitration Board for Construction. The independent assessor makes a technical assessment of the conditions on-site. This, together with other documentation, forms the basis for the assessor’s indicative assessment of the case. The purpose of the assessment is to provide the parties with the appropriate basis for resolving the dispute through a voluntary settlement. If they still cannot agree, the statement of estimates may be used as evidence in court proceedings before the Arbitration Court for Construction. The decision of the arbitration court is final and cannot be appealed.
It is also possible to hold an assessment without going to court. This is called the isolated taking of evidence and takes place in court following the same procedure. The party requesting the inspection pays the costs. The expert statement can then be used as evidence in any subsequent court proceedings. If the case goes to court later and a verdict is reached in favor of the plaintiff, these costs are compensated to a certain extent.
Request for expert decision
This procedure is used, for example, in the case of disagreements between the parties concerning financial security or about withheld payments to the workman. The Arbitration Board appoints an expert to assess the circumstances. The award is not binding, but will usually mean that the parties can settle. One possibility in this procedure is for the parties to make a written agreement to respect the award. This avoids costly arbitration. The Arbitration Board decides who should pay the final costs.
Mediation can be used if the parties to an agreement have agreed to mediation under the Arbitration Board’s rules and agree to it. The Arbitration Board will appoint a mediator who is suitable for the task. The parties sign a so-called mediation agreement and provide the necessary documentation, after which the mediator makes a settlement proposal, if possible. The mediation process may be terminated by the parties settling or, in the worst case, by the mediator informing the parties that further mediation has no intention or would be unjustified. If the mediation results in a solution to the dispute, an agreement is signed. The costs are shared equally between the parties.