Reference a Dispute in an Effective Way to the Dispute Board Under FIDIC Contracts

“Delayed decisions escalate uncertainty and impact the performance of the Construction Projects.”

Dispute Board is one of the significant parts of a Construction Contract and needs to be well understood before entering into such a contract.

1   Understanding the Applicable Procedure

regarding the Dispute Board Mechanism 

The procedural rules for DAB/DAAB are attached as Annex to the form of Dispute Adjudication Agreement in both 1999 and 2017 FIDIC Editions.Below mentioned FIDIC Sub-Clauses will be applied while managing the DAB/DAAB process.

1.1  1999 FIDIC Editions

20.2 [Appointment of the DAB]

20.3  [Failure to Agree DAB]

20.4  [Obtaining DAB’s Decision]

20.5  [Amicable Statement]

20.7  [Failure to Comply with DAB’s Decision]

20.8  [Expiry of DAB’s Appointment]

1.2  2017 FIDIC Editions

21.1    [Constitution of DAAB]

21.2    [Failure to Appoint DAAB Member(s)]

21.4    [Obtaining DAAB’s Decision]

21.5    [Amicable Statement]

21.7 [Failure to Comply with DAAB’s Decision]

21.8    [No DAAB in Place]

2   Identifying the Characteristics of the Dispute

For the next step – Preparation of the “Statement of Case” – understanding the structure of the dispute is vital. Below mentioned details are important for identifying the characteristics of the dispute.

The Nature and Scope of the Dispute

The Type of the Contract

The Contract/Project Size

Sources of Dispute (Management, Design, Construction, Operation)

Complexity of the Dispute

The Arguments, Evidence and Expert Advice

The Relief Sought

3   Preparing the “Statement of Case” 

3.1  Clearly Defining the Case

Identifying and addressing the issues clearly [1];

A clear and concise description of the nature and circumstances of the Dispute.

A statement of the relief sought, together with the amounts of any quantified claims and, to the extent possible, an estimate of the monetary value of any other claims.

Any request for interim or conservatory measures.

3.2  Adding the Supporting Documents

The features of the Supporting Documents are mentioned [2] below;

A list of the issues submitted to the DB for a Conclusion and a statement of the referring Party’s position thereon, including any relevant facts and law.

Relevant support for the referring Party’s position such as documents, drawings, schedules and correspondence.

4   Hearing Stage 

If the hearing process is necessary;

Comprehensive presentation which focuses only on the dispute.

A Representative with ability to respond promptly to issues.

Avoiding Duplicating the Arguments.

Not using an Aggressive Language.

FOOTNOTES

1. The same Sub-Paragraph letters are used as in Article 19: Statement of Case of the ICC Dispute Board Rules.

2. The same Sub-Paragraph letters are used as in Article 19: Statement of Case of the ICC Dispute Board Rules.

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