The role and function of the dispute adjudication board (dab) in the fidic forms of contracts

Dr. sc. Ana Pepeljugoska Kostovska

Abstract


Dispute Adjudication Boards (DABs) can be categorized as form of alternative dispute resolution methods, or more specifically they can fall under the generic category of adjudication. They originate from the USA, presented for the large civil engineering projects in 1960s. At a later stage they were introduced as mandatory under the International Organization of Consulting Engineers (FIDIC) 1999 edition. Currently, the FIDIC forms of contracts provide for standing and ad hoc DABs, slowly shifting to standing by default, comprised of one or three members. The DAB member(s) have broad authorities, including the inquisitorial powers, the possibility to inspect and make insight of the construction site. The procedure in front of the DAB has many similarities with the arbitration procedure, especially in the preparation and filing of the written submissions. The same can be said for conducting the hearings, the order of presenting the arguments at the hearings, the proposal and questioning of witnesses. However, the DABs timeline is denser, and the DAB is free to determine its procedural rules and the parties are free to agree on certain procedural aspects. The benefit of the DABs can be described as a means of resolving disputes by avoiding cost, time and inflexibility. The main dilemma which will be addressed in this Article is whether the DABs are suitable for solving more complex construction disputes. In that respect the DAB in more complex disputes is a “preface” of the arbitration to come, or as the new 2017 FIDIC edition states “condition precedent to arbitration”

Keywords


alternative dispute resolution, arbitration, dispute adjudication agreement, dispute adjudication board, multi-tier clauses

References


Axel-Volkmar Jaeger, Gotz-Sebastian Hok (2010), FIDIC A Guide for Practitioners, Springer.

Baker Ellis, Mellors Ben, Chalmers Scott, Lavers Anthony (2009), FIDIC Contracts: Law and Practice, Informa, White and Case, London and New York.

Cakmak Emre, Cakmak Pinar (2014), “An analysis of what causes disputes in the construction industry using analytical network process”, Procedia – Social and Behavioural Sciences 109.

Chern Cyril (2015), Chern on Dispute Boards, Informa.

Christopher R. Seppala, (2000) ‘‘FIDIC’s New Standard Forms of Contract—Force Majeure, Claims, Disputes and other Clauses’’, 17(2) ICLR 235.

Deskoski Toni (29.03.2019), “Multi-tier dispute resolution clauses in 2017 FIDIC contracts”, International Conference from Arbitration Legislation Reform to Enhancing the Business Climate, Skopje.

Fastrack Contractors Ltd v. Morrison Construction Ltd, 2000, BLR 168, Retrieved from

http://www.adjudication.co.uk/archive/view/case/76/fastrack_contractors_ltd_v_morrison_construction_ltd_[2000]_blr_168/#:~:text=Fastrack%20Contractors%20Ltd%20v%20Morrison%20Construction%20Ltd%20%5B2000%5D%20BLR%20168,-This%20summary%20was&text=An%20adjudicator%20can%20enquire%20into,when%20the%20reference%20was%20made on 15/09/2020.

Federal Supreme Court of Switzerland Decision 4A_628/2015, Retrieved from https://www.ch.ch/en/demokratie/federalism/separation-of-powers/switzerlands-courts/ on 15/09/2020.

Federal Supreme Court of Switzerland Decision 4A_124/2014 Retrieved from https://www.ch.ch/en/demokratie/federalism/separation-of-powers/switzerlands-courts/ on 15/09/2020.

FIDIC (1999), Conditions of contract for construction, For building and engineering works designed by the employer, General Conditions, Guidance for the preparation of particular conditions, Forms of letter of tender, Contract agreement and Dispute adjudication agreement.

International Court of Arbitration Bulletin 74, Retrieved from

http://cisgw3.law.pace.edu/cases/978716i1.html on 20/07/2020.

Klee Lukas, Novy Daniel (2014), “Construction Dispute Boards” in Belohlavek Alexander, Rozehnalova Nadezda, Cerny Filip (eds.) Czech (&Central European) Yearbook of Arbitration Volume IV Independence and Impartiality of Arbitrators, (pp. 171-185), Juris.

Pepeljugoska Ana (29.03.2019), “The Role of the Dispute Adjudication Board (DAB) in Solving Diputes under the FIDIC Red Book”, International Conference from Arbitration Legislation Reform to Enhancing the Business Climate, Skopje.

Robinson D. Michael (2011), A Contractor’s Guide to the FIDIC Conditions of Contract, Wiley.

Stipanowich J. Thomas (2014), Managing Construction Conflict: Unfinished Revolution, Continuing Evolution, Pepperdine University School of Law, Legal Studies, Research Paper 2014/22.

The United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention, 1958).

Totterdill W. Bryan (2006), FIDIC users' guide A practical guide to the 1999 Red and Yellow Books, Thomas Telford Limited.

http://arbitrationblog.kluwerarbitration.com/2017/03/22/fidic-multi-tier-dispute-resolution-clauses-in-the-light-of-bulgarian-law/ (Accessed on 15/09/2020).

http://arbitrationblog.kluwerarbitration.com/2017/09/26/fidic-construction-contracts-arbitration-role-dispute-adjudication-boards-importance-governing-law/ (Accessed on 15/09/2020).

http://arbitrationblog.kluwerarbitration.com/2015/04/20/appointing-the-dispute-board-why-it-differs-from-arbitration-appointments/ (Accessed on 15/09/2020).

http://arbitrationblog.kluwerarbitration.com/2010/04/22/dispute-resolution-in-abu-dhabi-part-3-a-lot-now-rides-on-success-of-the-dab-system/?doing_wp_cron=1587314352.1322059631347656250000 (Accessed on 15/09/2020).

https://fidic.org/books/icc-dispute-resolution-bulletin-2015-issue-1-2014-statistics-dispute-adjudication-boards-under (Accessed on 15/09/2020).

http://ieslslen.blogspot.com/2013/07/advantages-and-disadvantages-of-dispute.html (Accessed on 15/09/2020).

https://rlw.juridice.ro/13617/the-force-of-a-dab-decision-in-arbitration-recent-jurisprudence-under-the-romanian-law.html (Accessed on 15/09/2020).


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DOI: 10.21113/iir.v10i2.588

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Copyright (c) 2021 Dr. sc. Ana Pepeljugoska Kostovska

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