International Construction Law Review
DISPUTE ADJUDICATION BOARDS—THE INTERNATIONAL OR THIRD DIMENSION
DR G ÖTZ -SEBASTIAN H ÖK1
Kanzlei Dr Hök, Stieglmeier & Kollegen, Berlin, Germany
Dispute adjudication is a mechanism for resolving claims without formal litigation or arbitration.2 Since Dispute adjudication has become more and more popular throughout the world it seems to be time to discuss the international dimension of this type of dispute resolution practice. This paper’s title suggests that there are two types of Dispute Boards (“DBs”), national and international.3 However, this paper focuses on DBs working in an international context, particularly DBs with connections to foreign elements. In other words I would like to discuss what happens if the DB activities have connections to more than one jurisdiction. A fourth dimension of dispute adjudication should not be ignored, albeit it will not be discussed here, namely, the cultural aspect, including, for example, concepts such as the primacy of social hierarchy and “face”.4
1. Introduction
The operation of DBs in an international context justifies a discussion of the applicable law. If the parties to a contract agree on dispute resolution procedures providing for a DB and possible subsequent arbitration, such as under a FIDIC based contract, the following international elements may be involved:
- The parties to the FIDIC contract come from different jurisdictions (e.g., the Roads Agency of Tanzania awards a contract to a “foreign” (i.e., non-Tanzanian) contractor).
- The project may be situated in a different country to that from which the parties to the FIDIC contract come (e.g., employer and contractor come from the same country whilst the project is situated in another country).
- The FIDIC contract refers to a governing law other than the law of the jurisdiction where the parties come from (e.g., sub-clause 1.4 in
1 I warmly thank my colleague and learned friend Mr Don Charrett for his numerous very helpful comments.
2 Davenport, Construction Claims (2nd ed.), p. 56.
3 This would be in line with the FIDIC Red Book harmonised version, 2010, under which sub-cl. 20.6 distinguishes between international (with foreign contractors) and national arbitration (with national contractors).
4 See Lee, Hwee, An Asian Perspective on Mediation, pp. 71 et seq. and 158 et seq.
Pt 4] DABs—The International or Third Dimension
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