International Construction Law Review
ENFORCING A DISPUTE BOARD’S DECISION: ISSUES AND CONSIDERATIONS*
NICHOLAS GOULD
Partner, Fenwick Elliott LLP Past President, Dispute Resolution Board Foundation, Region 2 Visiting Senior Lecturer, King’s College London
INTRODUCTION
There has, for many years, been some considerable international interest in Dispute Review Boards (“DRBs”) and Dispute Adjudication Boards (“DABs”), collectively referred to as Dispute Boards (“DBs”). The North American concept of a panel of three experts assisting with the smooth running of substantial projects and then making recommendations to resolve issues, disagreements and disputes that arise along the way was shown to have some success when initially introduced.
The concept spread and developed internationally, initially gaining support as an option to the FIDIC Orange Book in 1994 and as an option to the Red Book in 1996, then as a mandatory requirement throughout the 1998 Test Edition of the FIDIC suite of contracts. Jaynes notes that FIDIC retrenched without much explanation from the position of a mandatory DAB in the Red Book to it being merely optional in the Yellow and Silver books.1 However, by this stage the non-binding recommendation had changed into a binding decision, thus transforming the recommendation process, which was often honoured because of the parties’ respect for the board members, into a binding dispute resolution procedure.2
In 1999 FIDIC settled the terms of its DAB procedure, and introduced the concept of a Dispute Review Expert (“DRE”), which is basically a single-person DB. The FIDIC DAB procedure became a permanent fixture, and was included in all of its revised contracts. The World Bank then introduced a new edition of its Procurement of Works Procedure making the “recommendation” of the DRB or DRE mandatory, unless or until that recommendation was superseded by an arbitrator’s award. In 2004 the World
* This paper is based on an earlier version presented at the King’s College London annual conference, “Introduction to International Adjudication”, 29–30 June 2011, London, and a more general DAB enforcement paper presented at the Dispute Review Board Foundation (DRBF) Annual International Conference and FIDIC Workshop, 12–16 May 2010, Istanbul, Turkey.
1 See C Seppälä, “The New FIDIC Provision for a Dispute Adjudication Board” [1997] ICLR 443 and Gordon Jaynes, “FIDIC’s 1999 Editions of Conditions of Contract for ‘Plant and Design-Build’ and ‘EPC Turnkey Contract’: Is the ‘DAB’ Still a Star?” [2000] ICLR 42.
2 Jaynes notes and records the development and expansion in the use of DAB internationally in 2002, see Gordon Jaynes, “ ‘A Dispatch from the Front’: Dispute Boards at 2002” [2002] ICLR 135.
Pt 4] Enforcing a Dispute Board’s Decision
443