Despite the widespread opinion that dispute adjudication is a mandatory pre-arbitral stage under the FIDIC Contracts, anecdotal evidence shows that an alternative interpretation of these contracts has been adopted in some Central and Eastern European countries which allows parties to by-pass this stage of the dispute resolution process. This article aims at informing those engaged in construction in these countries about this alternative interpretation and the risks associated with it.

The FIDIC Contracts for Major Works (“FIDIC Contracts”)1 introduce a multi-tier system for resolution of construction disputes which includes: determination of a claim by the engineer,2 a referral of the dispute to a Dispute Adjudication Board (“DAB”), an attempt to reach an amicable settlement, and, finally, a referral to arbitration. The prevailing view among scholars and practitioners is that the parties should exhaust all of these pre-arbitral phases before submitting their disputes to arbitration, unless they agree otherwise. In other words, a dispute cannot be referred directly to arbitration without having first been submitted to the DAB. The present article aims at drawing the reader’s attention to an alternative interpretation of the FIDIC Contracts which allows parties to arbitrate their disputes without referring them to a DAB. Anecdotal evidence suggests that a similar interpretation has been adopted by contracting parties and arbitral tribunals in some Central and Eastern European states.