Chern on Dispute Boards
The Hearing Process
After the dispute board has received a claim and gathered all the necessary evidence, it is then in a position to set the hearing and continue its investigation of the facts. The rules under which most dispute boards operate will require that the dispute board reaches a decision within a certain number of days after the claim is received by the chair of the dispute board. Under FIDIC this is 84 days. It can also be any time period agreed by the parties and the dispute board. Under the new FIDIC 2017 edition(s) this can also be the 84 days or such period as may be proposed by the DAAB and agreed by both Parties. However, under the new edition, if at the end of this period, the due date(s) for payment of any DAAB member’s invoice(s) has passed but such invoice(s) remains unpaid, the DAAB shall not be obliged to give its decision until such outstanding invoice(s) have been paid in full, in which case the DAAB shall give its decision as soon as practicable after payment has been received. In some instances it is less and under some fast-track programmes it can be within 30-45 days. The days are also calendar days and not working days. No matter what the time requirement, it is advisable that the dispute board members take steps to prevent their letting the ‘clock run out’ and go over the limited number of days. One way to prevent this is to provide, in the contract, that the ‘clock’ does not start to run until the dispute board has received the last submission from the parties. The other way is to have the parties agree a longer number of days—120 being a good number.
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