Partner, White & Case Legal Advisor, FIDIC Contracts Committee

As readers of this Review know, international construction contracts typically provide for a multi-tiered dispute resolution process in which contested claims, i.e. disputes, are often referred to a dispute board prior to arbitration. Such is the procedure adopted in FIDIC’s principal conditions of contract, which are recognised as a standard and are widely used in the international construction industry. This article discusses the many issues relating to Dispute Adjudication Boards (generally known as DABs) that have been raised in several recent ICC arbitrations initiated pursuant to international construction contracts predominately based on FIDIC conditions. These issues concern (1) the claims procedure and the dispute resolution clause, including the requirement to submit claims to the Engineer, the time-bar under sub-clause 20.1 of the FIDIC Conditions, the statute of limitations relating to claims, and the law applicable to the dispute resolution clause; (2) the DAB procedure, including whether it is always mandatory and a prerequisite to arbitration, whether the DAB has been validly constituted, and the consequences of not referring a dispute to the DAB; and (3) post-DAB issues such as the validity, timeliness and impact of a notice of dissatisfaction and the enforceability of a DAB decision by an arbitral award.

The decision by the ICC to publish extracts from recent ICC awards2 relating principally to Dispute Adjudication Boards (DAB(s)) under FIDIC contracts is an event of considerable importance, for two main reasons. First, DABs have become the preferred method for resolving international construction disputes under such contracts (rather than having them