UK: Using Dispute Boards Under ICC´s Rules - What Is A Dispute Board And Why Use One?

Last Updated: 19 May 2005

By Dr. Robert Gaitskell, Q.C.

Originally given as a lecture at the ICC Dispute Review Board Rules Launch Seminar, Thursday 14 October 2004, London

1. INTRODUCTION

1.1 The UK launch of the ICC Dispute Board Rules is a most welcome, important and timely event. It is welcome because the ICC’s Dispute Board Documents embody a statement of based practice for the conduct of Dispute Boards. They are a distillation of the various sets of rules for Dispute Boards which have proliferated in recent years. Further, the launch is important because Dispute Boards have become a significant feature in the array of tools that the construction fraternity now uses to resolve its disputes. Finally, the launch is timely because now is the moment for an internationally recognised and trusted body, such as the ICC, to make readily available a straightforward set of documents that will enable a much wider take-up of the Dispute Board (DB) procedure.

1.2 Contrasting DB and other Procedures

The Dispute Board procedure has certain characteristics which differentiate it from other dispute resolution processes. These are:

  1. The conclusion produced by a Dispute Board will ordinarily be only temporarily binding. Essentially, if one or both parties wish to challenge a Board’s determination, the dispute must be taken to arbitration or court litigation, depending on the contract terms A Board’s determination is not enforceable in the way that an arbitration decision is.
  2. A Dispute Board should be appointed at the commencement of a project and stay in place until its conclusion. By contrast, other procedures, such as arbitration or mediation, are simply invoked once the dispute in question has arisen.
  3. The Board should meet on site about three times a year.
  4. The function of a Board should be to "nip in the bud" problems before they crystallise into disputes and, if a dispute does arise, to deal with it by producing either a "Recommendation" (in the case of a Dispute Review Board – see below) or a "Decision" (in the case of a Dispute Adjudication Board – see below).

There is, of course, a variety of Board "types", but generally, they will exhibit most, if not all, of the above characteristics.

1.3 Why DBs Succeed

Experience shows that Dispute Boards are successful, that is, they deal with and finally dispose of virtually all the disputes that come before them. Broadly, it seems that something in the order of 97% of disputes referred to a DB will not go beyond that procedure into arbitration or litigation. Why are DB’s so successful? The following reasons are often put forward:

  1. Because the Board meets on site at regular intervals, and hears the complaints of all parties concerned at an early stage. "Gripes" are dealt with at the outset and never develop into disputes.
  2. The DB gives all parties concerned an opportunity to "have their say" and the catharsis of "getting it off your chest" is the extent of what most parties want. Hence, it is unnecessary to go before a formal Tribunal.
  3. An unexpected dynamic develops so that the parties, who work with each other on site every day, see the DB as a group of intruders, against whom the site personnel must "gang up" in order to repel them. Accordingly, when the DB arrives on site for its regular visit, the parties will put on a common front, and hastily compromise whatever incipient disputes there may be, so that they do not have the DB "interfering" in the site’s "private business". This has been put forward as the explanation for why the DB procedure does not act as a "fly-paper" which attracts disputes, and instead only minimises disputes.
  4. Most members are not lawyers! Generally, the "mix" on the Board will be two engineers, and one lawyer. The parties will often see this as a more "user-friendly" entity than the forbidding sight of three lawyers.

2. BACKGROUND TO THE DRB PROCEDURE

2.1 The emergence of the ICC’s Dispute Board (DB) Documents may be viewed as the result of the intersection of three important recent developments. These are:

  1. A concern in the USA construction industry in the 1960s and 1970s about the escalating cost of arbitration and litigation;
  2. A concern in the UK and international civil engineering industries about the role of the Engineer as a dispute decision-maker under the contract; and
  3. The emergence within the UK construction Industry of the concept of adjudication and the production of a temporarily-binding decision, to facilitate the prompt payment of sub-contractors.

Each of these three developments will be described briefly below.

2.2 U.S. Concern about costs

2.2.1 It seems one of the earliest usages of the Dispute Board Procedure was on the Boundary Dam in Washington in the 1960s. The procedure was also used in 1975 on the Eisenhower Tunnel, and the popularity of the procedure grew steadily from that point. By 1981 the procedure was being used internationally, for example the El Cajon Dam in Honduras. Experience indicated that, notwithstanding that DB members had to be paid for their involvement throughout the project, the total costs of the procedure were substantially less than the conventional method of a major project being followed inevitably by a major arbitration. Some practitioners have calculated that a DRB will generally cost in the order of 0.2% of the project costs. Obviously, the bigger the project, the less the cost of the procedure in relative terms. US experience shows DBs are cost effective for medium sized projects upwards.

2.2.2 The successful U.S. experience led, in 1995, to the World Bank making the procedure mandatory for all International Bank for Reconstruction and Development (IBRD) financed projects in excess of US $50 million. That led naturally to the procedure being used, in 1997, by the Asian Development Bank, and also the European Bank for Reconstruction and Development.

2.2.3 The commonly favoured model for Dispute Boards in the USA was and is the Dispute Review Board (DRB), under which "Recommendations" are issued in respect of the particular dispute being dealt with. This is a relatively consensual approach to dispute resolution. Broadly, if neither party formally expresses dissatisfaction with a Recommendation within a stated period of time, the contract provides that the parties are obliged to comply with Recommendation. If either or both parties do express dissatisfaction within the limited time period, then the dispute may go to arbitration or court litigation. Although the parties may choose voluntarily to comply with a Recommendation while awaiting the decision of the arbitrator or court, there is no compulsion to do so.

2.3 FIDIC/ICE Usage of DRB Procedure

2.3.1 By the 1990s, major civil engineering contractors in the U.K. and internationally, had become critical of the central role played by the Engineer appointed under the FIDIC and ICE standard forms. In January 1995 the World Bank introduced the DB concept into its standard bidding document and made it obligatory for projects of more than US$ 10 million. A 3- person board was stipulated for projects in excess of US$ 50 million.

2.3.2 In 1995 FIDIC introduced a Dispute Board approach into its Orange Book form. In November 1996 FIDIC introduced the procedure into Clause 67 of its 4th edition Red Book. The approach adopted by FIDIC is the Dispute Adjudication Board model, whereby effect must be given forthwith to a Board decision. A firm decision was more attractive than the possible alternative of a recommendation that need not be complied with, i.e. the more consensual Dispute Review Board model. If no Notice of dissatisfaction is issued within 28 days of the Board’s decision it becomes final and binding. If a Notice is issued then the matter may proceed to arbitration, although the parties are obliged to comply with the decision in the meantime. This approach, of an immediately binding decision, has been maintained in subsequent versions of the Red Book and is still to be found in the draft of the forthcoming 2005 Second Edition of its 1999 form, in Clause 20.4 thereof.

2.3.3 In February 2005 the Institution of Civil Engineers (ICE) produced its Dispute Resolution Board Procedure, First edition. The acknowledgements state that the ICE has drawn upon the work of FIDIC. The Introduction describes a DRB as a " ‘job-site’ dispute adjudication or conciliation board". This ICE document offers two procedures, the first for projects not subject to the 1996 Construction Act, and the second for where the Act applies. The principal difference between the procedures is that the procedure governed by the Act caters for a referral to the Board at any time. Clause 4.5 in both forms makes plain that the service of a notice of arbitration or application to the courts is not a reason for failing to give effect to a DRB decision. Thus, the ICE procedure adopts a similar approach to the long-established FIDIC arrangement.

2.4 U.K. Adjudication

2.4.1 The late payment of subcontractors has long bedevilled the UK construction industry. By the late 1980s adjudication clauses were commonly used in sub-contract forms such as the JCT DOM/1 agreement. It was unclear at that time precisely what status an adjudicator’s decision had, and in November 1989, I represented a sub-contractor in the case of Cameron v John Mowlem 52 BLR 24. We sought summary judgment upon an Adjudicator’s decision. His Honour Judge Fox Andrews, Q.C. gave us judgment for the full amount claimed. However, the Court of Appeal subsequently held that a decision of an Adjudicator given under DOM/1 was binding only until the determination by an Arbitrator on the disputed claim, and so the Adjudicator’s decision was not equivalent to an arbitration award.

2.4.2 As a result of continuing concern about the non-payment of sub-contractors, the Government commissioned the Latham Report, which resulted in the 1996 Housing Grants, Construction and Regeneration Act (the 1996 Construction Act). This provided for statutory adjudication and the Technology & Construction Court provided easy enforcement. This has revolutionised the construction industry.

2.4.3 Since the U.K. construction industry is now thoroughly familiar with the adjudication process, and the concept of a temporarily-binding decision, it is able readily to use a Dispute Adjudication Board procedure, which is, in effect, an arrangement that provides for serial adjudications through the course of a project.

2.5 The ICC DB Procedure

2.5.1 In view of the three developments described above, it can be seen how the production of the ICC DB Documents has come about at a propitious moment, when the U.K. construction industry is fully conversant with the DAB approach by reason of the 1996 Act, the international construction industry is familiar with the DAB approach as a result of FIDIC and the World Bank adopting it almost ten years ago, and where the U.S. construction industry originated and developed the Dispute Review Board (DRB) procedure in the first instance.

2.5.2 Thus it is that the ICC’s DB approach, offers three types of Dispute Board:

  1. The Dispute Review Board (DRB) model involving "Recommendations";
  2. The Dispute Adjudication Board (DAB), model, where "Decisions" are issued; and
  3. the Combined Dispute Board (CDB) model where Recommendations are normally issued, but Decisions may be requested. This is a hybrid procedure drawing upon both the DRB and DAB models.

3.APPOINTING AND OPERATING A DISPUTE BOARD

3.1 Dispute Resolution Clauses

As we have seen, nowadays many funding bodies, such as the World Bank, insist upon the appointment of a Dispute Board for projects with which they are concerned. In addition, a number of standard forms, such as those produced by the Federation des Ingenieurs’ Conseils (FIDIC), include Dispute Board clauses within their dispute resolution procedures. Of course, since (see paragraph 1.2 above) the essence of a Dispute Board is that it produces determinations that are potentially temporarily binding, where a contract provides for a DB it will be as part of a multi-layered dispute resolution clause. It is not uncommon nowadays, on big projects, for very sophisticated disputes clauses to be used. For example, a clause might provide for some or all of the following procedures:

  1. A Dispute Board to operate throughout the course of the project.
  2. Some (e.g. financial or technical) disputes to be referable, in certain circumstances, to:
  3. a. Senior executives from the parties concerned; and/or

    b. Independent experts.

  4. Mediation;
  5. Arbitration or court litigation. (It is, of course, essential to have this final possible procedure available because the earlier procedures may not succeed in finally disposing of a dispute. Therefore, the ICC has helpfully produced standard ICC Dispute Board clauses which provide for a Dispute Board (in one of three types, as referred to in 2.5.2 above) followed, in each case, by ICC arbitration if required.

3.2 Documents Necessary

Getting a DB up and running requires a number of documents:

  1. An agreement, or a clause in the project contract, requiring the parties to establish and cooperate with a Dispute Board, and to pay the members. Generally, the costs of the Board are split between the project parties.
  2. Engagement agreements with each member of the Board. Such an agreement would oblige the members not only to attend on site at, roughly, four-monthly intervals, but will also require them to attend on any other specific occasion when the parties so desire. (This obligation can sometimes be problematic, since the sort of professional person appointed to a DB is generally very busy and having suddenly to make themselves available in a far-flung corner of the Empire may not be easily achieved. However, experience shows that a little "give-and-take" on all sides generally achieves whatever is necessary.)
  3. A set of Rules to govern the DB procedure.

Fortunately, the ICC has now produced admirable documents fulfilling all three functions just described.

3.3 Site Visit

Once the Board has been appointed, the Chairman needs immediately to become pro-active. He must set a date for the first site visit, and establish an agenda for it. Two or three days on site are generally necessary, depending upon the stage of the project. The stages involved in a visit are broadly:

  1. Walk the Site
  2. The visit is likely to start with tramping around the site to see what work is actually being done. This is essential, because, many months later, there may be allegations that, for example, the Purchaser failed to provide roads that he ought to have done, with the result that the muddy tracks around the site delayed transportation and prevented the Contractor achieving a certain milestone on time. If the Board themselves walked around the site at the material time they will be able immediately to form a clear view as to whether or not such an allegation has substance.

  3. Meeting
  4. Thereafter, a semi-formal meeting should be held in a sufficiently big office on site, or at some locality that all interested parties can reach without difficulty. This meeting is the opportunity for each party, in turn, to have its say, and air any grievances. Although the essence of a DB meeting is that it is not rigidly formal, it is essential that the Chairman ensures that, at the least:

    a. Each party has its say, and has an opportunity to respond to any allegations made against it.

    b. The Board is seen as entirely neutral. (This objective may not always be easy to achieve, given the informal nature of Board visits. For example, Article 16 in the ICC Rules provides, in 16(2), for the DB giving informal assistance by, for example, separate meetings between the Board and any party with the prior agreement of all the parties. Even though both sides will have "signed up" to the holding of separate meetings, under this procedure, it is not unknown for one party or the other, in such circumstances, to feel that the separate meeting with the other side went on far longer than its own separate meeting, demonstrating some bias on the part of the Board. Certainly, absolutely no separate meetings should be held unless both parties have previously agreed. I know of one case where the legitimacy of the Board was called into question after the DB Chairman bumped into a representative of one party in the hotel in which they were both staying, and they had a drink together. When the other party discovered this they took it as clear evidence of bias, and ceased cooperating with the Board.)

  5. Determinations by the DB
  6. By the end of the meeting any matters raised for the consideration of the Board should have been dealt with, or a procedure established for dealing with them. If this is done in some oral determination then the formal written Report (see below) that follows should formally record the outcome.

  7. The Report

Prior to the Board departing it should produce a short written Report which is distributed to all parties. In practical terms this means the Chairman must carry a laptop with him. The Report need not be long, but, in my experience, should deal with at least the following:

  1. Record the meeting’s date, time, locality, length and attendees.
  2. Record what was seen, in general terms, by the Board when it tramped around the site.
  3. Record what issues were raised at the meeting, by whom, and with what response from the other side, in brief terms.
  4. What determinations (whether Recommendations or Decisions) were made by the Board.
  5. What future action is required of the parties (e.g the production of certain documents for the next meeting) and what the Board itself will be doing, if anything, prior to the next meeting. A proposed date for the next visit should be identified.

3.4 Board’s Functions

From the above, it can be seen that a Board may fulfil the following functions:

  1. It can give informal assistance with disagreements simply by "talking through" various complaints from the parties. This is recognised by Article 16 in the ICC rules.
  2. It can deal, more formally, with specific disputes referred to it, giving a determination which may be (depending on the circumstances and on the type of Board which has been established) either a Recommendation or a Decision. This is recognised at Article 17 of the ICC Rules. (Generally, formal determinations by a Board are admissible in any subsequent arbitration or court litigation, and the Chairman should keep this in mind when drafting the determination. I note that Article 25 of the ICC Rules recognises this).

3.5 End of the Board’s Functions

Ordinarily, the Board will remain in place until the conclusion of the project, which is often marked by, for example, a Certificate of Practical Completion or some equivalent document for the work. Some Board engagement agreements provide for the Board to remain available, if required, thereafter, to be paid at a lesser rate.

4. SUCCESS & FAILURE OF DBs

4.1 The most striking effect of a properly appointed and functioning Dispute Board is its ability to catch problems right at the outset and prevent them festering and growing into disputes. Since both parties know that at regular intervals an independent body will scrutinize the behaviour of all concerned, and that the parties will be accountable for any unreasonable behaviour, they tend to cooperate in a matter that does not always happen on a project which is not blessed with a DB.

4.2 The success or failure of a DB depends, to a significant extent, upon the personalities involved. If one or both parties are "bloody minded", the Board will struggle to deal effectively with complaints and disputes. However, in such circumstances, in the absence of a DB, there would inevitably be protracted arbitration/litigation at the conclusion of the project in any event, so the existence of the Board will not have made things worse.

4.3 Also crucial are the personalities of the Board members. They must be seen as impeccably fair and impartial, and must exhibit the necessary professional skills (often an amalgam of legal and technical expertise). The Chairman needs to establish, at the outset, a good rapport not only with the other Board members, but also with all party representatives that he encounters on site and in the meetings. Harmonious relationships lead, in my experience, to the dissolution of most disputes, and the few matters that do require determination are dealt with in a civilised manner by the parties, and the Recommendation or Decision resulting is accepted with good grace, so that nothing need go on to arbitration or litigation.

4.4 Early Appointment

In my experience one of the biggest potential problems facing a Board is that it is not appointed early enough. Parties naturally balk at paying retainers and site visit fees to outsiders at a time when there are no disputes on the project. This leads them, in many cases, to wait until there is a crystallised dispute before they actually appoint the Board. This means that many of the advantages which a Board can bring (e.g. a knowledge of site conditions right through the project) are no longer available, and the Board is thrown straight into dealing with a tough dispute where the parties have already taken entrenched positions. This is not a propitious beginning for a DB procedure, yet is often happens and must be dealt with.

4.5 Impartiality

The other potential problem is one which can be guarded against. I have mentioned above that the Board must be seen as scrupulously impartial. This may require some effort. Social engagements, such as drinks and dinner, with one party should be off-limits.

Conclusion

I said at the outset that the launch of the ICC Dispute Board documentation is welcome, important and timely. In this brief overview of what a Board is and does, and why parties should use one, I hope that I have made good those views about the ICC’s Rules. The ICC documents will inevitably be a great success, because they offer parties a clear statement of tried and trusted procedures for the appointment and conduct of Dispute Boards. Further, they have the added advantage that, for those disputes which do go beyond the Board’s jurisdiction, there is the facility of ICC arbitration which, of course, enjoys the highest reputation in international commercial circles. Parties can use the ICC documents with complete confidence, and I am grateful for the opportunity to participate at their launch.

Footnote

1 Dr. Gaitskell is a practising Queen’s Counsel in Keating Chambers, London, specialising in engineering disputes. He regularly acts as a DRB member, and Arbitrator, Adjudicator and Mediator. His qualifications are: PhD(KCL), BSc(Eng.) CEng, FIEE, FIMechE, FCIArb, Barrister. He is a former Vice-President of the Institution of Electrical Engineers.

_________________________________________________

BIBLIOGRAPHY

  1. Lewis, D.l., "Dispute Resolution in the New Hong Kong International Airport Core Programme Projects" (1993) ICLR, 76.
  2. Jaynes, G.L., "Dispute Review Boards – Yes!" (1993) ICLR 452.
  3. Myers J J., "Resolving Disputes in Worldwide Infrastructure Projects" (1995) ICLR 429.
  4. Pike N., "Disputes Review Boards and Adjudicators" (1993) ICLR 157.
  5. Bowcock, J., "The New Supplement to the FIDIC Read Book" (1997) ICLR 49.
  6. Seppala, C.R., "The New FIDIC Provision for Dispute Adjudication Board" (1997) ICLR 443.
  7. Jaynes, G.L., "Dispute Review Boards : The World Bank is Aboard" (1996) ICLR 17.
  8. Shadbolt, R.A., "Resolution of Construction Disputes by Disputes Review Boards" (1999) ICLR 101.
  9. Genton, P.N., "The Role of the DRB in Long Term Contracts" (2002) 18 Const. L.J.

The articles and papers published by Keating Chambers are for the purpose of raising general awareness of issues and stimulating discussion. The contents must not be relied upon or applied in any given situation. There is no substitute for taking appropriate professional advice.

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