Dispute Board

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Dispute boards are procedures for avoiding and resolving disputes, which are mainly used in construction and plant construction projects. Dispute boards are both Dispute Review Boards (DRB) and Dispute Adjudication Boards (DAB), which in turn also include adjudication (see also: Adjudication ). The committee (board) usually consists of one or three experts.

Dispute boards can be used alongside the project, in that the committee is formed when the contract is drawn up and remains in place for the entire duration of the contract. In the event of disputes and differences between the contracting parties, they will assist the parties with recommendations and decisions on request in order to ensure that the dispute is settled quickly and to avoid a breakdown in business relationships.

concept

Unlike the consulting engineer ( Consulting Engineer ) the dispute board is used jointly by the project participants and is not responsible for the other contract administration, but solely responsible for dispute management. As such, the Dispute Board is called upon to investigate, avoid and resolve disputes between those involved in the project during the course of the project. The parties to the project contract usually agree to conduct a dispute board procedure when it is concluded.

The Dispute Board consists of one or more, mostly three members who have particular experience and expertise in the field of the project in question (e.g. tunnel construction, civil engineering). A contract on the rights and obligations as a dispute board member is concluded between the individual members of the dispute board and the parties to the project contract. In this, the members undertake to act fairly and impartially.

development

The development of dispute boards originated in the USA. There, forms of contractual dispute management were initially developed for domestic infrastructure projects such as tunnel or dam construction, which are now known as the Dispute Review Board (DRB). A first harbinger of the Dispute Boards emerged in Washington State in the mid-1960s. Only later did this development spread to international treaties in which the form of the Dispute Adjudication Board (DAB) was increasingly used. Since the participants were consistently satisfied with the DRB process, the number of Dispute Review Boards used in the US construction sector has risen continuously since the 1980s.

Initially, dispute boards were not well received internationally. A dispute review board was first used outside the USA in a project in Honduras in the 1980s that was partially funded by the World Bank. Since the inclusion of Dispute Adjudication Boards in the model contracts of FIDIC and the World Bank in the 1990s, Dispute Boards have been used worldwide.

Manifestations

Dispute Review Board (DRB)

In the DRB procedure, the DRB's vote is initially presented to the parties as a non-binding recommendation. The parties can decide whether they want to voluntarily follow the recommendation of the DRB. However, there are two variants within the DRB procedure, which differ in whether the recommendation always remains non-binding or whether it cannot also (at least temporarily) become binding on the parties. In the first variant, which mainly occurs with DRBs based on the US model, the recommendation is and remains non-binding for the parties. In the second variant, which has developed under international influence, the recommendation of a DRB is initially non-binding. However, it can become binding (at least temporarily) if it is not contested by a party within a certain preclusive period. If a party rejects the recommendation of the DRB, it can submit the dispute to an arbitration tribunal for final clarification. Since each party is free to object, the effect of this variant in practice, like that of the US national variant, is based more on the consensual approach and not on its legal enforcement power, but in particular on the professional persuasiveness of the recommendation.

Dispute Adjudication Board (DAB)

Unlike a DRB, a DAB makes a decision and not a mere recommendation about the issue. It is true that this decision can also be challenged by a party before an (arbitration) court. In contrast to the recommendation of the DRB, the parties are bound by the DAB decision at least until the final decision on the dispute by the arbitral tribunal. The decision of the DAB thus has at least a temporary binding effect. In doing so, the DAB takes up the basic idea of adjudication , that a dispute between the parties is decided and not resolved by way of consensual settlement.

literature

  • Tobias Oelsner: Dispute Boards - procedure for project-accompanying dispute management. Carl Heymanns, Cologne 2014, ISBN 978-3-452-27990-3 . (on-line)
  • Cyril Chern: Chern on Dispute Boards. 3. Edition. Wiley-Blackwell Publishing, 2015.
  • Christian Stubbe, Michael Wietzorek: The 1 + 1 model: Optimizing dispute boards. In: Arbitration VZ. No. 6, 2011, pp. 328-332.
  • H.-Jürgen Schramke: New forms of dispute management in construction and plant engineering - Dispute Review Boards and Adjudication. In: Arbitration VZ. No. 8, 2002, pp. 409-413.
  • Ragnar Harbst, Volker Mahnken: Adjudication and Dispute Review Boards according to the new ICC rules. In: Arbitration VZ. No. 1, 2005, pp. 34-41.

Web links

Individual evidence

  1. ↑ icc-deutschland.de ( Memento of the original from September 17, 2013 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. Website of the International Chamber of Commerce Germany. Retrieved November 24, 2014. @1@ 2Template: Webachiv / IABot / www.icc-deutschland.de
  2. ↑ ci.seattle.wa.us website of Seattle City Lights. Retrieved November 24, 2014.
  3. ↑ Chern on Dispute Boards. 2015, p. 8; Shadbolt, ICLR 1999, p. 101 (104).
  4. ↑ drb.org ( Memento of the original dated February 3, 2015 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. Dispute Resolution Board Foundation website, Seattle. Retrieved November 24, 2014.  @1@ 2Template: Webachiv / IABot / www.drb.org
  5. ↑ vbi.de website of the Association of Consulting Engineers (VBI). Retrieved November 24, 2014.