International Construction Law Review
THE LEGAL STATUS AND THE ENFORCEMENT OF THE DISPUTE BOARD DECISION
Giuseppe Giancarlo Franco
giuseppe.giancarlofranco@dlapiper.com
ABSTRACT
Dispute boards are being increasingly used on large international construction projects as a procedure prior or alternative to arbitration. However, the effectiveness of the dispute board mechanism has been jeopardised by the difficulties in defining the legal status of the dispute board decision. Is it an expert determination or some kind of arbitral award? This article attempts to find a solution by keeping in mind that the dispute board was designed by construction practitioners to be a tool to avoid and eventually to quickly resolve disputes directly on the construction site.
1. INTRODUCTION
In the context of cross-border transactions and contracts, international arbitration is often regarded as the most efficient method of Alternative Dispute Resolution (hereafter “ADR”). Indeed, it has been used as a valid alternative to the endless judicial proceedings of some jurisdictions. However, in recent decades, there has been a trend, especially in common law jurisdictions, towards more sophisticated methods of ADR.1 There are two factors that have influenced this trend.
First is the “judicialisation” of arbitration procedures, which have evolved in the direction of judicial procedures, thereby increasing delays and costs and jeopardising the typical advantages of arbitration.2 This appears to be a common issue in all developed legal systems, where an increase in the quality of the judicial system also means more delays and expenses.3
Second is the need for the parties to peacefully settle their disputes in order to maintain a cordial relationship and to carry on with their
1 An example of such virtuous activity is the Global Pound Conference Series promoted by the International Mediation Institute. See also Bailey J, Construction Law, (London, 2011) (hereafter “Bailey”), vol III, 1422, paragraph 23.07; Jenkins J, International Construction Arbitration Law, (Alphen aan den Rijn, 2013) (hereafter “Jenkins”), 119.
2 Van Houtte H, “ADR discussed – A summary of an ICC Seminar on the Settlement of International Commercial Disputes” [1996] ICC International Court of Arbitration Bulletin 76; Calabresi C, “Il Dispute Board nei contratti internazionali di appalto” [2009] Diritto del Commercio Internazionale 753 (hereafter “Calabresi”).
3 Chern C, Chern on Dispute Boards, (London, 2015) (hereafter “Chern”), 9. According to one way of thinking, the excessive intervention of lawyers in arbitration has made the arbitral procedure “an esoteric legal laboratory”, see Beresford Hartwell GM, “The Relevance of Expertise in Commercial Arbitration” (Paper presented at the XIV ICCA Congress, Paris, May 1998).
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