International Construction Law Review
CANADA DRY ARBITRATIONS?
ALEXIS MOURRE1
Member of the Paris Bar, Castaldi Mourre Sprague
Dispute Boards taste like arbitration. They look like arbitration. Nevertheless, just as Canada Dry is not alcohol, Dispute Boards are not arbitral tribunals. Still, when we see them operate, we can hardly refrain from feeling that they are in fact better
than arbitration. Not only do they work well, but they indeed work faster, cheaper and in a much less contentious manner than arbitration tribunals. Dispute Boards irrepressibly recall what arbitration was at its beginnings, or the dream of what it should return to be: a fast and simple way to solve disputes, far from the subtleties of legal arguments, freed of the complexities caused by court lawyering, where the parties are protected from the confrontational approach of court disputes. In synthesis, something like what a well known French arbitrator used to define as “a gentlemanly way to solve disputes between gentlemen”.
Still, if Disputes Boards come so close as to resemble an ideal arbitration, it is partly because Dispute Boards also ceased to be what they—and their ancestor the engineer—used to be when they appeared in the 1970s in the United States: a mechanism meant to provide for the urgent intervention of experts acquainted with the contract and the technical aspects of a long-term project. Since the times of FIDIC clause 67 in 1987, any possible dispute between the employer and the contractor, whatever its nature
, had to be referred to the engineer (then to a Dispute Adjudication Board) as a precondition for arbitration. Both the 1987 FIDIC Conditions and the subsequent 1996 Conditions provided that the engineer, and then the DAB, were empowered to render binding decisions (in contrast with the 1995 World Bank Standard Bidding Documents, providing for binding decisions only if not objected by the parties within a certain period of time2
) both on technical issues and issues of a non-technical nature. In practice, the Board acts as a pre-arbitration tribunal, or as a first degree arbitration tribunal.
Understanding the peculiar nature of DAB adjudication requires, however, going back to the concept of expert determination and its distinction from arbitration, and to compare it with the non-jurisdictional forms of arbitration known in certain legal systems.
Expert determination is used not only in construction contracts, but also in share purchase agreements, for example, to determine the price or
1 Member of the Paris Bar, Castaldi Mourre Sprague, amourre@cmdslaw.com. This was a presentation made by the author at the joint ICC/FIDIC conference held in Paris on 17–18 October 2005.
2 The World Bank’s 2000 Edition of the Standard Bidding Documents for Procurement of Works set the binding authority of dispute boards.
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