I ought to call it Paris, France. The meeting was the third European conference of the Dispute Resolution Board Foundation. It was founded in the USA eight years ago by folk who refer to Paris as Paris France, and it focuses on big construction contracts. They are the contracts that welcome a panel of disputologists before any disputes loom from wherever disputes loom from. Literally hundreds of building and civil engineering contracts a year worldwide have dispute resolution boards, or DRBs. The Paris conference involved the Italians, Swiss, Dutch, Germans, Poles, Scandinavians and us Brits turning up to talk about these review boards and having a few rows and disputes about how to be better disputologists.
So what is a DRB and what is the Dispute Resolution Board Foundation? The idea comes from a basic starting point. You would be half-baked if you thought you could build a whopping great something or other without having a quarrel along the way, agreed? So, the employer stumps up for a panel to zoom in from across the world periodically to keep tabs on things as work progresses. The Dispute Resolution Board Foundation reckons that the job of each DRB is to "help the parties head off problems before they escalate into major disputes".
And what I find fascinating is the differences of opinion on how to head off problems before they escalate into major disputes. Much of it came out at this Paris meeting. It was important to find out because you and I want to know what to expect if we buy into a DRB idea. Incidentally, on quite a lot of projects the use of a DRB is mandatory. So, what's up? First, there is a notion that the mere existence of this panel and its periodic visits influences the parties' behaviour from the outset. When a "problem" looms, the parties are motivated to actually talk about it between themselves and sort it out amicably. The fact that the DRB might have to sort it out for them if they don't is further incentive.
Some disputologists base their recommendations on their gut feel of what’s what, others base them on what the contract promises
And if the DRB does take up the problem, it is interesting how the Americans like to deal with it. The panel (of say, three) chews over the issue with the parties. It even gets a tad formal by using submissions, experts and argument. Then the panel makes a "recommendation". In other words, these three wise heads say what's best. And mostly that's what goes. Their recommendation is not binding; it just explains the issues and result. Seemingly the American construction people are willing to go with that. But when I probed for the basis of the recommendation, I met a stumbling block. Some disputologists base their recommendations on their gut feel of what's what, others base them on what the contract promises.
Now, non-binding decisions don't cut much ice in other parts of the world. The World Bank, with its huge support for DRBs, has insisted that contracts using World Bank money will have DRBs with binding decision-making powers. By the way, the international forms of building contract, published by FIDIC, have also decided to have binding DRBs (called dispute adjudication boards). So I probed again here. What I wanted to know was on what basis disputologists make binding decisions. And I found two camps here as well. There are those that decide disputes on their gut feel for what's what, while others base their binding decisions on what the contract promises. And at first glance I was horrified by this.
Tony Bingham is a barrister and arbitrator specialising in construction. You can write to him at 3 Paper Buildings, Temple, London EC4 7EY, or email him on firstname.lastname@example.org.