8 Ways to Ensure Impartiality of Dispute Board Members

One question that I am often asked when presenting talks on DABs is how the parties can be assured of the impartiality of DAB members. This is an excellent question because if the members are not truly impartial and just as importantly, seen to be impartial, the whole process will fall down.

If we take the FIDIC Red Book Sub-Clause 20.1 (Appointment of the Dispute Adjudication Board), together with the Conditions of Dispute Adjudication Agreement, which is the agreement between the Employer, the Contractor and the DAB Member, we can see that the following safeguards are in place:

1. The appointment of each DAB member is subject to the approval of both parties. Therefore, if either party suspects that a person may have any type of vested interest, or may not act impartially, then they may be rejected.

2. Each party pays half of the DAB’s fees. It is often considered that the Engineer under FIDIC can never be impartial when the Employer pays his fees. This provision removes such suspicions.

3. The DAB members’ appointment is a personal one. In other words, a consultancy firm may not be appointed and a member, once appointed cannot pass on the duties to a colleague.

4. By signing the agreement, the Member “warrants and agrees that he/she is and shall be impartial and independent of the Employer, the Contractor and the Engineer.”

5. The Member is obliged to disclose “any fact or circumstance which might appear inconsistent with his/her warranty and agreement of impartiality and independence.”

6. The Member shall have no interest, financial or otherwise, in the Employer, the Contractor or the Engineer.

7. The Member shall not previously have been employed by the Employer, the Contractor or the Engineer.

8. The Member shall, during the DAB appointment, not be employed as a consultant or otherwise by the Employer, the Contractor or the Engineer and not enter into discussions with regard to future employment.

In addition to the contractual obligations, I would also advise the parties to only consider potential members who are suitably qualified as adjudicators and are registered as such with a professional body. This is because, in addition to being trained on how to perform their duties so as to be seen to be demonstrably impartial, such persons also have a professional code of ethics to uphold which will include impartiality.