Choosing a Dispute Board – Preliminary Considerations

In practice, it is the Employer who will decide whether or not to have a dispute board (DB) on his project. So what are the criteria which he needs to look at when making this decision?

I suggest there are a combination of practical, financial and legal matters. This puts the Engineer, the Quantity Surveyor and the Employer’s legal advisors in the spotlight (so I hope some of them are reading this, or that readers will put these points to them).

So let’s ask ourselves some questions..

On the practical side, what do you think might influence the decision? Remember that a DB is there to firstly try to avoid and prevent disputes.

When do potential disputes start to arise?

Think about ground conditions. The main issue here is usually foreseeability and the Employer and Engineer’s desire to attribute the quality of clairvoyance to the Contractor. It might be a good start to attribute this type of risk differently by placing a contract for ground investigation on a cost reimbursable basis, with the Employer and Engineer taking a close hand in managing this part of the project, with a standing DB appointed to give advice and possibly decisions on the narrow issue of costs.

If this strategy is not adopted, the need for a standing DB becomes more urgent, as claims may well arise at an early stage. Dispute prevention then can help ensure relationships are not soured from the outset.

What other practical risks are there? Can you think of some? Design, specification clauses?

These can be specific to a project. They can be fertile ground for claims. Standard conditions of contract do not allow quite so much room for manoeuvre.

What sort of financial issues flow from the practical risks? Complex design, uncertainty as to quantities? How can a DB help with those?

The legal issues may well relate to the very existence of the project and can involve third parties, such as planning and building control officers.

Can you think of some other legal issues which may affect the project? Think of other third parties.

Let me know your thoughts by commenting below and we can generate some discussion and possibly argument – but not disputes, of course!

This article was written by guest writer and listed DB MENA practitioner, John Papworth.