Choosing Dispute Board Members

Some Parties are fairly, or very, familiar with the DB process and have worked with a few DB Members. They are in a position to choose the same people again, or to elect to choose an alternative, for whatever reason. However, some Parties have less, or even no, knowledge of the process and nominating and appointing a DB Member and Chairman may be a risky business. So what should you consider when appointing DB members? Here are my tips:

Generally, DB Members have to confirm that they are independent of the Parties, so do not be tempted to nominate someone whom you think might favour your Party. It puts the Member in a difficult position and may cause resignation of the Member late on, with all the attendant cost and inconvenience.

The Member has to act in an unbiased way. This can be a subjective matter, but one can gain a sense of the Member’s approach to matters by the way emails are written, and by voice and perhaps face to face contact by meeting in person, on skype or video-conference. And don’t be afraid to ask around to see if you can find someone who has worked with potential nominees. This can be very useful.

The nominee must be available for the duration of the project and the DB’s appointment, which may be two different periods. A DB can be working on disputes well after the project is complete. You will want someone who can be available for site visits three or four times a year, so it is sensible to check the potential nominee’s commitments, both business and personal, such as holidays.

Ensure that the nominee is a suitable candidate. What do you need to ask yourself? What sort of project is it? What is the location? Do you need someone with specialist knowledge of a technical aspect of the project? Do you look for a person of a particular profession?

Insights from An Old Hat

Having worked on and chaired DBs for the past twelve years, I have come to the conclusion that it does not matter so much which professions the Members come from, so long as they are good DB Members. That is what you are appointing them to do.

You must also remember that a DB is a team. All successful teams are united and enjoy each other’s company. Once you know the nominees, it is a good idea to check with them that they can work with the proposed Chairman. Most of the time, I have found people can work together and arrive at a unanimous decision.

Having found your team, you have to agree terms. The general rule is that all the DB Members are paid the same, with the Chairman possibly entitled to slightly more for the extra responsibility, but remember that he/she is paid for any extra time spent on administration.

There are a few lessons to bear in mind. Don’t try to beat down people’s fees. If you do, you may lose a good DB Member. Appoint the DB early if it is a standing Board and invite them to come to the site as early as possible, so that you can get to know them and vice versa. Talk to them, and listen to them.

Any comments or observations are welcome.

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