What Makes a Suitable Dispute Board Member?

A couple of years ago I was asked to provide training on procurement for a large developer in the GCC region. Part of my recommendation was that the developer should seriously consider including provisions for the appointment of dispute boards within his contracts.

After the course, the senior contracts manager gave me a lift to the airport and during the journey, told me that he did not like DABs. When I asked him why, he told me that the only experience he had of DABs was on a project where a single person DAB was appointed and that when the DAB member first came to site he immediately informed the project team that he was a lawyer and had no experience in construction projects. Obviously, in this situation the appointees of the DAB here had not considered the requirements of a DAB member very well when making their selection, because, if the DAB member or members are not suitable for the role, the DAB process will surely fail. So what qualities should we look for when selecting and proposing members?

Each DAB member must fulfil certain basic criteria including:

  • Suitable experience within the industry and on the type of work that is being carried out
  • Experienced in the interpretation of contract documents
  • Be suitably qualified professionally
  • Be suitably qualified to deal with disputes
  • Be an expert in his or her particular field
  • Be fluent in the language of communication
  • Be demonstrably impartial

If the persons do not tick all the above boxes, then they should not be proposed to the other party. Similarly, if the other party proposes someone who does not fulfil these criteria, then that person should not be accepted. It is usual for the two accepted members to propose and agree the third member, who often acts as the chairperson of the DAB, so the third member should also be selected based on this criteria.

A DAB composed of three civil engineers will probably not be as effective as a board comprised of members with different professional backgrounds. Consequently, as well as individual qualifications and experience it would be prudent to look at the individual specialities of the members. A good mix for a three-person board would be an engineer, a contracts and/or commercial specialist and a lawyer and such a composition should cover the main bases for potential disputes. When considering lawyers, care should be taken to select a person who has considerable experience in construction law and not just a general lawyer.

Having, I hope, agreed that DAB members should be very well qualified and experienced, where can you find such people? Both the Dispute Resolution Board Foundation (DRBF) and the Dispute Board Federation (DBF) maintain lists of suitable qualified members who are available for appointment, as does FIDIC. Our own Dispute Boards MENA website also has a list of suitably qualified and experienced practitioners and this has the added advantage that the listed practitioners are also experienced in working in the MENA region.

This guest blog post was written by Dispute Boards MENA listed practitioner, Andy Hewitt