CHERN ON DISPUTE BOARDS CHERN C. Bankowa.pl

Dispute boards were first introduced almost 20 years ago. Since then close to $100 billion US dollars worldwide has been spent on construction projects that have used dispute boards. Of these, 98% were constructed without any court battles and of the remaining 2%, the dispute board decisions were upheld by either arbitration and/or the court: a truly impressive record. Yet very little is known about what dispute boards are and how they operate.

This book provides the knowledge necessary for those actively involved in dispute board work as well as for those who need to learn the process. Important features of the book include:

analysis of the differences between dispute adjudication boards, dispute resolution boards and combined dispute boards
in-depth discussion of both the existing and historical international case law on dispute boards, including its history under the British common law, European civil law and Muslim Shari’ah law
analysis of the differences between the various major standard forms of dispute board rules – FIDIC, International Chamber of Commerce and DBFederation - along with sample wording to add to or modify these forms as needed.
analysis of how referrals are made to dispute boards and sample forms.
an in-depth discussion of the ethical requirements relating to dispute board members
comparison of board selection techniques with guidelines for implementation and recommendations for the parties
sample forms for use in establishing a dispute board
discussion of site visits, how they should be conducted and sample forms
general forms for use in operating a dispute board, form agendas, form reports and their use
how to use a dispute board as a sounding board for grievances
in depth discussion of how to write a decision or recommendation with examples of actual dispute board decisions and recommendations
disclosure forms, questionnaires for potential board members, and comparison of board member agreements and sample forms
a discussion of how to effectively use witnesses and the preparation and presentation of witness statements in dispute board hearings
forms of notice and procedural rules governing the operation of dispute boards
international case studies with claims, responses and decisions
analysis of situations requiring the removal of dispute board members and form agreements for their removal
discussion of the use of dispute boards in areas other than construction.

Cyril Chern BArch, Juris Doctor, RIBA, AIA, FCIArb is a practising barrister with experience in heavy construction and engineering disputes worldwide. He is a Chartered Architect, a Chartered Arbitrator, accredited mediator and adjudicator and has served on over fifty dispute boards.

Table of Contents

The Author.

Foreword.

Chapter 1. The Dispute Board Concept.

What is a Dispute Board?.

What makes a Dispute Board unique? -What can be achieved by using a Dispute Board?.

Non-Binding Recommendations.

Interim binding decisions.

Differences between Dispute Boards and Arbitration, Mediation, Adjudication and ADR.

History of Dispute Boards.

The World Bank.

Harmonized contract conditions.

Growth of Dispute Boards.

An Overview - Composition of Dispute Review Boards and Their Operation.

The Chairperson’s Role.

Appointment and membership.

Board Member Qualities.

The importance of early appointment and of regular site visits.

Routine operations.

Sub-Contractors.

Informal operations.

Hearings.

Dispute Board procedures.

Dispute Review Board costs.

Why Dispute Resolution Boards work.

International Aspects.

The Future.

Chapter 2. Type of Dispute Boards.

The Dispute Review Board (DRB).

Dispute Board Formation.

Other Forms Of Boards Dealing With Disputes.

Dispute Advisory Boards.

Dispute Mediation Boards.

Chapter 3. Legal Basis for Dispute Boards.

Legal Systems - Overview.

Common Law.

History.

Common Law Countries.

Civil Law.

Differences Between Common and Civil Law.

Civil law Countries.

The Historical Development of Dispute Boards.

Contemporary Legal Development of Dispute Boards.

The Engineer/Arbitrator as Judge.

The Engineer as Quasi-Arbitrator.

The Development of Non-Statutory Adjudication.

Dispute Boards in England.

Extension To International Cases.

Specific Regional Differences And Methods.

Germany.

France.

Shari’ah – Islamic Law.

History.

Enforcement Provisions.

Which award is sought to be enforced – Dispute Review or Dispute Adjudication?.

Dispute Review Board Decisions.

Dispute Adjudication Board Decisions.

The Form of the Dispute Board Decision.

Particulars as to the Kingdom of Saudi Arabia.

Particulars as to the Islamic Republic of Iran.

Dispute Boards Under Common, Civil, Or Shari’ah Law.

Chapter 4. Case Histories.

Dispute Boards in Operation.

Historical Cases.

China.

Ertan Hydroelectric Project.

Special factors.

Africa.

Katse Dam Project.

Special factors.

Hong Kong.

Hong Kong Airport.

Special factors.

England.

Docklands Railway.

Special factors.

England.

Saltend Private Power Plant.

Special factors.

Canada.

Niagara Tunnel Project.

China.

Yellow River Diversion Project.

Major Waterways.

Lead Contractors.

United States of America.

I-15 Reconstruction - Salt Lake City, Utah.

France-England.

Eurotunnel.

Chapter 5. Appointing and Establishing a Dispute Board .

Single Member Dispute Boards.

Two Member Dispute Boards.

Three Member Dispute Boards.

Mega Member Dispute Boards.

Ad-Hoc Dispute Boards.

Miscellaneous Situations.

The Major Forms of Dispute Board Rules.

The FIDIC Contracts.

FIDIC Red Book.

FIDIC Yellow Book.

FIDIC Silver Book.

FIDIC Green Book.

Points to be considered with the FIDIC Contracts.

The Multilateral Development Banks.

The International Chamber Of Commerce.

The American Arbitration Association Rules.

Board Selection.

Operating Rules.

Different Meeting Requirement.

Custom Format.

Dispute Adjudication Board Rules for use in Independently Administered Dispute Board matters.

Introductory Provisions.

4.0 Conflicts of Interest.

11.0 Payment of Dispute Board Members.

12.0 Procedures Before The Dispute Board.

13.0 Decisions Of The Dispute Board.

15.0 General Rules.

Basic Standards.

Dispute Resolution Board Guidelines in Practise.

Sample - Dispute Review Board - Additional Dispute Review Board Guidelines and Procedures.

Sample - Dispute Adjudication Board - Additional Dispute Adjudication Board Guidelines and Procedures.

Chapter 6. Selection of a Dispute Board.

Qualifications.

Good People Skills.

Independence.

Independence - Guidance as to Avoidance of Bias Provided by Appointing Bodies 105.

Impartiality vs. Independence.

ICC Rules.

Disclosure.

Disclosure of Conflicts.

Sample 1- Disclosure of Conflicts.

Additional Qualifications.

Understanding.

Qualifications.

Experience.

Availability.

Confidentiality.

Other Attributes.

Where Can Dispute Board Members Be Found?.

The process of selection.

Party approval.

Identifying the Third Person.

Selecting the chair.

Lawyers as Board Members.

After Selection – The Dispute Board Agreement.

Form Dispute Adjudication Agreements.

Sample – Dispute Adjudication Board Member Agreement – 1 Person.

Sample – Dispute Adjudication Board Member Agreement – 3Person.

Sample – Ad Hoc Dispute Adjudication Board Member Agreement – 3 Person.

Sample –Ad Hoc Dispute Adjudication Board Member Agreement – 3 Person – Long Form.

Default Appointments.

Who can appoint if the parties are in default?.

Payment of Board Members.

Sample Acceptance Letter.

Appointment to Dispute Adjudication Board.

FIDIC Payment.

Replacing Dispute Board members.

Chapter 7. Referral to a Dispute Board .

Starting the process – Informal vs. Formal.

Informal.

Sample Request for Informal Opinion.

Formal.

Sample Notice (FIDIC Proceedings).

Procedural Requirements.

Sample Timetable & Details.

Duties of the parties.

Witnesses and Witness Statements.

Witness Statements - Guideline.

What Witness Statements Should Contain.

The importance of witness statements.

Statements by experts.

Format of witness statements.

Witness outlines.

Chapter 8. Elements of a Referral .

Referral by the Contractor.

Referral by the Employer.

Preliminary Matters and Setting out the Dispute.

Sample – Dispute Adjudication Board Sequence of Events.

Dispute Adjudication Board Member Form.

Sample No 1- Record of Claims form.

Sample Referrals.

Sample No 1 – A Dispute Adjudication Board Briefing Memorandum.

Chapter 9. Site Visits .

The Concept of Site Visits.

Contractual requirements.

Preparation Prior to Site Visit.

Sample – Site Visit Schedule Format.

Establishing an agenda.

Sample No 1- General Agenda Format.

Sample No 2 – Detailed Agenda Format.

Sample Agendas.

Sample No 3- General Agenda Format.

Sample No 4- Detailed Agenda Format.

Practice and Procedure at Site Visits.

Criticism by Dispute Board Members.

Issuing a Site Visit Report.

Sample reports.

Sample No 1 – Dispute Adjudication Board – Site Inspection Report.

Sample No 2 – Dispute Adjudication Board Site Inspection Report.

Chapter 10. The Hearing Process .

Hearing Preparation.

Sample Language – 1.

Sample Language – 2.

Preparation Process Steps – Parties and Dispute Board Members.

Sample – Document Receipt Schedule.

Sample Hearing Notice- Sent from Chair of Dispute Board.

Sample Claim Hearing Agenda.

Role of the Chair.

Role of other Members.

Guidelines for Operation.

The Role of the Engineer.

The Roles of the Owner/Employer and Contractor.

Sample – Documentary Evidence Schedule.

Objections from the parties.

Use of Consultants/Expert Witnesses.

Lawyers at hearings.

Deliberations after Hearing.

Reaching a Decision.

Proof.

Writing the Decision.

The Decision.

Making and writing the Decision and time requirements.

Sample Report No 1 - Dispute Resolution Board – Recommendation.

Non-Acceptance of Dispute Board Decision.

Notice of Dissatisfaction.

Amicable Settlement.

Arbitration.

Arbitration After Termination of the Dispute Board.

Chapter 11. Board member Conflicts .

Pre-existing conflicts of interest.

Conflicts which can develop during the Hearings.

Evident Partiality.

Interpretation of the Evident Partiality Standard.

Ethical requirements of Board Members.

The Dispute Board Federation.

Code Of Ethics.

Chapter 12. Removal of Board Members.

Contract Provisions.

Voluntary removal.

Non-voluntary removal 296.

Removal by the Chair.

Removal by other Board Members.

Adding new Board members during proceedings.

Notice of Termination of Dispute Board Member by Parties.

Sample - Notice of Termination- by the parties.

Notice of Termination of Dispute Board Member by Parties.

Sample - Notice of Termination - by Member.

Notice of Termination by Member.

Sample – Notice of Termination – by Dispute Board Chair.

Notice of Termination of Dispute Board Member by Dispute Board Chair.

Sample – Notice - Voluntary Resignation by Dispute Board member.

Notice of Resignation.

Sample – Notice - Voluntary Mutual Termination Agreement.

Dispute Adjudication Board.

Termination Agreement.

Chapter 13. Dispute Boards - Use, Training & Current Practice.

Maritime Industry Dispute Boards.

Maritime Disputes.

ICC Rules.

Sample Scenario under ICC Rules.

What is the value of a non-binding Recommendation?.

Setting up the Dispute Board.

The Dispute Board in operation.

The use of Dispute Boards in other settings.

Dispute Board Member Training Programmes.

FIDIC.

ICC, World Bank and ICE.

Default Appointments.

Practise in the United States.

Post Dispute Board Matters.

Chapter 14. Development Banks .

The World Bank Rules.

World Bank Disputes Review Board's Rules and Procedures.

Advice & Opinions.

Ethical Requirement.

Member Acceptance.

Sample – Form of Board Member's Declaration Of Acceptance.

Termination.

Member Payment.

Other Board Member Requirements.

Contractor Requirements.

Procedure for Dispute Referral to the Board.

Conduct of Hearings.

Dispute Review Experts.

Other Multilateral Development Banks.

Chapter 15. Additional Forms.

Sample Dispute Board Member Agreements.

Sample No 1 - Dispute Adjudication Agreement (1 person DAB)- Using FIDIC Form Agreements.

Sample No 2 - Dispute Adjudication Agreement (3 persons DAB)- FIDIC.

Sample No 3 – Ad Hoc Agreement.

Sample No 4 – 3 Person – All Signing One Agreement.

Sample - Disclosure Statement 1- Includes Acceptance.

General Operational Procedure Check List.

DRBF Form – Operating Procedures.

Sample Hearing Agenda – Claim presented.

Sample First Meeting Agenda.

Sample Request for Informal Opinion.

Sample Notice (FIDIC Proceedings).

Sample Timetable & Procedural Details.

Sample No 1- Dispute Synopsis.

Sample – Proposed Grouping Document.

Sample Data Checklist.

Sample – Dispute Adjudication Board – Decision (different format).

Appendix 1 .

FIDIC (Red Book) Conditions of Contract For Construction Sub-Clause 20 Claims, Dispute and Arbitration.

20.1 Contractor’s Claims.

20.2 Appointment of the Dispute Adjudication Board.

20.3 Failure to Agree Dispute Adjudication Board.

20.4 Obtaining Dispute Adjudication Board’s Decision.

20.5 Amicable Settlement.

20.6 Arbitration.

20.7 Failure to Comply with Dispute Adjudication Board’s Decision.

20.8 Expiry of Dispute Adjudication Board’s Appointment.

FIDIC (Red Book) Appendix General Conditions of Dispute Adjudication Agreement.

1 Definitions.

2 General Provisions.

3 Warranties.

4 General Obligations of the Member.

5 General Obligations of the Employer and the Contractor.

6 Payment.

7 Termination.

8 Default of the Member.

9 Disputes.

FIDIC (Red Book) General Conditions Annex Procedural Rules.

Appendix 2.

FIDIC (Yellow Book) Conditions of Contract for Plant & Design-Build Sub-Clause 20 Claims, Dispute and Arbitration.

20.1 Contractor’s Claims.

20.2 Appointment of the Dispute Adjudication Board.

20.3 Failure to Agree Dispute Adjudication Board.

20.4 Obtaining Dispute Adjudication Board’s Decision.

20.5 Amicable Settlement.

20.6 Arbitration.

20.7 Failure to Comply with Dispute Adjudication Board’s Decision.

20.8 Expiry of Dispute Adjudication Board’s Appointment.

FIDIC (Yellow Book) Appendix – Plant & Design-Build General Conditions of Dispute Adjudication Agreement.

1 Definitions.

2 General Provisions.

3 Warranties.

4 General Obligations of the Member.

5 General Obligations of the Employer and the Contractor.

6 Payment.

7 Default of the Member.

8 Disputes.

FIDIC (Yellow Book) Conditions of Contract for Plant and Design-Build Annex Procedural Rules.

Appendix 3.

FIDIC (Silver Book) Conditions of Contract for EPC Turnkey Projects Sub-Clause 20 Claims, Dispute and Arbitration.

20.1 Contractor’s Claims.

20.2 Appointment of the Dispute Adjudication Board.

20.3 Failure to Agree Dispute Adjudication Board.

20.4 Obtaining Dispute Adjudication Board’s Decision.

20.5 Amicable Settlement.

20.6 Arbitration.

20.7 Failure to Comply with Dispute Adjudication Board’s Decision.

20.8 Expiry of Dispute Adjudication Board’s Appointment.

FIDIC (Silver Book) Appendix – EPC Turnkey Projects General Conditions of Dispute Adjudication Agreement.

1 Definitions.

2 General Provisions.

3 Warranties.

4 General Obligations of the Member.

5 General Obligations of the Employer and the Contractor.

6 Payment.

7 Default of the Member.

8 Disputes.

FIDIC (Silver Book) Conditions of Contract for EPC Turnkey Projects Annex Procedural Rules.

Appendix 4 - Dispute Board Rules Of The International Chamber Of Commerce in force as from 1 September 2004.

Introductory Provisions.

Types Of Dispute Boards.

Establishment Of The Dispute Board.

Obligations Of The Dispute Board Members.

Obligation To Cooperate.

Operation Of The Dispute Board.

Procedures Before The Dispute Board.

Determinations Of The Dispute Board.

Compensation Of The Dispute Board Members And Icc.

General Rules.

Appendix Schedule Of Costs.

Standard ICC Dispute Board Clauses.

ICC Dispute Review Board Followed By ICC Arbitration If Required.

ICC Dispute Review Board followed By ICC Arbitration If Required *.

Model Dispute Board Member Agreement.

1. Undertaking.

2. Composition of the DB and Contact Details.

3. Qualifications.

4. Fees.

5. Payment of Fees and Expenses.

6. Duration and Termination of the Agreement.

7. Indemnity.

8. Disputes and Applicable Law.

Appendix 5 – Oaths and Affirmations.

Sample Oaths and Affirmation.

Appendix 6.

The Dispute Board Federation Dispute Adjudication Board Ad Hoc Rules for use in Independently Administered Dispute Board matters.

Resources.

Table of Authorities.

Index

392 pages, Hardcover

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