12 Jun 2018
It’s always a welcome sight to see progress and particularly in the second edition coming through of the FIDIC “Red Book”.
As a long-standing Arbitrator and Adjudicator, it is sometimes easy for our industry to set aside or look past the potential benefit of avoiding dispute before it really gets started. I see the DAAB amendments as being a positive step to potentially address and resolve certain issues before they get out of hand and parties become fully entrenched.
In my view, parties looking towards solid cases and well-supported arguments must take the time to put these together properly and perhaps the amendments will mean more opportunity and more requirement to test and validate before formal disputes are initiated.
I think it is sensible that all formal disputes are referred to a Dispute Avoidance Board for provisionally binding decision as a condition precent to Arbitration. Dispute, whether Adjudication or Arbitration, is never an action that should be entered into lightly and perhaps the amendments will help to alleviate the weaker cases away from the system whilst suggesting to the parties that they take greater care in how they intend presenting their formal submissions should they proceed.
I have always advocated the benefits of Adjudication in the construction dispute process but often over the years, the general perception of Adjudication as a “quick fix” has resulted in weak and poorly drafted cases being presented. Often these fail as all Adjudicators will know, and the time and cost implications are factors that potentially could have been avoided.
I would like to think as time has gone on that the general perception of Adjudication as a powerful resolution of disputes has risen and in the Gulf, perhaps more should be done to ensure that dispute clauses are not drafted out of contracts by parties and that the progressive provisions being implemented are adhered to.
Dispute resolution is a process to be embraced as there are circumstances where it is simply unavoidable.
I hope, like many others, that the progressive changes in our contracts help raise both the perception of what is required by dispute provisions and the standards of submission prepared and received. That is the only way that the entire process can move forward.
As is often said when we talk of progress, we all have to get better at getting better.