“Standing Dispute Adjudication Boards in Construction Projects should seriously practice their role in Dispute Avoidance in Contracts” said Sri Lanka Country Representative of the Dispute Resolution Board Foundation (DRBF) Malith Mendis, at the DRBF Regional Conference 2018 held recently in Yogyakarta, Indonesia.
“They should encourage open communication between the Parties at meetings and should request that senior off-site personnel from both the Employer and the Contractor are present at every meeting as ensures that senior personnel hear the other side of every issue, not just that from their own personnel. This is especially important in developing countries where there is intense construction activity which puts pressure on the existing resources, and leads to many Disputes”.
“The International Federation of Consulting Engineers (FIDIC) has recognized this Dispute avoidance role and has made great emphasis on this role in the new 2017 Suite of Construction Works Contracts. The Dispute Board is now called the Dispute Avoidance and Adjudication Board (DAAB). The DAAB (in the case of a three-member DAAB, all three DAAB Members acting together) may give Informal Assistance during discussions at any meeting with the Parties (whether face-to-face or by telephone or by video conference) or at any Site visit or by an informal written note to the Parties”. “Informal Assistance” means the informal assistance given by the DAAB to the Parties when requested jointly by the Parties under the new Sub-Clause 21.3 [Avoidance of Disputes] of the Conditions of Contract.Parties may jointly request (in writing) to the DAAB to provide assistance and/or informally discuss and attempt to resolve any issue or disagreement”.
“ The DAAB may also invite the Parties to make such a joint request.Both Parties should be present at any informal assistance meetings unless they agree otherwise. The DAAB, of course, has the power to establish the procedure to be applied in giving Informal Assistance.” “The most important tool for dispute avoidance is communication. First the clear communication of a claim to the other party which is the factual basis of the claim, including supporting documents where appropriate.The legal basis that supports the entitlement. Secondly the clear communication of the basis for rejection of the claim, Any additional or different facts (including documents) and the legal basis that supports the rejection”.
“It also very important that, management of project execution in accordance with the requirements of the contract, which includes sufficient resources, realistic and credible “as built” programs, work completed to the contractually required quality, design documents submitted to the Employer, maintaining and managing comprehensive documentation from the start of the tender through the execution of the project will ensure that the best evidence is available to support/defend a claim and familiarity with the Contract conditions.”
He recommended the dispute avoidance techniques of inviting senior off-site personnel from both the Employer and the Contractor are present at every DAAB meeting to ensure that senior personnel hear the other side of every issue, not just that from their own personnel.
The Dispute Resolution Board Foundation (DRBF), a non-profit organization dedicated to promoting the avoidance and resolution of disputes worldwide using the unique and proven Dispute Resolution Board (DRB) method.
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