Chern on Dispute Boards

A dispute board is a panel of impartial members, appointed at the outset of the construction contract, whose purpose is to monitor progress, resolve disputes as they arise and provide a forum for discussing difficult matters.
This book provides an in depth analysis of dispute board law and detailed, practical explanations of how dispute boards work in construction contracts for those actively involved. as well as for those who need to learn the process. Important features of the book include:

Explanation of how a dispute board works: Insider knowledge of board operations: Key documents to run a dispute board: Detailed discussion of dispute board law (covering key jurisdictions worldwide): Forms of practice and procedure, and sample documents

Reviews of the previous edition

"Chern's book provides an extremely practical guide, covering not only an introduction to the process but also providing check lists and sample documentation.... This book will be welcome by practitioners in the area and newcomers to the dispute board process."
—The International Journal of Arbitration, Mediation and Dispute Management, November 2009

"This book will provide a very useful, perhaps essential, guide to parties commissioning large capital construction projects, those advising them and those bidding to carry out such works, and importantly, the project funders."
—The Expert & Dispute Resolver

"This is a must-have book for grown up contractors"
—Tony Bingham, Building

"His timely work …concentrating on what may prove to be the primary means of dispute resolution for major international construction projects is to be welcomed."
—HHJ Humphrey Lloyd, QC, The International Construction Law Review

"This excellent book on Dispute Boards is a must for every construction lawyer, engineer, architect and contractor who is either involved in Dispute Boards or wants to be"
—Herbert Wilson, The Journal of the Dispute Board Federation

The Author xvi

Preface xvii

Acknowledgements xix

Chapter 1 The Dispute Board Concept 1

Chapter 2 Types of Dispute Boards 25

Chapter 3 Legal Basis for Dispute Boards 31

Chapter 4 Case Histories 70

Chapter 5 Appointing and Establishing a Dispute Board 79

Chapter 6 Selection of a Dispute Board 108

Chapter 7 Referral to a Dispute Board 155

Chapter 8 Elements of a Referral 168

Chapter 9 Site Visits 187

Chapter 10 The Hearing Process 213

Chapter 11 Board Member Conflicts 254

Chapter 12 Removal of Board Members 269

Chapter 13 Dispute Boards – Use, Training and Current Practice 276

Chapter 14 Development Banks 289

Chapter 15 Additional Forms 301

Appendix 1 FIDIC (Red Book) Conditions of Contract for Construction 332

Appendix 2 FIDIC (Yellow Book) Conditions of Contract for Plant and Design-Build 343

Appendix 3 FIDIC (Silver Book) Conditions of Contract for EPC Turnkey Projects 353

Appendix 4 FIDIC (Gold Book) Conditions of Contract for Design, Build and Operate Projects 363

Appendix 5 Dispute Board Rules of the International Chamber of Commerce 375

Appendix 6 Sample Oaths and Affi rmations 393

Appendix 7 The Dispute Board Federation Dispute Adjudication Board Ad Hoc Rules for Use in Independently Administered Dispute Board Matters 395

Resources 406

Table of Cases 407

Index 409

Dr Chern is a Barrister practising at Crown Office Chambers, London. Additionally he is a Chartered Architect, Fellow of the Chartered Institute of Arbitrators, Fellow of the Dispute Board Federation, Chartered Arbitrator, Accredited Mediator and Adjudicator and holds the degrees of BArch (Honours) in Architecture and Engineering and Juris Doctor. He has practised since 1972 specifically in the areas of engineering and construction disputes in the United Kingdom, the EU and internationally. As an adjudicator he is on numerous appointing bodies including the FIDIC President's List of Approved Adjudicators, The Dispute Board Federation (Geneva) Panel of Approved Dispute Board Members, and the Institution of Civil Engineers (ICE) Dispute Board panel. He has extensive experience in civil and structural engineering design issues, supervision of construction, contract management, construction insurance, arbitration, mediation, adjudication and other methods of dispute resolution. He has had over 580 engineering construction dispute references and has served on over 100 dispute boards in that time, acting as chairman on most occasions. He has over 40 years' experience in arbitration, mediation and adjudication and has handled complex international commercial and construction matters in over 20 countries worldwide located in North and South America, Europe, the Middle East, China, and Africa.
Dr Chern is a member of various panels, groups and committees both in the United Kingdom and abroad including the FIDIC Adjudicators Assessment Panel and the Dispute Board Federation Advisory Panel, the Royal Institution of Chartered Surveyors (RICS) Dispute Resolution Committee, the Association Suisse de L'Arbitrage, the Civil Mediation Committee, the Society of Construction Arbitrators, and the Association of Consulting Engineers, and he is a Fellow of the Centre for International Legal Studies in Austria, Fellow of the Dispute Board Federation (Geneva) and its Secretary, and a sustaining member of the Dispute Resolution Board Foundation in the United States. Additionally he is a dispute board trainer for both the FIDIC, the DBF, RICS, and International Chamber of Commerce (ICC) rules and procedures.
In addition to this book, Dr Chern is the author of a large number of papers and articles on dispute boards, construction disputes, and mediation and is the author of International Commercial Mediation and The Law Of Construction Disputes both published by Informa Publishing London. Additionally he is the co-author and subject editor for Emden's Construction Law: ADR and Dispute Boards published by LexisNexis Butterworths, London. Dispute boards were first introduced a little over 20 years ago. Since then close to USD$130 billion worldwide has been spent on construction projects that have used dispute boards. Of these, 98 per cent were constructed without any court battles and of the remaining 2 per cent, 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 UK common law, European civil law and Islamic Sharia law;
• analysis of the differences between the various major standard forms of dispute board rules – FIDIC, International Chamber of Commerce (ICC) and Dispute Board Federation (DBF) – 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;
• enforcement of dispute board 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.