Dispute resolution “road map”

11.1 Dispute resolution in the construction industry can be achieved through the following well-established and legally binding mechanisms:

Fédération Internationale des Ingénieurs-Conseils (FIDIC)

11.5 FIDIC is Geneva-based organisation, whose forms derive from these of the Institution of Civil Engineers and which originally had the employer’s “engineer” as the first-tier dispute resolver. FIDIC deals with large multinational infrastructure projects through a dispute review system, such as the milestone 1980 case “EI Cajon” (dam and hydroelectric facility) in Honduras, where a dispute resolution board (DRB) was originally used, as sponsored by the WB.

Key dates

11.6

• .1 Early in 1990: Procurement for Works (a WB publication) was published, inter alia, modifying the FIDIC contract, with provisions for DRBs and non-binding recommendations and opinions.
  
• .2 Between 1995 and 1996: FIDIC followed suit: new version of design, build (DB) contract and optional amendment to its standard form construction contracts; both documents introduced DABs.
  
• .3 Later, a divide occurred between traditional DRBs (non-binding recommendations) and DABs (interim binding decisions): FIDIC removed the engineer as the first-tier dispute decider, where the DAB option was incorporated.
  
• .4 In 1999: FIDIC published its revised forms of contract: DAB was the principal means of dispute review in contractual mechanisms, as follows:
  
  
  
  • .4.1 Red Book (Construction): DAB established at the outset,
    
  • .4.2 Yellow Book (Plant and Design Build), and
    
  • .4.3 Silver Book (EPC/Turkney): DAB establishment deferred until a dispute arises.
  
  
  
  
• .5 In 2000: WB published the new edition of Procurement of Works: moving away from US model DRBs (non-binding recommendations), towards FIDIC-style DRBs. The WB contract therefore adopts the DRB (interim binding recommendations) and the engineer no longer has a quasi-judicial rôle with the WB and FIDIC embarking upon the harmonisation of its DRB/DAB provisions. Likewise, other development banks, such as the EBRO and Asian Development Bank, also become involved in the harmonisation process.
  
• .6 In 2005: new contract conditions were published by FIDIC and were adopted by all leading development banks utilising DRBs.

International Chamber of Commerce, International Court of Arbitration

11.7 This has published the following suite of documents:

• .1 Rules of Arbitration: latest revision in force as from 1 January 2012, including administered arbitration and an emergency arbitrator provision;
  
• .2 Mediation Rules: latest version in force as from 1 January 2014;
  
• .3 DB Rules: latest version in force as from 1 September 2014;
  
• .4 Rules for Expertise: in force as from 1 January 2003;
  
• .5 International Centre for ADR, based in Paris, France;
  
• .6 DOCDEX procedure for trade finance.