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ALTERNATIVE DISPUTE RESOLUTION AND DISPUTE
ADJUDICATION IN CIVIL LAW COUNTRIES Hype or

substance?
ALTERNATIVE DISPUTE RESOLUTION AND DISPUTE ADJUDICATION IN CIVIL

LAW COUNTRIES HYPE OR SUBSTANCE?
Revista de Arbitragem e Mediação | vol. 34/2012 | p. 299 - 333 | Jul - Set / 2012
Doutrinas Essenciais Arbitragem e Mediação | vol. 6/2014 | p. 117 - 152 | Set / 2014
DTR\2012\450632
Götz-Sebastian Hök
Graduated in Law from Göttingen University. PhD in Law (Göttingen University). Arbitrator,
adjudicator and legal counsel and also a fully accredited FIDIC trainer. Lecturer at Berlin University of
Applied Science for Construction Contract Management Law. FIDIC listed Adjudicator (since 2009).
FIDIC Legal Adviser. Member of DAB and arbitral panels in Bosnia, Germany, Latvia, Mali, Poland
and Tanzania. Lawyer.
Área do Direito: Internacional; Processual; Arbitragem

Resumo: À luz do fato da demora, alto preço e ineficácia da resolução de disputas sobre construção
perante tribunais nacionais, há uma necessidade crescente de outras formas de resolução de
disputas, a exemplo dos Dispute Adjudication Boards (DABs). O autor discute a lei aplicável em
procedimentos conduzidos por DABs, a exequibilidade das respectivas decisões, e a necessidade de
difundir este método de resolução de controvérsias.
Palavras-chave: Judiciário - Dispute Adjudication Boards (DABs) - Resolução de conflitos -

Contratos de construção - Lei aplicável - Exequibilidade de decisões de DABs.
Abstract: In view of the lengthy, expensive and ineffective construction disputes before national
courts, there is an increasing need for other forms of dispute resolution, such as Dispute Adjudication
Boards (DABs). The author discusses the applicable law in dispute adjudication proceedings, the
enforceability of decisions rendered by DABs and the need for divulging such mechanism.
Keywords: Judiciary - Dispute Adjudication Boards (DABs) - Construction contracts - Applicable law
- Enforceability of DAB decisions.
Sumário:
- 1. CONTRACTUAL FREEDOM - 2. STATE COURT ADJUDICATION VS. DISPUTE

ADJUDICATION - 3. DISPUTE AVOIDANCE - 4. LEGAL NATURE OF DISPUTE ADJUDICATION -
5. IT HAS THE NATURE OF AN AGREEMENT SUI GENERIS - 6. APPLICABLE LAW - 7.
CONSTRAINTS - 8. CONCLUSIONS
Complaints1 are made worldwide about lengthy, expensive and ineffective construction disputes.2
Cadiet has identified a crisis of civil Justice.3 A great number of claims and grievances emerge but
are not pursued.4 Germany is a typical example.5 However, in the words of a an eminent former judge
of the German Federal Supreme Court the bad reputation of court proceedings stands in a
remarkable disproportion to the daily practice in the courts.6 There continue to be as many
construction disputes as always, even if they are expensive and take too long.7
In contrast a great variety of alternative dispute resolution methods including dispute adjudication are
available, all of them designed for quick and efficient dispute resolution. Accordingly the
“contractualisation” 8 of justice has become an ongoing process.9 However, in reality on the German
domestic level alternative dispute resolution methods are rarely used.10 The English example is not
as encouraging as it was sometimes reported.11 English statutory dispute adjudication exists since
1996 and is frequently used. Since the introduction of mandatory dispute adjudication in England the
number of English court cases has decreased by approximately 30% but not more than this.12 At the
same time the number of adjudication cases increased. However, to my knowledge there is no
conclusive empirical or other evidence for that the decrease of court cases was due to the increase in
DAB cases.
Currently the proper use of DABs in European countries outside the UK is infrequent, albeit there was
a very intensive and highly interesting academic discussion on the subject matter for example in
Germany13 on whether the legislator should adopt dispute adjudication as a regular feature of dispute
resolution in the construction industry. Eminent authorities from civil law countries rarely deal with
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dispute adjudication14 and if so, they do it superficially.15
The reasons for the hesitant development of ADR (excluding arbitration)16 are not very clear. As a
matter of fact reliable empirical data are only exceptionally available,17 albeit the overall amount of
available data is increasing.18 The recent ICC statistics on ADR are encouraging but not showing the
proportion of civil law cases.19 However, the experiences are such that to some extent baseless fears
and irrational anxieties and actual lack of persuasive arguments in favour of alternative dispute
resolution methods are certainly contributing factors. There is also insufficient and inadequate
information about dispute adjudication in civil law countries. Moreover the term alternative dispute
resolution and its subtitles such as dispute review and dispute adjudication are more or less vague
and lack precision. Probably, and more importantly civil law practitioners frequently do not have
encouraging experiences with alternative dispute resolution methods apart from arbitration. Also there
is the frequent argument or complaint that adjudication fees are not eligible by funding institutions, in
particular in Eastern European countries.
Last, but not least the great variety of suggested methods causes perplexity. There is statutory
adjudication20 and contractual adjudication.21 Moreover the ICC has Combined Dispute Boards22 and
local institutions have published adjudication rules.23 Fast track arbitration24 and dispute adjudication
are similar features. There is also the Italian arbitrato irrituale (contractual arbitration).25 In some
areas of the world the Engineer still has adjudication powers.26 Multiparty dispute adjudication and
back-to-back adjudication are upcoming features.27 Expert determination, expert arbitration or binding
advice are complementary means of dispute resolution.28 Hence, a purposeful discussion calls for a
definition or description of dispute adjudication in a legal context.
1. CONTRACTUAL FREEDOM
Dispute adjudication is the product of an agreement between parties.29 It is aimed at the resolution of
disputes by an adjudicator. That agreement is merely based on the principle of contractual freedom30 .
Nevertheless agreements that are intended to have a legal operation create legal rights and duties
which do not exist in a vacuum. Hence, in order to know whether that agreement is not only valid but
is enforceable, the test is whether there are limits or constraints with regard to dispute adjudication
agreements making them invalid or unenforceable. The question also arises whether dispute
adjudication must comply with particular rules in law in order to become effective.
2. STATE COURT ADJUDICATION VS. DISPUTE ADJUDICATION
We shall look first whether the courts have exclusive jurisdiction. Dispute adjudication agreements are
not only positive, but negative in that they prevent the parties to a contract from referring other
disputes to the courts, at least until the Dispute Board has made its decision on the dispute. This
particular effect of a DAB clause has recently been confirmed by the Court of Appeal Singapore.31
Art. 33 of the UN Charter provides:
“The parties to any dispute, the continuance of which is likely to endanger the maintenance of
international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation,
conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other
peaceful means of their own choice.
Hence, international law recognises various forms of alternative dispute resolution methods.
However, throughout the world only state courts have the uncontested authority to enforce contracts
and obligations arising out of or in connection with contracts,32 though in parallel most states and
jurisdictions recognise arbitral tribunals having similar or complementary authorities.33 The strength of
state court decisions and arbitral awards lies with the fact that both court decisions and arbitral
awards may be enforced by the states without reviewing the merits of the case. Besides, in principle
the parties are free to refer their respective disputes to alternative dispute resolution entities. At least
they are free to do so, if any such agreement does not limit the access to either state courts or
arbitration because throughout the world it is a recognised principle of law that parties cannot by
contract oust the courts of their jurisdiction.34
However, since Scott vs. Avery it is the law in England and Wales that any person may agree that no
right of action shall accrue until a third person has decided the difference between himself and the
other party to the covenant. The English and Irish Arbitration Acts confer on the courts a certain
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jurisdiction over arbitrations.35 The purpose of this role is supervisory and is designed to ensure that
the arbitration procedure is conducted fairly. Further, court supervision gives parties confidence in the
process by assuring the participants that if there is breach of fair procedures, or if an injustice is
caused, they can invoke this jurisdiction to remedy the same. In addition, without this safeguard,
every arbitration clause which, by its nature ‘supplants’ the jurisdiction of the court, would be void,
including every Scott vs. Avery clause. However, in England and Wales the Arbitration Act 1996 has
given English arbitration law an entirely new face, a new policy, and new foundations.36 The English
judicial authorities (…) have been replaced by the statute as the principal source of law. The influence
of foreign and international methods and concepts is apparent in the text and structure of the Act, and
has been openly acknowledged as such. Finally, the Arbitration Act 1996 embodies a new balancing
of the relationships between parties, advocates, arbitrators and courts which is not only designed to
achieve a policy proclaimed within Parliament and outside, but may also have changed their juristic
nature.”
In Belgium,37 France,38 Italy,39 Luxembourg40 and the Netherlands41 arbitration and binding advice
are available as dispute resolution alternatives. The Dutch Complaints Boards give decisions which
are binding on both parties. The courts will enforce it subject to the test under section 904, book 7 of
the Dutch Civil Code. Enforcement will be declined if the decision, according to reasonable and fair
standards, is unacceptable regarding its content or the way in which it was reached with regard to the
given circumstances, e.g. if the Complaints Board has ignored the fundamental principles of
procedural law, such as the right of both parties to be heard. The Spanish Constitution reserves the
adjudication of disputes to the Judiciary; however, arbitration is a valid dispute resolution method
which does not depart from the spirit of the Spanish Constitution.42 The right of access of every
citizen to the ordinary courts in no way affects the constitutional validity of arbitration.43 The right to
justice can be exercised before ordinary courts and through arbitration as it was confirmed by the
Spanish Supreme Court.44 In Germany parties may agree on arbitration (see Sections 1.025 et seq.
Civil Procedure Code) and the giving of binding advise (see Sections 317 Civil Code) as a dispute
resolution method.
Interestingly the South African Constitutional Court45 recently held that international and comparative
law (as considered in the judgment) suggests that Courts should be careful not to undermine the
achievement of the goals of private arbitration by enlarging their powers of scrutiny imprudently. It
accepted and approved the validity of an agreement under which the parties intended the arbitrator to
follow an informal, investigative process and one in which no oral evidence would be led and by which
the procedure was by and large aimed at the determination of facts and in particular the amount owed
by one party to another, if anything. In fact the terms of the arbitration agreement itself contemplated
that the purpose of the arbitration was to determine – “whether payment is due in terms of the
contract concluded between the parties, and if it is (…) due, the extent of such payment due, having
regard to the scope of the agreement; any agreed amendments or instructions for amendments
thereto by the Defendant or (…); the value of the work that has been done”. Thus, in the view of the
Court an informal, investigative process was envisaged. That process was one where the arbitrator
received evidence, prepared a schedule of quantities based on the evidence he received, gave both
parties a copy of the schedule or a letter setting out his concerns and gave each an opportunity to
comment.
The effect of agreements whose subject matter it is to limit or exclude the jurisdiction of courts
depends on the wording of the agreement and the applicable laws. To the extent that the agreement
provides in lieu of a court proceeding for a dispute resolution method which ensures a fair and
equitable procedure in accordance with the essential requirements as set out by the relevant laws the
courts may decline their jurisdiction. To the extent that by virtue of the agreement the courts have no
jurisdiction until a condition precedent to the right of action has been satisfied, the courts may grant
an order to stay.
An exclusive jurisdiction agreement is “one which imposes a contractual obligation on one or more
parties to litigate in the stated jurisdiction”. This type of agreement has a positive aspect in that the
parties are agreeing on trial in the chosen (e.g. arbitral) forum. Moreover, having done so, the parties
implicitly agree not to object to the jurisdiction of that forum. However, equally importantly, such an
agreement also has a negative aspect. In the situation where there is an agreement providing for the
exclusive jurisdiction of an arbitral court or DAB, the parties promise not to invoke a state court. If one
of the parties does so, this is a breach of their agreement.
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The European Court of Justice has consistently held that, in the absence of EU rules governing the
matter, it is for the domestic legal system of each member State to designate the courts and tribunals
having jurisdiction and to set the detailed procedural rules governing actions for safeguarding rights
which individuals derive from EU law, but the member States are nevertheless responsible for
ensuring that those rights are effectively protected in each case.46 Accordingly the Court47 has held
that the principles of equivalence and effectiveness or the principle of effective judicial protection do
not preclude national legislation which imposes, in respect of disputes, prior implementation of an
out-of-court settlement procedure, provided that the procedure does not result in a decision which is
binding on the parties, that it does not cause a substantial delay for the purposes of bringing legal
proceedings, that it suspends the period for the time-barring of claims and that it does not give rise to
costs – or gives rise to very low costs – for the parties, and only if electronic means is not the only
means by which the settlement procedure may be accessed and interim measures are possible in
exceptional cases where the urgency of the situation so requires.
3. DISPUTE AVOIDANCE
It is a very important aim of dispute adjudication that it not only achieved dispute resolution but also
dispute avoidance. The issue is whether the parties are really open and inclined to avoid disputes.
Under FIDIC both parties shall at least attempt to avoid arbitration (see Sub-Clause 20.5 Red Book
1999). The FIDIC Gold Book encourages the parties to avoid disputes (Sub-Clause 20.5 Gold Book).
Whilst there is no general rule in common law requiring the parties to negotiate in good faith, the
obligation of good faith in negotiation is found practically in all civil law system countries. Under
common law the principle is that it is generally left to parties themselves to make bargains. It is
therefore left to them sometimes to fail to make bargains or to fail to agree on particular terms.48 By
contrast civil law generally provides a remedy for a wrongful conduct produced by a bad faith act (see
Sections 311, 242 German Civil Code). Although there is no general rule about pre-contractual
liability in the common law system, the parties shall not engage in unfair conduct at the pre-contract
stage if the parties have signed a letter of intent or a memorandum of understanding, requiring them
expressly and clearly to “act in good faith” and/or “to use their best efforts to reach an agreement”.49
A contractual duty to use best endeavours to achieve a defined object is enforceable, whereas an
obligation to use best endeavours to achieve an indefinite object is not.50 However, provided there
was consideration for the promise, in some circumstances a promise to negotiate in good faith will be
enforceable.51
German law has developed comprehensive rules regarding good faith negotiations. The doctrine of
good faith plays a most important role in the emerging field of secondary or auxiliary contract
obligations in Germany. The primary obligation of the parties is to perform in terms of the contract.
The secondary obligation specifies how the parties have to perform. Within that category courts have
recognised an obligation on contracting parties to bargain in good faith and to deal fairly with each
other particularly where the parties have reached agreement on that question. Italian scholars have
mostly looked for inspiration to German doctrines on good faith. In France principles of good faith
extend to both the negotiation and performance of contracts despite the limited terms of the Code
Civil. Although the French Code Civil has been influential in Belgium, Belgian courts have relied more
extensively than their French counterparts on the principle of good faith in the performance of
contracts.
The German Federal Supreme Court52 has held that during the construction period the parties to a
construction contract are obliged to cooperate provided that the contract includes such an express or
implied duty. If disagreements or differences between the parties to the contract arise during contract
performance on the need for adapting the contract or the way in which the contract might be adapted
or as to its implement to changed circumstances, the parties are in principle required to negotiate in
an endeavour to reach a mutual settlement of such differences or disagreements if the contract so
requires. The Court held, that provided there is such an express or implied duty, the parties may not
refuse to negotiate and to cooperate, since this is a breach of their contract.
Also under South African Law an agreement to agree on something is enforceable provided that the
parties had created a specific mechanism to ensure that an agreement was concluded. In the referred
case this mechanism was the dispute resolution mechanism of arbitration providing that in the event
of the parties not being in a position to agree on any of the terms and conditions, such dispute would
be referred to an arbitrator.53
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substance?
Hence, dispute avoidance practices do not only depend on the free and deliberate intention to avoid a
dispute. Rather the contract and the law require each party to act in good faith in the endeavour to
reach agreement. Failure to comply with these duties may lead into breach of contract.
4. LEGAL NATURE OF DISPUTE ADJUDICATION
In some countries like in England and Wales dispute adjudication is a well-known feature and, for
certain construction contracts, has a statutory form.54 However, in most jurisdictions dispute
adjudication is not subject to any particular or specific legislation or case law whilst arbitration is.55
Hence, in particular civil law practitioners do not have a clear definition of dispute adjudication56 and
accordingly there is no obvious legal framework which might help to deal with it. The first step for civil
law practitioners in taming an unknown animal like dispute adjudication is therefore to qualify or
characterise the agreement before it. If it falls within the limits of one of the nominate contracts its
content will be largely determined by the appropriate default rules (lois supplétives). Even if it is
qualified as innomminate contract its incidents will often be determined by reference to that or more of
the nominate contracts to which it is most analogous. In both legal systems, the French and the
German one, the starting point is that the incidents of a contract are fixed by law, subject to the
parties’ power to vary them.57 In Germany it is of first importance that the judge in filling any gap
spells out the logical or normative implications of the contractual framework set out by the parties.58 I
would add that the default rules are understood as a part of the logical and normative implications of
the contract set out by the parties. Another primary task of the courts is to apply law but not to create
law.
Thus, only if we have been able to identify the very nature of dispute adjudication, existing specific
legislation or case law can and shall be applied on it. Accordingly at least under civil law it is
necessary to know the legal character of dispute adjudication to enable it to be classified.59 Now,
what is dispute adjudication like? What are its essential or characterizing elements? It is suggested
that dispute adjudication can be described as a hybrid phenomenon as follows:
1. Dispute adjudication is based on an agreement (governed by the proper law of the contract)60
whereby the parties to it agree that a third party (e.g. the DB) shall give an opinion on a subject matter
(a matter of fact or an element of a legal relationship), opinion which they agree in advance shall be
binding on them.
2. But it should be added that the third party shall form its opinion on what is unilaterally submitted to
it as a dispute, being bound to hear both parties and to form its opinion not only based on its
professional knowledge but subject to the law and the contract from which the subject matter of the
dispute (for ex: a claim) has arisen.61
3. Last but not least the adjudicator shall not act as an arbitrator,62 hence being deliberately
exempted from the duties of an arbitrator though not being appointed to act as an “amiable
compositeur”.63
5. IT HAS THE NATURE OF AN AGREEMENT SUI GENERIS
1. Development of dispute adjudication
Dispute adjudication is nothing really new. It has a long tradition and history. From the 19th century
Engineers had such or similar powers as adjudicators have today. FIDIC forms of contract in use still
empower a third person (the Engineer) to make decision on disputes.64 Not surprisingly this role gave
rise to various comments from courts.
In the early English Chancery case of M’Intosh vs. The Great Western Railway Company (1850)65 the
famous Engineer, I. K. Brunel, whose duty it was to measure and certify the value of certain works,
had purportedly hidden the fact that he was a shareholder in the railway, and had consistently under
certified the value of the works or failed to certify. Fraud was alleged. The issue of a certificate was
argued to constitute a precondition to the contractual entitlement of the company to payments. The
employer contended that Brunel was an agent and the contractor contended that he was an arbitrator
or judge. The Lord Chancellor did not refer to the fact that Brunel was an arbitrator, but held that “(…)
this is clearly a case in which the contractor cannot obtain what he is entitled to at law; and that his
inability to do so has arisen from the acts of the Defendants, or their agent (…)”.
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2. The Engineer’s role
For a long time it was common to believe that when the Engineer carried out certain duties under the
contract he or she was acting as a quasi-arbitrator or in other words with judicial powers. He or she
was said to be acting in a quasi-arbitral capacity. More than one hundred years later the English
House of Lords put an end to this misunderstanding by the well known case of Sutcliffe vs. Thackrah.
66
In that case the House of Lords held that an architect issuing interim certificates was not immune
from suit in negligence. The speeches in the House of Lords contain many valuable statements about
the duties of an architect when acting as certifier or decision-maker. At p. 737 Lord Reid said this:
“It has often been said, I think rightly, that the architect has two different types of function to perform.
In many matters he is bound to act on his client’s instructions whether he agrees with them or not, but
in many other matters requiring professional skill he must form and act on his own opinion. Many
matters may arise in the course of the execution of a building contract where a decision has to be
made which will affect the amount of money which the contractor gets. Under the RIBA contract many
such decisions have to be made by the architect and the parties agree to accept his decisions. For
example, he decides whether the contractor should be reimbursed for loss under clause 11
(variation), clause 24 (disturbance), or clause 34 (antiquities), whether he should be allowed extra
time (clause 23) or when work ought reasonably to have been completed (clause 22). And, perhaps
most important, he has to decide whether work is defective. These decisions will be reflected in the
amounts contained in certificates issued by the architect. The building owner and the contractor make
their contract on the understanding that in all such matters the architect will act in a fair and unbiased
manner, and it must therefore be implicit in the owner’s contract with the architect that he shall not
only exercise due care and skill but also reach such decisions fairly, holding the balance between his
client and the contractor.”67
At p. 737H Lord Reid described the argument that, as all persons carrying out judicial functions must
act fairly, therefore all persons who must act fairly are carrying out judicial functions as completely
illogical. Hence, in order that an Engineer should be immune from liability for negligence the contract
must require from him to act as an independent quasi-arbitrator. For the rules of natural justice to
apply, there must be something in the nature of a judicial situation. In Amec Civil Engineering Ltd vs.
Secretary of State for Transport68 the Court of Appeal had to consider the ambit of the duty of an
engineer in making a decision over a dispute referred to him under Clause 66 of the ICE Conditions.
Amec were responsible for renovation works to the Thelwell Viaduct, which carries the M6 motorway
across the Manchester Ship Canal. When defects were found in roller bearings used the employer
wrote to Amec asking them to accept liability. When Amec did not do so, the employer referred the
dispute to the engineer for determination in accordance with Clause 66 ICE conditions. The engineer
decided in a matter of days that Amec was liable for the defects. Amec were dissatisfied with this
decision and referred the dispute to arbitration. Amec complained that the arbitrator had no
jurisdiction because the engineer’s decision was invalid in that it had not been reached by a fair
process – in particular the engineer had made his decision without giving Amec the opportunity to
make submissions. The Court of Appeal (with May LJ giving the leading judgment) held that there
was no difference between the engineer’s duty under Clause 66 and his duty when carrying out his
other independent functions. According to May LJ the engineer had to act independently, honestly
and fairly – but he did not have to apply the rules of natural justice. By contrast Rix LJ was of the view
that the engineer’s role under Clause 66 did differ from his other roles and that he had been wrong
not to have heard both sides before reaching his decision on the dispute. Accordingly he was of the
view that the engineer was obliged to comply with the rules of natural justice when determining a
dispute under Clause 66. However, the disagreement between May LJ and Rix LJ did not affect the
outcome of the appeal.
3. FIDIC dispute resolution framework
A short overview of the features of Clause 20 of the FIDIC Conditions of Contract is beneficial for a
proper understanding of the contractual framework for resolving disputes between the parties. The
procedure for dispute resolution by a DAB under Clause 20 of the Conditions of Contract comprises
various specific steps.
In accordance with Sub-Clause 20.4 a DAB is to give its decision within 84 days after receiving a
referral, or within such other period as may be proposed by the DAB and approved by both Parties69 .
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The decision shall be reasoned and shall state that it is given under this Sub-Clause. The decision
shall be binding on both Parties, who shall promptly give effect to it unless and until it shall be revised
in an amicable settlement or an arbitral award. Unless the Contract has already been abandoned,
repudiated or terminated, the Contractor shall continue to proceed with the Works in accordance with
the Contract. If either Party is dissatisfied with the DAB’s decision, then either Party may, within 28
days after receiving the decision, give notice to the other Party of its dissatisfaction. If the DAB fails to
give its decision within the period of 84 days (or otherwise approved) after receiving such reference,
then either Party may, within 28 days after this period has expired, give notice to the other Party of its
dissatisfaction. In either event, this notice of dissatisfaction shall state that it is given under this
Sub-Clause, and shall set out the matter in dispute and the reason(s) for dissatisfaction. If the DAB
has given its decision as to a matter in dispute to both Parties, and no notice of dissatisfaction has
been given by either Party within 28 days after it received the DAB’s decision, then the decision shall
become final and binding upon both Parties.
Except as stated in Sub-Clause 20.7 [Failure to Comply with Dispute Adjudication Board’s Decision]
and Sub-Clause 20.8 [Expiry of Dispute Adjudication Board’s Appointment] neither Party shall be
entitled to commence arbitration of a dispute unless a notice of dissatisfaction has been given in
accordance with this Sub-Clause. Under Sub-Clause 20.6 arbitration is allowed only if there is dispute
in respect of which the DAB’s decision has not become final and binding. Under Sub-Clause 20.7
arbitration is allowed only for “final and binding” decisions for enforcement of the decision of the DAB.
In the former case the purpose of the arbitration is to, inter alia, review and revise the decision of the
DAB. Under Sub-Clause 20.8 arbitration is allowed if there is no DAB in place. The wording in
Sub-Clause 20.6 justifies the conclusion that before a dispute can be subject to arbitration, it must
first have been referred to the DAB.70 The opening words of the first sentence of Sub-Clause 20.6
makes it clear that a “dispute” that may be submitted to arbitration under Sub-Clause 20.6 is one that
has been referred to the DAB.71 This principle has also been recognised by Indian courts though in a
more general form. It has been held that a court must first ensure that the remedies provided for in
the Contract itself are exhausted.72
4. Purpose and aims of dispute adjudication
In the words of an eminent former German Federal Supreme Court judge English dispute adjudication
primarily does not solve the issue of complex construction disputes but increases the probability of
the construction process being blocked.73 In line with this observation and in respect of a FIDIC 1987
contract it has been held that the whole contractual system is aimed at the early resolution of any
queries at the time the claim arises, and with the strong likelihood that plant, manpower, experts and
witnesses are still on site. It is designed to avoid prolonged disputes.74
As adjudication was designed to give rise to a quick and inexpensive dispute resolution procedure it
would be contrary to this purpose if adjudicators’ decisions were not generally enforced summarily.75
However, the adjudicator may only give a decision on matters for which jurisdiction was conferred.
Also the rules of natural justice76 including the principle of knowing the case to be met and the right to
be heard, apply generally to adjudication. However, the speed with which a statutory adjudication in
the UK must be carried out and completed, and the temporary nature of the decision, means that the
enforcement of such a decision is “not to be thwarted by an overly sensitive concern for procedural
niceties”.77
5. Expert determination vs. judicial dispute resolution
In most civil law countries dispute adjudication will frequently be qualified as either expert
determination or arbitration as there is a legal framework for both. The 2003 South Africa case of
Welihockyj and Others vs. Advtech Limited and Others78 and a 1994 German case with which the
Court of Appeal Hamburg79 had to deal, are interesting in this respect.
In the German case80 the parties had agreed on dispute resolution provisions. It is probably relevant
to know that the ruling language of the contract was English. The relevant clauses conferred
comprehensive adjudication powers to a three member panel whose decisions were to be final and
binding on the parties. Access to state court jurisdiction was limited to urgent cases. The panel had
powers to establish procedural rules as to the conduct of the proceedings and evidence hearing. The
enforcement of any decisions of the panel was left to the state courts. Before the courts the defendant
claimed that the procedure was an arbitration whilst the claimant contended that it was an expert
determination.81 In the court’s view it was decisive that according to the contracting wording the
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decision was to be final and binding, this being a characteristic element of arbitration. A further point
of consideration was that the panel had similar powers to establish procedural rules as arbitrators
have under Section 1.035 of the German Civil Procedure Code82 whereas this section does not apply
to expert determination. Accordingly the court concluded that the parties intended to become heard
and they did not simply expect the panel to form a professional opinion. Finally the court relied on the
fact that the enforcement of any decision on claims was left to the state courts which do not have
powers to enforce expert determinations without hearing the parties.83 Accordingly the court held that
in this case arbitration was agreed on rather than expert determination.
In the South African case,84 the court was faced with a contractual provision stating that disputes
would be resolved by “an independent person acting as expert and not as arbitrator”. The reported
judgment dealt with the question of whether the dispute between the parties would have to be settled
by way of arbitration rather than by way of litigation. Section 1 of the South African Arbitration Act
1965 defines arbitration agreement as a written agreement providing for the reference to arbitration of
any existing dispute or any future dispute relating to a matter specified in the agreement whether an
arbitrator is named or designated therein or not. The South African court held that whether arbitration
or expert investigation is contemplated depends not only on the wording of the reference, but also on
the manner in which the presiding officer arrives at a decision, the nature of the dispute and the
extent of the dispute. In the relevant circumstances there were references to fraud and a complicated
but apparently flawed investigation was undertaken. The judge concluded that there was nothing in
the agreement which was counter-indicative, including the references to an “expert”, and held that the
contract clause in question was actually an arbitration clause.
Both cases show that civil law courts have problems to understand dispute adjudication being
something different than arbitration or expert determination. Though of course there are similarities
between dispute adjudication and arbitration it is not the same and it is not intended to be the same.
FIDIC forms of contract expressly stipulate that the adjudicator shall not act as an arbitrator. Also an
adjudicator´s decision shall become binding but not always final and binding.85 The FIDIC standard
forms provide for additional arbitration and a decision of the adjudicator will only become final and
binding if the parties accept it or unless they do not give a notice of dissatisfaction (see Sub-Clauses
20.4 and 20.7 FIDIC 1999). Hence, if required, the dispute resolution from any adjudicator’s decision
will be referred to arbitration (Sub-Clause 20.6 FIDIC 1999).
6. Enforceability
As adjudication was designed to give rise to a quick and inexpensive dispute resolution procedure it
would be contrary to this purpose if adjudicators’ decisions were not generally enforced summarily.86
However, enforceability is not in itself a reason of dispute adjudication. Unlimited enforceability would
contradict the laws. Hence, the adjudicator shall only give a decision on matters for which jurisdiction
was conferred to it. Also the rules of natural justice87 including the contradictory (adversary) principle
and the right to be heard generally apply to adjudication. However, the speed with which an
adjudication must be carried out and completed, and the temporary nature of any consequential
decision, means that the enforcement of a decision is “not to be thwarted by an overly-sensitive
concern for procedural niceties”.88
It seems to be worth to note that the issue of enforceability should not be discussed alike the
enforceability of court judgments or arbitration awards. Rather the enforceability of DAB decisions is a
merely contractual issue. If the Parties agree to give immediate effect to a DAB decision, they are
bound to it. However, it is suggested that it is not the decision itself, which is enforceable, but it is the
contractual duty to give effect which shall be enforced. Accordingly Sub-Clause 20.7 FIDIC vests the
arbitral tribunal with jurisdiction for adjudication of disputes with regard to the failure “to comply with
the decision”.
7. Summary
In a nutshell FIDIC contracts suggest a contractual agreement aimed at providing a forum for
discussion and debate and at the early resolution of any queries. If not resolved in this way, the
parties shall submit the facts and arguments to an adjudicator who shall conduct a hearing. The
adjudicator is required to act independently and shall be unbiased. The parties intend that the
adjudicator shall hear the parties and that he shall form his professional opinion with regard to the
merits of the case though he may investigate the merits on its own by visiting the site and requesting
further information from the parties. After 84 days the adjudicator shall give a reasoned decision on
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the contractual matter. Under such a Dispute (Adjudication) Board Agreement the parties are to
comply with the decision.89 Under the FIDIC regime such adjudication is a condition precedent to
arbitration.
Irrespective the above it has been argued in Germany that the adjudicator has merely the role of an
expert who shall form his professional opinion on the subject matter or dispute90 ignoring the fact that
the adjudicator shall hear the parties and that “it is accepted that the adjudicator has to conduct the
proceedings in accordance with the rules of natural justice or as fairly as the limitations imposed by
law permit”.91 Contrariwise expert determination under German law does not require consideration of
any procedural rules.92 However, in the terms of a Fidic contract the adjudicator is not making an
expert determination but acts as a judicial decision maker.93 Support for this view comes from
Canada, where in 1953, the Ontario Court of Appeal was involved in a case where the conduct of an
engineer who acted as both agent for the owner and also as certifier of payment certificates had to be
considered. The court held that, as certifier, the engineer is required to act judicially and in an
independent and unbiased manner. In this regard, the court said at p. 23:94
“Where, as here, the engineer’s certificate is a condition precedent to payment, the engineer occupies
two positions: first, one as agent of the owner under the contract; second, a quasi-judicial position as
certifier between the parties: Hudson on Building Contracts, 7th ed., p. 286. The two positions are
distinct and separate. Different duties attach to them and different consequences flow from the
performance or breach of those duties. Under the law of principal and agent he may, within the scope
of his duties, bind his principal. As certifier deciding between the parties he must act judicially (…). To
act judicially as certifier requires him, where the question arises, to consider and give effect to any
conduct on his part as agent vis-à-vis the contractor which has bound the owner as his principal to the
advantage of the contractor. In this connection he must act qua certifier as independently as if some
other person rather than himself had been the agent of the owner under the contract. All that seems
crystal clear to me.”
It has been said95 that generally, “courts are institutions empowered to deploy processes like
evidentiary hearings and cross-examination in order disinterestedly and rationally to solve specific
disputes between parties as to whether and how particular events did or did not occur and whether
they amount to transgressions of pre-existing legal norms. Their decisions attain legitimacy by
demonstrating a rational connection among the norms, the evidence on the record, and the outcome.
Once presented with a justiciable controversy, courts are not free to ignore it; the parties cannot be
told to go away because the judges would prefer to devote their energy and resources to more (or
less) pressing problems”. I agree.
A Dispute Adjudication Board has similar duties though by its very nature dispute adjudication is of
course less formal and it is often said, with some justification, that construction adjudications provide
in many cases only “rough” justice. Irrespectively the adjudicator shall: (i) sufficiently appreciate the
nature of any issue referred to him before giving a decision on that issue, including the submissions of
each party; and (ii) be satisfied that he could do broad justice between the parties.96 Acting as a
judicial institution he is not to ignore the principles of natural justice and must make sure that he has
jurisdiction on the subject matter referred to him. Under civil law the relevant test is whether dispute
adjudication conflicts with any basic or fundamental rights under the Constitutions.
Under German law the substantive basic right established in art. 19, § 4 first sentence of the German
Constitution establishes a direct right to an effective procedure for the enforcement of any entitlement.
97
The constitutional right to an effective procedure means that the courts shall enforce a person’s
constitutional rights. In this regard procedural law is essential. Accordingly procedural law shall be
construed and applied in the light of the basic rights.98 In case of doubt an interpretation of the law
shall prevail which enables the court to enforce the basic rights.99 Essential requirements of civil
procedure are equality (see art. 3 German Constitution) and natural justice (the right to be heard, see
art. 103 § 1 German Constitution). In a summary worldwide there is an accepted basic right to a fair
procedure.100 On the other hand substantive law deals with the review of expert determinations
(binding advice). Pursuant to Section 319 Civil Code an expert determination in the sense of binding
advice is not binding if it is manifestly wrong.101 There is extensive case law on the definition of what
is manifestly wrong, e.g. lack of a verifiable reasoning,102 use inappropriate evaluation methods103
and serious procedural deficiencies (if the parties have agreed on particular rules).104 To some extent
both substantive and procedural requirements seem to merge to one legal framework, which applies
to dispute adjudication.105 Accordingly Fidic dispute adjudication has a mixed nature and it is
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suggested that it should be dealt as having a legal nature sui generis.
In this regard it is somewhat interesting what a South African court concluded in Chelsea West:106
“The position of an arbitrator in the true sense is very different [from that of a valuer]. He acts in a
quasi-judicial capacity and must conduct himself accordingly. Whilst not obliged to observe the
precision and forms of a court of law, the arbitrator must proceed in such a manner ‘(…) as to ensure
a fair administration of justice between the parties’ (…). This includes the duty to afford the parties a
proper hearing. Inherent therein is that the arbitrator must not examine parties or witnesses or
conduct a hearing in the absence of one or either of the parties. If he does so he commits an
irregularity which will result in his award being set aside. This rule has been established in a long line
of cases (…).”
The South African Constitutional Court has added that alternative dispute resolution procedures do
not require the same standard of fairness than before the state courts. It noted:
“The final question that arises is what the approach of a Court should be to the question of fairness.
First, we must recognise that fairness in arbitration proceedings should not be equated with the
process established in the Uniform Rules of Court for the conduct of proceedings before our courts.
Secondly, there is no reason why an investigative procedure should not be pursued as long as it is
pursued fairly. The international conventions make clear that the manner of proceeding in arbitration
is to be determined by agreement between the parties and, in default of that, by the arbitrator. Thirdly,
the process to be followed should be discerned in the first place from the terms of the arbitration
agreement itself. Courts should be respectful of the intentions of the parties in relation to procedure.
In so doing, they should bear in mind the purposes of private arbitration which include the fast and
cost-effective resolution of disputes. If courts are too quick to find fault with the manner in which an
arbitration has been conducted, and too willing to conclude that the faulty procedure is unfair or
constitutes a gross irregularity within the meaning of Section 33(1) [Arbitration Act 1965], the goals of
private arbitration may well be defeated.”
The South African court decision provides a basis for the view that the goals of private arbitration or
adjudication serve a valuable purpose in determining the required standard of fairness and natural
justice. Similar authority does exist in Germany. The State has no motive to limit the exercise of
private adjudication or arbitration,107 unless it has implications that go substantially beyond the narrow
interests of the parties. The German Constitution however requires that nobody will be prevented
from access to the courts except if otherwise agreed by the parties of the dispute.108 Section 1.042 §
3 German Civil Procedure Code recognises the principle of contractual freedom with two reservations
(see Section 1.042 § 1) such as the duty to treat the parties equally and the right to be heard.
Accordingly in alternative dispute resolution that is voluntary, a certain procedural standard must be
ensured and the adjudicator shall be impartial.109 The arbitrator shall proceed in accordance with the
agreed procedural rules and Sections 1.025 et seq. German Civil Procedure Code. As a rule German
arbitral tribunals shall hear the parties in accordance with the standards which apply to state courts.
110
However, it is suggested that dispute adjudication does not require to meet such a high standard
to the extent it does not replace the adjudication of the dispute by either arbitral tribunal or state
courts. This suggestion is based on the German authorities on Section 319 Civil Code which in
principle allows an independent third person to proceed to the determination of a claim including the
decision on legal issues without having heard the parties at all111 unless the parties themselves have
agreed on a hearing or the right to become heard.112
6. APPLICABLE LAW
Whilst as to arbitration there is a lot of authority as to which law applies to the arbitral agreement (the
arbitration clause) and which law applies to the subject matter of the dispute there is only very little
guidance and authority as to the applicable laws regarding dispute adjudication.113 However, it is
quite important to know which law applies as to the adjudication clause and the procedure.
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As dispute adjudication is based on an agreement one could believe that the proper law of the related
contract should govern adjudication. However, an adjudication clause addresses various procedural
aspects such as the jurisdiction of courts, the enforcement of DAB decisions and the requirement of
natural justice. Hence, the lex fori of the DAB has to be considered. However, there is not a seat of
adjudication as such. Also any decision of a DAB is not enforceable as such. Rather the parties agree
to conform with any such decision. Finally under Fidic an adjudicator’s decision is only provisionally
binding and subject to further review by an arbitral tribunal. Whether the adjudicator has complied
with the rules of natural justice and whether he had jurisdiction will be assessed in arbitration. The
arbitral tribunal has a situs and will apply its lex fori as to its standards of natural justice and the scope
of jurisdiction. Hence, it is submitted that as to the jurisdiction of the DAB and as to natural justice
standards the lex fori of the arbitral tribunal shall apply. It is also appropriate to apply the lex fori of the
arbitral tribunal as to issue with regard to the question whether parties may ignore the adjudication
clause by referring the dispute directly to arbitration.114
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On the other hand a DAB’s decision does not have the authority of res judicata. It simply gives a
decision which is binding on the parties by virtue of a contractual clause. Thus it is suggested that the
question whether a DAB decision will be binding on the parties should be answered by applying the
proper law of the contract. In other words the governing law of the contract shall determine how the
decision of the adjudicator shall be enforced. There are three possible solutions: (1) Either the DAB
decision is a condition precedent to the claimant’s entitlement115 or (2) there is a duty to comply with
the decision in itself116 or (3) at least the adjudicator’s decision is a mere full or conclusive evidence
for the existence of a claim.117 In the first case the arbitral court has to enforce the original claim. In
the second case the arbitral court has to enforce the duty to comply with the adjudicator’s decision.
However, in both cases it will depend on the governing law of the contract whether the arbitral tribunal
will enforce the DAB decision. In the latter case the effect of a binding adjudicator’s decision would be
such that the claim is not subject to further evidence. In any case it is preferable to understand an
adjudicator’s decision as a condition precedent of the claim which shall be enforced before the arbitral
court. The reason for this can be ascribed in the fact that the courts have quite often problems in
enforcing a duty to do something.
Of course it may happen that the adjudicator breaches the rules of natural justice. If so, subject to the
governing law, the duty to comply with the adjudicator’s decision remains. But it is then questionable
whether there is a claim (lack of a condition precedent due to lack of valid decision) or whether the
decision is enforceable (lack of a valid decision). This is a procedural issue to which the lex fori
applies. The lex fori must determine whether the DAB had jurisdiction and whether it complied with
the requirements of natural justice. Hence the lex fori establishes whether the character and purpose
of dispute adjudication may justify to ignore errors in the decision and to which extent this is
acceptable.
7. CONSTRAINTS
1. Specific legislation
To the extent dispute adjudication falls under specific and particular legislation like in Singapore, New
South Wales (Australia) or the UK the law may provide guidance as to details of dispute adjudication
and the enforceability of any adjudicator’s decisions. In any case the laws in Singapore and the UK
permit dispute adjudication though of course under the relevant law. In Scotland Lord Reid concluded
in Ballast plc vs. The Burrell Co (Construction Management) Ltd118 that it “cannot be appropriate for
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the courts to undertake an investigation into the merits of the dispute in order to ascertain whether the
adjudicator has reached the same decision as a court would have done. The High Court of Singapore
119
has recently held:
“[It] must have recognised that the adjudication procedure provided a somewhat rough and ready type
of justice. This was because compliance with the timelines imposed on the process might lead to a
lack of depth in the submissions and matters considered. This inbuilt limitation on the procedure had
been commented on in relation to earlier regimes imposed in other jurisdictions. As Chow in Security
of Payments and Construction Adjudication puts it (at p. 503):
“In particular, consideration will be accorded to the time frame within which an adjudicator is required
to arrive at his determination and the consequence that the adjudicator cannot possibly provide the
level of analysis of the facts and law relating to the dispute which is frequently expected upon a full
curial hearing.
This must have been why the Legislature decided in our case to introduce the adjudication review
procedure. The adjudication review procedure provides the parties with an opportunity to re-argue
their respective cases with regard both to the facts and the law. The review adjudicator is able to go
into the substantive merits of the original adjudicator’s decision. The adjudication review procedure is
therefore a species of appeal albeit limited to cases in which a particular monetary qualification is
reached.”
The judge then determined the existence of the following basic requirements of dispute adjudicated
under the Singapore Act (the SOP Act):120
“(a) the existence of a contract between the claimant and the respondent, to which the SOP Act
applies (s 4);
(b) the service by the claimant on the respondent of a payment claim (s 10);
(c) the making of an adjudication application by the claimant to an authorised nominating body (s 13);
(d) the reference of the application to an eligible adjudicator who agrees to determine the adjudication
application (s 14);
(e) the determination by the adjudicator of the application within the specified period by determining
the adjudicated amount (if any) to be paid by the respondent to the claimant; the date on which the
adjudicated amount is payable; the interest payable on the adjudicated amount and the proportion of
the costs payable by each party to the adjudication (s 17(1) and (2));
(f) whether the adjudicator acted independently and impartially and in a timely manner and complied
with the principles of natural justice in accordance with s 16(3); and
(g) in the case where a review adjudicator or panel of adjudicators has been appointed, whether the
same conditions existed, mutandis mutandi, as under (a) to (f) above.”
In Sungdo Engineering e Construction (S) Pte Ltd vs. Italcor Pte Ltd,121 a payment claim was made in
the form of a one-page letter accompanied by 164 pages of supporting documents. The one-page
letter requested early payment and was signed off with “greetings of the season”. It was held that the
letter could not amount to a payment claim under the Building and Construction Industry Security of
Payment Act (Cap 30B, 2006 Rev Ed). Lee Seiu Kin J took the view that a payment claim should not
be thought as valid merely because it “satisfies all the requirements under the Act”: to be a valid
payment claim it must also be intended as a payment claim.122
2. General law
If there is no such complementary or mandatory legislation dispute adjudication remains what it is. It
is an agreement by which a third person shall adjudicate a dispute referred to it by the parties of the
contract.
Whether the general laws permit or allow private adjudication or not has to be checked first. In this
regard the matter of arbitrability comes into play. To the extent that the subject matter of the dispute
may be referred to arbitration there is a strong likelihood that dispute adjudication is also permissible.
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The matter of arbitrability is addressed in the final part of art. II(1) of the 1958 New York Convention
which requires that the arbitration agreement concerns “a subject matter capable of settlement by
arbitration”. The matter of arbitrability is also stated as a ground for refusal of enforcement of the
arbitral award in art. V(2)(a) of the former Convention, which provides that the court may refuse
enforcement on its own motion if it finds that “the subject matter of the difference is not capable of
settlement by arbitration under the law of that country”. Moreover in some countries like Argentina,
Brazil, Uruguay and Paraguay the term conciliation involves a judge.123 To which extent dispute
adjudication falls under this type of legislation has to be analysed separately.
The binding effect of dispute adjudication decisions seems at a first sight to be exclusively subject to
the contract. However, as the laws may put constraints on the exercise of contractual freedom they
may also set out standards in respect of the binding effect of third party determinations. This is the
case in various countries like in Germany (Sections 317 et seq. German Civil Code), Greece (371
Greek Civil Code), France (art. 1.592 French Civil Code), Brazil (art. 485 Brazilian Civil Code) or the
Philippines (art. 1.309 Civil Code).
The question is whether the third party´s discretion has to be exercised arbitrium boni viri, “with the
judgment of a fair-minded person”? This sets an objective standard, with which the courts would not
normally interfere unless it was of the view that the decision was so unreasonable, improper, irregular
or incorrect that it would give rise to obvious unfairness.124 Or, in other words, the court will have
power to correct and adjust a manifestly erroneous determination, as in the case of Germany (see
Section 319 German Civil Code) and Italy (art. 1.349 § 1 Italian Civil Code). However, if the third
party’s discretion is broader as in case of an arbitrium merum agreement, the court would not
normally interfere unless it was of the view that the third party acted in bad faith. The more powerful
position of the third person in case of arbitrium merum requires a more trustful relation between the
parties and the Decision maker.125 It is perceived to be selected intuitu personae and not replaceable
by a judge.126
In any case, the law will only sanction dispute adjudication if it does not deprive the parties in full of
access to the courts. Hence it must be a complementary dispute resolution method rather than an
exclusive one. To this extent it is acceptable that a dispute adjudicator may give a quick and
sometimes summary decision; thus he may exercise more or less rough justice. However, he must
comply with the principles of natural justice and he must not go beyond his jurisdiction. In other words
he shall exercise discretion arbitrium boni viri.
3. Enforceability
The critical issue of dispute adjudication is the enforceability of DAB decisions. As DAB decisions are
only provisionally binding the courts may feel it being inappropriate to enforce them. Also the question
arises whether the particular domestic law provides for appropriate tools to do so.
Under Sub-Clause 20.7 FIDIC 1999 a Party may refer to arbitration the failure of the other Party to
comply with the contractual duty to give effect to a final and binding DAB decision.127 This
Sub-Clause expressly excludes the application of Sub-Clauses 20.4 and 20.5… to such a reference.
Thus, the failure to comply with the decision of the DAB (in the above sense) may be referred directly
to arbitration as soon as the decision has become final, without any need for the failure itself to be
referred back to the DAB or having to wait for 56 days… to attempt to reach an amicable settlement in
relation to the failure to comply. Such a reference would be by the Party in whose favour the DAB’s
decision had been made, seeking not to change, but to enforce it.
Under Sub-Clause 20.9 of the FIDIC Gold Book, the right of a winning party to refer directly to
arbitration a failure of the losing party to comply with a decision of the DAB is not no longer
dependent on whether the relevant DAB decision has become final. The current Sub-Clause in the
Gold Book reads as follows:
“In the event that a Party fails to comply with any decision of the DAB, whether binding or final and
binding, then the other Party may, without prejudice to any other rights it may have, refer the failure
itself to arbitration under Sub-Clause 20.8 [Arbitration] for summary or other expedited relief, as may
be appropriate (…).”
Hence, the Gold Book provides for a “contractually mandated award with temporary finality” and,
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effectively, “the same tribunal [is not precluded] from returning to the same issues that it would,
necessarily, have specifically reserved for its own further consideration on the full merits”.128 In
contrast, the 1999 Red Book does not contain such an express right and power as described.
Notably, the gap in Sub-Clause 20.7 as originally identified by Prof Bunni129 has now been filled and
will be incorporated in all other FIDIC books.
ICC arbitral tribunals may grant an interim award if a party does not comply with a DAB decision
which has not yet become final.130 It may be possible to apply to a national court for enforcement of
such a decision as an interim or a conservatory measure as permitted by art. 23 of the ICC Arbitration
Rules.131 However it is questionable whether such an interim award may be recognised and enforced
under the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral
Awards.
An order for an interim measure is essentially temporary in nature; it is not an award which is always
final. Ground (e) of art. V(1) New York Convention 1958 provides in the first place that enforcement of
an award can be refused if the party against whom the award is invoked proves that the award has
not yet become “binding”. It has been argued that the Convention only applies to final and binding
awards.132 However, the better view is that provisional measures should be and are enforceable as
arbitral awards because they are final in the sense that they dispose of a request for relief pending
the conclusion of the arbitration.133
However, the South African Constitutional Court134 has emphasised that notwithstanding the parallels
drawn between arbitrations and court proceedings in the authorities referred to, it is not suggested,
that (in the light of the South African Constitution)135 the same level of procedural fairness required in
court proceedings is required in arbitration proceedings. It is accepted that the concept of fairness in
arbitrations is context-related. Hence it is submitted that dispute adjudication can be designed as a
quick and rough procedure by which a DAB may proceed less formally and with complementary
investigative powers.
A further issue in any case, however, is not whether an interpretation of the determination is the
correct one but whether the determination is one which is valid in law.136 In the latter case the Court
then continued to say:
“It is submitted that in general the requirements for a valid arbitral award are equally applicable to an
expert determination and we were referred to a number of authorities in which these requirements are
set out. In summary, what is required is that all issues submitted must be resolved in a manner that
achieves finality and certainty. The award or determination may therefore not reserve a decision on
an issue before the arbitrator or expert for another to resolve. It must also be capable of
implementation. On the other hand, what must be determined are the matters submitted and no more.
Depending on the questions, therefore, the determination may not necessarily result in a final
resolution of a dispute between the parties. Accordingly, a court will be slow to find non-compliance
with the substantive requirements and an award or determination will ‘be construed liberally and in
accordance with the dictates of commonsense’. This must be particularly so when the questions for
determination are themselves lacking in precision. A question as to what steps are to be taken to
achieve a particular result is perhaps a good example. A court will, therefore, as far as possible
construe an award or determination so that it is valid rather than invalid. It will not be astute to look for
defects.”
As observed by Bingham J137 in the context of an arbitration award:
“(…) as a matter of general approach, the Courts strive to uphold arbitration awards. They do not
approach them with a meticulous legal eye endeavouring to pick holes, inconsistencies and faults in
awards and with the objective of upsetting or frustrating the process of arbitration. Far from it. The
approach is to read an arbitration award in a reasonable and commercial way expecting, as is usually
the case, that there will be no substantial fault that can be found with it.”
Where uncertainty in meaning does emerge regard may be had, as in the case of the interpretation of
contracts, to the extrinsic circumstances surrounding or leading up to the award or determination.138
8. CONCLUSIONS
In Germany there is a proverb which says: “what the farmer doesn’t know, he won’t eat”. The situation
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is a bit similar as to the use of dispute adjudication in civil law countries where this type of dispute
resolution method is predominantly unknown and usually not practised except if imposed on the
Parties for example by means of the Standard Bidding Documents of financing institutions.139 The
suggestion therefore is that civil law practitioners should taste it before making their judgment on it.
However, to begin with we need more information about it. In other words what are the ingredients of
dispute adjudication and what does it serve?
Potentially under civil law legal consequences having similar effects as English dispute adjudication
can only be simulated by contract in the sense of reciprocal obligations.140 However, in principle the
precepts, which govern the procedure in judicial proceedings apply to alternative dispute resolution
procedures.141 On the other hand the required level of procedural fairness in dispute adjudication can
be determined in a context related way.
Efficient dispute adjudication implied a tension between the rival goals of speed and accuracy. The
balancing element is fairness. The dispute must be resolved in a manner that achieves finality (in the
sense that all questions as to the pending dispute must be settled) and certainty. Finality in its strict
sense (meaning that further recourse to arbitration or the courts is not possible) is replaced by
supervision. Each jurisdiction develops its own balance between these elements. The systems may
vary. For example, in South Africa, an informal, investigative process, in which the arbitrator received
evidence, prepared a schedule of quantities based on the evidence he receives, gave both parties a
copy of the schedule or a letter setting out his concerns and gave each an opportunity to comment
was permitted.142 Anyway, dispute adjudication is a very flexible instrument which is aimed at the
early resolution of queries by experts. Lack of finality in dispute adjudication requires even more
power of persuasion than arbitration. Hence, the success of dispute adjudication lies with the quality
and experience of the adjudicators who must give convincing reasons for their decisions.
There is no need for special legislation in order to experience or practise dispute adjudication to the
extent it is agreed on. Adjudication does not oust the parties from access to the either arbitration or
state court proceedings. The existing legal framework as to the jurisdiction of alternative dispute
resolution bodies and natural justice is a sufficient basis for dispute adjudication. The enforceability of
DAB decisions depends on the applicable contract law. To the extent that the arbitration clause is
sufficiently broad (see Fidic Gold Book) DAB decisions are to be enforceable worldwide.143 The
standards of natural justice and procedural fairness can be below those applied by state courts.
However, under civil law DAB decisions should not be manifestly wrong in order to stand the
enforceability test.
However, it should be noted that dispute adjudication should be embedded in a contract which is not
only aimed at the early and rapid resolution of upcoming disputes but which should also ensure that
the parties manage their contract properly by keeping records in time and thus making sure that the
DAB has a proper and appropriate factual basis for making a decision.144 Frequently civil law
construction contracts (such as the German VOB/B) are not suitable for use with dispute adjudication
clauses. However, this is not a legal issue and should rather encourage the project stakeholders to
review their contracts than to abide by old fashioned contract documents and traditional court
proceedings.
1 The author thanks HHJ Humphrey Lloyd for his friendly review of the basic article which has been
published in the ICLR, see Hök, Dispute Adjudication in Civil Law Countries, Phantom or Effective
Dispute Resolution Method, [2011] ICLR 412 et seq.
2 See Domke, Commercial Arbitration, § 8.18; Le Tourneau, L’ingénierie, les transferts de

technologie et de maîtrise industrielle, Paris 2003, note 190.
3 Cadiet in: Cadiet/Clay/Jeuland, Médiation et arbitrage, Avant-Propos, 7.
4 See Sarat, A. (1985) The Litigation Explosion, Access to Justice, and Court Reform; Examining the
Critical Issue”, 37 Reutgers Law Review 299, 332.
5 See Hök, Dispute Adjudication: Modethema oder ernsthafte Alternative, [2010] ZfBR 736 et seq.
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substance?
6 Quack [2010] ZfBR 211.
7 Quack [2010] ZfBR 211.
8 The term describes the trend towards the use of contractually based dispute resolution methods.
9 Ancel in: Cadiet/Clay/Jeuland, op. cit., 17.
10 See Teubner Oberheim/Schröder, Construction adjudication in England – Ein Vorbild für die
baurechtliche Konfliktlösung in Deutschland?, [2011] NZBau 257 et seq.
11 Schulze-Hagen/Winter, 2007] IBR 111; Gralla/Sundermeier, [2008] Bauingenieur 238, 246;

Lembcke [2009] DS 224.
12 See Teubner Oberheim/Schröder, op. cit., 257, 261.
13 See Schulze-Hagen, Plädoyer für Adjudication in Deutschland, [2007] BauR 1950; Teubner
Oberheim/Schröder, op. cit., 257, 261.
14 See Zöller/Geimer, ZPO, § 1029 note 5 et seq.; Schütze, Institutionelle Schiedsgerichtsbarkeit,

2nd ed., Cologne 2011 who does not even mention the term dispute adjudication.
15 See Poudret/Besson, Droit comparé de l’arbitrage, Genève 2002, note 12 et seq. dealing with
arbitration related forms of dispute resolution like conciliation, expert determination, “bindend advies”
etc.; Nammour, Droit et pratique de l’Arbitrage interne et international, Beyrouth 2005, note 72 et seq.
dealing with Dispute Boards without going in very detail. See also Flucher, Mediation im Bauwesen,
Berlin 2003, 185; Le Tourneau, L’ingénierie, les transferts de technologie et de maîtrise industrielle,
Paris 2003, note 190.
16 The total number of disputes referred to the Singapore International Arbitration Centre (SIAC) rose
for the 10th consecutive year in 2010, with 198 new filings from a total of 160 in 2009.
17 See Jackson [2005] 21 Const LJ 265.
18 [www.kcl.ac.uk/content/1/…/KCLMediatingConstructionPartsI-III.pdf].
19 Between 2001 and 2011 approximately 120 ADR cases were administered by the ICC. Parties
from 65 countries were involved; see [iccindiaonline.org/16july/16-July-Presentation/OwKimKit.pptx].
20 See The UK Housing Grants, Construction and Regeneration Act 1996, see Malaysian
Construction Industry Payment and Adjudication Act 2012 (CIPAA), see Building e Construction
Industry Security of Payments Act (“SOPA”) in Singapore, see New Zealand Construction Contracts
Bill (CCB).
21 See Sub-Clause 20.4 FIDIC 1999; see Option W 1 and Option W2 NEC3.
22 A Combined Dispute Board (CDB) normally issues Recommendations with respect to any dispute
referred to it but may issue a Decision if a party so requests and no other party objects.
23 The German Institution of Arbitration has published Adjudication Rules.
24 See Patil, The Law of Arbitration and Conciliation, 5th ed., Pune 2008, 28.
25 As to the recognition and enforcement of an Italian lodo irrituale in Germany under the 1958 New
York Convention see German Federal Supreme Court, judgment from 08.10.1981 – III ZR 42/80, [
1982] NJW 1224; BayObLG, ruling from 22.11.2002 – 4 Z Sch 13/02; [2003] Internationales
Handelsrecht (IHR), 140 = [2003] NJW-RR 502 = RKS A 4 a Nr. 60. In both cases the courts have
dismissed the respective applications under the New York Convention.
Página 17
substance?
26 Frequently based on Sub-Clause 67.1 FIDIC 1987 (1992) for example in India or Oman.
27 See the new FIDIC Red Book Subcontract form.
28 See Kassis, Problémes de base de l’Arbitrage, Paris 1987, note 153.
29 Also arbitration legislation does not confer the right to agree on arbitration or the duty to abide by
it. Hence, legislation does not create the arbitral process, but it may regulate it within the appropriate
jurisdiction. Usually this type of legislation ensures the enforceability of arbitral awards.
30 This principle is recognized worldwide, both in Civil Law countries like Indonesia (see art. 1.338
Civil Code), Philippines (see art. 1.306 Civil Code), South Africa and Sri Lanka (Dutch Roman
Common Law) or Vietnam (see art. 389 Civil Code) and in Common Law countries like India,
Malaysia (Section 10 Contract Act 1950), Pakistan or Singapore.
31 CRW Joint Operation vs. PT Persusaahan Gas Negara (Pereso) TBK [2011] SGCA 33.
32 See Lembcke IBR 2007, 1189 who however confuses complementary and exclusive dispute
adjudication. Art. 101 § 1 of the German Constitution reads: “Extraordinary courts shall not be
allowed. No one may be removed from the jurisdiction of his lawful judge”.
33 See Spanish Constitutional Court decision n. 288/1993, 04.10.1993; German Federal Supreme
Court NJW 1986, 3027. Though arbitration is recognised to be a complementary dispute resolution
method whilst state courts have priority over arbitration there is a tendency to accept arbitration as an
equal means of dispute resolution, see Capri in: Cadiet/Clay/Jeuland, op. cit., 205.
34 Scott vs. Avery (1859) 25 L.J. Ex. 308 (England and Wales); Zöller/Vollkommer, ZPO, 28th edition,
Cologne 2010, § 38 note 2 (Germany); Spanish Constitutional Court decision n. 288/1993,
04.10.1993; see also the South African case Lufuno Mphaphuli e Associates (Pty) Ltd vs. Andrews
and Another (CCT 97/07) [2009] ZACC 6; 2009 (4) SA 529 (CC); 2009 (6) BCLR 527 (CC)
(20.03.2009) as to the proper interpretation of an arbitration agreement under which the parties
intended the arbitrator to follow an informal, investigative process and one in which no oral evidence
would be led.
35 See Carillion Irishenco vs. Dublin City Council e Anor [2009] IEHC 225 (20.02.2009); Bernhard’s
Rugby Landscapes Ltd vs. Stockley Park Consortium Ltd [1998] EWHC TCC 326 (22.04.1998).
36 Approved by Lord Steyn in Lesotho Highlands Development Authority (Respondents) vs. Impregilo
SpA and others (Appellants) [2005] UKHL 43.
37 See Meijer in Snijders, Access to Civil Procedure Abroad, 193, 235.
38 See Nauta/Meijer in Snijders, Access to Civil Procedure Abroad, 131 168.
39 See de Boer in Snijders, Access to Civil Procedure Abroad, 313, 349.
40 See Nauta in Snijders, Access to Civil Procedure Abroad, 171, 190.
41 See Snijders in Snijders, Access to Civil Procedure Abroad, 239, 274.
42 See Cremades in Berger, Zivil – Und Wirtschaftsrecht im europäischen und globalen Kontext
[Festschrift Horn], Berlin 2006, 909
43 Spanish Constitutional Court decision n. 288/1993, 04.10.1993.
44 Supreme Court decision, 09.10.1989, R] 1989, 6899.
45 Lufuno Mphaphuli e Associates (Pty) Ltd vs. Andrews and Another (CCT 97/07) [2009] ZACC 6;
2009 (4) SA 529 (CC); 2009 (6) BCLR 527 (CC) (20.03.2009).
Página 18
substance?
46 See ECJ in Joined Cases C-317/08, C-318/08, C-319/08 and C-320/08, judgment of 18.03.2010.
47 ECJ in Joined Cases C-317/08, C-318/08, C-319/08 and C-320/08, judgment of 18.03.2010.
48 Biotechnology Australia Pty Ltd vs. Pace (1988) 15 NSWLR 130, 133; see also Candid
Productions Inc vs. International Skating Union 530 F Supp 1330 (1982) at 1337 (USDC NY).
49 See Little vs. Courage Ltd (1994) 70 P e C.R. 469, 476; Queensland Electricity Generating Board
vs. Hope Collieries Pty Ltd (1989) 1 Lloyd’s Reports 205.
50 Little vs. Courage Ltd (1994) 70 P e C.R. 469, 476.
51 Coal Cliff Collieries (Pty) Ltd vs. Sijehama (Pty) Ltd (1991) 24 NSWLR 1.
52 BGH, Urteil vom 28.10.1999 – VII ZR 393/98, BauR 2000, 409; BauR 2000, 777; BGHZ 143, 89;
DB 2000, 471; MDR 2000, 388; NJW 2000, 807; NZBau 2000, 130; OLG-Report Düsseldorf 1999,
217; WM 2000, 730; ZfBR 2000, 170.
53 Southernport Developments (Pty) Ltd vs. Transnet Ltd [2004] Zasca 94; [2005] 2 All SA 16 (SCA)
(29.09.2004).
54 See for the United Kingdom the HGCRA 1996; Singapore (Building and Construction Industry
Security of Payment Act 2006 (Chapter 30B). Also in some jurisdictions in Australia (see New South
Wales Building and Construction Industry Security of Payment Act 1999) dispute adjudication is a
defined means of dispute resolution having a legal basis.
55 See arts. 106 et seq. Algerian Code of Civil and Administrative Procedure; Brazilian Law n.
9.307/1996; Chinese Arbitration Act 1994; English Arbitration Act 1996; Indian Arbitration and
Conciliation Act 1996; Section 1.025 et seq. German Civil Procedure Code, see arts. 1.442 to 1.527
French New Civil Procedure Code (as per Decree 2011-48 dated January 13, 2011); Sections
1.020-1.076 Dutch Civil procedure rules (Wetboek van Burgerlijke Rechtsvordering); Spanish
Arbitration Act (Ley 60/2003, de 23 de diciembre, de Arbitraje).
56 However, it should be noted that for example in Germany dispute adjudication has been discussed
intensively and that the German Institution of Arbitration (DIS) has recently published its own
Adjudication Rules, see Harbst (2010) 26 Construction Law Journal, 698 et seq.
57 Nicholas, The French Law of Contract, 2nd ed., at p. 49 for French law.
58 Markesinis/Unberath/Johnston, The German Law of Contract, 2nd ed., 141.
59 It is however worthwhile to note that also English courts do search for the legal nature of a legal
phenomenon, for example in order to determine whether a certifier (or Engineer exercising certifying
powers) is exempted from liability or not, see Sutcliffe vs. Thackrah [1974] A.C. 727; (1974) 4 BLR 16.
60 This of course a premature classification subject to further discussion.
61 See Sub-Clause 20.4 FIDIC 1999 in conjunction with the Dispute Adjudication Agreement and the
related Procedural Rules.
62 See Sub-Clause 20.4 FIDIC 1999.
63 Though it is questionable that the exemption is unlimited.
64 The former FIDIC 1987 Red Book conferred adjudication powers to the Engineer (see Sub-Clause
67.1). The current 1999 Red Book still recommends to replace the DAB by the Engineer (see the
Guidance for the Preparation of Particular Conditions).
65 19 Law J. Rep. (N.S.) Ch. 374.
Página 19
substance?
66 [1974] A.C. 727 = (1974) 4 BLR 16.
67 See also Total (U) Ltd vs. Buramba General Agencies (Arbitration Application n. 3 of 1998) [1998]
UGHC 8 (11.06.1998).
68 [2005] BLR 227.
69 Under the new FIDIC Gold Book the DAB shall give a decision within 84 days or 105 days
depending on whether the defending Party has submitted a response or not which is typically required
within 21 days after a dispute was referred to the DAB.
70 PT Perusahaan Gas Negara (Persero) TBK vs. CRW Joint Operation [2010] SGHC 202 citing
Glover/Hughes, The New FIDIC Red Book, note 20-046; confirmed by the Court of Appeal in CRW
Joint Operation vs. PT Perusahaan Gas Negara (Persero) TBK [2011] SGCA 33.
71 PT Perusahaan Gas Negara (Persero) TBK vs. CRW Joint Operation [2010] SGHC 202.
72 M/s Sri Sai Earth Works Pvt Ltd vs. Italian Thai Dev. Public Co Ltd, january 12, 2009 relying on a
previous decision of the Supreme Court of India in the case of Northern Railway Administration vs.
Patel Engineering Company Ltd., 2008 (11) Scale 500.
73 Quack [2010] ZBR 211, 212.
74 Her Majesty’s Attorney General for the Falklands Islands vs. Gordon Forbes Construction
(Falklands) Ltd [2003] BLR 280.
75 Amec Group Ltd vs. Thames Water Utilities Ltd [2010] EWHC 419 (TCC) (24.02.2010).
76 Discain Project Services Limited vs. Opecprime Developments Limited [2001] BLR 287 and RSL
(South West) Limited vs. Stansell Limited [2003] EWHC 1390 (TCC).
77 His Honour Judge Humphrey Lloyd QC in Balfour Beatty Limited vs. London Borough of Lambeth
[2002] EWHC 597 (TCC).
78 2003 (6) SA 737 (W).
79 Court of Appeal Hamburg IBR 1998, 175 – Mandelkow.
80 Idem.
81 The practical consequences of classifying the agreement as expert determination are that under
German law expert determination is subject to the challenge of a manifest inequity or error (offenbare
Unbilligkeit oder Unrichtigkeit) whilst the expert has full discretion how to conduct the procedure and
he is not bound to hear the Parties, see Stein/Jonas/Schlosser, Commentary on the Civil Procedure
Code, 22nd ed., Tübingen 2002, before Section 1.025 note 23 (dominant doctrine); dissenting
Habscheid, Liber Amicorum Laufke, 1971, 304 et seq.
82 Section 1.035 (1) reads: The parties may agree on the procedure for the appointment of the
arbitrator or arbitrators. Section 1.035 (3) to (5) then deal with the power of the court to appoint the
arbitrators if the parties fail to agree on it.
83 Pursuant to Section 794 § 1 no 4a execution is levied on account of an arbitral award declared

enforceable in accordance with Section 1.060 Civil Procedure Code.
84 Welihockyj and Others vs. Advtech Limited and Others 2003 (6) SA 737 (W).
85 See the interesting case of CRW Joint Operation vs. PT Persusaahan Gas Negara (Pereso) TBK
[2011] SGCA 33 addressing the enforceability of binding but not final and binding DAB decisions.
86 Amec Group Ltd vs. Thames Water Utilities Ltd [2010] EWHC 419 (TCC) (24.02.2010).
Página 20
substance?
87 Discain Project Services Limited vs. Opecprime Developments Limited [2001] BLR 287 and RSL
(South West) Limited vs. Stansell Limited [2003] EWHC 1390 (TCC).
88 His Honour Judge Humphrey Lloyd QC in Balfour Beatty Limited vs. London Borough of Lambeth
[2002] EWHC 597 (TCC).
89 See Nammour, Droit et pratique de l’arbitrage interne et international, note 74.
90 See Lembcke IBR 2008, 1198 as to the English law; Lembcke IBR 2008, 1014, also
Greger/Stubbe, Schiedsgutachten, note 193 et seq.
91 See Glencot Development e Design Co Ltd vs. Ben Barrett e Son (Contractors) Ltd [2001] BLR
207, at p. 218.
92 Court of Appeal Düsseldorf IBR 2008, 485 – Lembcke; see also Court of Appeal Celle, NJW-RR
1995, 1046 and further judgments quoted by Schlosser in: Stein/Jonas/Schlosser, op. cit., before
Section 1.025 note 23.
93 His Honour Judge Humphrey Lloyd QC in Balfour Beatty vs. The London Borough of Lambeth
[2002] BLR p. 288 at p. 301.
94 Brennan Paving Co. Ltd. vs. Oshawa [1953] 3 D.L.R. 16.
95 Babcock vs. Sherwood School District, 88J, 193 Or App 449, 453, 90 P3d 1036, rev den, 337 Or
556 (2004) (Oregon Court of Appeal).
96 See Amec Group Ltd vs. Thames Water Utilities Ltd [2010] EWHC 419 (TCC) (24.02.2010).
97 German Federal Constitutional Court, BVerfGE 49, 252, 257.
98 Similar in South Africa where Section 39(2) of the Constitution provides as follows: “When
interpreting any legislation, and when developing the common law or customary law, every court,
tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.
99 German Federal Constitutional Court, BVerfGE 49, 252, 257.
100 Habscheid has therefore strongly criticised a decision by the Court of Appeal Hamburg, AWD
1966, 120 et seq. holding that arbitrators can be declared to become mere experts being then
exempted from the duty to conduct a fair hearing; see Habscheid KTS 1967, 3 et seq.
101 German Federal Supreme Court, BGHZ 43, 374; BGHZ 81, 229, 237.
102 Court of Appeal Düsseldorf NJW-RR 2000, 279.
103 Court of Appeal Cologne NJW-RR 1997, 412.
104 Court of Appeal Schleswig NZM 2000, 338.
105 More restrictive apparently Schlosser who is in favor of the application of arbitration law on expert
determination to the extent it is aimed at the resolution of disputes, see Stein/Jonas/Schlosser, op.
cit., before Section 1.025 notes 32 et seq.
106 Chelsea West (Pty) Ltd and Another vs. Roodebloem Investments (Pty) Ltd and Another 1994 (1)
SA 837 (C) at 843E.
107 See Zöller/Geimer, ZPO, before Section 1.025 note 3.
108 Idem, note 4.
Página 21
substance?
109 Idem, ibidem.
110 Court of Appeal Frankfurt SchiedsVZ 2006, 220, 223; see Zöller/Geimer, ZPO, Section 142 note
5.
111 See German Federal Supreme Court BGHZ 6, 335; German Federal Supreme Court BGHZ 9,
195.
112 Court of Appeal Schleswig NZM 2000, 338; see Palandt/Grüneberg, BGB, Section 319 notes 5 et
seq.
113 However see Hök, Dispute Adjudication Boards, The International or Third Dimension, [2012]
ICLR 418 et seq.
114 See Hök, Zur international privat – Und verfahrensrechtlichen Behandlung des
Schiedsgutachtens und DAB Spruches, ZfBR 2008, 323 et seq.
115 In Glencot Development and Design Co Ltd vs. Ben Barrett e Son (Contractors) Ltd [2001] BLR
207 at 33 it has been held that an adjudicator’s decision does not create a cause of action as such; it
is merely an expression as to liability and quantum about the dispute that has arisen under the
contract.
116 In VHE Construction plc vs. RBSTB Trust Co Ltd [2000] EWHC TCC 181 (13.01.2000) at 55 it
has been held that the obligation to “comply with” a decision which requires the payment of a sum of
money has a greater effect than to make that sum a simple debt.
117 See German Empire Supreme Court decision, 23.05.1919, RGZ 96, 57.
118 [2001] BLR 529.
119 SEF Construction Pte Ltd vs. Skoy Connected Ptd Ltd [2010] 1 SLR 733 at [38].
120 SEF Construction Pte Ltd vs. Skoy Connected Ptd Ltd [2010] 1 SLR 733 at [45].
121 [2010] SGHC 105.
122 Sungdo Engineering e Construction (S) Pte Ltd vs. Italcor Pte Ltd [2010] SGHC 105 at [20].
123 Oteiza in: Cadiet/Clay/Jeuland, op. cit., note 208.
124 See De Lange vs. ABSA Makelaars (Edms) Bpk (262/09) [2010] ZASCA 21; [2010] 3 All SA 403
(SCA); (2010) 31 ILJ 885 (SCA) (23.03.2010).
125 Antoniolli, Principles of European Contract law and Italian Law, The Hague 2005, 294.
126 Idem, ibidem.
127 See as to the strict and narrow interpretation of Sub-Clause 20.7 FIDIC a case from Singapore:
CRW Joint Operation vs. PT Perusahaan Gas Negara (Persero) TBK (2011) SGCA 33.
128 See PT Perusahaan Gas Negara (Persero) TBK vs. CRW Joint Operation [2010] SGHC 202
(High Court Singapore); CRW Joint Operation vs. PT Perusahaan Gas Negara (Persero) TBK [2011]
SGCA 33
129 “The Gap in Sub-Clause 20.7 of the 1999 FIDIC Contracts for Major Works”, [2005] I.C.L.R.272.
130 See Seppälä [2009] ICLR 414 et seq. referring to ICC case n. 10.619. See also CRW Joint
Operation vs. PT Perusahaan Gas Negara (Persero) TBK (2011) SGCA 33.
131 See e.g. Sub-Clause 5.4 of the ICC’s Dispute Board Rules which recognizes court enforcement.
Página 22
substance?
132 See Resort Condominiums Int’l Inc vs. Bolwell, XX Y.B. Commercial Arbitration 628 (Queensland
S.Ct. 1993) (1995).
133 Born, International Commercial Arbitration, 2023.
2009 (4) SA 529 (CC); 2009 (6) BCLR 527 (CC) (20.03.2009).
135 Section 34 of the South African Constitution reads as follows: “Everyone has the right to have
any dispute that can be resolved by the application of law decided in a fair public hearing before a
court or, where appropriate, another independent and impartial tribunal or forum.” Art. 103 § 1 of the
German Constitution similarily says: “In the courts every person shall be entitled to a hearing in
accordance with law”.
136 See SA Breweries Ltd. vs. Shoprite Holdings Ltd. (476/06) [2007] Zasca 103; [2007] SCA 103
(RSA); [2008] 1 All SA 337 (SCA); 2008 (1) SA 203 (SCA) (14.09.2007).
137 Zermalt Holdings SA vs. Nu-Life Upholstery Repairs Ltd [1985] 275 Estates Gazette 1134
(Queen’s Bench Division (Commercial Court).
138 SA Breweries Ltd. vs. Shoprite Holdings Ltd. (476/06) [2007] Zasca 103; [2007] SCA 103 (RSA);
[2008] 1 All SA 337 (SCA); 2008 (1) SA 203 (SCA) (14.09.2007), citing Firestone South Africa (Pty)
Ltd vs. Gentiruco AG 1977 (4) SA 298 (A) at 304.
139 For example in Romania for ISPA projects since 2002. But quite often DAB clauses have been
removed from FIDIC Contracts in Romania.
140 Quack [2010] ZfBR 211, 212.
141 Shipple vs. Morkel and Another 1977 (1) SA 429 (C) at 434A-E.
2009 (4) SA 529 (CC); 2009 (6) BCLR 527 (CC) (20.03.2009).
143 However, it is questionable that interim arbitral awards fall under the 1958 New York Convention.
144 See Sub-Clauses 4.21, 8.3, 20.1 etc. FIDIC 1999.
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ALTERNATIVE DISPUTE RESOLUTION AND DISPUTE

ADJUDICATION IN CIVIL LAW COUNTRIES Hype or

ALTERNATIVE DISPUTE RESOLUTION AND DISPUTE ADJUDICATION IN CIVIL

Área do Direito: Internacional; Processual; Arbitragem

Palavras-chave: Judiciário - Dispute Adjudication Boards (DABs) - Resolução de conflitos -

- 1. CONTRACTUAL FREEDOM - 2. STATE COURT ADJUDICATION VS. DISPUTE

dispute adjudication14 and if so, they do it superficially.15

2. STATE COURT ADJUDICATION VS. DISPUTE ADJUDICATION

Art. 33 of the UN Charter provides:

4. LEGAL NATURE OF DISPUTE ADJUDICATION

5. IT HAS THE NATURE OF AN AGREEMENT SUI GENERIS

1. Development of dispute adjudication

2. The Engineer’s role

3. FIDIC dispute resolution framework

4. Purpose and aims of dispute adjudication

5. Expert determination vs. judicial dispute resolution

suggested that it should be dealt as having a legal nature sui generis.

As observed by Bingham J137 in the context of an arbitration award:

2 See Domke, Commercial Arbitration, § 8.18; Le Tourneau, L’ingénierie, les transferts de

3 Cadiet in: Cadiet/Clay/Jeuland, Médiation et arbitrage, Avant-Propos, 7.

6 Quack [2010] ZfBR 211.

7 Quack [2010] ZfBR 211.

9 Ancel in: Cadiet/Clay/Jeuland, op. cit., 17.

11 Schulze-Hagen/Winter, 2007] IBR 111; Gralla/Sundermeier, [2008] Bauingenieur 238, 246;

12 See Teubner Oberheim/Schröder, op. cit., 257, 261.

14 See Zöller/Geimer, ZPO, § 1029 note 5 et seq.; Schütze, Institutionelle Schiedsgerichtsbarkeit,

17 See Jackson [2005] 21 Const LJ 265.

23 The German Institution of Arbitration has published Adjudication Rules.

27 See the new FIDIC Red Book Subcontract form.

28 See Kassis, Problémes de base de l’Arbitrage, Paris 1987, note 153.

37 See Meijer in Snijders, Access to Civil Procedure Abroad, 193, 235.

38 See Nauta/Meijer in Snijders, Access to Civil Procedure Abroad, 131 168.

39 See de Boer in Snijders, Access to Civil Procedure Abroad, 313, 349.

40 See Nauta in Snijders, Access to Civil Procedure Abroad, 171, 190.

41 See Snijders in Snijders, Access to Civil Procedure Abroad, 239, 274.

43 Spanish Constitutional Court decision n. 288/1993, 04.10.1993.

44 Supreme Court decision, 09.10.1989, R] 1989, 6899.

50 Little vs. Courage Ltd (1994) 70 P e C.R. 469, 476.

58 Markesinis/Unberath/Johnston, The German Law of Contract, 2nd ed., 141.

60 This of course a premature classification subject to further discussion.

62 See Sub-Clause 20.4 FIDIC 1999.

63 Though it is questionable that the exemption is unlimited.

65 19 Law J. Rep. (N.S.) Ch. 374.

66 [1974] A.C. 727 = (1974) 4 BLR 16.

68 [2005] BLR 227.

73 Quack [2010] ZBR 211, 212.

78 2003 (6) SA 737 (W).

79 Court of Appeal Hamburg IBR 1998, 175 – Mandelkow.

83 Pursuant to Section 794 § 1 no 4a execution is levied on account of an arbitral award declared

89 See Nammour, Droit et pratique de l’arbitrage interne et international, note 74.

94 Brennan Paving Co. Ltd. vs. Oshawa [1953] 3 D.L.R. 16.

97 German Federal Constitutional Court, BVerfGE 49, 252, 257.

99 German Federal Constitutional Court, BVerfGE 49, 252, 257.

102 Court of Appeal Düsseldorf NJW-RR 2000, 279.

103 Court of Appeal Cologne NJW-RR 1997, 412.

104 Court of Appeal Schleswig NZM 2000, 338.

107 See Zöller/Geimer, ZPO, before Section 1.025 note 3.

108 Idem, note 4.

109 Idem, ibidem.

118 [2001] BLR 529.

121 [2010] SGHC 105.

123 Oteiza in: Cadiet/Clay/Jeuland, op. cit., note 208.