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Copyright © International Chamber of Commerce (ICC). All rights reserved. ( Source of the document: ICC Digital Library )
What makes a complex, long-term infrastructure or industrial project a success is not so much the absence of disagreements between the parties, but the parties' ability to resolve swiftly and fairly the disputes that inevitably arise during such projects. While parties sometimes succeed in rapidly resolving disagreements through balanced negotiation (possibly with the assistance of a neutral), there are times when it will be necessary to call on a third party to reconcile the parties or impose a solution that would be impossible to achieve by agreement.
Arbitration has long been the choice method of dispute resolution in international construction and trade. In large international construction projects, dispute boards have been introduced as an additional method, not to replace arbitration but to precede it. In many cases, this has enabled a dispute to be resolved without having to resort to arbitration. [Page42:]
Dispute boards are defined by the ICC as 'standing bodies comprising one or three members, normally set up at the outset of the contract to help parties to resolve any disagreements and disputes that may subsequently arise during its performance' (Preamble to the ICC DB Rules, 2004). Dispute boards are generally composed of three members, usually appointed jointly by the parties at the time of signing their contract. The members may all be experienced engineers, although it is preferable for at least one of them (ideally the chair) to be a lawyer with experience of the type of project concerned.
There are two main types of dispute board: dispute review boards (DRB) and dispute adjudication boards (DAB). DRBs issue recommendations, which must be complied with if no party expresses dissatisfaction within a stated time limit. DABs issue decisions, which must be complied with without delay even if one or more parties express dissatisfaction.1 Recommendations and decisions issued by dispute boards are not awards. A party that has expressed dissatisfaction with a recommendation or a decision within the specified time limit2 can always refer the issue to arbitration for it to be finally resolved in an award.3 However, experience shows that this is an unusual occurrence as recommendations and decisions are rarely challenged and therefore become final with no need for an award.
It is almost ten years since the ICC introduced its Dispute Boards Rules (hereinafter 'ICC DB Rules').4 Anyone who knows how effective dispute boards may be in avoiding or resolving disputes in long and complex projects will be puzzled by the fact that so few projects in France provide for dispute boards. The purpose of this article is to set out briefly the many benefits of dispute boards and then to explore the reasons behind the reluctance of French parties to provide for their use in long-term contracts. While peculiar to France, some of these reasons may also help to explain any pockets of resistance that may also exist elsewhere.
1. A cross-fertilization of expertise and arbitration
Dispute boards lie midway between court-appointed experts and arbitrators. While they display some of the characteristics of both, they are not affected by certain limitations and drawbacks the other two may have in certain situations.
1.1. Dispute boards vs court-appointed experts
In civil law countries, disputes arising out of construction, industrial and infrastructure projects are typically referred to independent experts appointed by the arbitral tribunal or the court hearing the dispute. The technical expert will hear the parties, make an assessment of the technical difficulties and issue a report containing an opinion on the technical aspects of the dispute. The report will be used by the arbitral tribunal or the court when deciding the dispute. However, the expert's opinion is not binding on either the parties or the arbitral tribunal or court.
In France, a judge has the power to appoint an independent technical expert within a few days or even hours upon an ex parte application in a situation of extreme urgency. The consent of the other party is not required. The only condition laid down by the French Code of Civil Procedure is that there be 'legitimate grounds' for doing so (Art. 145). In practice, this condition is satisfied if the technical issue or issues on which an expert opinion is sought is prima facie one on which the court or arbitral tribunal will have to rule in a possible future dispute between the parties.
Three main characteristics distinguish dispute boards from court-appointed experts:
In most jurisdictions, court-appointed experts are not entitled to address legal issues. In France, this rule is set out in Article 238 of the Code of Civil Procedure and strictly enforced by the courts.5 This is a serious limitation, which has two negative consequences. Firstly, most disputes relating to construction or infrastructure projects will have technical, contractual and regulatory aspects, all intrinsically linked. Addressing the technical issues separately and alone is likely to undermine the entire dispute resolution process. Secondly, an expert opinion, even if technically sound and accurate, will often not provide the answers needed by a court or an arbitral tribunal to resolve the legal dispute (e.g. whether the conditions for setting aside a clause limiting liability are met, whether the contractual provisions on hardship are applicable in a particular case…).
Dispute boards are not affected by this limitation. The ICC standard clauses for dispute boards provide that 'all disputes arising out or in connection with the present Contract shall be submitted, in the first instance,' to a dispute [Page43:] board. This wording leaves no doubt that all disputes, whether purely technical or involving a mixture of technical, contractual, regulatory and legal issues, are to be referred to the dispute board. For this reason, a dispute board will be all the more effective if one of its members (ideally the chair) is a lawyer.
Although court-appointed experts are given a time limit in which to issue their reports, it is usually well over three months and is often extended, sometimes more than once. Consequently, it is not unusual for proceedings before a court-appointed expert to last for 18 months or two years.
The ICC DB Rules require the dispute board to issue its determination within ninety days of receiving a party's statement of case (ICC DB Rules, Art. 20). While that time limit is subject to extension (e.g. when parties opt for a review of the dispute board's decision by the ICC, or when they agree to an extension), the time frame within which dispute boards act is kept within strict limits. Dispute boards are intended to determine issues as soon as they arise, before they have a chance to interfere with the progress of the project.
Unlike the opinions of court-appointed experts, which by nature are not binding, the determinations of dispute boards are intended to be binding on the parties.
DAB decisions are immediately and automatically binding on the parties (ICC DB Rules, Art. 5) and, even if one or more parties express dissatisfaction with the decision within thirty days of receiving it, remain so until such time as an arbitral tribunal or a court decides otherwise or finally settles the matter. In other words, unlike matters referred to court-appointed experts, a binding DAB decision is obtained within ninety days of the statement of case, regardless of whether a notice of dissatisfaction has been filed by the other party.
DRB recommendations become binding on parties if none of them expresses dissatisfaction within thirty days of receiving the recommendation (ICC DB Rules, Art. 4(3)). This means that a binding recommendation is obtained within 120 days of the statement of case where no party expresses dissatisfaction. If a party does express dissatisfaction within the thirty-day time limit, the recommendation will not be binding but the successful party will be able immediately to initiate arbitration or court proceedings and apply for an interim order implementing the recommendation.
1.2. Dispute boards vs arbitrators
The ICC DB Rules expressly differentiate between dispute boards and arbitral tribunals. Article 1 of the Rules provides states that: 'Dispute Boards are not arbitral tribunals and their Determinations are not enforceable like arbitral awards. Rather, the Parties contractually agree to be bound by the Determinations under certain specific conditions…'
Dispute boards nonetheless have certain things in common with arbitral tribunals. Dispute board members must be and remain independent of the parties (ICC DB Rules, Art. 8(1)/ ICC Arbitration Rules, Art. 11(1)). Dispute boards must act fairly and impartially and ensure that each party has a reasonable opportunity to present its case (ICC DB Rules, Art. 19(6)/ICC Arbitration Rules, Art. 22(4)). Dispute boards have powers very similar to those of arbitrators in conducting proceedings: for instance, under Article 15 of the ICC DB Rules, they may decide all procedural matters, require the parties to produce documents, question the parties, their representatives and witnesses, and determine the language of the proceedings. They organize and conduct hearings and may proceed to do so even when a party refuses or fails to take part in the procedure (ICC DB Rules, Art. 19).6
However, two features above all distinguish dispute boards from arbitral tribunals and place them beyond the criticisms sometimes levelled at arbitration when it comes to resolving technical disputes in long-term contracts: [Page44:]
What sets dispute boards apart from all other ADR procedures, and especially arbitration, is the fact that they are set up when no dispute yet exists between the parties. Typically, the members of a dispute board are appointed within thirty days of the signing of the contract or the commencement of its performance, whichever is earlier (ICC DB Rules, Arts. 7(3) and 7(4)). Furthermore, they remain in function for the entire duration of the project, regardless of whether or not any disputes arise, and are divested of their functions only when the parties decide to disband the dispute board (ICC DB Rules, Art. 14(2)).
The suitability of arbitration for resolving disputes in ongoing projects is sometimes questioned on account of the time needed for an arbitral tribunal to be constituted, the time taken for the arbitral tribunal to become informed about the dispute, and the belief that arbitration is intended for major disputes that have caused a project to stall. None of these reservations applies to dispute boards.
(a) When a dispute arises, the panel is already constituted.
The fact that dispute board members are appointed jointly by the parties (ICC DB Rules, Art. 7) at a time when no disagreement yet exists saves the time and effort of having to look for a suitable and acceptable person after a dispute has erupted, as happens in arbitration.
(b) When a dispute is referred to a dispute board, its members are already fully informed.
A dispute board is kept informed about a contract and its performance from the outset. Regular site visits can be organized for this purpose (ICC DB Rules, Art. 11). Unlike arbitrators, who need to be appointed or confirmed before they can start to familiarize themselves with the contract, the background to the dispute and the issues it raises, a dispute board can work towards its determination from the day a dispute is referred to it. This is one of the reasons why determinations can be issued within as short a time as ninety days, as mentioned above. Also, the fact that a dispute board is not set up for one specific dispute but to accompany the project as it progresses gives it an all-round view and an awareness of any other difficulties the project may be experiencing.
Another positive effect of having the same dispute board remain in function for the entire duration of the project is that it encourages the parties to be cooperative and to act in good faith so as not to be seen by the dispute board as the cause of or contributor to the difficulties besetting the project.
(c) Dispute boards are available to deal with any dispute, whatever its size, nature and complexity.
The fact that a dispute board is already set up and ready to act encourages parties to refer all disputes to it, including those that would be considered too small to justify arbitration. Yet, such disputes (over matters like small technical variations or short extensions of time) can in time endanger an entire project if allowed to accumulate. All too often, arbitration takes place over the remains of a contract that has been terminated where the only issue left to determine is the parties' liability for the breach. Dispute boards, on the other hand, deal with contracts that are still under way and their intervention to settle small differences in real time can be instrumental in bringing the project to a successful end, as can the informal assistance that they are able to provide (e.g. pursuant to Article 16 of the ICC DB Rules).
One of the great strengths of arbitration is its jurisdictional nature. It owes this to the fact that it is recognized and regulated by domestic laws and, in particular, to the worldwide enforceability of arbitral awards, without a review of the merits, as a result of the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, now ratified by 149 countries. However, this very strength has tended to make arbitration a highly procedural and lengthy process, with parties wanting to leave nothing to chance in view of the unavailability of an appeal on the merits.
The determinations of dispute boards, on the other hand, are not jurisdictional. If parties find a recommendation or a decision unacceptable, they have the right to refer the matter to an arbitral tribunal or a court, as the case may be, for a jurisdictional decision, provided they have given timely notice of dissatisfaction. The availability of this recourse removes the pressure at the outset and helps to explain why dispute boards have escaped the trend towards judicialization that has [Page45:] occurred in arbitration. In this regard, it is significant that Article 19(7) of the ICC DB Rules requires parties to appear in person or through their representatives in charge of the performance of the contract and adds that they may be 'assisted' (not 'represented') by advisers. The personal involvement of the parties increases the chances of reaching an outcome with which they will be satisfied. As mentioned earlier, few dispute board determinations are in fact referred to an arbitral tribunal or the courts. The evidence suggests that parties are unconvinced that subsequent arbitration or litigation would result in a solution significantly different from that reached by the dispute board.
2. Fears bred of unfamiliarity
Given the effectiveness of dispute boards in swiftly resolving disputes and disagreements of whatever nature in major infrastructure and industrial projects, one may wonder why some project owners and contractors appear so reluctant to use them. This would certainly appear to be the case in France and some other civil law countries, where their use is uncommon other than in projects based on forms of contract that incorporate dispute boards as part of their standard terms (e.g. FIDIC suite of contracts, the Major Multilateral Development Bank Harmonized Contract7). The most famous (and very successful) project to use a dispute board in France was the Channel Tunnel in the early 1990s.8 Dispute boards are currently in use in only a few very large projects (e.g. ITER9 and some high-speed train projects).
Objections to the inclusion of dispute boards in contracts fall into two main categories: fear of their incompatibility with French law and doubts over their relevance and practical value.
2.1. Compatibility with French legal concepts
Dispute boards are often seen as a typically US or UK phenomenon, conceived in the very specific context of US/UK construction practice and legal systems. However, none of the characteristics of dispute boards as foreseen in the ICC DB Rules is unknown to or incompatible with French legal concepts.
Pursuant to Articles 4(3) and 5(3) of the ICC DB Rules, once recommendations and decisions have become final, the parties agree not to contest them 'insofar as such an agreement can validly be made'. Civil law jurisdictions are familiar with and enforce irrevocable undertakings by parties to give contractual effect to a third party determination even in the context of a dispute and even where that third party is not an arbitrator. For instance, under Article 1592 of the French Civil Code, the parties to a sales contract can provide that the price will be set by a third party.10 The determination reached by the third party is final and binding on judges and arbitrators and can be challenged only in the event of gross negligence (or major mistake). There is even less reason to challenge a dispute board recommendation or decision that has become final, which implies that no party expressed dissatisfaction within the thirty-day time limit. Were a party subsequently to challenge such a recommendation or decision before an arbitral tribunal or a court, the application would have to be dismissed on grounds of estoppel as the party should have expressed its dissatisfaction earlier when it had the opportunity to do so.
A time limit of thirty days in which to express dissatisfaction with a determination and thereupon refer the matter to arbitration or to the courts is not unreasonably short in the context of dispute resolution, especially amongst professionals. This is, for instance, the time limit for applying to a French court to set aside an international award rendered in France or to file an appeal against an order recognizing or enforcing an award made abroad (French Code of Civil Procedure, Arts. 1519 and 1525). More generally, thirty days is the standard time limit for bringing appeals in France (French Code of Civil Procedure, Art. 538).
As far as the binding effect of non-final DAB decisions is concerned, Article 5(6) in fine of the ICC DB Rules is extremely clear: 'Until the Dispute is finally settled by arbitration or otherwise, or unless the arbitral tribunal or the court decides otherwise, the Parties remain bound to comply with the Decision.'11 Again, this is a concept not unknown to French law. It is a consequence of the principle of pacta sunt servanda, which is embodied in Article 1134 of the French Civil Code.12[Page46:]
For instance, under Articles 809 or 873 of the French Code of Civil Procedure, a French judge, in summary proceedings, could order a party that has failed to comply with a binding DAB decision to make an interim payment of the entire value of that binding decision. Strictly, speaking, this would not amount to enforcing the DAB decision but would rather constitute a measure to end an illegal situation. A party's failure to comply with a binding decision of a DAB would indeed be regarded as a clear breach of contract even where that party had expressed dissatisfaction with the decision within the specified time limit. In summary proceedings, the judge would not review the merits of the dispute board decision.
Similarly, where a failure to comply with a binding dispute board decision is referred to arbitration, as foreseen in the standard ICC dispute board clauses,13 an interim award ordering payment in compliance with the DAB decision would be enforceable in France, given that Article 1468 of the French Code of Civil Procedure recognizes the power of arbitral tribunals to issue interim and conservatory measures. The fact that the arbitral tribunal would not have reviewed the DAB decision on the merits at that stage could not be raised as an objection to the enforcement of the interim award in France.14
The standard ICC dispute board clauses provide that: 'All disputes arising out of or in connection with the present Contract shall be submitted, in first instance, to the [dispute board] in accordance with the Rules'. In similar vein, Articles 4 and 5 of the ICC DB Rules provide that a dispute can be referred to a court or an arbitral tribunal only after a recommendation or a decision has been issued with which a party has expressed dissatisfaction, or the dispute board has not issued its recommendation or decision within the prescribed time limit, or the dispute board has been disbanded before issuing a recommendation or a decision. In other words, no application may be made to a court or an arbitral tribunal to decide on the merits of a given dispute without first referring it to the dispute board already in place. This prohibition is perfectly valid and enforceable under French law. There have been several examples of French courts enforcing contractual clauses that oblige parties to take certain steps before filing an application with a court or an arbitral tribunal.15 While the application of the standard clauses can lead to some difficulties,16 there is no doubt that the mandatory effect of dispute board clauses is enforceable in France.
A recent French statute17 has established a so-called 'procédure participative', which is a specific type of ADR mechanism that in many respects resembles dispute boards. Parties enter into a written agreement whereby they undertake to work in good faith towards the resolution of a dispute (French Civil Code, Art. 2062). Typically, the parties refer the matter to a jointly appointed neutral (French Code of Civil Procedure, Art. 1547). The neutral, who is neither a conciliator nor a mediator, studies the relevant documents, hears the parties and then issues a report for the parties (French Code of Civil Procedure, Art. 1554). At that stage, either the parties reach an amicable settlement or one of them refers the matter to a competent court.
According to Article 2063 of the French Civil Code, the agreement setting up the procédure participative must describe the nature of the dispute, failing which the agreement is void. It could be argued that this provision prohibits any agreement to refer future disputes to a neutral third party, unless expressly allowed by the law as in the case of arbitration (Civil Code, Art. 2061). French law has traditionally shown circumspection towards agreements on future disputes. Until 2001, arbitration clauses (providing for the referral of future disputes to arbitration) were valid only between commercial entities, and even today Article 2061 provides that arbitration clauses are valid where they are included in agreements entered into for purposes of a 'professional activity'. There is no such restriction on arbitration agreements regarding existing disputes. However, it seems highly unlikely that a dispute board agreement could be claimed to be void under Article 2063 of the French Civil Code. Firstly, dispute board proceedings do not trigger the application of Articles 1542 to 1568 of the Code of Civil Procedure and so cannot be equated with the procédure participative. Secondly, Article 2063 does not prohibit all agreements over the settlement of future dispute that are not expressly allowed by law. French law upholds the general principle of freedom to contract (Civil Code, Arts. 1101 and 1134) and the enforceability of contracts except where they are illegal or invalid at law. As already noted, dispute boards are compatible with French law and do not contravene French public policy law, so an agreement to establish and refer future disputes to a dispute board is thus perfectly valid and enforceable in France. [Page47:]
2.2. Practical concerns
When contemplating the possibility of providing for dispute boards in their contracts, project owners and contractors raise four concerns. Dispute boards tend to be regarded as unnecessary for public-sector projects; they are suspected of being costly; it is thought they are likely to be time-wasting; and there is a fear that suitable dispute board members will be difficult to find. However, these objections prove to be largely untrue.
French public-sector construction and infrastructure projects are governed by a specific statute referred to as the 'MOP Law'.18 Such projects commonly refer to a standard form of construction contract called 'CCAG loi MOP', the latest version of which was enacted by a government order dated 8 September 2009. Although not mandatory, this CCAG is very widely used. The current version provides for the possibility of referring disputes to a permanent body, the Comité Consultatif de Règlement Amiable (CCRA), which issues an opinion within six months. In many respects the CCRA operates like and serves a similar purpose to a DRB. Although an opinion of the CCRA is not binding, it is complied with or is used as a basis for settlement in 85% of cases.19 The CCAG Loi MOP also provides that parties can jointly refer any dispute to conciliation or arbitration.
For this reason, dispute boards are seen as unnecessary in public-sector projects. Moreover, the public sector generally shows great reluctance to the introduction of new concepts and departures from standard clauses and agreements.
However, major infrastructure projects are less and less confined to the public sector. Several large projects relating to the construction of highways, high-speed rail links and energy plants are carried out by private-sector entities or through public-private partnerships (PPP). Large PPP projects combine all the characteristics of projects to which dispute boards are ideally suited and highly beneficial.20
Dispute boards are set up at the outset of a project when no dispute yet exists. Their members are retained for the entire duration of the project, regardless of whether or not there is dispute. To ensure their availability for meeting with the parties and keeping themselves informed of the progress of the project, under the ICC DB Rules dispute board members are paid a Monthly Retainer Fee, which is usually equal to three times the Daily Fee provided for in the Dispute Board Member Agreement (ICC DB Rules, Art. 27). The Monthly Retainer Fee is paid in addition to the Daily Fee that dispute board members receive for their work on a specific dispute.
While it is true, therefore, that the parties must pay a fee even if there is no dispute, that cost, which is shared equally between them (ICC DB Rules, Art. 26(1)), is minimal compared to the benefit of having a dispute board conversant with the contract and its performance ready and available to deal with a dispute in real time whenever it arises. Besides, the cost bears no relation to the huge costs of a complex litigation arising out of a series of long unresolved small disputes that have mushroomed into a major dispute leading in many cases to the termination of the contract and the collapse of the entire project.
Dispute boards cannot be accused of causing delays, for at least three reasons:
- The time taken to prepare a reference to a dispute board is often regarded as time lost in the preparation of any subsequent arbitration or litigation. Yet the tasks performed in preparing a referral to a dispute board would in any event also be necessary for preparing arbitration or litigation, so dispute boards cannot be said to cause additional delay.
- Under the ICC DB Rules, dispute board proceedings take ninety days from receipt of the statement of case by the dispute board (unless the parties have agreed to extend this time limit). This is quite a short period of time and it enables the claimant to become aware of the defending party's position and arguments. Even if the matter is subsequently referred to an arbitral tribunal or a court, the dispute board proceedings cannot be considered to have been a waste of time, as they will have given the claimant an opportunity to prepare its case. [Page48:]
- Unlike mediation, where the mediator's opinion normally cannot be used in any subsequent court or arbitral proceedings,21 a dispute board determination is admissible in such proceedings (ICC DB Rules, Art. 25). So, once again, dispute board proceedings are never a loss of time as the work carried out and the outcome reached can be used in any subsequent litigation or arbitration and will most probably help to reduce its length.
It is true that as dispute boards are not very common in France, few French technical experts have experience of serving as members of dispute boards.22 However, the lists of experts of the French appeal courts and the Court of Cassation include numerous highly qualified experts with considerable experience of serving as court-appointed experts. Many arbitrators and lawyers, too, have experience of disputes in large-scale construction projects. They could serve on dispute boards alongside technical experts, together constituting excellent dispute board panels.
Conclusion
The real reason why dispute boards are not more frequently used in France (and maybe also in other civil law countries) is lack of awareness and possibly also the reluctance of some parties (be they owners or contractors) to agree to be bound by dispute board decisions.
Providing for dispute boards in a major construction project might be a way to test a prospective partner's good faith and readiness to act fairly and in compliance with the contract throughout the project. If the person in question is unwilling to be bound by and comply with the decisions of a DAB, there is every likelihood that it will prove to be a difficult partner. This could be yet another reason for including dispute boards as a standard provision in all major construction and infrastructure projects.
1 The ICC Dispute Board Rules also provide for combined dispute boards (CDBs), which normally issue recommendations, but may issue decisions. If one of the parties requests a decision and the other objects, the CDB will decide whether to issue a Recommendation or a decision (ICC DB Rules, Art. 6)
2 Thirty days from receipt of the recommendation or decision under the ICC Dispute Board Rules.
3 Or to the courts having jurisdiction where no arbitration clause has been provided in the contract.
4 The ICC DB Rules currently applicable entered into force on 1 September 2004.
5 See e.g. Paris Court of Appeal, 13 March 2002 (a court order appointing a technical expert with a mission to address the issue of the liability of a party is null and must be overturned).
6 On the similarities between dispute boards and arbitration, see A. Mourre, 'Canada Dry Arbitrations?' [2006] The International Construction Law Review 422
7 Since 2008, the MMDB Harmonized Contract has been formally part of the Standard Bidding Document of the World Bank.
8 See e.g. P. Malinvaud, 'Réflexions sur le Dispute Adjudication Board', Revue de Droit Immobilier 2001, 215.
9 International Thermonuclear Experimental Reactor near Cadarache in France. The project was financed by a consortium of 34 countries and is based on the FIDIC conditions of contract; hence, it provides for a dispute board.
10 Although the provision refers to 'l'arbitrage d'un tiers', it is accepted that the third party is not an arbitrator.
11 Article 5(6) of the ICC DB Rules is to be distinguished from Clause 20.7 of the FIDIC conditions of contract, which could be interpreted as limiting the possibility of referring a party's failure to comply with a dispute board decision to situations in which the decision was both binding and final. This led the FIDIC Contracts Committee to issue a guidance memorandum on 1 April 2013, in which it suggests deleting the existing Clause 20.7 and replacing it with a text that unambiguously allows a party to refer the other party's failure to comply with a binding DAB decision to arbitration, regardless of whether or not the decision is final.
12 'Les conventions légalement formées tiennent lieu de loi à ceux qui les ont faites. ... Elles doivent être exécutées de bonne foi.'
13 'If any party fails to comply with a decision when required to do so pursuant to the Rules, the other Party may refer the failure itself to arbitration under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules of Arbitration.'
14 It is only under the strict conditions set forth in Article 1520 of the French Code of Civil Procedure for setting aside arbitral awards that a French court could set aside an interim award ordering measures against a party that has refused to comply with a binding non-final DAB decision. The Court of Appeal in Singapore reached a different conclusion and set aside an award that had summarily enforced a binding but not final DAB decision without first hearing the merits of the dispute. (CRW Joint Operation v. PT Perusahan Gas Negara (Persero) TBK [2011] SGCA33.
15 See e.g. Paris Court of Appeal, 7 May 2008, No. 07/222.12, with regard to prior conciliation; Court of Cassation, 17 July 1996, No. 94-11445, confirming the requirement for an insurer to follow the escalation procedure laid down in a contract signed with the insured prior to recourse to the courts.
16 This is in particular the case where, after an initial dispute has been referred to the dispute board, a project gives rise to further claims or counterclaims that are intricately linked to the initial dispute. Those new claims or counterclaims should not be addressed by an arbitral tribunal or a court (even as a means of defence) until such time as they have been dealt with by the dispute board.
17 Law No. 2010-1609, dated 22 December 2010, which came into force when implemented by Decree No. 2012-66 dated 20 January 2012. The procédure participative is dealt with in Articles 2065 to 2067 of the Civil Code and Articles 1542 to 1568 of the Code of Civil Procedure.
18 Loi n° 85-704 du 12 juillet 1985 relative à la maîtrise d'ouvrage publique et à ses rapports avec la maîtrise d'œuvre privée.
19 Answer of the Ministry of Finance to a question from MP Michel Zumkeller (Journal officiel, 15 January 2013, 522).
20 See V. Leloup, 'French National List of FIDIC Adjudicators: the background to a fresh new initiative', Construction Law International, Vol. 8, Issue 2 (June 2013) 28.
21 See e.g. Article 9 of the ICC Mediation Rules, in force as of 1 January 2014.
22 Syntec Ingénierie has recently taken the initiative of establishing a French national list of FIDIC adjudicators.