There exists a large family of contractual mechanisms to settle disputes apart from arbitration and the courts, the classic jurisdictional means. Among the most frequently encountered ways of settling disputes, we find mediation, expert determination, adjudication and Dispute Boards. The latter can in fact combine several characteristics of the other mechanisms but also has important differences.

As construction projects became more complex and required increasingly large investments, practice naturally shaped in the 1970s a contractual dispute resolution mechanism which became known in the United States as a Dispute Resolution Board. The benefits of Dispute Boards were quickly recognized and it can be said 40 years later that the mechanism has entered adulthood. It is now used around the world in the construction industry, and progressively in other fields such as information technology, computers, and oil and gas.

ICC became one of the first international organizations to adopt stand-alone rules specifically intended for use by parties who wish to set up and operate a Dispute Board. ICC’s first Dispute Board Rules came into force on 1 September 2004 and were updated on 1 October 2015. Before the Dispute Board project was officially launched within the ICC Commission on International Arbitration (as it was then known), intensive discussions took place within ICC on the advisability and opportunity to elaborate a mechanism which could possibly harm ICC’s reputation as the world-leading arbitration institution.

In particular, the Court of Arbitration was concerned that the adoption of a new contractual process to settle disputes could adversely affect the growth of its case load. On the other hand, the pressure from the business community, in particular the construction industry, led the Secretary General of the Organization to recommend that a task force be set up within the ICC Commission on International Arbitration to investigate the feasibility of endowing ICC with a set of Dispute Board Rules.

When the first rules came into force many viewed them as complementary to arbitration, and the statistics show that over the years since the adoption of the Dispute Board Rules, recourse to ICC arbitration in the field of construction has not faltered, but grown from about 15% in 2005 to 25% in 2015 of the total number of cases administered by the ICC International Court of Arbitration. This trend could perhaps be explained by the increase in infrastructure projects financed by institutional lenders, but in the end, Dispute Boards are seen as a complement to arbitration by parties who have introduced the use of a Dispute Board to assist them in achieving a successful project, and will often obviate arbitration. It is worth noting that the first Dispute Board in Europe was introduced in 1987, one year after the agreement for the construction of the Channel Tunnel was executed. The agreement did not provide for setting up any form of Dispute Board. However, considering the technical challenges facing the construction of such a major project, the parties were persuaded, namely by the lending institutions, to adopt a classic Dispute Board modeled on Article 67 of the Conditions of Contract for Works of Civil Engineering Construction, fourth Edition 1987. Out of the 20 referrals submitted to the Board, 12 decisions were rendered, with only one taken to arbitration; the matter was ultimately settled after the arbitrators sent it back to the Dispute Board. Since the Channel Tunnel experience and the advent of the first ICC Dispute Board Rules, the Dispute Board mechanism has gained in popularity mainly due to the overall positive results it brought about in particular in the construction industry. Countless conferences, seminars and training sessions on Dispute Boards have been organized throughout the world. High-profile gatherings always attract Dispute Board specialists as well as a growing number of industrialists wanting to learn about the process, while training courses familiarize users with the mechanism. A number of textbooks have been published and professional publications have flourished.

The concept of the Dispute Board has come of age. While there are many aficionados of the process, a number of advisers and companies are still either unaware of its very existence or misinformed about its characteristics and advantages. As Dispute Boards are viewed as an onsite and practical approach to the prevention and settlement of disputes, it will not come as a surprise that there are more technicians than jurists active in the field. In particular, engineers outnumber lawyers in terms of members sitting on Dispute Boards.

At conferences, topics are most often addressed by lawyers as well as by engineers. Although all are experienced in the functioning of Dispute Boards, they are of a particular breed: the engineers possess a recognized proficiency with legal concepts and procedure whereas the lawyers are all conversant with the technical reality and issues encountered in complex construction projects.

Anyone becoming aware, let alone familiar, with the concept of Dispute Boards, will discover a stimulating environment for ensuring the successful completion of a project timely and within budget. The first project that resorted to a Dispute Board in the late 1970s, was the Eisenhower Tunnel in Colorado, USA. The adoption of this new mechanism came about pursuant to studies sponsored by the U.S. National Committee on Timeline Technology and aimed at developing improved contracting methods. Since then, the practice has greatly evolved. As one of the latest sets of rules governing Dispute Boards to be released, the ICC second edition of its rules, effective as of 1 October 2015, embodies the latest developments. Needless to say, the new Rules offer up-to-date guidance and directions to ensure an efficient recourse to the facility offered by the Dispute Board system. As experience has been gained over the years, emphasis has commenced shifting from the settlement of disputes to their prevention, an expanded role for the members of Dispute Boards. Members with a recognized experience and moral authority will often induce the parties to find a friendly and serene solution to emerging frustration during the execution of their contract.

Throughout the world, resorting to Dispute Boards has gained momentum due notably to the wide use of the model contracts conceived by the Federation of Consulting Engineers (FIDIC). They contain provisions aimed at the early identification of issues with the possibility of avoiding disputes and, should it be required, real-time dispute resolution. FIDIC efforts in promoting adapted and early means which ensure construction projects proceed without interruption have been largely seconded by the Multilateral and Unilateral Development Banks since the mid-1990s. International Financial Institutions believe that the use of Dispute Boards, especially standing ones, will have a positive impact on a project’s bottom line in terms of final price and delivery time.

Advice, recommendations and decisions rendered by Dispute Boards are generally implemented and help the progress of a project without undue friction and suspension. As mentioned, engineers are more frequently appointed to Dispute Boards than lawyers. Yet, even when the Board is called upon to decide a legal issue, its rulings will seldom discredit the Dispute Board mechanism simply because those engineers will have a decent sensitivity to the legal and procedural requirements for the equitable treatment of parties and a fair result. In a nutshell, lawyers and engineers acting as Dispute Boards members should be able to strike a proper balance between common sense and the governing law.

Finally, just like for arbitration, the practice of Dispute Boards has given rise to a number of issues which courts in several jurisdictions have considered. The jurisprudence that has emerged contributes to a better understanding of the workings of Dispute Boards and thus offers hints for improving the process and making it more reliable for users.

The mechanism of Dispute Boards, largely appreciated in the construction industry, is on the verge of gaining acceptance as an efficient means to prevent and resolve disputes in many other fields each time a business venture is meant to be executed over a period of time .