Settlements of disputes regarding FIDIC Contracts provide for a two-steps procedure: the first procedura in front of DAB (Dispute Adjudication Board) - sub-clauses 20.2 - 20.4 FIDIC - and the arbitration procedure (sub-clause 20.6).
Concerning the DABs' jurisdiction, sub-clause 20.4 FIDIC provides that ”if a dispute (of any kind whatsoever) arises between the Parties in connection with, or arising out of, the Contract or the execution of the Works, including any dispute as to any certificate, determination, instruction, opinion or valuation of the Engineer, either Party may refer the dispute in writing to the DAB for its decision.”
Despite the method of regulation of the DAB procedure in Clause 20 FIDIC, Sub-Clause 20.8 FIDIC openes parties' perspective towards putting under the question mark the mandatory character of this procedure, that is prior to arbitration. In this respect, Sub-clause 20.8 provides that "if a dispute arises between the Parties in connection with, or arising out of, the Contract or the execution of the Works and there is no DAB in place, whether by reason of the expiry of the DAB’s appointment or otherwise: (a) Sub-Clause 20.4 [Obtaining Dispute Board’s Decision] and Sub-Clause 20.5 [Amicable Settlement] shall not apply, and (b) the dispute may be referred directly to arbitration under Sub-Clause 20.6 [Arbitration]."
To be or not to be...DAB? (Part one)
