DOI link for ENFORCEMENT ISSUES
ENFORCEMENT ISSUES book
The enforcement of dispute adjudication board (DAB) decisions normally follows the rules and procedures under which the initial DAB was originally formulated. Thus, for example, for DABs flowing from FIDIC Contracts, Sub-Clause 20 sets out the relevant steps necessary towards first obtaining the decision and then towards its enforcement. In the first instance a dispute has to arise and as previously mentioned this can be one of the most argued subjects in any DAB setting with the ultimate question being – Is There a Dispute?1
Critical to any claim before a DAB is the key issue of whether, in fact, there actually is any ‘dispute’ for under most rules and procedures, such as FIDIC, there can be no decision unless a ‘dispute’ has arisen under the contract, and any claim can be challenged on this basis. FIDIC Red Book Sub-Clause 20.4 specifically requires that ‘If a dispute (of any kind whatsoever) arises between the Parties . . . either Party may refer the dispute in writing to the DAB for its decision.’ Further, as this issue goes to the jurisdiction of the DAB, it is frequently brought up and as such any enforcement of the ‘decision’ will be met with this issue, i.e. that without a dispute, the DAB has no jurisdiction and cannot give any binding decision.