Paris launch of new rules
On 28 September 2015 in Paris, the ICC held a global launch event for the revised ICC Dispute Board Rules. The event was well attended, with speakers discussing the practice and salient features of the revised rules.
Against the backdrop of the increasing use of Dispute Boards in medium to long term projects, where Boards can be brought on board prior to a dispute arising in order to help speed the resolution of any issue, the revision of the rules aims to update and strengthen the ICC’s offering of ADR services.
Strengthening the mechanism
The revised Dispute Board Rules, amended after a thorough period of drafting and consultation, are effective from 1 October 2015.
The main revisions of the Dispute Board Rules focus on the effectiveness of the Dispute Board mechanism. In particular, the revised rules expressly state that if a party fails to raise its dissatisfaction with a Dispute Boards’ conclusion within a thirty day period, then the conclusion becomes binding and final between the parties, who have direct recourse to arbitration in the event of non-compliance (without going back to the Dispute Board). The rules further preclude parties from raising any issue as to the merits of a conclusion as a defence to their non-compliance
The revised rules introduce provisions extending the power of Dispute Boards, enabling it to participate in the prevention of potential disagreements, appoint experts and decide on interim and conservatory measures.
The parties may also rely on the ICC’s expertise and optional administrative assistance during the procedure, including the appointment of members of the Dispute Board, the review of decisions, and the newly added service of setting the fees of the Dispute Board members.
Andrea Carlevaris, the Secretary General of the ICC, during the global launch event focused on the unique nature of the Dispute Board as a means of resolving disputes, or ‘disagreements’ as they are termed in the rules. As he put it, “the Dispute Board is not an alternative to arbitration – but a useful complement“. The flexibility of the rules, together with the newly strengthened nature of Dispute Boards’ decisions, makes them a welcome development, further enhancing the ICC’s integrated ADR services.
With the traditional and prevalent use of Dispute Boards in construction and engineering contracts, it will be interesting to see if the revised rules continue their progress in terms of widespread use, and as such may be influential in encouraging industry institutions such as FIDIC to adopt or recommend the rules, which would likely take the success of the rules to a new level.