The Dispute Resolution Board Foundation (DRBF) East Africa Regional Conference and Workshop was held in Nairobi at Intercontinental Hotel on February 26th and 27th to provide guidance on the foundations and workings of a Dispute Board (DB). The main theme of the conference was real-time dispute avoidance and resolution for construction projects. In the two days, workshops were held for two different groups, the introductory group and the advanced group.
For the introductory group, the first day focused on the importance of implementing a Dispute Board, while the second day went into more details of dispute avoidance and resolution. The advanced group on the first day went through the best practices in DB implementation, and on the second day, the workshop went in-depth on decision-making and the use of DB in projects. Although the workshops were targeted for contractors, consultants, legal representatives and other construction professionals, the majority of those attended the event were engineers. In fact, most of the engineers who attended were from GIBB International, which was also one of the event’s sponsors.
The DRBF is a non-profit organization with the aim of promoting dispute avoidance and resolution globally by using the Dispute Resolution Board (DRB) method. Globally, DRBF is the largest professional group of DB users and practitioners. The 2015 East African conference and workshop was held following the successful conferences that took place in South Africa in 2008 and 2014.
Despite the importance of dispute avoidance and resolution, the concept of a DB has not taken root in Kenya. As Kenya undertakes more and more multimillion projects, the significance of DBs cannot be overstressed. The conference stressed that more work is needed to make use of DB, and perhaps Kenya’s decision makers should find ways to implement it. As one of the speakers at the conference, Paul Karekezi, the managing director of GIBB Africa Limited, noted that investing in a multiparty dispute board is a good idea, as it ensures that projects are completed on time without the complication of prolonged disputes. There have been several projects in Kenya that have been delayed due to unresolved misunderstandings between engineers and consultants. The engineering industry is pretty unpredictable and a DB is one method of managing this unpredictability.
The conference covered different topics through presentations including DRBF history, the role of DRBF, contracts, site visits and more. However, an aspect that constantly popped up in the conference was integrity and neutrality of DB members.
“Impartiality; they are not on either party’s side, not doing a favor for one or the other. If anything, they are doing a favor for the project, at the end of the day by resolving the dispute, they are in fact doing a favor for both parties,” said Simon Fegan senior consultant at Leach Group and member of DRBF.
Another key aspect that was discussed was the use of an ad hoc dispute board and standing board. Karekezi explained that an ad hoc board is formed for the dispute, when a dispute takes place and someone is called to resolve it. However, the one that DRBF recommended that people are not usually keen on is the standing board. Although it is way more expensive because it is formed at the beginning of the project for the duration of the project, it contains strong dispute avoidance elements. As a result, it doesn’t allow for matters to escalate. Currently, most international contracts for engineers published by FIDIC have some sort of Dispute Boards, which makes it more the reason why East African professionals need to understand the workings of Dispute Boards. Moreover, there are two types of boards that can be used, Dispute Adjudication Board (DAB) or Dispute Review Board (DRB). DAB is a panel nominated by parties to the contract; their views of the dispute come in form of a binding decision but it is not necessarily final. The DRB is the same as a DAB the only difference is that a DRB’s views to resolve the dispute are non-binding recommendation based on what they’ve observed.
Engineering and construction in Kenya has suffered the consequences of disputes on many occasions. There are obvious benefits of using a DB, because 98% of those who are given by a DB after a dispute are satisfied. When a decision is issued then the party must abide by that or else the project will be hindered further. The speakers of the conference affirmed the current DRBF members are experienced which is reflected by their success in resolving disputes. Unlike arbitration, DB takes quite a short time; the basic essence is for quick decisions to avoid using a lot of money because the process is not cheap.
“We need to do more work, perhaps we need to help a lot of decision makers sitting here to understand the benefits of a having a Dispute Board,” concluded Paul Karekezi.