This document discusses the evolution of the Dispute Adjudication Board (DAB) clause in FIDIC contracts from 1999 to 2017. It analyzes how the DAB clause has become more complex and evolved from a simple pre-arbitral mechanism into an arbitration-like procedure with more authority. It examines how the FIDIC DAB clause incorporates inquisitorial principles from civil law, making the DAB decision mandatory before parties can initiate ICC arbitration. Legal doctrine and court decisions support that the DAB stage is mandatory and takes precedence over arbitration due to its focus on discovering the truth rather than adversarial litigation.

1. ICC ARBITRATION UPON FIDIC (2017) CLAUSE 21 DAAB
FIDIC DISPUTE BOARD
as MANDATORY
THE ROAD TO CHANGE ICC ARBITRATION
FROM ADVERSARIAL TO INQUISITORIAL
Prof.: César del Riego y de Fuentes- Attorney

2. Title for a
MANDATORY
DISPUTE BOARD
FIDIC 1999- 2017 DISPUTE
AVOIDANCE
ADJUDICATION BOARD
CLAUSES

3. FIDIC 1999 –
DAB CLAUSE
20.2
• Article 20.2
• Disputes shall be adjudicated by a
DAB in accordance with Sub-Clause
20.4 [Obtaining Dispute Adjudication
Board’s Decision]. The Parties shall
jointly appoint a DAB by the date
stated in the Appendix to Tender.

4. FIDIC 1999 –
DAB CLAUSE
20.4
• Article 20.4
• 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, with
copies to the other Party and the
Engineer. Such reference shall state
that it is given under this Sub-Clause.
• […]

5. (Cont.) NEITHER
PARTY SHALL BE
ENTITLED TO
ARBITRATION
• If either Party is dissatisfied with the DAB’s
decision, then either Party may, within 28 days
after receiving the decision, give notice to the
other Party of its dissatisfaction. If the DAB fails
to give its decision within the period of 84
days (or as otherwise approved) after
receiving such reference, then either Party
may, within 28 days after this period has
expired, give notice to the other Party of its
dissatisfaction.
• In either event, this notice of dissatisfaction
shall state that it is given under this Sub
Clause, and shall set out the matter in dispute
and the reason(s) for dissatisfaction. Except as
stated in Sub-Clause 20.7 [Failure to Comply
with Dispute Adjudication Board’s Decision]
and Sub-Clause 20.8 [Expiry of Dispute
Adjudication Board’s Appointment], neither
Party shall be entitled to commence
arbitration of a dispute unless a notice of
dissatisfaction has been given in
accordance with this Sub-Clause.[…]

6. FIDIC 1999 –
DAB CLAUSE
20.5
• Article 20.5
• Where notice of dissatisfaction has
been given under Sub-Clause 20.4
above, both Parties shall attempt to
settle the dispute amicably before the
commencement of arbitration.
However, unless both Parties agree
otherwise, arbitration may be
commenced on or after the fifty-sixth
day after the day on which notice of
dissatisfaction was given, even if no
attempt at amicable settlement has
been made.

7. FIDIC 1999 –
DAB CLAUSE
20.6
• Article 20.6
• Unless settled amicably, any dispute in
respect of which the DAB’s decision
(if any) has not become final and
binding shall be finally settled by
international arbitration. Unless
otherwise agreed by both Parties:. […]

8. THE DAAB : THE
INQUISITORIAL
IUDEX SYSTEM
CONTRIBUTION
TO THE ICC ADR
RULES

9. FIDIC 2017
CLAUSE
21DAAB- AN
EVOLUTION TO
ARBITRATION
CLAUSE
• Dispute board clause is getting more
complex
• Its clearly evolving from a simple
dispute resolution prearbitral
mechanism.
• To a nearly arbitral clause like
mechanism, with more authonomy and
authority from the arbitral procedure
itself
• The bottom line is that FIDIC French
civil law grounds (inquisitorial) are
getting stronger in the ICC- FIDIC
combination whereas ICC adversarial
grounds loose space.

10. INQUISITORIAL
FIDIC VS
ADVERSARIAL
ICC
• FIDIC is a French institution where civil
law principles prevail.
• At in a firs instance FIDIC adhere to
ICC arbitration mechanism, it assumed
its arbitration rules grounded in an
adversarial system.
• Not to loose the inquisitorial
contribution to the ADR system FIDIC
in stead of making a new arbitration
set of rules, simply added the DAB
mechanism as a mandatory pre
requisite to ICC rules.

11. The iudex: arbitrator vs adjudicator
• The civil law system thinks that the iudex should
be entitled to take active part in the trial
• The civil law system thinks that the iudex should
be entitled to take active part in the trial
• Otherwise the innocent party would be without
effective defence, since the iudex holds
inhorbitant state given Powers to go deeper in the
research
• This role is thus implemented to the adjudicator as
he may take the initiative to research by means of
the Powers given in the contract.

12. The system:
inquisitorial vs
adversarial
• Adversarial and inquisitorial systems of
justice represent two different means
of conducting trials with adversarial
systems used in common law
jurisdictions such as England and the
inquisitorial system being prevalent in
mainland Europe.
• The characteristics of each system and
consider which one is best suited to
the assessment and evaluation of facts.

13. The adversarial
system: ICC
arbitrator
• The opposing sides acting as adversaries who
compete to convince the judge and jury that
their version of the facts is the most convincing
• The lawyers are given free choice in terms of
which issues are presented, what evidence to
adduce in support of their submissions and
what witnesses to call.
• The judge presides over the trial and rules on
disputed issues of procedure and evidence,
asking questions of the witness only to clarify
evidence, and concludes the trial by summing-
up the facts for the jury and advising them of
the relevant law
• It is not open to the judge in an adversarial
system to enquire beyond the facts and
evidence that are presented by the opposing
lawyers; his role is largely passive; he is an
impartial referee who advises the jury on
matters of law.

14. Inquisitorial
system: FIDIC
adjudicator
• The judge is not limited to hearing the
submissions of the parties but can direct the
lawyers to address specific points or to call
particular witnesses.
• The title of the presiding judge as ‘juge
d’instruction’ which translates as ‘investigating
magistrate’ in the French criminal justice
system gives in indication of the role of the
judge in directing proceedings.
• The role of the inquisitorial system is not to
determine guilt or innocence of one particular
person but to find the truth. As such, the
judge, as investigating magistrate, conducts
an inquiry that involves the questioning of
witnesses and suspects, the issue of search
warrants and an examination of the evidence
with the aim of discovering both incriminating
and exculpatory evidence.

15. (Cont.)
• The prosecution and defence lawyers
will keep a close eye on the judge’s
investigation and can request that he
considers specific evidence or takes a
particular course of action but the
ultimate responsibility for the line of
inquiry remains that of the judge. If, at
the conclusion of the investigation, the
judge decides that there is a case
against a particular suspect, the matter
will proceed to trial which will take an
adversarial format.
• An inquisitorial system involves a
preliminary investigation conducted
by an investigating magistrate as a
means of seeking the truth.

16. CONCLUSION:
MANDATORY
DAAB MAKES A
“JUGE
D´INSTRUCTION”
BEFORE ICC-
MAKING IT
INQUISITORIAL
• AS EXPLAINED FIDIC CHOOSE IN
STEAD OF MAKIN A NEW SET OF
RULES TO EMBED ITS CIVIL LAW
APPROACH TO THE ADR,
• CRATE THE FIGURE OF THE
“ADJUDICATOR” WITH A
CONTRACTUAL POWER TO BE AN
ACTIVE “IUDEX”, AND TAKE THE
INITIATIVE OF THE RESEARCH (A
JUDE D´INSTRUCTION)
• MAKING IT A MANDATORY
PREREQUISITE TO ICC ARBITRATION
• IN 2017 FIDIC EMPOWERING IT WITH
A MORE COMPLEX PROCEDURE VERY
SIMILAR TO THE ARBITRATION
CLAUSE ONE

17. BEING A MANDATORY PRE-
REQUISITE TO
ARBITRATION
THE ROAD TO CHANGE THE ICC
ARBITRATION SYSTEM

18. FIDIC ADS TO
ICC A NEW TIER
• the relevant Arbitration Clauses must
be read together with all Sub-Clauses
including Sub-Clause 20.1 to 20.5 -
provisions for a DAB and amicable
settlement. Under the current Clause,
there is a multi-tiered dispute
resolution mechanism.
• The combination: Once there is a
dispute, the claiming party will first
refer the dispute to the DAB in writing
for its decision under Sub-Clause 20.4.
The board will give its decision within
84 days.

19. PREFERENCE
FOR THE
INQUISITORIAL:
ICC TIER IS
SUBSIDIARY
• The parties may react to the decision
of the DAB in two possible ways; if the
parties are satisfied with the decision,
the dispute is resolved and becomes
final and binding. If either party is
dissatisfied with the DAB’s decision,
they must give a notice of
dissatisfaction within the 28 days to be
able to commence the amicable
settlement of arbitration.
• If the dispute cannot be solved
amicably, only at this point may the
dispute be referred to the arbitration
under Sub-Clause 20.6.

20. DOCTRINE ON
THE
PREFERENCE
FORTHE
INQUISITORIAL:
DAB IS
MANDATORY
• by Matthias Scherer and Bernd Ehle the
adjudication stage envisaged by the
FIDIC Form of Contracts are mandatory
(Chapter 8: Construction Arbitration in
Switzerland in Manuel Arroyo (ed),
Arbitration in Switzerland: The
Practitioner's Guide, (Kluwer Law
International; Kluwer Law International
2013) p. 1185)
• Sub-Clause 20.4 clearly provides that
neither party can initiate arbitration
unless a notice of dissatisfaction of the
DAB's decision is given, making resort
to the DAB a pre-requisite to
arbitration. In addition, Sub-Clause 20.5
provides that “arbitration may be
commenced on or after the fifty-sixth day
after the day on which notice of
dissatisfaction was given (…)”

21. DOCTRINE OF
SWISS SUPREME
COURT
• the Swiss Federal Supreme Court (the “Supreme
Court”), stated that the DAB proceedings are a
mandatory precondition for arbitration when the
dispute arises under a contract incorporating the
1999 FIDIC Conditions. The Supreme Court’s
decision concerns a challenge of a partial award
in which the ICC arbitral tribunal finds that it has
jurisdiction to hear a dispute under Clause 20 of
the FIDIC Conditions despite the fact that DAB
proceedings has not taken place.. When the
arbitration was initiated by the Claimant French
company, the Respondent objected to the arbitral
tribunal’s jurisdiction due to the mandatory nature
of the DAB procedure under the FIDIC General
Conditions. The arbitral tribunal found that it had
jurisdiction on this dispute and issued a partial
award on the issue despite the fact that the
dispute had not been previously decided by the
DAB. The Supreme Court disagreed. According to
the Court, the use of the term “shall” in Sub-
Clause 20.2 providing that “disputes shall be
adjudicated by a DAB in accordance with Sub-
Clause 20.4 …” clearly shows that the DAB
proceedings are a mandatory precondition for
arbitration.

22. (CONT)-
INQUISITORIAL
preference
• This practise is widely accepted by
legal doctrine. The mandatory nature
of submitting the dispute to the DAB is
highlighted by Jeremy Glover and
Simon Hughes QC ‘‘ Understanding
the Fidic Red Book, A Clause-by-
Clause Commentary 2nd Edition’’ :
• It should be remembered that the DAB
process is mandatory. That said, the
purpose of the DAB is established
for the collective good of the
project and to ensure its smooth
running (see inquisitorial) rather
than to satisfy the litigations desires
of the individual members (see
adversarial).

23. Court of
Singapore- on
the DAB
prevalence
• Court decision of the Court of Appeal
in Singapore dated 13 July 2011. In a
digest of this case by Michael Hwang
and Kevin Lim
• The CA provided a summary of the
principles governing the setting aside
of an arbitral award under Article
34(2)(a)(iii) of the Model Law and s
24(b) of the IAA, and then examined
the relevant dispute resolution
provisions in the 1999 FIDIC CoC. In
particular, sub-clause 20 of the 1999
FIDIC CoC provided that the dispute
would be first heard by the decision of
the DAB, it could commence
arbitration under the Rules of
Arbitration of the International
Chamber of Commerce to finally settle
the dispute.

24. CÉSAR DEL RIEGO :
abogado especialista en
contratación Arbitraje
Internacional y corporate;
en los marcos regulatorios
de Turquía CEI y EMEA;
de los sectores de
Construcción, Energía e
Ingeniería.
✓ Especializado en los aspectos Contractuales,
marco regulatorio y de licitación y Corporativos
de proyectos internacionales de Construcción,
Energía e Ingeniería derivados de Concesiones
y contratos EPC-EPCM en Oriente Medio, Norte
de África (EMEA), Asia Central (CEI) y Europa
del Este. Gestión de proyecto y seguimiento de
variaciones, reclamaciones, DB- DAB art. 20
FIDIC, Arbitraje Internacional.
✓ Track record: firmas jurídicas Turquía- España.
Pekin&Pekin Law Firm (legal 500 tier 1 en
Corporate &Tax en Turquía, socio único de Uría
y Menendez- Lex Mundi. Akinci Law única
representante Turca en GAR Arbitraje, y top
Legal 500 en ADR Construcción y Energía.
Lambal,FIDIC-arbitration law firm en España.
Subinspector de Hacienda en España.
Secretaría del Consejo de Administración de
sociedad cotizada en España. Legal Counsel
para capital jordano- saudí, oil& gas group of
companies, Luxembourg based investment
group .