The document discusses different dispute board models used internationally and compares them to the Australian model. It notes that: 1) The Australian model places significant emphasis on the dispute avoidance role of boards through "without prejudice" meetings and potential "advisory opinions". 2) Unlike other models, the Australian model does not require a formal "hearing" and conferences are rarely held. Other models see hearings as essential for comprehensive understanding of disputes. 3) The outcome of the Australian model is a recommendation, while other models like FIDIC use decisions that are binding unless one party objects. Recommendations are non-binding and allow parties more flexibility and autonomy in resolving disputes.

1. Dispute Boards:
Is the Australian model right?
A paper by Barry Tozer, CPEng, FCIArb, FIAMA

2. Some recent Australian statistics
DBs in Australia
 Total No. of DB contracts on record in Aust. since 1987 = 64
 Range in A$ value (excl. inflation) = $A 22 million to $6.0 billion.
 Many contracts have been “purpose written” to include DBs –
significant increase seen over last 10 years.
 Value of DB contracts in progress or completed since 2003 is in
excess of A$26.0 billion.
Dispute Boards:
Is the Australian model right?

3. The Available models(1)
Dispute Review Board - Rules
DRBF – Region 1 – North America
 Referral results in a ‘Recommendation’ for
acceptance by parties
 Dispute resolution option for AS11000 ??
Dispute Boards:
Is the Australian model right?

4. Dispute Boards:
Is the Australian model right?
The Available models(2)
Dispute Adjudication Board - Rules
DRBF – Region 2 – Europe, Africa, Asia – FIDIC
 Referral results in a ‘Decision’, which is
binding on the parties unless ‘Notice of
dissatisfaction’ issued by a party in 14 days

5. FIDIC Contracts – clause 20
Dispute Resolution
JICA Dispute Board Manual
(2012) :
Appendix 10.1: Flowchart of
dispute resolution procedure
2 0 . 4
Y e s
N o
2 0 . 1
2 0 . 1
Dispute Boards:
Is the Australian model right?
FIDIC JICA

6. Dispute Boards:
Is the Australian model right?
 CIArb Rules – Choose either DRB or DAB in Contract
‘Recommendation’ OR ‘Decision’
(Article 3) OR (Article 4)
 ICC Rules - Combined Dispute Board (DRB or DAB or CDB)
A ‘Determination’ may be a
‘Recommendation’ OR ‘Decision’
OR party chooses which option, when dispute referred

7. Dispute Boards:
Is the Australian model right?
The Australian model – Dispute avoidance role
Aus. Dispute Avoidance Board – Operating Procedures
place significant emphasis on the dispute avoidance role.
 hold ‘without prejudice’ meetings for frank discussions.
 party representation includes off-site senior executives.
 DAB provides ‘advisory opinions’ if both parties request.

8. Dispute Boards:
Is the Australian model right?
Decisions of the DAB
Referral of a dispute – common process for all models.
Initial steps in the Aus DAB Procedure:
 Submissions and all documents by referring party in 7 days.
 Response submissions and all documents in further 14 days.
 Reply in …….. ?? Further response in ……. ???
 Can DAB refuse a reasonable request for more time?

9. Dispute Boards:
Is the Australian model right?
Decision of the DAB
DRB Rules
 Concise written ‘position statements’
 Common bundle of documents with cooperation by parties
FIDIC DAB Rules
 ‘Statement of case’ provided at or before ‘hearing’

10. Dispute Boards:
Is the Australian model right?
Decision of the DAB
Aus DAB - Hearing of the dispute
 No ‘hearing’ mentioned or required;
 A ‘Conference’ may be requested by party or
 Convened by DAB Chair if considered appropriate ??
 Agenda for ‘conference’ prescribed in advance.
 ‘Conferences’ rarely held.

11. Dispute Boards:
Is the Australian model right?
Decision of the DAB
cf. DRB Rules
 Hearing is essential element of process. Parties present all evidence.
 DRB asks questions, request clarification, ask for additional information.
 Successive rebuttals until both parties satisfied all aspects fully covered.
 May require additional meetings in complex cases.
and FIDIC DAB Rules
 Procedure based on ‘hearing’; DAB may adopt ‘inquisitorial’ procedure.

12. Dispute Boards:
Is the Australian model right?
Decision of the DAB
‘Hearing’ of a dispute
 Provides different dynamic from exchanges of written submissions
 Immediacy of responses from parties to questions.
 Multiple iterations allow more rapid assimilation of details, issues.
 DAB more rapidly comprehend than reading written submissions.

13. Dispute Boards:
Is the Australian model right?
Recommendation or decision
Recommendation
 No compulsion; no threat to party autonomy or relationship with DRB.
 Parties ‘opt in’ by acceptance of recommendation;
 Parties implement recommendation voluntarily.
 Parties may reject, seek clarification, negotiate amicable settlement,
 Parties may reject and proceed to another dispute resolution forum.
……… (this very rarely happens)

14. Dispute Boards:
Is the Australian model right?
Recommendation or decision
Decision
 Binding on parties to be implemented immediately
 Opt out by ‘notice of dissatisfaction’ to other party
 Final unless superseded by amicable settlement
 Or overturned by legal judgment.
 ‘Losing party’ may not retain confidence in DAB for remainder of contract.

15. Dispute Boards:
Is the Australian model right?
Decision of the DAB
In response to the question !
 Is the effectiveness of the Australian model constrained by
being too prescriptive?
 Would more emphasis on ‘hearing’ of a dispute assist the
dispute avoidance process?
 Is a ‘recommendation’ preferable to a ‘decision’ as the
outcome of the DAB referral procedure?