The first useful update comes from FIDIC, where its Dispute Avoidance and Adjudication Forum has published a new practice note (available here) looking at the appointment of dispute boards which are referenced in multiple editions and forms of FIDIC contracts. The practice note identifies 12 tasks which, if followed, are said to lead to the “most successful formation of the most suitable DB for a given project”.

The tasks run through a number of things to consider when appointing a dispute board, such as whether a standing or ad hoc board is appropriate, how many members there should be and choosing their identity, as well as how to approach the appointing authority if agreement cannot be reached.

The second update comes from the Centre of Construction Law and Dispute Resolution at King’s College London, which has published a report considering the use and effectiveness of dispute boards, entitled 2024 Dispute Boards International Survey: A Study on the Worldwide Use of Dispute Boards Over the Past Six Years (copy available here).

The survey considered the use of dispute boards as a dispute avoidance and resolution mechanism in projects that took place between January 2018 and December 2023. The report records that 4,019 dispute boards were identified by 213 respondents.

Particularly interesting results include that the entire dispute board process typically lasted between 76 and 90 days, and that the most common result was that the dispute was completely avoided or relatively reduced. Of particular note is that, on average, 31% of the respondents reported that the dispute boards issued binding decisions.

In terms of subsequent litigation or arbitration, respondents indicated that this only occurred between 0% and 10% of the time.

Noting that NEC4 Option W3 includes the adoption of a Dispute Avoidance Board, and the publication by the JCT of the Dispute Adjudication Board Documentation, practitioners and construction professionals need to be familiar with the appointment and use of dispute boards in order to be best placed to determine the correct route for resolution of any dispute.

Mindful that in England and Wales, and Scotland, parties to a construction contract have a statutory right to adjudicate at any time, it will be interesting to see what the uptake is for dispute boards under the newer forms of the JCT and NEC standard form contracts as a means of alternative dispute resolution. Where the process may unfold is in situations where one party loses patience and refers the dispute on to adjudication for determination. The ability for dispute boards to review and give guidance on disputes quickly will likely determine the extent to which this becomes a more frequently used method of dispute resolution in the UK.

Parties may be more attracted to the less adversarial approach style of dispute boards, assuming that the boards are given the power to determine the disputes on a temporarily binding basis in order to give them the similar status as adjudications.

This article was first published in the Construction Law magazine on 3rd February 2025.