Layngross
T: +44(0) 1932 856463
E: derek@layngross.com
W: layngross.com

Dr Derek Ross is a Past Master of the Worshipful Company of Arbitrators. He is listed on to the FIDIC President’s List of Adjudicators, and more recently on the Irish Minister of State for Business and Employment's newly formed Panel of Construction Contract Adjudicators. He is a Chartered Arbitrator, Accredited Mediator, Conciliator, Adjudicator and Dispute Board Member, who accepts UK domestic and international appointments as the neutral person in each of these construction dispute resolution disciplines. Being also a Chartered Civil Engineer, he also accepts appointments as a Civil Engineering Expert Witness.
If you feel Dr Ross can assist you, please call him for a no obligation discussion on +44 1932 856463, or simply reply to this email with your details.
Below is an article he has written, which he hopes you will find of interest.

AN NEC3 DISPUTE BOARD OPTION

As an adjudicator occasionally named within NEC3 contracts, I have often felt that the parties' interests might perhaps be better served if there was an NEC3 secondary option allowing the adjudicator to act in a dispute avoidance capacity, as a one-man dispute board ('DB') or dispute adviser ('DA'), in addition to acting in a dispute resolution capacity. The beauty of standing DBs and DAs is that they can, if requested, provide an informal dispute avoidance service that may well nip disputes in the bud, which would undoubtedly save the parties valuable time, money and effort.

Even if the parties have not decided on an adjudicator at time of contract formation, under clauses W1.2(3) and W2.2(3) of NEC3, whichever applies, once an adjudicator has been appointed by an adjudicator nominating body, he or she becomes the named Adjudicator within the Contract. He or she is then available to resolve all future disputes that may arise, in addition to the initial dispute, which is the intention of these provisions. He or she is also then available to act in a standing DB or DA role, if such an option were to be available within NEC3, and had been chosen by the parties.

It seems to me there is a strong commercial incentive for the publishers of NEC3 to draft DB Options for both the international and UK domestic versions of their standard forms. I think few would doubt that the World and Multilateral Development Banks' insistence on DBs within the high value contracts they fund has established FIDIC's as the standard forms of choice within international construction markets. Thus if the publishers of NEC3 aspire to increasing their share of the international construction forms market, it seems likely they will not make any serious inroads in respect of that aspiration until they offer a DB Option that is attractive to both Employers and Contractors and is capable of securing the endorsement of the Multilateral Development Banks.

The publisher's commercial considerations aside, it seems to me that a properly drafted NEC3 DB Option, whenever it is chosen by the parties, is likely to assist all those involved in NEC3 governed projects to act in a spirit of mutual trust and cooperation, which is a central tenet of NEC3, enshrined within the initial clause of that standard form. Said initial clause, together with the early warning and risk reduction meeting provisions are to my mind the most enlightened, yet sadly in the cases I see the most neglected, clauses of NEC3. Thus I believe a DB Option within NEC3 would go a long way towards addressing any such adversarial neglect, whenever such a DB option is chosen and applied, and make for greater harmony on NEC3 construction sites.
Dr Derek Ross
30 June 2016

Please Note: The foregoing article has been prepared by Dr Derek Ross for the general interest and benefit of readers. It is not intended to be a definitive analysis of the law or of other matters discussed. Neither does it create a client relationship between the recipient and Dr Ross. Thus no liability is accepted in respect of any reliance placed on any statements made in the foregoing article. Proper advice ought always to be taken before deciding to take, or not to take, action in respect of a specific issue.

© 2016 Dr Derek Ross & Layng Ross Construction Disputes Resolution.

VIEW NEWSLETTER ONLINE | COMMENT
The contents of an attachment to this e-mail may contain viruses which could damage your own computer system. Whilst we have taken every reasonable precaution to minimise this risk, we cannot accept liability for any damage which you sustain as a result of software viruses. You should carry out your own virus checks before opening the attachment.