Click here to discover how a broad cross-section of interests in Eastern and Southern Africa are working together to develop a more cost-efficient and constructive approach to commercial disputes in the region.
A dispute board is an independent panel of professionals - not necessarily lawyers - which is available to deal with disputes as and when they arise.
It is usually appointed at the beginning of a contract or relationship, and thereafter meets with the parties at regular intervals to identify, avoid and resolve disagreements.
There are two basic types of dispute boards:
Dispute Adjudication Boards (DABs) make interim binding decisions, based only on the relevant contract and applicable law.
Dispute Review Boards (DRBs) make non-binding recommendations, based as much on the parties’ interests as on the relevant contract and applicable law.
The adjudicative approach of DABs can create procedural and jurisdictional problems. However, DABs have the advantage of introducing certainty, swiftly and relatively cheaply, to contractual disputes which might otherwise jeopardise the commerciality of major construction and other complex projects.
DRBs are much more versatile in both scope and procedure and are ideally suited to non-contractual relationships, as well as to situations involving significant non-justiciable issues and in which enforcement of a non-consensual award would prove problematic.
Dispute Boards are ideally suited to the challenges of the African business environment. However, considerable care is advisable when choosing which type to use.
What we do
EEE Lex is at the forefront of a growing wave of interest in DBs.
We design and help to establish DBs for a wide range of applications and business activities, beyond those to which they have traditionally been applied.
We also identify, train, certify and appoint DB members; attend to the administration; oversee the integrity of the process; and may review DB recommendations at the parties’ request.
We bolster this by providing CPD-style refresher courses for both members and users of DBs.
Attractions of Dispute Boards
The growing popularity of DBs is only partly due to their ability to reduce the time and expense spent on disputes. Other attractions include -
1. DBs do not apply only legal rules: they also take account of the parties’ commercial, political and other interests. They seek to solve the problem, rather than simply to pass judgment.
2. They are effective not despite, but precisely because they do not necessarily result in binding decisions. This allows for face-saving and minimizes hostility between the parties.
3. DBs are one of the most effective ways of dealing with cross-cultural misunderstandings, ‘rights’ not recognised in law, and the often complex decision-making structures of communities.
4. They offer the further advantages of both continuity of personnel and the option of tailoring the panel’s skills and backgrounds to different disputes.
5. DBs ensure that multiple disputes are handled in a consistent way. This avoids having to contend with the procedural rules of different jurisdictions, and contradictory rulings on similar facts.
6. They are ideally placed to discourage claims which lack merit, and to promote early consideration of well-founded claims.
7. DBs are as much a mechanism for the avoidance of disputes as for their resolution. No other ADR procedure has this preventative feature.