At the 2nd Annual GAR Live Construction Disputes Conference in Paris on 4th April 2019, FTI Consulting’s Thomas Hofbauer joined Peter Rosher (Reed Smith LLP), Simon Braithwaite (BDO), François Doré (Bouygues Construction), Lindy Patterson QC (39 Essex Chambers) and James Perry (PS Consulting) on a panel to discuss whether lawyers have ruined Dispute Boards. Thomas shares a short roundup of the discussion below.
When asked to discuss the pros and cons of lawyers and experts on Dispute Boards, one of key headlines presented to me was: “Experts are the best thing since sliced bread on a Dispute Board” – and I couldn’t agree more. This is also supported by the Adjudication Reporting Centre of the Glasgow Caledonian University.
Even though Adjudication and a Dispute Adjudication Board (DAB) is not absolutely the same, the figures served perfect for our discussion.
4 key takeaways:
- Technical projects are facing technical problems: Looking into UK Adjudication, only 3% of the disputes are about contract clauses. The rest is money, defects and to a lesser extent, time.
- To resolve these problems the DAB needs technical expertise: This is also reflected in UK Adjudication: 1/3 are lawyers. All other board members have a technical or commercial background: Civil Engineers, Architects, Quantity Surveyors.
- What speaks against Engineers as DAB Members? They have no experience in conducting hearings, but in the UK, 70% of the adjudications are purely based on documents. Engineers can’t write judgements. They don’t like reading and writing. Instead, they are very analytical, visual and like figures (that’s why I became an engineer!).
- What is key for a successful DAB member? Relevant experience in law and the contract but also in technical and commercial questions. Also, integrity and availability.
For further information about the role of Experts on Dispute Boards, please feel free to contact me directly on Thomas.Hofbauer@fticonsulting.com.