It’s an alternative method of dispute solutions, largely used in international contracts, that begins to be more frequently used in Infrastructure Contracts in Brazil.
In order to be set up, it’s necessary to have the Dispute Board previously established in the Contract sealed between the Parties. Once created through the indication of two of their members by the Parties, that should name a third one, the Board should meet and visit the Site Office, keeping up with the work evolution.
If any controversy comes up during the execution of the contract, the Party could ask the Board assessment, expressing about it.
The Board way of pronouncement should be previously determined in the Contract and it can follow one of the ways listed below:
• Dispute Review Board (DRB): The Board expresses to the Parties recommendations related to the disputes or controversial themes submitted to it. The Parties should follow those recommendations voluntarily.
• Dispute Adjucation Board (DAB): The Parties should obey the decisions that come from the Board. If the Party feels accidentally dissatisfied with the Board decision, this one should question it through the institution of Arbitration.
• Combined Dispute Board (CDB): In this case the Board can express recommendations, or it could express decisions if the Parties agree. If the Party wishes to submit any controversy to the Dispute Board it should do it during the meetings or visits to the site, or eventually through a special meeting request. For that, the Party should prepare the material related to the controversy and submit it to the Board assessment and pronouncement.
The consultancy participation can happen as one of the Dispute Board members, or as a Technical Party Assistant, acting in the preparation of the documentation to be submitted to the Board.
Acting as Technical Party Assistant
The consultancy performance can occur in the line of argument preparation in order to be submitted to the Board, as well as in the probative documentation preparation that has to go along with.
Acting as a Dispute Board Member
A great advantage in the Dispute Board is the possibility of being consisted by specialized professionals, with experience in Infrastructure Contracts, and in the themes related to them. So, the consultancy partners can be recommended as members from the Dispute Board.
In order to have the nomination accepted, it’s indispensable not to have had any service rendered to the Parties by the consultancy, preserving, this way, the impartiality and independence that are required to a Dispute Board Member.