FIDIC 계약조건에서 국제중재 전 선결절차로서의 분쟁재정위원회(Dispute Adjudication Board)의 효용성 연구

FIDIC Contract Conditions provide for Dispute Adjudication Board (“DAB”) as a mandatory prerequisite to international arbitration. However, the international arbitration proceedings often not only require the substantial amount of cost and time from the parties but also lead to the confrontation between the parties. In addition, even after the resolution of the dispute, the parties may be left with hard feelings against the other party. Under these circumstances, the DAB system was introduced by the Orange Book in 1995 based on the prevailing understanding that, in respect of a continuing legal relationship arising from, for example, construction contract, it would be highly desirable to settle the dispute in an amicable manner through somewhat unofficial pre-arbitration procedure rather than to settle all the disputes by either arbitration or litigation. The DAB procedures under the FIDIC-based contracts are a mandatory pre-condition to the initiation of arbitral proceedings as opposed to the procedures which may be skipped by the parties’ wish. In this paper, I will focus on the DAB procedures under the FIDIC contract from the perspective as to whether FIDIC DAB would serve to be an effective alternative dispute resolution scheme to avoid the need for arbitration or unnecessary prerequisite to arbitration, which requires the additional time and cost. 1999 Red Book provides for a permanent DAB, whereas Yellow and Silver Books anticipate the use of an ‘ad hoc’ DAB. In case of an ad hoc DAB, a person who gains respect and trust from the parties to the contract is appointed at the initial stage of contract, pays regular visit to the site to identify and discuss any potential issues which might lead to disputes, and gets involved in the dispute at its inchoate stage to make recommendations for the dispute resolution which are acceptable to both parties. This ad hoc DAB was intended to avoid the need for arbitration or litigation, which is often found to be time and cost consuming. However, when this ad hoc DAB procedure encountered the criticism that such purpose was not properly served, the 2017 FIDIC Contract Conditions adopted a permanent DAB system as a basic principle in all Red, Yellow and Silver Books. Besides, in 2017 FIDIC Contract Conditions, DAB’s function of preventing and avoiding disputes was reinforced, while its title was changed to be the Dispute Avoidance Adjudication Board (“DAAB”) from the Dispute Adjudication Board. In the meantime, the 1999 FIDIC Contract Conditions provide in its Sub-Clause 20.7 that any decision made by the DAB pursuant to the Sub-Clause 20.4, which has become final and binding as a result of either party’s failure to give notice of dissatisfaction within 28 days, may be referred directly to arbitration without regard to Sub-Clause 20.4 [Obtaining Dispute Adjudication Board’s Decision] and Sub-Clause 20.5 [Amicable Settlement]. However, there was a shortcoming that either party would not be entitled to file a request for arbitration pursuant to the Sub-Clause 20.7 in respect of the DAB’s decisions which have become binding but not final as a result of either party’s giving notice of dissatisfaction. In this regard, 2017 FIDIC Contract Conditions rectified such shortcoming found in the Sub-Clause 20.7 of the 1999 FIDIC Contract Conditions by providing that, in the event that a party fails to comply with any decision of the DAAB, whether binding or final and binding, then the other party may refer the failure itself directly to arbitration without regard to the DAAB and amicable settlement procedures. However, although the 2017 FIDIC Contract Conditions overcame, to a significant extent, the shortcoming of the DAB system in 1997 FIDIC Contract Conditions, it still has various legal issues to be resolved in terms of its overlapping with the legal adjudication system being implemented in the Commonwealth countries like England, the enforcement of interim award ordering the compliance with the DAAB’s decisions, and the suspension of the statute of limitation resulting from the referral of a dispute to the DAAB. Nonetheless, however, the success or failure of DAAB system under the FIDIC Contract Conditions will rest largely on how the parties would be able to use such DAAB system.