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📘 Comparative Clause Analysis: FIDIC 1999 vs 2017
📘 FIDIC 1999 – Clause 20.8
- Title: Expiry of Dispute Adjudication Board’s Appointment
- Trigger: Expiry or non-appointment of DAB
- Effect: Parties may refer directly to arbitration under Clause 20.6
- Amicable Settlement: ✅ *Still required* under Clause 20.5
- Style: Direct but limited scope
- Reference: Clause 20.6 (Arbitration)
📗 FIDIC 2017 – Clause 21.8
- Title: No DAAB in Place
- Trigger: No DAAB due to expiry or non-constitution
- Effect: Parties may go directly to arbitration under Clause 21.6
- Amicable Settlement: ❌ *Explicitly waived* (Clause 21.5)
- Style: Broader and modernized
- Reference: Clause 21.4, 21.5, 21.6
🚀 Key Implication: FIDIC 2017 allows a faster path to arbitration if the DAAB does not exist or is inactive, without requiring an attempt at amicable settlement — unlike the 1999 edition, which mandates it.
1️⃣ Purpose of These Clauses
Let’s start with why these clauses even exist.
In both the FIDIC 1999 and FIDIC 2017 editions, the contract framework emphasizes the role of the DAB (Dispute Adjudication Board) or DAAB (Dispute Avoidance/Adjudication Board) as the first formal stop for resolving disputes. Ideally, any disagreement between the Employer and Contractor should be submitted to this Board, which delivers a decision before the parties even think of arbitration.
But let’s be real — sometimes the Board isn’t even there. It might’ve expired after project completion, never been appointed, or dissolved due to internal conflicts.
- 🕊️ FIDIC 1999 – Clause 20.8: “Okay, if there’s no DAB, you can go to arbitration.”
- 🚀 FIDIC 2017 – Clause 21.8: Goes further — if no DAAB exists, you skip even the amicable settlement step and head straight to arbitration.
👉 Bottom line: Both clauses are legal “escape hatches” to ensure disputes aren’t stuck in limbo when a DAB or DAAB isn’t in place.
2️⃣ Breakdown of the Clause Language
Let’s unpack the actual clause content in plain English.
🔹 FIDIC 1999 – Clause 20.8 (Expiry of DAB’s Appointment)
Here’s what it says in spirit:
“If there’s a dispute and the DAB’s appointment has expired, or if the DAB never existed, then the parties can go to arbitration as per Clause 20.6. However, they still need to try amicable settlement first (Clause 20.5).”
- If the Board’s term ended (e.g., after the Defects Notification Period), arbitration remains an option.
- ⚠️ But only after attempting amicable settlement under Clause 20.5.
🔹 FIDIC 2017 – Clause 21.8 (No DAAB in Place)
This one’s more nuanced:
“If there’s a dispute and no DAAB is currently in place — whether because the appointment expired or for any other reason — then skip the DAAB and amicable settlement. You can go directly to arbitration under Clause 21.6.”
FIDIC recognizes delays in appointing or renewing DAABs are common, so this clause lets parties move straight to arbitration without delay.
🧾 It also applies when:
- DAAB was never appointed.
- The appointment process failed.
- The DAAB resigned or dissolved.
3️⃣ Key Interpretations and Practical Implications
Now let’s zoom in on what this means on the ground for project teams, legal advisors, and contract administrators.
✅ Improved Clarity in 2017
- Clause 21.8 is crystal clear that no DAAB means no need to follow DAAB or settlement steps.
- That saves weeks (or months!) of delay in urgent disputes.
✅ Bypassing Amicable Settlement
- In 1999, even if there’s no DAB, parties were still expected to make an attempt at settling the matter amicably before arbitration.
- 2017 cuts that step — which might seem harsh, but it’s practical in time-sensitive or high-stakes situations.
🚨 Watch Out: “No DAAB” Must Be Clearly Established
- If a party thinks there’s no DAAB, but the other party disagrees (say, claiming the DAAB’s appointment was auto-renewed), that itself could become a mini-dispute.
- So it’s critical to define the Board’s term and expiry provisions clearly in the DAAB Agreement.
4️⃣ Cross-Referencing with Other Clauses
Let’s see how this clause interacts with others.
📘 FIDIC 1999
Clause References:
🧭 Flow: Clause 20.8 ⇒ Clause 20.5 ⇒ Clause 20.6
✅ Skips Clause 20.4 (DAB decision) if no board exists.
📗 FIDIC 2017
Clause References:
- 🔗 Clause 21.4 – DAAB Decision
- 📝 Clause 21.5 – Amicable Settlement
- 🔗 Clause 21.6 – Arbitration
🧭 Flow: Clause 21.8 ⇒ Clause 21.6
✅ Skips both Clause 21.4 and 21.5 if no DAAB is in place.
📌 Pro Tip: When drafting Particular Conditions or advising on dispute flow strategy, make sure you’re not referencing steps like DAAB or amicable settlement if Clause 21.8/20.8 conditions apply. This avoids invalid procedural triggers.
5️⃣ What If Scenarios
Let’s play out a few real-world “what ifs” to see how these clauses actually work in practice:
❓ What if the DAAB’s appointment expired after Taking-Over Certificate was issued, and now a defect claim arises?
🧾 FIDIC 1999: Parties must attempt Amicable Settlement (Clause 20.5) first, then proceed to Arbitration (Clause 20.6).
🚀 FIDIC 2017: Clause 21.8 applies. You can directly proceed to Arbitration (Clause 21.6), skipping DAAB and Amicable Settlement.
❓ What if the DAAB was never constituted because the parties couldn’t agree on members?
🧾 FIDIC 1999: Parties might get stuck negotiating or escalating over appointment — delaying dispute resolution.
🚀 FIDIC 2017: Clause 21.8 simplifies this. No DAAB = go straight to arbitration.
❓ Can the Employer argue that Clause 21.5 (Amicable Settlement) still applies in 2017?
📌 Answer: No — not if Clause 21.8 is triggered. It clearly suspends Clause 21.5 when no DAAB exists.
6️⃣ Suggestions for Clarity and Improvement
📌 Here’s what would make these clauses even stronger in practice:
- Define the DAAB’s appointment period clearly in the DAAB Agreement. For example: “The DAAB’s appointment expires upon issuance of the Performance Certificate unless expressly extended.”
- Add auto-renewal language to avoid unintended expiry.
- State explicitly in the Contract Data what happens after the DAAB’s term ends — for example, whether reappointment is expected for post-completion disputes.
7️⃣ Final Takeaways
Here’s the big picture — wrapped up:
✅ FIDIC 1999 (Clause 20.8) offered a fallback path to arbitration when the DAB wasn’t around, but insisted on amicable settlement first.
🚀 FIDIC 2017 (Clause 21.8) modernizes the process:
- Wider scope (covers more reasons for “no DAAB”),
- Cleaner logic (skips straight to arbitration),
- Faster dispute resolution.
🎯 Practical Tip: Always make sure the DAAB’s lifespan aligns with your project’s potential dispute window — especially post-completion or during the Defects Notification Period.
Flowchart for Clause 20.8 – Expiry of Dispute Adjudication Board’s Appointment
Detailed Explanation of the Flowchart
- Start: Dispute Arises in Project
- Overview: The process begins when a dispute emerges between the parties involved in a project, related to the contract or the execution of the works.
- Importance: Recognizing the onset of a dispute is the first step towards resolving it.
- Check DAB Status
- Overview: Assess whether a Dispute Adjudication Board (DAB) is currently in place for the project.
- Decision Points:
- No DAB in Place: Proceed if there is no DAB due to expiry or other reasons.
- DAB in Place: The process ends, as the existing DAB would handle the dispute.
- Skip DAB Decision & Amicable Settlement
- Overview: If no DAB is in place, bypass the steps involving DAB decision-making and amicable settlement attempts.
- Importance: This step acknowledges that without a DAB, these preliminary dispute resolution steps are not applicable.
- Refer Dispute Directly to Arbitration under Clause 20.6
- Overview: The dispute is directly referred to arbitration as per Clause 20.6.
- Importance: Direct arbitration becomes the primary method for dispute resolution in the absence of a DAB.
- Arbitration Process Initiated
- Overview: The arbitration process begins, following the rules and procedures outlined in Clause 20.6.
- Importance: Arbitration provides a formal and binding resolution to the dispute.
- End of Arbitration Process
- Overview: The arbitration process concludes, ideally resolving the dispute.
- Importance: This marks the final resolution of the dispute, allowing parties to move forward based on the arbitration outcome.
✅ Checklist: Managing Expiry or Absence of the DAB/DAAB
Use this checklist to assess whether Clause 20.8 (1999) or Clause 21.8 (2017) can be properly triggered.
| 🔍 Check Item | 📘 FIDIC 1999 | 📗 FIDIC 2017 | ✅ |
|---|---|---|---|
| Has the DAB/DAAB’s appointment officially expired (or was never constituted)? | Must confirm expiry or failure to appoint | Applies to expiry, non-constitution, or any reason | ☐ |
| Was the dispute formally raised after expiry of the DAB/DAAB’s term? | Required to bypass DAB process | Necessary trigger for direct arbitration | ☐ |
| Has a written record of expiry/non-constitution been maintained? | Not required but strongly advised | Highly recommended | ☐ |
| Has Amicable Settlement under 20.5 been attempted (if 1999)? | Mandatory before arbitration | Not applicable — waived | ☐ |
| Are you planning to proceed to arbitration? | Go to Clause 20.6 | Directly proceed to Clause 21.6 | ☐ |
| Was a NoD issued on a past DAAB decision? | Only relevant if DAB decision existed | Relevant if DAAB issued decision pre-expiry | ☐ |
| Does the DAAB Agreement clearly define expiry triggers? | Often vague — check Particular Conditions | Defined in Contract Data / DAAB Agreement | ☐ |
| Did parties try to reconstitute or extend the DAAB? | Not mandatory but helps context | Adds weight to “no DAAB” status | ☐ |
| Have Particular Conditions set DAAB term? | Sometimes custom amended | Advised — default is until final payment | ☐ |
| Has legal counsel reviewed the arbitration pathway? | Recommended if ambiguity remains | Strongly recommended in high-value cases | ☐ |
📄 Sample Letters – DAB/DAAB Clause Triggers
These practical templates help navigate DAAB expiry, extension, or dispute notices under FIDIC 1999/2017.
📄 Scenario 1: Notice Confirming Expiry of DAB/DAAB
Purpose: Formally notify the other Party that the Board has expired.
Subject: Notification of Expiry of [DAB/DAAB] Appointment
Reference: [Contract Name/Number]
Date: [Insert Date]
Dear [Recipient’s Name],
We refer to the above-referenced Contract and the [Dispute Adjudication Board (DAB) / Dispute Avoidance/Adjudication Board (DAAB)] constituted under [Clause 20.2 / Clause 21.1].
Please be advised that the appointment of the [DAB/DAAB] has expired as of [insert expiry date], pursuant to the terms of the [DAB/DAAB] Agreement. No extension has been agreed or executed.
Accordingly, the [DAB/DAAB] is no longer in place, and we reserve our rights to proceed in accordance with [Clause 20.8 / Clause 21.8].
Yours faithfully,
[Name]
[Title]
[Company Name]
📄 Scenario 2: Request to Extend DAAB Appointment
Purpose: Formally suggest extending the DAAB’s term.
Subject: Request to Extend Appointment of DAAB
Reference: [Contract Name/Number]
Date: [Insert Date]
Dear [Recipient’s Name],
We refer to the [DAAB] established under Clause 21.1 of the Contract.
As the existing DAAB appointment is due to expire on [insert expiry date], and considering ongoing closeout matters, we propose extending the DAAB’s term for [insert duration], or until the Performance Certificate, whichever is later.
Please confirm at your earliest convenience so arrangements can be made with the DAAB members.
Yours sincerely,
[Name]
[Title]
[Company Name]
📄 Scenario 3: Notice of Dispute Where No DAB/DAAB Exists
Purpose: Notify dispute and intent to proceed to arbitration.
Subject: Notice of Dispute – No [DAB/DAAB] in Place
Reference: [Contract Name/Number]
Date: [Insert Date]
Dear [Recipient’s Name],
We write to notify you of a Dispute under the Contract dated [insert date], regarding [brief summary of issue].
As of this notice, there is no [DAB/DAAB] in place due to [expiry / non-appointment / resignation], and reconstitution attempts have failed.
Pursuant to Clause [20.8 / 21.8], we intend to refer the matter to arbitration under Clause [20.6 / 21.6].
We remain open to amicable resolution prior to arbitration commencement.
Yours faithfully,
[Name]
[Title]
[Company Name]
📄 Scenario 4: Response Challenging DAAB Expiry Claim
Purpose: Dispute the other party’s claim that the DAAB expired or was invalid.
Subject: Re: Dispute Notice – Status of DAAB
Reference: [Contract Name/Number]
Date: [Insert Date]
Dear [Sender’s Name],
We acknowledge your letter dated [insert date] concerning the alleged expiry or absence of the [DAAB].
We respectfully disagree. The DAAB’s appointment remains valid under the DAAB Agreement dated [insert date]. No mutual termination or expiry notice has been executed, and reconstitution may still be possible under Clause 21.1.
Accordingly, we do not accept that Clause [21.8 / 20.8] applies and reserve our right to request a DAAB decision prior to arbitration.
Yours faithfully,
[Name]
[Title]
[Company Name]