🏗️ Understanding the Dispute Avoidance/Adjudication Board (DAAB) under FIDIC 2017 Red Book
UNDER NEW FIDIC 2017 RED BOOK incl. Errata🏗️ DAAB under FIDIC 2017 — Block 1 (Sections 1–2)
Practical, project-side guide (not legal advice) • incl. Errata
Introduction
This course reviews the practical requirements and procedures in the FIDIC Conditions of Contract for Construction (Red Book 2017, 2nd Ed.) from a “how-it-works on projects” perspective, with particular focus on the Dispute Avoidance/Adjudication Board (DAAB). It is a hands-on guide for engineers and contract administrators—not a legal commentary.
- DAB → DAAB (standing by default) with an explicit dispute-avoidance role; jointly appointed early and kept for the contract duration.
- Split pipeline: Clause 20 (Claims) vs Clause 21 (Disputes & Arbitration).
- Engineer’s neutrality: acts under 3.7 with consultation and time-limited agreement/determination.
- Firm windows: 28-day Notice of Claim → 14-day time-bar check → 84-day Fully Detailed Claim.
- DAAB decisions: within 84 days; binding immediately unless a NOD is given within 28 days.
The Construction Contract
The contract is between two parties: the Employer (needs/funds the project) and the Contractor (executes the Works). Design responsibilities vary by book: Red (Employer-design), Yellow (Design-Build), Silver (EPC/Turnkey).
2017 day-to-day differences
- Engineer’s role formalized: under 3.7 the Engineer must consult neutrally, then agree/determine within explicit timelines.
- Clear decision pipeline: Clause 20 (Claims) → Engineer 3.7 → if Dispute, Clause 21 (DAAB → Amicable → Arbitration).
- 📅 Notice of Claim within 28 days.
- 🧾 Fully Detailed Claim within 84 days.
- 🕒 Engineer performs 3.7 steps promptly and neutrally.
Further reading
🏗️ DAAB under FIDIC 2017 — Block 2 (Sections 3–4)
Packaging, Golden Principles, 3.7 neutrality, international specifics
The Conditions of Contract
The contract documents still split into General Conditions and Particular Conditions, but 2017 standardizes the packaging:
- Particular Conditions – Part A: Contract Data (replaces the old “Appendix to Tender”).
- Particular Conditions – Part B: Special Provisions (project-specific adjustments).
Who makes the initial call on cost/time?
Under 2017, the Engineer is the first-tier decision maker and must act neutrally when agreeing/determining under Sub-Clause 3.7. The decision (or parties’ agreement) binds unless corrected or followed by a timely NOD. Missed time limits have consequences (e.g., deemed rejection for Claims).
- Board: DAB (1999) → DAAB (2017, standing + avoidance).
- Appointment timing: typically within ~28 days of LOA.
- Engineer’s decision-making: 3.5 (1999) → 3.7 (2017) with neutrality and deadlines.
- Claims windows: 28d Notice → 14d time-bar check → 84d Fully Detailed Claim.
- DAAB decision: 84 days; binding now, NOD within 28 days or it becomes final.
- Claim arises → 20.2.1 Notice (28 days).
- Engineer checks time-bar (14 days); silence = Notice valid.
- Fully Detailed Claim (84 days); missing legal basis → Notice lapses.
- Engineer acts under 3.7 (consult → agree or determine).
- Unhappy? NOD in 28 days → DAAB (some matters within ~42 days of NOD).
- DAAB decision (84 days) → binding; then Amicable → Arbitration as applicable.
International Contracts
International contracts add layers of applicable law, local practice, languages, and currency—but the core FIDIC processes remain the same.
What’s clearer in 2017?
- Contract Data (Part A) centralizes project-specific data (insurances, notice addresses, ruling language, governing law pointers).
- Golden Principles remind you to tailor only what local law or project specifics require—in Part B.
- Engineer 3.7 neutrality is explicit—useful across different legal systems.
- Structured pipeline: Clause 20 first; if needed, Clause 21 → DAAB → Amicable → Arbitration.
- Put mandatory insurances and local-law welfare obligations in Contract Data (Part A).
- List notice addresses, ruling language, document precedence, and any currency splits.
- Confirm DAAB appointment timing and arbitration seat/institution in the Contract Data.
Further reading
🏗️ DAAB under FIDIC 2017 — Block 3 (Sections 5–6)
FIDIC family, 2017 packaging & precedence, Clause 20→21 pipeline, DAAB focus
The FIDIC Family of Contracts
FIDIC still offers a family of forms; for your Construction (Red Book) course, the center of gravity is unchanged:
- Conditions of Contract for Construction (Red Book) — for Employer-designed works. The 2017 front matter clarifies the Conditions comprise the General Conditions, the Contract Data (Particular Conditions – Part A), and any Special Provisions (Particular Conditions – Part B).
How 2017 packages the documents (replacing 1999 “Appendix to Tender”)
- Part A – Contract Data: project-specific fields.
- Part B – Special Provisions: your tailored amendments.
Philosophy carried into 2017
Use the GCs as published; amend only where the project/legal environment really needs it, and keep changes minimal and coherent. (That’s the Golden Principles drumbeat.)
“Who decides if the Employer must pay?” — 2017 pipeline
- Notice of Claim in 28 days → Engineer checks time-bar in 14 days.
- Fully Detailed Claim in 84 days → Engineer proceeds under 3.7.
- Engineer issues Notice of Parties’ Agreement or Notice of Determination (typically in 42 days unless otherwise agreed). Late → a Claim may be deemed rejected, enabling dispute steps.
- Serve a NOD within 28 days on the Engineer’s outcome, then refer to the DAAB (normally within ~42 days of the NOD).
- Direct to DAAB in certain cases (e.g., 14.8 financing charges non-payment, some termination notices) — no prior 3.7 cycle.
- DAAB decision in 84 days → binding immediately (“pay now, argue later”). Still unhappy? NOD within 28 days → Amicable (28 days) → Arbitration (ICC unless agreed otherwise).
- DAB → DAAB (standing by default; adds dispute-avoidance function). Ad-hoc DAB only by explicit amendment (no avoidance role).
- Appendix to Tender → Contract Data (Part A); tailor in Part B; observe Part A > Part B > GCs.
- 3.5 (Determinations) → 3.7 (Agree/Determine) with neutrality + time limits (often 42 days).
- Clause 20 (1999 claims+disputes) → split in 2017: Clause 20 = Claims; Clause 21 = Disputes/DAAB/Arbitration.
In the 2017 Red Book, keep local-law specifics in Contract Data (Part A), apply project-wise amendments in Part B, and let the Engineer under 3.7 run a neutral, time-boxed agreement/determination process. If disagreement persists, go to the DAAB under 21.4 for a decision in 84 days—binding immediately unless a 28-day NOD is served—then amicable settlement and, if needed, ICC arbitration. This structure keeps international projects moving while respecting different legal systems.
Disputes — Dispute Avoidance/Adjudication Board
Only the Employer or the Contractor can be the principal who makes or receives a Claim under Clause 20. In the 2017 Red Book, either Party may bring a Claim for additional payment, EOT, or other relief; the Claim procedure in Clause 20 then applies.
The 2017 Conditions separate the processes: Clause 20 covers Claims; Clause 21 covers Disputes & Arbitration. Disputes are referred to a DAAB rather than a DAB. A DAAB is impartial, independent, and usually standing: jointly appointed (normally stated in the Contract Data) at the start and kept throughout, with meetings/site visits and dispute-avoidance support when jointly requested.
When a Dispute cannot be resolved by the Parties, it is referred to the DAAB under 21.4. The DAAB must give its decision within 84 days (unless otherwise agreed). In specified situations—such as non-payment of financing charges under 14.8 within 28 days, or certain termination notices—referral may go directly to the DAAB to support prompt adjudication.
Further reading on Wisdom Waves Hub
🏗️ DAAB under FIDIC 2017 — Block 4 (Section 7)
Principal Participants • Risk (17/18/19) • Engineer (3.7, 14.3/14.6) • Employer & Contractor Claims (20.2)
Principal Participants in Contract
The Contract is between the Employer and the Contractor. The Engineer is not a Party; they are appointed by the Employer to perform the duties in Clause 3. The Engineer has no authority to amend the Contract and must act neutrally when agreeing or determining matters under Sub-Clause 3.7. The 2017 edition formalises several administration procedures for both Parties, with the Employer’s administration carried out via the Engineer.
- 2.4 — Employer’s financial arrangements (Contractor may request reasonable evidence).
- 20 — Employer’s & Contractor’s Claims (replaces the 1999 2.5 employer-claims route).
- 4.9 — QMS/CVS; 4.20 — monthly progress reports; 6.7 — H&S; 6.10 — records.
- 8.4 — Advance Warning; 13.2 — Value Engineering.
- 14.3 — Application for Interim Payment; 3.8 — Meetings.
Risk
Risk allocation is framed across Clause 17 (Care of the Works & Indemnities), Clause 18 (Exceptional Events), and Clause 19 (Insurance). The 2017 structure replaces the 1999 “Employer’s Risks” list with clear rules for care/indemnities, exceptional events, and insurability—aiming for a fair, workable split aligned to each Party’s ability to foresee and mitigate.
- Typical claim drivers: EOT entitlement, additional payment, recovery of costs, non-fulfilment by a Party, or legal entitlements.
The Engineer
The Engineer’s duties/authority are in Clause 3. The Engineer has no power to relieve obligations (3.1), and cannot amend the Contract. Payment is administered through 14.3/14.6: applications must capture additions/deductions, including amounts from 3.7 determinations and binding DAAB decisions (“pay now, argue later” under 21.4.3).
- 3.3 — Instructions channel: Employer communicates changes via the Engineer (confirm oral instructions per 3.3).
- 13 — Variations & Adjustments (13.1 right to vary; 13.3 variation procedure).
- 3.2 — Delegation to assistants (limits per Contract Data).
- 3.7 — Consult → agree; failing that, determine within the set period. Binding unless revised under Clause 21.
Claims by the Employer
If the Employer is entitled to payment, it must follow 20.2 (Notice & particulars), after which the Engineer proceeds under 3.7. The Employer should not set-off/deduct unless 20.2 is complied with.
- 7.5 — costs due to rejection/retesting
- 7.6 — costs after failure to remediate
- 8.8 — delay damages (subject to 20.2 wording)
- 9.2 / 9.4 — delayed or failed Tests on Completion
- 11.3 / 11.4 / 11.11 — DNP extension, failure to remedy, clearance of Site
- 15.4 — post-termination recoveries
- 4.19 — utilities provided by Employer (deducted via 14.3).
- 4.2 — performance security (calling/holding rules).
- 10.2 — taking-over parts → agree/determine under 3.7.
- 11.6 — further tests at risk and cost of liable Party.
Claims by the Contractor
Most claims are Contractor-led (EOT and/or Cost). Under 2017, all time/money claims follow 20.2 (28/14/84 windows, records). The Engineer then acts under 3.7 and certifies substantiated amounts. Dissatisfied Parties serve a NOD within 28 days and may refer to the DAAB 21.4 (normally 84-day decision).
- Advance Warning (8.4) where appropriate.
- Notice of Claim (20.2.1) within 28 days.
- Engineer time-bar check (20.2.2) in 14 days (silence → valid).
- Contemporaneous records (20.2.3), Fully Detailed Claim in 84 days (20.2.4), updates if effects continue (20.2.6).
- Engineer agrees/determines (3.7), then certification/payment.
- NOD (28 days) → DAAB (21.4) → decision (84 days) → Amicable → Arbitration.
- 1.9 delayed drawings/instructions; 2.1 access; 4.12 physical conditions; 4.23 archeological/geological.
- 8.5 EOT causes; 10.2/10.3 taking-over parts / interference with Tests.
- 11.8 search; 13.6/13.7 law & cost changes; 16.1 suspend; 18 exceptional events.
- 12.3/12.4 valuation/omissions; 16.4 termination by Contractor (loss of profit & damages).
- 1999 20.1 → 2017 Clause 20 (Employers’ & Contractors’ Claims) with 20.2 procedure (28/14/84).
- 1999 20.4 (DAB decision) → 2017 21.4 (DAAB decision).
- 1999 20.2 “ask DAB for opinion” → 2017 21.3 DAAB informal assistance (joint request).
- 1999 3.5 → 2017 3.7 (Agreement or Determination; time limits).
- 1999 8.3 (future events in programme) → 2017 8.4 (Advance Warning).
- 1999 19 (Force Majeure) → 2017 18 (Exceptional Events).
- 1999 4.24 (Fossils) → 2017 4.23 (Archaeological & Geological Findings).
Further reading on Wisdom Waves Hub
🏗️ DAAB under FIDIC 2017 — Block 5 (Section 8)
Clause 20 (Claims) • Clause 21 (Disputes & Arbitration) • Engineer 3.7 timeline
Clause 20: Claims & Clause 21: Disputes and Arbitration
In the 2017 Red Book, Clause 20 sets out the common claims process for either Party, while Clause 21 governs Disputes (DAAB and arbitration). Determinations are made under Sub-Clause 3.7 (Agreement or Determination).
Clause 20.1 — General (2017 update)
20.1 defines a Claim and confirms that either Party may claim EOT, Cost, and—where expressly stated—Cost Plus Profit. The procedure is in 20.2. Employer claims are no longer under 1999 2.5; in 2017, both Parties use Clause 20.
- “The Contractor shall give a Notice …” — obligatory, subject to the 20.2 time bar.
- “The Contractor shall be entitled …” — entitlement, bounded by the Contract and Clause 20.
- “Subject to Sub-Clause 20.2 …” — procedure/time bars may affect entitlement.
- “Extension if Completion is delayed …” — EOT tracks delay to Completion.
- “Payment of any such Cost …” — only attributable Cost.
- “Plus Profit …” — where stated (generally Employer-attributable events).
Notice periods
If the Contractor considers entitlement to EOT and/or additional payment, it shall give a Notice of Claim to the Engineer under 20.2.1—as soon as practicable and no later than 28 days after becoming (or ought to have become) aware. The Notice need not quantify amounts or list every clause at this stage. Notices must comply with 1.3 (Communications), and the fact of Notices is also reported under 4.21 (Progress Reports).
Under 20.2.2 the Engineer has 14 days to notify whether the 28-day limit was missed (with reasons). If silent, the Notice is deemed valid. Late Notices may be barred (subject to that deeming step).
Records
20.2.3 (Contemporary Records) requires the claiming Party to keep contemporaneous records. The Engineer may monitor and instruct additional records; the Contractor must permit inspection during normal hours and, if instructed, submit copies. Monitoring does not equate to acceptance.
Notice of detailed claim (2017 update)
Within 84 days after awareness, the claiming Party submits a fully detailed Claim under 20.2.4, including: (a) description, (b) contractual/legal basis, (c) contemporary records, (d) particulars of EOT/Cost. If item (b) is not submitted within the limit, the Notice laps(es) (Engineer to notify within 14 days)—if the Engineer is silent, deeming applies and validity is argued in the 3.7 process.
- First fully detailed Claim is interim.
- Engineer responds on basis within 3.7.3 time limit.
- Submit further interim fully detailed Claims monthly.
- Final fully detailed Claim within 28 days after effects end (or as agreed).
- Seeks Parties’ Agreement; if none, issues Determination.
- Notices of Agreement/Determination typically within 42 days per 3.7.3.
- If no determination in time for a Claim → deemed rejection (enables dispute step).
Dispute Avoidance/Adjudication Board (DAAB)
The DAAB is independent, impartial, and recommended as a standing board appointed at the start (tripartite DAAB Agreement; joint obligation to appoint, typically within 28 days of LOA). By joint request, it may give informal assistance (not normally while 3.7 is active unless both Parties agree).
- Regular meetings/site visits (typically every 70–140 days) to stay informed and support avoidance.
- On referral, the DAAB decides under 21.4 within 84 days (or as agreed); Parties continue performance.
- Decision is binding immediately; if no NOD within 28 days, it becomes final and binding. If the DAAB is late, a NOD may be issued within 28 days after that period expires.
Cost & cost benefit
Each Party ultimately bears half of the DAAB’s remuneration/expenses. The DAAB Agreement typically invoices the Contractor, who pays within 28 days and seeks reimbursement of one-half via Statements; if the Contractor fails to pay, the Employer pays and recovers excess from the Contractor (member may suspend/resign if invoices remain unpaid). Fees usually include monthly retainer, daily rates for meetings/visits/hearings/decisions, reasonable expenses, and taxes.
- International practice shows low escalation rates to arbitration when a standing board is in place.
- Boards often operate at a small fraction of project cost while resolving issues ~within 84 days.
Perceived barriers
- “Another layer slows things” → DAAB aims for prompt decisions (normally 84 days) followed by a short amicable window (28 days), then arbitration if needed.
- “It will impose fairness rather than contract” → DAAB is independent, impartial, and contract-based; NOD within 28 days preserves rights.
- “Encourages marginal claims” → Early, focused engagement reduces backlogs; decisions bind (“pay now, argue later”).
- Enforceability → Binding DAAB decisions are to be complied with; failure can be referred to arbitration for enforcement.
- 🟦 28 days — give the Notice of Claim (20.2.1).
- 🟦 14 days — Engineer’s time-bar response (20.2.2); silence → valid.
- 🟦 84 days — submit the fully detailed Claim (20.2.4).
- 🟦 3.7.3 — Notices of Agreement/Determination (typically within 42 days).
- 🟦 21.4 — DAAB decision in 84 days; NOD within 28 days if dissatisfied.
Further reading on Wisdom Waves Hub
🏗️ DAAB under FIDIC 2017 — Block 6 (Section 9)
21.1–21.2 Appointment & Constitution • Member Qualities • Independence • Termination
Clause 21.1 & 21.2 (2017 update to 1999 20.2 & 20.3)
In 2017, Disputes are to be decided by a DAAB. The Parties shall jointly appoint the DAAB within 28 days after the Contractor receives the LOA (unless another time is in the Contract Data). The DAAB is one or three suitably qualified members (default three if not stated and Parties do not agree otherwise). The DAAB is deemed constituted when all Parties and members sign the DAAB Agreement; each Party pays one-half of the DAAB remuneration. If appointment stalls, either/both Parties may apply to the President of FIDIC (appointing official) to appoint the member(s) and set terms/fees; that appointment is final and conclusive.
Disputes to DAAB (2017)
21.1: “Disputes shall be decided by a DAAB in accordance with 21.4.” Either Party may refer a Dispute; 21.3 informal assistance is optional (and usually not while the Engineer is in a 3.7 cycle, unless agreed).
- Deemed Dispute without 3.7/NOD in specified cases:
- failure or non-payment under 16.2.1,
- non-payment of 14.8 financing charges within 28 days,
- notices to terminate (e.g., 15.2.1 / 16.2.1 intention; 15.2.2 / 16.2.2 / 18.5 / 18.6 termination) where entitlement is disputed.
- Timing: after an Engineer’s 3.7 determination, refer to DAAB within ~42 days of giving/receiving the NOD (21.4.1). DAAB decides in 84 days of the reference (or as agreed) (21.4.3).
- NOD window: 28 days after the DAAB decision; if none, the decision becomes final and binding. If the DAAB is late, a NOD may be given within 28 days after the period expires (21.4.4).
DAAB Constitution (2017)
21.1/21.2 cover appointment mechanics: one or three members; joint appointment within 28 days (unless otherwise stated); members selected from names in the Contract Data; for a three-member DAAB each Party selects one member (for the other’s agreement) and both agree the chair. If the Parties cannot agree a member/chair, or fail to sign terms/fees in time, escalate under 21.2 to the appointing official (President of FIDIC); the appointment (and fees set) is final, with costs shared 50/50.
Selection of members (2017 update)
Each Party names potential members in the Contract Data (often three each). Selection is from those lists if possible (excluding anyone unwilling). If no names are provided, consider a longer appointment window; 21.2 applies where agreement fails, including defined “failure” triggers (e.g., missing the 21.1 appointment date, failing to agree a replacement within 42 days, failing to sign the DAAB Agreement within 14 days).
Qualities of DAAB members
Members are empowered to issue binding decisions; they cannot be removed unilaterally. The board acts as a team, not as Party representatives. Aim for a balanced mix of experience and professional expertise; for international contracts, differing nationalities help avoid perceived bias.
Basic qualities required by DAAB members
- Independence and impartiality at all times, with prompt disclosures.
- Availability; ongoing knowledge of Contract/Site/progress; regular meetings/site visits; current working file.
- Confidentiality; not to act as arbitrator or witness in any Contract arbitration.
Experience
Members should be experienced in the project’s type of work and in interpreting construction/engineering contracts, fluent in the Contract language, and proactive in staying informed (visits, meetings, file upkeep).
Contract knowledge
Members comply with the DAAB Agreement/Rules and Conditions applicable to DAAB activities; they study documents (e.g., under Rule 4.3), keep a working file, and ensure all communications are properly copied.
Language capability
Each member must be fluent in the Contract Data language (or as otherwise agreed). Multilingual projects should manage language use to avoid compromising impartiality.
Dispute resolution experience
- Adopt fair procedures fit for the Dispute; avoid unnecessary delay/expense.
- Decisions bind immediately—pay now, argue later; NOD within 28 days preserves rights.
- Failure to comply with a DAAB decision can go straight to arbitration for expedited enforcement.
Procedural knowledge
Under the DAAB Rules, the board may set procedures, hold hearings, take an inquisitorial approach, request documents/oral submissions, and open up/review/revise relevant Engineer acts. Informal assistance (21.3) is available by joint request (usually not during hearings).
Qualifications
- Relevant academic/professional qualifications; usually 10+ years in a senior role.
- Formal dispute adjudication training/assessment; strong communication skills.
- No financial/other interest in the Parties/project; no recent employment links (unless fully disclosed).
Availability
Members ensure availability, attend meetings/site visits/hearings, and remain informed. After appointment, the DAAB sets a schedule at intervals not more than 140 days and not less than 70 days (unless jointly agreed). For urgent matters, aim for an online meeting within 3 days and, if needed, a site visit within 14 days.
Impartial
Act fairly; give each Party reasonable opportunity; adopt proportionate procedures. Communications with one Party are copied simultaneously to the other (and to the chair/Other Members for three-member boards). Members may use their specialist knowledge within the bounds of fairness.
Independent
No financial interest in the Contract/project (beyond DAAB fees); no interest in either Party/their Personnel; disclose and avoid conflicts; don’t accept gifts or discuss future employment (unless jointly agreed). Not to act as arbitrator/witness under the Contract.
Lawyers
DAAB members are selected for suitability (not as Party counsel). With Parties’ agreement, the DAAB may appoint experts (legal/technical) and may open up, review and revise Engineer determinations relevant to the Dispute.
Termination of DAAB members
Replacement is required when a member declines or is unable to act (death/illness/disability/resignation/termination). Appointment method mirrors the original selection. Termination of any member is only by the mutual agreement of both Parties. Non-payment may allow suspension/resignation. If a member’s DAAB Agreement ends mid-Dispute, the 21.4.3 decision period is suspended and restarts upon replacement.
Further reading on Wisdom Waves Hub
🏗️ DAAB under FIDIC 2017 — Block 7 (Section 10)
DAAB Agreement • Warranties • Member & Party Obligations • Fees & Payment
DAAB Framework
The 2017 Red Book includes the General Conditions of the DAAB Agreement and DAAB Procedural Rules in the Appendix to the General Conditions. The DAAB Agreement is tripartite (Employer–Contractor–Member), the appointment is personal, and no assignment/subcontracting/delegation is allowed. The Agreement states whether the board is a sole member or three members (and who chairs).
General Conditions of DAAB Agreement
Effective Date & Term. The Parties jointly appoint the DAAB within the time in Contract Data (if not stated, 28 days after LOA per 21.1). The DAAB takes effect when all relevant signatures are in place (tripartite for sole member; all three Agreements for a three-member board). Unless agreed otherwise, the term expires when 14.12 (Discharge) becomes effective, or 28 days after decisions on all Disputes referred before discharge—whichever is later (special rules on termination apply).
- 28 days — joint appointment window after LOA (unless Contract Data states otherwise).
- 182 days — if no Notification that the Agreement took effect within 182 days of execution, it becomes void.
- Avoids “gap” between signature and jurisdiction to act.
- Consider defining a commencement date in the Special Provisions if you anticipate delays.
Resignation / Non-payment. The Agreement allows suspension/resignation if valid invoices remain unpaid for 56 days (after 7 days’ notice). Resignation is serious—overuse undermines confidence; use only in genuine, contractual circumstances.
Warranties
Throughout the Term, each member warrants that they are and will remain independent and impartial, disclosing immediately any fact/circumstance that could call this into question. Parties rely on representations that the member is experienced in the type of work, versed in construction/engineering contracts, and fluent in the Contract language.
Obligations of the DAAB Members
- No financial interest & independence: no interest in the project/Parties; no recent employment links (5 years) unless disclosed; no judicial/arbitral role on this Contract; no gifts; no job discussions unless jointly agreed.
- Disclosure: disclose conflicts immediately to both Parties and (if applicable) Other Members.
- Compliance with Rules: follow the DAAB Agreement GCs, Procedural Rules, and relevant Conditions; no advice on Contract conduct except as required for DAAB Activities.
- Availability: attend meetings/site visits/hearings; stay informed; maintain a working file (Rule 4.3). Monthly fee covers availability, including urgent meetings per Rule 3.6.
- Privacy (Confidentiality): DAAB Activities and Rule 4.3 documents are private/confidential (exceptions apply; decisions are admissible in arbitration).
- Informal Assistance: available on joint request (Rule 2). Not during a hearing; if requested mid-hearing, the hearing is adjourned and the 21.4.3 decision period is paused if the adjournment exceeds 2 days, resuming when the hearing restarts.
Obligations of the Parties
- Seek advice/opinions only via joint requests (Informal Assistance).
- Do not appoint DAAB members as arbitrators/experts/witnesses in any Contract arbitration (save as jointly agreed).
- No liability for members’ acts/omissions except bad faith.
- Provide advances/deposits for expected fees/expenses when requested; extended hearings/extra visits are outside routine payments and covered by these deposits (and subsequent invoices).
Payment of DAAB Members
The tripartite DAAB Agreement sets payment mechanics; the GCs define scope. Payment is in agreed currency(ies); the member must ensure currency acceptability.
- Monthly Fee — availability, staying conversant, file upkeep (chair may have higher rate).
- Daily Fee — meetings/site visits/hearings, reasonable travel time, reading, deliberations, decisions (seek prior approval for non-standard chargeables).
- Expenses — direct/reasonable only (overheads included in Monthly Fee).
- Taxes — fees/expenses are reimbursed net of Country taxes on invoices; such taxes (incl. withholding) reimbursed by the Parties (except if the member is a permanent resident in the Country).
- Each Party ultimately bears 50%; Parties are jointly & severally liable to the member.
- Undisputed amounts due within 56 days of valid invoice.
- Monthly Fee and agreed air fares are payable every 3 months in advance.
- Daily Fee and other expenses (excl. prepaid fares) are invoiced after each visit/hearing.
- Default: after 56 days unpaid, member may (after 7 days’ notice) suspend and/or resign.
Further reading on Wisdom Waves Hub
🏗️ DAAB under FIDIC 2017 — Block 8 (Sections 11–14)
Termination • Default of Member • ICC Arbitration (DAAB Agreement) • Tripartite DAAB Agreement
Termination of DAAB
The objective is a DAAB in place for the project duration. Termination exists for joint, agreed ends. The Parties may jointly terminate the DAAB Agreement by giving the member a ≥42-day Notification.
- Resignation — the member may resign on ≥28-day Notification (or other agreed). If a 21.4 Dispute is on foot, resignation takes effect after all corresponding decisions are given.
- Member default — if the member fails (without justifiable excuse) to comply with Sub-Clause 5.1 of the DAAB Agreement, the Parties may jointly terminate (recorded delivery; effective on receipt).
- Party default — if a Party fails (without justifiable excuse) to comply with Clause 6 (obligations to the member), the member may terminate by Notification (effective on receipt by both Parties).
- One-sided notices under the joint-termination provisions are of no effect; resignations/terminations under Clause 10 are final and binding.
- After termination — confidentiality survives; originals returned on request; outstanding fees/expenses remain payable (subject to 11.5(b) in case of successful challenge).
Default of Member
If a challenge to a member is successful under the DAAB Rules, the member’s appointment and DAAB Agreement are deemed terminated immediately from ICC’s notification date. From that date the member is not entitled to fees or expenses; certain decisions (and, for a sole-member DAAB, other Activities) during the challenge window become void. A replacement shall be appointed without delay.
Disputes (DAAB Agreement)
Any dispute arising out of or in connection with the DAAB Agreement (including breach, termination or invalidity) is finally settled by ICC arbitration under the ICC Rules.
Tripartite Agreement (DAAB Agreement)
The standard tripartite forms (sole member; one of three/chairperson) are in the Forms section of the 2017 Red Book. Each incorporates the General Conditions of DAAB Agreement and the DAAB Procedural Rules and includes:
- Party/member details (names & contacts)
- Recitals (A–D) stating purpose and constitution under 21.1/21.2
- Validity/term linkage to the Contract (incl. Clause 21 applicability & GCs)
- Scope (member undertakes to act per the Agreement)
- DAAB procedures & terms of reference (incorporating GCs and Rules)
- Payment terms (Monthly Fee / Daily Fee, currency; GCs Clause 9)
- Parties’ joint & several liability to pay
- Disputes & Governing Law (defaults to Contract law under Sub-Clause 1.4 if not stated)
- Signatures (execution blocks/witnesses for Employer, Contractor, member)
- 28 days — member resignation notice (or as agreed)
- 42 days — joint termination notice by Parties
- 56 / 7 days — (from Section 10) non-payment → suspend/resign
- 182 days — no effectiveness Notification → void
- Keep an appointment/replacement clause that mirrors 21.2 to avoid gaps.
- When a resignation is served during a 21.4 Dispute, track the decision clock and pause rules.
- Confirm confidentiality survival language and document return protocols.
Further reading on Wisdom Waves Hub
🏗️ DAAB under FIDIC 2017 — Block 9 (Sections 14–16)
21.4 Decision • 21.7 Enforcement • 21.8 No DAAB in Place
Clause 21.4 — Obtaining a DAAB Decision
Under the 2017 regime, the priority is avoidance (21.3). If a Dispute arises, either Party may refer it to the DAAB for a decision under 21.4 (with or without prior informal assistance).
- Reference window: make the reference within 42 days of giving/receiving the Notice of Dissatisfaction (NOD) (3.7.5), or the NOD lapses. State it’s under 21.4, set out your case, put it in writing, copy the other Party and the Engineer. For a 3-member DAAB, receipt = when the chair receives it.
- Direct-to-DAAB cases: for specified triggers (e.g., certain payment/termination notices; 14.8 financing charges unpaid within 28 days), a Dispute is deemed to arise—refer under 21.4 without a NOD; 3.7 and 21.4.1(a) don’t apply.
- Proceedings: DAAB sets a fair procedure per its Rules (hearings, submissions, visits) within the 84-day decision period.
- Decision: written, reasoned, issued to both Parties (copy to Engineer), and states it’s under 21.4. It’s binding immediately (pay now, argue later); DAAB may require security if repayment risk is reasonable.
- NOD on decision: dissatisfied Party gives a NOD within 28 days (copy DAAB/Engineer). If DAAB is late, a NOD may be given within 28 days after the 84-day period expires.
- Next steps: if a valid NOD is given, attempt 21.5 Amicable Settlement; unless both Parties agree otherwise, arbitration may commence on/after the 28th day after the NOD date.
Clause 21.7 — Failure to Comply with a DAAB Decision
If no NOD within 28 days, the decision becomes final and binding. If a Party fails to comply with any DAAB decision—whether binding or final and binding—the other Party may refer the failure itself directly to 21.6 Arbitration. In such a reference, 21.4 and 21.5 do not apply.
- Arbitral powers: the tribunal may use a summary/expedited route to enforce (interim/provisional measure or award). If the decision is “binding (not yet final)”, the tribunal reserves rights on the merits until final award.
- This remedy is without prejudice to other contractual/legal rights.
Clause 21.8 — Disputes to Arbitration (No DAAB in Place)
If there is no DAAB (or none is being constituted)—e.g., expiry of appointment—either Party may refer the Dispute directly to 21.6 Arbitration. 21.4 and 21.5 do not apply. Parties may still consider reconstituting an ad-hoc board to avoid delay/expense, but that requires agreement.
Further reading on Wisdom Waves Hub
🏗️ DAAB under FIDIC 2017 — Block 10 (Section 17)
Procedural Rules • Hearings & Timelines • Directions • Site Visits
Procedural Rules
The DAAB Procedural Rules (in the Appendix to the GCs and annexed to the DAAB Agreement) guide the Board’s day-to-day operation. The Parties empower the DAAB to set procedures suited to each Dispute—while observing two anchors: act fairly and impartially, and avoid unnecessary delay/expense. Those principles sit within the Contract’s fixed decision windows (e.g., 21.4’s 84 days).
Scope & flexibility
- DAAB may establish procedures for visits, Informal Assistance, and decisions (Rules + Agreement).
- It can adopt an inquisitorial approach, take initiative to ascertain facts, and determine jurisdiction/scope.
- It may appoint experts (with Parties’ agreement) and decide if/when to hold hearings (or proceed on documents-only).
Regular meetings & first meeting
The DAAB becomes familiar with the project and Contract, convenes an introductory meeting, and—with the Parties—sets a schedule of meetings/Site visits at intervals of no more than 140 days and no less than 70 days (unless jointly agreed otherwise). In exceptional cases, the first meeting may be online by joint agreement.
- Standard agendas & minutes format
- Scheduling & travel arrangements
- Meeting room & logistics
- Invoicing arrangements; facilities to be provided
- Attendees & agenda format
- Room/online setup & secretarial support
- Site visit conduct & reporting cadence
- Claims admin & Dispute referral procedures
Staying informed (routine documentation)
All routine documents to the DAAB are copied to the other Party and—if three members—sent to the chair with copies to Other Members. The Parties provide documents on request (e.g., Contract documents, progress reports, programmes, instructions/Variations, Statements/certificates, relevant Notices/communications) to keep the DAAB current.
Referral: notice, content & jurisdiction
A Referral to the DAAB follows 21.4. The Referral Notice should be concise and clearly state the relief sought, the contractual provisions relied upon, and include supporting material; for a three-member DAAB, receipt = the date the chair receives it. The DAAB may determine whether a Dispute is capable of direct submission despite any supplementary contractual gating (jurisdiction power).
Procedural directions (typical contents)
- Timetable for response/defence; preliminary issues
- Optional reply cycles (reply; reply to reply)
- Hearing vs documents-only; hearing dates & format
- Translation, attendance, witnesses, agendas
- Written opening/closing; decision date
Hearings (if any)
- DAAB controls date/place/duration, submissions, inquisitorial questions, document production, attendance, adjournment, and may proceed if a duly notified Party is absent.
- During a hearing the DAAB does not give Informal Assistance. If both Parties request Informal Assistance mid-hearing, the hearing is adjourned; if the adjournment exceeds two days, the 21.4.3 decision period is temporarily suspended until the hearing resumes.
- The DAAB does not express opinions on the merits during a hearing.
Powers often exercised
- Use members’ specialist knowledge; take initiative on facts
- Open up/review/revise relevant Engineer acts/decisions
- Decide financing charges per the Contract
- Order suitable provisional relief (interim/conservatory)
- Proceed with Activities if a Party—after Notification—fails to comply with obligations to the DAAB
Further reading on Wisdom Waves Hub
🏗️ DAAB under FIDIC 2017 — Block 11 (Sections 18, 19, 21)
Hearings • Enforcement • Chairperson
18.0 DAAB HEARING
The hearing should promote openness, candour, and full disclosure on the issues in Dispute. A practical sequence that keeps things efficient:
- Registration
- Procedural Issues
- Preliminary Issues
- Jurisdictional Issues
- Referring Party: Opening → Witness submissions → Respondent questions → Witness re-submission/clarification
- Responding Party: Opening → Witness submissions → Referring Party questions → Witness re-submission/clarification
- Respondent summing up → Referring Party summing up
Venue & facilities
Pick a location convenient for Parties, witnesses and advocates (not always on Site). Provide adequate seating, tables, ventilation/AC, breakout rooms (each Party + DAAB), presentation equipment and private refreshment facilities.
Length & breaks
Aim for ~6 hours per day, with planned breaks. Meals should be nearby and private to keep the schedule tight.
Formality & witnesses
- Transcripts are not normally taken; recesses may be needed for counsel/DAAB to consider evidence and inquisitorial lines.
- Witnesses are not sworn; avoid courtroom labels like “examination”/“cross-examination”. The Chair keeps the tone professional but not over-formal.
- Parties should agree witness presence rules. The DAAB may exclude non-Party attendees; press/public recordings are contrary to DAAB’s spirit.
Absence & notice
The DAAB may proceed in a Party’s absence if satisfied that adequate notice was given and no valid reason exists. Confirm travel issues have been explored before going ex parte.
Documents at hearing
- Discourage dumping fresh volumes during the hearing; it inflates response and decision time.
- Originals behind copied exhibits should be available for scrutiny if authenticity is challenged.
- Remember the 2017 record/claim framework: 20.2.3 contemporary records and 20.2.4 fully detailed claims.
DAAB’s hearing protocol
- Chair controls participants, procedure and timetable; members agree how to question (through Chair or open forum).
- DAAB usually questions after the other Party’s questions and before any re-submission questioning.
- Members do not express views on merits during the hearing and must not show favour. Deliberations occur in private immediately after the hearing if possible.
Post-hearing steps
After closing, members meet privately to: (1) set a schedule for deliberations; (2) decide if further submissions are needed; (3) strive for unanimity; (4) agree the decision format.
Decision making & format
- Unanimous preferred; if not, a majority decision applies. Include majority + minority reasoning. A minority member states the points of disagreement and the decision they would make as a sole member.
- Use a short, focused decision. Include: (a) statement that it is under 2017 Sub-Clause 21.4; (b) confidentiality/circulation; (c) clear, reasoned analysis.
- Corrections/clarifications (2017 DAAB Rules): within 14 days, DAAB may correct clerical/arithmetical errors by addendum; a Party may request correction/clarification within 14 days. The addendum becomes part of the decision and the 28-day NOD window runs from Parties’ receipt of that addendum.
19.0 ENFORCEMENT
- Immediate obligation (21.4.3): any amount ordered by the DAAB is “immediately due and payable” — no certification or Notice required. The Employer is responsible for the Engineer’s compliance.
- 21.7 route: if a decision is final & binding and a Party fails to comply, the failure itself may be referred directly to arbitration; summary/expedited enforcement or provisional measures may be ordered (rights on merits reserved where the decision is binding but not final).
- Payment certificate path: the Contractor can also include the decided sum in a 14.3 Statement for reflection in the 14.6.1 IPC, then payment under 14.7. (Still note that 21.4.3 makes sums payable without certification.)
- Non-compliance remedies: persistent non-payment enables 16.1 suspension and, if necessary, 16.2 termination (both reference failure to comply with a DAAB decision).
21.0 DAAB CHAIRPERSON
- The Referral Date is the date the chairperson receives the reference; all written communications are addressed to the chair (copied to Other Members and the Parties).
- The DAAB may issue an addendum to correct/clarify a decision; typically the chair coordinates the members’ agreement and issues it.
- The chair orchestrates procedure and communications under the 2017 Rules; decisions and notices flow through the chair consistently with those Rules.