Introduction

Statutory adjudication in the United Kingdom has succeeded largely because it is narrow, disciplined, and unambiguously adjudicative. Its legitimacy rests on three foundations: the adjudicator’s technical competence, the quality of the decisions produced, and – critically – the adjudicator’s detachment from the project. The adjudicator does not advise, manage, or participate in project administration; the role is determinative, not managerial.

By contrast, the modern Dispute Avoidance/Adjudication Board (DAAB), particularly in international contracting, is expected to operate in two distinct and potentially incompatible modes:

• dispute avoidance, requiring continuous engagement with the project and the parties; and
• dispute adjudication, requiring impartial determination of formal disputes.

The Structural Tension

As previously argued (“DAABs Dos and Don’ts”, 8 April 2024), some dispute‑avoidance activities are legitimate: familiarisation with progress, disruption, quality issues, and variations, and – importantly – offering non‑binding views on contractual interpretation and likely outcomes. Such interventions can defuse disagreements before they crystallise.

But there is a parallel category of activities that a DAAB should avoid because they fall squarely within the parties’ own contractual responsibilities: design, planning, procurement, quality control, progress recording, valuation, certification, and contract administration.

Some commentators contend that continuous engagement enhances understanding and therefore improves adjudicative quality. However, the issue identified here is not about understanding, but impartiality. The difficulty is obvious. A DAAB that has participated in dispute avoidance may later be required to adjudicate on the very matters on which it has already expressed views.

FIDIC 2017 in all major forms attempts to mitigate this through Sub‑Clause 21.3:

“The Parties are not bound to act on any advice given during such informal meetings, and the DAAB shall not be bound in any future Dispute resolution process or decision by any views or advice given during the informal assistance process…”

The safeguard is well‑intentioned but fragile. Once a board has expressed views on contractual interpretation or causation, for example, it is unrealistic – both as a matter of perception^[1]Guarding against even the perception of bias can, at times, be taken to considerable lengths. A frequently cited example is Article 14(5) of the ICC Arbitration Rules 2026, which provides that, when … Continue reading and of human nature – to expect the same individuals to approach the dispute with the necessary detachment. The concern is not actual bias but the appearance of pre‑commitment (e.g., anchoring, confirmation bias, commitment consistency, and the tendency to over‑value of one’s own prior work), which can be equally corrosive to confidence in the process.

FIDIC’s 2023 Practice Note stresses that dispute avoidance must be undertaken in a manner that preserves trust, neutrality, and perceived independence. Yet, other than providing that ‘unless the Parties agree otherwise, both Parties shall be present at such discussions’, this admonition is absent from the contractual text and from the official guidance accompanying the 2017 Suite. The result is an unresolved structural tension: DAABs are encouraged to engage proactively in dispute avoidance, but the governing documents provide no meaningful safeguards to prevent that engagement from contaminating the adjudicative function.

The risks are not hypothetical. They are illustrated by the jurisprudence on mediation–adjudication overlap, most notably Glencot Development and Design Co Ltd v Ben Barrett & Son (Contractors) Ltd [2001] BLR 207. There, the adjudicator had previously participated in a mediation and may have been exposed to confidential information in private caucus. Despite advice – from the writer – that withdrawal was the only safe course, the adjudicator proceeded. HHJ Humphrey Lloyd QC held that the adjudicator’s continued involvement gave rise to a real possibility of apparent bias, precisely because of the potential asymmetrical acquisition of information. The decision was not enforced. The principle is clear: where a neutral performs both facilitative and determinative functions without strict procedural separation, the adjudicative outcome becomes vulnerable to challenge – even absent private caucusing – as role‑confusion between facilitative and determinative functions undermines perceived impartiality.

As against that, it may be said that the parties have freely elected a model that blends avoidance and adjudication. That argument overlooks the reality that these are not bespoke terms but standard‑form provisions promoted by a drafting body whose purpose is to bring balance and coherence to international construction contracts. Against that backdrop, the absence of explicit safeguards in FIDIC’s DAAB regime is difficult to defend. If DAABs are intended to operate credibly in both modes, the contract must articulate the firewalls necessary to protect adjudication from the taint of perceived partiality.

Other sectors recognise this need for separation. Financial regulators and medical ethics committees maintain strict divisions between advisory and adjudicative functions, reflecting the understanding that continuous engagement creates cognitive alignment that undermines the appearance – and sometimes the reality – of impartiality.

The Further Difficulty: Subsequent Arbitration

A second erosion of expertise and legitimacy can arise when a DAAB decision is challenged on the merits in arbitration. Despite aspirations toward greater diversity and construction‑specific expertise, arbitral tribunals remain lawyer‑heavy and often less technically qualified than the DAAB whose decision they are reviewing.

The problem is compounded when arbitral institutions impose an additional layer of anonymous “scrutiny” through internal review mechanisms. These reviewers are typically even further removed from the technical and factual realities of construction projects. Although such scrutiny is theoretically confined to matters of form and directed at improving clarity and enforceability, experience shows that it frequently spills into substance – legal analysis, merits, and reasoning.

This additional stage injects delay into what is intended to be a rapid dispute‑resolution process and introduces the risk of conceptual interference by individuals who have heard none of the evidence or submissions and whose expertise lies in arbitration as an abstract discipline rather than in the practical matrix of the works. That risk is heightened where the arbitration agreement deliberately directs the institution to appoint an arbitrator nominated by another body. The advantages of an expert‑led, project‑proximate determination may therefore be diluted, or lost altogether.

Conclusion

The current DAAB model risks discarding the very features that justify its existence. The benefits of early expert engagement are endangered both by the contamination of the adjudicative function through prior involvement in dispute avoidance and by subsequent redetermination by less expert arbitral processes. A clearer structural separation between avoidance and adjudication – potentially even the allocation of these functions to different bodies – together with more disciplined guidance on the avoidance role and a more restrained approach to institutional scrutiny, would better preserve the integrity, speed, and expertise that the DAAB system is intended to deliver.     

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About the author

Franco Mastrandrea is a Chartered Quantity Surveyor and Chartered Arbitrator with over 40 years of experience in the construction industry. He has acted as expert on more than 50 international project management, delay and quantum-related disputes.

From London to Australia and Canada to Antarctica, Franco has extensive and diverse dispute resolution expertise. With an established record in drafting, interpreting and applying commercial terms in contracts, he successfully combines both knowledge and experience under traditional cross-examination and hot-tubbing.

Franco’s expert commissions cover a wide range of industries including oil and gas in Australia, Canada, Kazakhstan, North Africa and South East Asia; transport infrastructure in the Caribbean and the UK; power generation, from CCGT to windfarms, in the UK; and numerous building and infrastructure projects around the world.