Dispute Boards (DBs) are designed to ensure that projects continue smoothly, addressing issues before they escalate into full-blown disputes. However, even the most experienced DB members can find themselves facing a dispute for which they lack specific knowledge or experience. This raises a critical question: How should a DB proceed when confronted with an issue beyond its expertise?

Let’s explore the strategies DBs can adopt to handle such situations, with real-world examples to illustrate these approaches.

Recognising the Limits of Expertise

Imagine a situation where a DB, overseeing a large offshore wind farm project, is suddenly presented with a dispute about the environmental impact of specific turbine foundations. The DB members are experts in civil engineering, contracts, and project management, but none are specialists in marine biology or environmental science.

The first and most crucial step is recognising these limits. Admitting that the matter goes beyond the board’s collective expertise doesn’t undermine the DB’s authority — in fact, it preserves its credibility by ensuring that decisions are well-founded and not made in haste or ignorance.

Collaborating Within the DB

In many cases, the solution might be closer than it seems. DBs are typically composed of professionals with diverse backgrounds. For instance, consider a DB on a major metro construction project that is faced with a complex dispute about tunnelling methods. While none of the DB members may be tunnelling specialists, one might have significant experience in geotechnical engineering, offering enough overlap to provide valuable insight.

In this case, an internal discussion among DB members can help identify a way forward, leveraging each person’s strengths. Sometimes, collective brainstorming allows the board to gain enough clarity to proceed without the need for external expertise.

Focusing on Process and Legal Principles

Even when technical expertise is lacking, the DB can still fall back on its strength in interpreting the contract and ensuring procedural fairness. In cases where the DB must decide on the basis of process rather than technical knowledge, focusing on contractual obligations, timelines, and compliance with industry standards allows the DB to keep the dispute moving forward while avoiding unnecessary delays.

For example, in a road construction project, a DB may encounter a dispute related to a specific type of asphalt mix. While the technical intricacies of asphalt may be beyond the DB’s direct experience, the board can ensure the contractor has met all the procedural and contractual requirements for quality control and testing, using the contract as its guiding framework.

Asking the Parties to Provide Expert Reports

Another effective approach, especially in highly specialised disputes, is to ask the parties themselves to provide expert reports. These reports may not always be entirely independent, but they can still offer valuable insights into the technical aspects of the dispute.

Consider a situation in which a dispute arises over complex software integration on a major infrastructure project. The DB may lack the expertise in software development but can request each party to submit their own expert reports. In such cases:

• The parties nominate experts who are familiar with their respective positions.
• The DB can interview both experts, asking pointed questions to understand each side’s perspective and clarify areas of disagreement.
• This allows the DB to make a more informed decision, weighing the strengths and weaknesses of each expert's testimony to determine what is most likely correct.

While these experts are not entirely neutral, the process of cross-examining them can provide the DB with enough technical clarity to navigate the dispute. Sometimes, this questioning can be done using a technique called “hot tubbing,” which is commonly used in arbitration. In simple terms, hot tubbing involves having both experts appear together before the DB to present their views side by side. The experts respond to each other’s opinions directly, in real-time, while the DB asks questions to resolve any differences. This method can help highlight key areas of agreement or disagreement between the experts, providing the DB with clearer insights into the dispute.

Seeking External Expertise

There are instances when a DB may face a dispute involving complex legal issues specific to the local laws governing the project. For example, consider a large infrastructure project in a foreign country where the DB is confronted with a dispute relating to an intricate point of local contract law. While one of the DB members may be a qualified lawyer, it is unlikely that they are an expert in the specific laws of the country in question, particularly if the legal system differs significantly from international or common law principles.

In such situations, the DB can engage a local legal expert who is well-versed in the specific area of law to advise on the legal aspects of the dispute. This ensures that the DB’s decision is informed by an accurate understanding of local regulations and how they affect the project’s contractual obligations. The local legal expert’s role would be to provide clarification on how the law applies to the issue at hand, such as local requirements for contract interpretation, dispute resolution procedures, or particular regulatory compliance matters.

For example, in a dispute concerning a clause related to contract termination, the local law might have specific stipulations that override standard contract provisions. The legal expert would offer insights into how the courts in that jurisdiction would interpret the clause, allowing the DB to make a more informed decision based on local legal standards.

By bringing in this external expertise, the DB can ensure that its decision is legally sound, while still retaining control over the final outcome. The expert’s input is advisory, not determinative, maintaining the DB’s authority and impartiality in delivering its judgement.

Transparent Communication With the Parties

Whenever a DB decides to bring in an external expert or requests expert reports from the parties, transparency with the project stakeholders is key. It’s important to clearly communicate this decision to both parties. The stakeholders should understand why additional expertise is needed and how the findings will be used to form the DB’s decision.

However, it is also essential to note that bringing in external experts introduces additional costs to the dispute resolution process. These costs can add up quickly, especially on large, complex projects. As such, the decision to engage external experts must be carefully considered, ensuring that it is balanced against the need to maintain cost-effectiveness in resolving the dispute. This approach is typically only used in a crystallised dispute situation, where a formal referral has been issued, and the dispute has reached a point where outside expertise is essential for the DB to make an informed decision. By maintaining transparency about the need for external expertise and ensuring that both parties are aware of the potential costs involved, the DB can foster trust while demonstrating its commitment to fairness and due diligence.

Continuous Professional Development

While no DB can be an expert in every field, members should continuously expand their knowledge to stay abreast of new developments.

This kind of professional development doesn’t just equip DBs for future disputes — it enhances their overall effectiveness in dispute avoidance. Being able to foresee potential problem areas and raising the right questions early on can prevent disputes from arising in the first place.

Conclusion

No Dispute Board can be an expert in every field, but that doesn’t mean it can’t provide effective, fair solutions to disputes that fall outside its immediate knowledge base. Whether by bringing in external expertise, requesting expert reports from the parties, or focusing on procedural integrity, DBs can continue to guide projects towards resolution without letting unfamiliarity become a barrier.

By maintaining transparency, fostering collaboration, and recognising when to seek help, DBs not only protect their own credibility but also ensure that project stakeholders receive informed, balanced decisions — even in the face of the unexpected.