On 18 June 2010 the Dublin Forum on the Resolution of IP disputes took place. An established event in the International Arbitration calendar, the forum is a high level, round-table discussion of topical issues in the field of international commercial arbitration and mediation by an invited group of practitioners. Michael Cover FCIArb, a member of CIArb's Board of Management and Professional Member of the Dispute Board Federation, spoke on "the role of Dispute Boards in IP and IT transactions." Dispute Boards have gained increasing acceptance over the past decade, but their use has largely been restricted to construction and engineering projects. Michael explored whether their use could be extended to major IT infrastructure contracts and IP agreements.
A Dispute Board is a job-site dispute adjudication process, typically comprising three independent and impartial persons selected by the contracting parties. The Dispute Board is appointed at the commencement of a project before any disputes arise and, by undertaking regular visits to the site, is actively involved throughout the project. This means that they can be trusted to be fair and impartial as well as their advice being respected and taken more readily than would a third party stranger to the project. The idea behind a Dispute Board is that it may be called upon early in the evolution of any dispute which cannot be resolved by the parties. A Dispute Board provides a regular and continuing forum for discussion of difficult or contentious matters, to identify ways forward by acting in an informal capacity and to create valuable opportunities for the parties to avoid disputes by keeping proactive communication alive.
While the origins of Dispute Boards are found in the construction industry, their ambit is far wider; the scope for Dispute Boards is substantial. Michael argues that Dispute Boards can be established in a range of industries, such as IT infrastructure and IP agreements that have not used adjudication to any great extent so far. The main benefit is the cost savings that flow from less conflict and reduced litigation.
Michael proposes the following for how this might be changed. Firstly, in the UK, there is a need to raise awareness of the value and effectiveness of Dispute Boards. Secondly, the UK government could insist on Dispute Boards for major projects, including IT projects and could be educated that Dispute Boards not only reduce conflict and preserve relationships but also lower bid costs. And finally, the Dispute Board Federation could target IP and IT conferences and symposia and also develop intensive training programmes for this sector.
Michael's paper was also published in the Resolver, CIArb's newsletter which is published on a quarterly basis. For more information please go to http://www.ciarb.org/information-and-resources/the-resolver/
