C-Build

Arbitration is a method of dispute resolution whereby the parties agree to submit their disputes to one or more independent and impartial arbitrators for decision, rather than to the state courts of any jurisdiction. Arbitration involves legal disputes and may involve technical experts. An advantage of arbitration is that the arbitrators are usually appointed by the parties, allowing them the opportunity to choose someone with specialized knowledge, such as in construction disputes. The cost of arbitration at the Cepani is proportionate to the value of the dispute.

Dispute boards are panels appointed by the parties to render decisions or recommendations on disputes referred to them over the course of a project. They are typically comprised of one or three members, although their composition can vary depending on the size and complexity of the project at issue. Where there is a three-member board, each party will generally nominate one member, often an engineer or construction professional, and the chairman, often a lawyer, will be appointed by party-nominated members or by the Cepani. Dispute boards are specifically designed for technical matters. The members of the dispute board are appointed by the parties to assess the facts of a dispute and provide an advice or a binding decision based on their specialized knowledge. This method is faster than courts and ideal for technical issues.

Expert advice is a process whereby parties agree to submit certain disputes, usually those of a technical or accounting nature, to one or more independent experts for advice. While it can be used during the course of a project, it is more typically used at end, to assist the parties in resolving disputes before initiating arbitration or litigation. The parties can also agree to resort the dispute to Expert determination (tierce décision obligatoire / bindende derdenbeslissing). In this case, the expert's decision is binding. Expert determination is usually used to resolve technical disputes or to enable the parties to determine the price of a contract, but it can also relate to many other types of disputes.

Mediation and conciliation involve the use of a neutral third party to assist in resolving disputes.  Mediation and conciliation can also address both legal and technical matters, depending on the mediator’s or conciliator’s expertise. The advantage of these methods is their collaborative nature, which often leads to mutually satisfactory outcomes. 

Negotiation is often handled directly by the parties. These various methods may require legal or technical input from advisors.

The binding nature of decisions depends on the ADR method. Arbitral tribunals render final and binding decisions, but the enforceability of these decisions must generally be required before state courts. A significant advantage of arbitration is that arbitral awards can generally only be contested on limited grounds, such as lack of jurisdiction or violations of due process. Moreover, arbitral awards can be enforced easily in more than 170 countries.

Dispute boards and expert determination are usually binding. A (binding) decision can only be disputed on limited grounds.

On the other hand, the advice given by experts is not generally binding, unless if the parties so decide. In this case, the parties have recourse to what is known as an expert determination.

In contrast, conciliation and negotiation result in binding decisions only if parties reach an agreement and formalize it in a settlement agreement. While this provides flexibility, it may lead to disputes if the agreement is not performed. If a successful mediation is led by an accredited mediator in Belgium, the agreement can be given the binding effect of a judgement.

In ADR, both ad hoc and standing experts may be used, depending on the method.

Standing dispute boards are established at the outset of a project and remain in place throughout its term, with its members receiving regular updates on the progress of the project and frequently also visiting the construction site. A standing dispute board that is informed and stays abreast of progress from the outset can engage with and closely monitor a project; observe first-hand any problems as they arise; and render prompt and informed decisions on disputes submitted to them.

An alternative to standing dispute boards is an ad hoc dispute board, which is called upon only if and when a dispute arises and whose mandate expires upon the rendering of its decision.

Arbitration often involves ad hoc experts selected for their specific knowledge relevant to the case, which allows for tailored expertise.

Mediation, conciliation, and negotiation may also use ad hoc experts.

In all these ADR methods, the Cepani provides services for the appointment of experts specialized in particular issues, such as construction disputes.

The different steps vary across ADR methods. In mediation and conciliation, after the parties agree to engage in the process, they select a mediator or conciliator who facilitates discussions to reach a mutually agreeable solution.

In conciliation, the conciliator usually takes a more active role in proposing solutions based on legal and factual assessments of the dispute: whereas the mediator is an impartial third party who only helps the disputing parties reach an agreement (the mediator being in charge of the process of seeking to resolve the problem but not the outcome), the conciliator actually evaluates the dispute and strives to construct a just resolution which he proposes to the parties for their approval or rejection.

In arbitration, the process follows a more formal structure, where parties present evidence, and the arbitrator issues a binding award. While this provides certainty, it can also involve higher costs.

Expert determination or expert advice involve selecting an expert to analyse technical issues and deliver a non- binding opinion (expert advice) or a binding decision (expert determination).

Regardless of the method, the parties often agree on procedural rules and timelines before proceeding, ensuring clarity on the path forward.