1.Dispute Board Clause Models

Suggestion for a dispute resolution clause

As a contractual creation, the parties enjoy complete freedom to draft clauses according to the needs of their projects. However, we recommend a simpler wording if they are not able to rely on legally informed technical assistance regarding the functioning of Dispute Boards, avoiding provisions that might hinder their establishment and operation.

CBMA provides a basic clause that will facilitate the inclusion of Dispute Boards usage, offering transparency and security to the parties from the beginning of contract negotiations:

“As PARTES concordam estabelecer um Comitê de Resolução de Disputas (“CRD”, ou Dispute Board), de acordo com as regras constantes do Regulamento de Dispute Board do CBMA – Centro Brasileiro de Mediação e Arbitragem, disponível na internet na página Dispute Boards Rules para a solução de disputas ou controvérsias decorrentes ou relativas a este Contrato, devendo o tipo de CRD ser definido pelas Partes quando da assinatura do Termo de Instauração do CRD, na forma do Regulamento.

The Parties commit to respecting the decisions of the DRC and to using it as an effective mechanism for the prevention, resolution, and adjudication of disputes. In no circumstance shall the existence of a dispute or controversy grant the Parties the right to suspend the execution of the Contract. In case of disagreement with the DRC's decision, the parties are allowed to resort [to the Judiciary / Arbitration], while maintaining the commitment to respect the DRC's decisions and to continue the execution of the Contract until the [Judiciary / Arbitral Tribunal] issues its decision."

Second suggestion for a dispute resolution clause:

Disputes or controversies arising out of or relating to this Contract shall be mandatorily submitted to a Dispute Resolution Committee ('DRC' or Dispute Board), the establishment and operation of which shall be governed by the rules of the CBMA Dispute Board Rules ('Rules'), available on the internet at the Dispute Boards Rules page.

The Committee will operate on a [permanent/ad hoc] basis and shall be of the [Review/Adjudication/Mixed] type, composed of [x] member(s) appointed in accordance with the Rules, who shall conduct the proceedings in the [defined] language.

The Parties commit to respecting the decisions of the DRC and to using it as an effective mechanism for the prevention, resolution, and adjudication of disputes. In no circumstance shall the existence of a dispute or controversy grant the Parties the right to suspend the execution of the Contract. In case of disagreement with the DRC's decision, the parties are allowed to resort [to the Judiciary / Arbitration], while maintaining the commitment to respect the DRC's decisions and to continue the execution of the Contract until the [Judiciary / Arbitral Tribunal] issues its decision."