Like other fields of knowledge, law also evolves to keep pace with the technological innovations of the modern world. It is precisely in this direction that legal tools are being developed to prevent and resolve conflicts more efficiently for the parties who use them.
Since construction and infrastructure contracts are traditionally sources of litigation, foreign experience has led to the creation of dispute boards to address this very issue. Given the Brazilian reality of public works, the question arises: "Could the Public Administration also benefit from this mechanism in its projects?" As will be explained below, the answer is yes.
Also called dispute prevention and resolution committees, dispute boards traditionally consist of a group of three experts appointed by the parties at the beginning of the contract to monitor the execution of the work. In addition to periodic site visits and follow-up meetings with the parties, dispute board members may also be called upon to issue decisions or recommendations on claims submitted to them by the parties.
These decisions or recommendations are usually issued much more quickly compared to a judicial or arbitration process, ensuring that the continuity of the work is not jeopardized by the existing impasse between the parties. The dispute board, therefore, plays an important role in both preventing and resolving conflicts, bringing efficiency to the projects and reducing the losses caused by litigation.
Precisely for these reasons, it is common for banks financing construction projects to require, in the financing agreement, that the construction contract adopt a dispute board. This is already the reality for projects financed by institutions such as the Inter-American Development Bank (IDB), the World Bank, and the Japan International Cooperation Agency (JICA). The International Federation of Consulting Engineers, which produces the well-known FIDIC standard contracts, even includes the provision for dispute boards among its "golden rules".
Given this scenario, it can be concluded that the question posed at the beginning of this text must be answered positively: dispute boards not only can, but should be used by the Public Administration. In this sense, we can highlight five main benefits that the adoption of dispute boards would bring to public works contracts.
The first point is that the dispute board, in its permanent format, ensures that the project is closely monitored not only by its managers, but also by them in collaboration with the specialized board. This allows points of attention, difficulties, and technical issues, which sometimes require immediate decisions, to be agreed upon in a technical manner, generating security and speed in the decisions taken.
The second point is that the dispute board encourages parties to act in a way that prevents and selects (filters) disputes. This avoids frivolous claims and generates dialogues that, by highlighting the issues debated, can lead to the abandonment of litigation in arbitration or judicial proceedings on issues primarily discussed between the parties. Consequently, there is an increased possibility of agreements, either through better selection of issues that actually evolve into claims, or through acceptance of the decisions or recommendations issued by the board, thus preventing the emergence of an arbitral or judicial dispute.
Furthermore, when dealing with highly specialized decisions or recommendations, it is unlikely that the Judiciary or an arbitration tribunal will produce decisions that conflict with those issued by dispute boards. Thus, there is a clear preventive function against litigation, because, as already mentioned, in addition to filtering out truly relevant and well-founded issues, the procedure causes the parties to reflect on them more thoroughly than they would if they simply discussed the issues administratively before submitting them to a court.
Adding to these characteristics the speed of decision-making, we have the fourth positive point: the attention of the parties and the dispute board is focused on the execution and performance of the contracts. It centers on issues concerning the effectiveness of the contract and the fulfillment of the ultimate public interest given by the established scope. Losses due to delays, economic impacts, and other anomalies that arise, which generally prove to be the main flaws responsible for project failure, are avoided. In other words: the proper execution of the work is prioritized.
Finally, dispute boards generate savings in two ways: one, closer to the institution itself, because resolving a conflict through a dispute board generally costs less than submitting the dispute to arbitration or the judiciary. This saving occurs both due to the objective value itself and the time-effectiveness of the decisions. Furthermore, in a broader context, the dispute board generates savings because it effectively avoids, through its effectiveness in contract management, the well-known abandonment of projects and re-bidding processes: the public interest benefits from this.
All these reasons justify disseminating knowledge of dispute boards and the benefits of their correct use within the Public Administration. It is in this sense that Infra Women Brazil has been working, through a pioneering project focused on presenting the dispute board mechanism with free lectures and training for public managers in workshops directed to their main needs. The events take place over two days, in a hybrid format, in Belém: this Thursday (11) a workshop was held with members of the Public Administration and, this Friday (12), an open and free lecture on the dispute board clause in contracts with the Public Administration. The events are co-organized by OAB-PA and PPGDDA of UFPA.
