Article by Kim Ceasar and Prof. Kenneth Wyne Mutuma

In construction dispute resolution circles, one statistic is repeated so frequently that it has almost become a mantra. Dispute boards resolve approximately 98% of the disputes referred to them. It is an impressive figure and understandably so. The number features prominently in conference presentations, training materials, and advocacy for the dispute board model.

But the remaining 2% deserves attention. In practice, that small fraction can become disproportionately costly, frustrating, and procedurally complex, especially for parties who are not prepared for what happens when a decision is ignored.

The Problem with Non-Compliance

Under FIDIC contracts, when a Dispute Adjudication Board (DAB) issues a decision, that decision is binding. The losing party is expected to comply with it promptly, even if they intend to challenge it later by filing a Notice of Dissatisfaction and pursuing arbitration. The philosophy behind this mechanism is simple: “Pay now, argue later”. It ensures that projects continue to move and that contractors are not crippled by prolonged payment disputes.

In reality, practice does not always align with principle. Occasionally, a party simply declines to comply. They delay payment, remain silent, or wait to see whether the other side will pursue enforcement. It is at this point that the theoretical elegance of the dispute board system meets the realities of enforcement.

The Route Under FIDIC 2017: Subclause 21.7

FIDIC anticipated this scenario. Subclause 21.7 of the 2017 Red Book provides a direct enforcement pathway. Where a party fails to comply with a DAB decision, whether binding or final and binding, the aggrieved party may refer that failure directly to arbitration.

Importantly, the dispute being referred to arbitration is not the original underlying claim. Rather, it is the failure to comply with the decision itself. This distinction matters. It means that the enforcing party does not need to reopen the entire dispute or relitigate the substantive issues that were already determined by the board.

Instead, the arbitration becomes a focused and relatively narrow exercise. The claimant shows that a DAB decision exists, that it is binding under the contract, and that the opposing party has not complied with it. Subclause 21.7 also preserves the tribunal’s ability to adopt summary or expedited procedures. In practice, this can mean a largely document-based process where the DAB decision and evidence of non-compliance are placed before the tribunal with minimal additional evidentiary burden.

The end result is typically an arbitral award that reflects the substance of the DAB decision. Once that award is obtained, it can then be enforced through national courts in the ordinary manner applicable to arbitral awards.

The Court Route: Untested but Available

There is also a second, less frequently discussed option. Enforcement through the courts.

Because a DAB decision derives its authority from the contract, and because FIDIC contracts expressly provide that such decisions are binding, there is a credible argument that courts can enforce them as contractual obligations. In some jurisdictions, parties have attempted to obtain summary judgment on the basis that the contractual obligation to comply is clear and undisputed.

South African courts, for instance, have on several occasions treated DAB decisions as enforceable obligations, even without specific statutory adjudication regimes. The reasoning in this jurisprudence is straightforward, as the parties agreed that such decisions would be binding, and the court’s role is simply to enforce the agreement they made.

In Zambia, however, this approach remains largely untested. Practitioners have suggested that mechanisms similar to Order 13 summary judgment applications, or applications under Order 15A of the Supreme Court Rules for the determination of a point of law, might provide a viable path. The argument would be that the binding character of the DAB decision arises directly from the contract and can therefore be determined without reopening the merits of the underlying dispute.

Whether Zambian courts would accept such an approach remains an open question. For that reason, many practitioners believe that the right case will eventually need to be brought forward to test the proposition.

In Kenya, the Courts have also begun to develop a fairly clear judicial approach to the enforcement of Dispute Adjudication Board decisions under FIDIC contracts. Kenyan courts have generally treated such decisions as binding contractual obligations that must be complied with unless and until they are overturned in arbitration. In SBI International Holdings AG v Kenya National Highways Authority, the High Court affirmed that once parties agree to a FIDIC dispute board mechanism, they are bound by the interim decisions that emerge from it. The court was careful to stress that enforcement proceedings are not the stage at which the merits of the dispute should be revisited. If a party is dissatisfied with the decision, the appropriate course is to pursue arbitration, not to refuse compliance.

This approach reflects the familiar “pay now, argue later” philosophy that underpins adjudication in construction contracts. Kenyan courts have therefore shown a willingness to enforce dispute board or adjudication decisions as contractual obligations while leaving the substantive dispute to arbitration. The Court of Appeal has reinforced this position in cases such as National Irrigation Authority v Sogea Satom SA, emphasising that parties who agree to the FIDIC framework must honour the interim binding nature of dispute board decisions. While the jurisprudence is still developing, the trajectory is clear that Kenyan courts are increasingly prepared to support the dispute board mechanism by ensuring that its decisions carry real practical weight.

The Role of Amicable Settlement

The standard FIDIC dispute escalation framework moves through several stages. The engineer’s determination, referral to the DAB, a period for amicable settlement, and finally, arbitration.

However, where the issue is non-compliance with a DAB decision, Subclause 21.7 permits the enforcing party to bypass the amicable settlement stage altogether and proceed directly to arbitration.

Even so, the period following a DAB decision can still serve a practical purpose. In many projects, particularly those involving public sector entities, payment cannot be processed immediately. Internal approvals, budgetary procedures, and bureaucratic timelines often intervene. The standard 28-day window provided in the 2017 FIDIC forms may not reflect these realities.

Strategic contract drafting can help address this. Expanding timelines or structuring post-decision processes more realistically can provide space for compliance to occur without automatically triggering another dispute. In some cases, this simple adjustment may prevent a sound decision from turning into costly enforcement proceedings.

Arbitral Institution Choice and Cost

FIDIC contracts designate ICC arbitration as the default mechanism. For complex and high-value disputes, the ICC remains one of the most respected arbitral institutions in the world.

Nevertheless, cost is a practical consideration. For relatively modest disputes, the expense of ICC arbitration can become disproportionate to the amount in controversy. A claim worth $500,000 that passes through a DAB, proceeds to arbitration for enforcement, results in an award, and is then challenged in court can easily see a significant portion of the disputed amount absorbed by legal and procedural costs.

At that point, what began as a straightforward enforcement exercise may evolve into a prolonged and expensive contest.

This is why institutional choice should be considered carefully at the contract drafting stage. Regional institutions such as the Kigali International Arbitration Centre and the Nairobi Centre for International Arbitration, among others, increasingly offer credible alternatives that may be better suited to disputes arising within the region.

The Bigger Picture: Why Adjudication Still Matters

From time to time, it is suggested that because Dispute Adjudication Board decisions may ultimately be challenged in arbitration, parties would be better served by bypassing dispute boards altogether and proceeding directly to arbitration. Such a view overlooks the practical role adjudication plays within construction contracts and the conditions under which major infrastructure projects actually operate.

Adjudication exists to resolve disputes quickly and stabilise the financial life of a project while work continues. The frequently cited 98 percent compliance rate reflects this function. In most cases, once a dispute board issues its decision, the matter ends there, and the project moves forward. The advantage is that cash flow is restored, relationships are preserved, and the parties avoid the delay and expense that accompany formal proceedings.

Where dispute boards are removed from a contract, the disputes that would ordinarily have been resolved within a matter of weeks are pushed directly into arbitration or litigation. Issues that might have been determined within approximately 84 days before a dispute board can instead remain unresolved for years while formal proceedings run their course. The commercial reality of construction means that few projects can absorb that level of delay without consequence.

The removal of adjudication clauses also tends to occur in circumstances where one party, often a public authority, has the leverage to dictate contractual terms. The practical effect is that contractors are left without a rapid mechanism to address payment disputes while work continues. Without the interim binding decision that a dispute board provides, sums that would otherwise have been paid following a determination may remain outstanding for extended periods, placing significant pressure on contractors’ liquidity.

Courts in the region have increasingly recognised the importance of maintaining the practical force of dispute board decisions. In Kenya, for example, courts have affirmed that decisions of dispute boards under FIDIC contracts carry binding contractual effect and must be complied with unless and until they are set aside through arbitration. Similar recognition has emerged in South Africa, where courts have enforced dispute board decisions as binding contractual determinations. Zambia has yet to see extensive litigation on the issue, though practitioners have begun exploring possible routes for enforcement within the existing procedural framework.

For practitioners working across the region, including in Kenya, Zambia, Uganda, and the broader COMESA corridor, maintaining the dispute board mechanism remains an important part of the contract. Occasional enforcement difficulties are better addressed by strengthening the pathways for compliance rather than abandoning a process that resolves the overwhelming majority of construction disputes quickly and effectively.

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