Construction Dispute Resolution (ADR)

Dispute Review Boards (DRBs) are almost 40 years old, having first been used in the United States in 1975.  It is therefore timely to assess whether they provide the mature judgement that can assist parties to manage conflicts and resolve disputes that invariably arise on construction projects, without the need to resort to arbitration or litigation. Their record to date, suggests that they can – over 2,000 projects around the world have used a DRB, of which an impressive 98% were completed with no outstanding disputes.  This success rate has fuelled an exponential growth in the use of DRBs not only in the United States, but around the world.  While DRBs, like arbitration, are a creature of contract, unlike arbitration they do not have a long history in construction dispute resolution and do not enjoy the same support and recognition as arbitration, which is the subject of an international treaty  and numerous statutory regimes around the world.

DRBs remain a relatively new dispute avoidance process (DAP) for much of the construction world, and it is difficult to find two projects that have designed and used a DRB in the same way. Principals and contractors continue to experiment with the process and often make adjustments to available standard DRB specifications,  either in the hope of yielding better outcomes from the DRB, or out of fear of what might happen if a DRB is given the full range of recommended powers. While some modifications have produced outstanding results and maximised the DRB’s ability to assist parties to avoid and/or resolve conflicts and disputes as they arise, other modifications have driven both principals and contractors to “swear that they would never use a DRB again”.  With this is mind, this article explores the factors that are critical to the success of DRBs and demonstrates through two case studies, how parties can maximise the benefits of the process, and avoid the hidden dangers that can derail a DRB.

The School of the Built Environment, University of Salford, runs one of the most effective and well regarded Construction Law Masters programmes in the world. Our students are dynamic professionals seeking to hone their analytic legal skills for practical application in their commercial context. You will contribute to the delivery, development and enhancement of this successful programme with your passionate enthusiasm for construction law.

You will augment academic and research activity in the construction law field, in the context of our built environment disciplines which also include architecture, building information modelling, quantity surveying, construction and project management, and real estate.

Your research will enrich the construction law domain and contribute to the overall internationally recognised research performance of the School of the Built Environment by the production of measurable outputs including the delivery of research objectives, publishing in academic journals, and the recruitment and supervision of postgraduate research students.

This is an exciting opportunity for an established construction law academic, or professional lawyer looking for a different challenge. Are you the one?

Interested applicants are invited to email Dr Paul Chynoweth at p.chynoweth@salford.ac.uk if they would like to arrange an informal discussion about the post.

This article intends to determine the level of awareness and use of alternative dispute resolution (ADR)
methodologies for dispute settlement during building procurement in Lagos State, and then
recommend a proper and effective conflict management system in the construction industry. A
literature review was conducted to identify the prevalent causes of construction disputes and popular
ADR approaches in order to attain this goal. The primary reasons of building disputes were found after
a cross-section of the literature was used to classify the disagreements. Questionnaires were sent out
to establish the most common reasons of conflict, as well as the level of awareness and application of
Alternative Dispute Resolution in construction projects in Lagos. The findings show that the primary
cause of dispute in the acquisition of structures in Lagos state is client payment delays. According to
the research, conflict always has one or more consequences if it is not well managed. The most
important effect of conflict was economic loss as a result of project disagreements. This demonstrates
that a quarrel, no matter how minor or major, will always result in a financial and time loss. In Lagos,
awareness and use of ADR during building procurement are below average. This indicates that ADR
need more widespread promotion among professionals in Lagos, as it is a more efficient and costeffective alternative to litigation.
Keywords: conflict, dispute, litigation, ADR, mediation, arbitration.

Depuis son introduction en 1998, la Statutory Adjudication britannique a rencontré un succès très important. En fait, l’article 108 du Housing Grant, Construction and Regeneration Act 1996, tout en donnant à chaque partie à un contrat de construction le « droit » de saisir un tiers (l’adjudicator) pour qu’il tranche tout différend survenant pendant l’exécution des travaux, a en même temps amélioré le fonctionnement de l’industrie de la construction, élargi la protection juridictionnelle des parties et résolu les problèmes d’encombrement de la Technology and Construction Court. Cependant, cette institution demeure difficile à définir car la loi est muette à cet égard ; ainsi, c’est grâce à l’analyse des éléments caractéristiques de l’adjudication et de la comparaison avec les autres modes alternatifs de résolution des conflits dont on pourrait penser qu’ils lui sont proches, que cette étude vise à démontrer que l’adjudication pourrait bien être qualifiée d’arbitrage (provisoire).

Resumo: Os Dispute Boards são mecanismos cuja finalidade central é preventiva, afinal buscam evitar que as partes envolvidas em contratação que contenha cláusula arbitral façam dela uso prático (ou além, que recorram à jurisdição estatal), objetivando dirimir conflitos que poderiam ter sido evitados em sua gênese. Contratos de construção civil são, conforme se verá, o terreno mais fértil à aplicação concreta do instituto. Pretende-se traçar análise comparativa entre resultado da atividade desenvolvida pelos boards e usuais consequências da atividade jurisdicional (estatal ou arbitral); para tanto, observar-se-ão fatores componentes do que se convencionou chamar " eficiência " – influência de matizes econômicas inerentes à moderna teoria dos contratos empresariais. Por fim, será abordada reflexão relativa à compatibilidade desses " comitês " com o ordenamento brasileiro. Palavras-chave: Dispute Boards – Conflitos – Prevenção – Contratos – Arbitragem Abstract: The Dispute Boards are mechanisms whose central purpose is preventive, in view that it tries to avoid that parties involved in a contracting containing arbitration clause make practical use of it (or, in addition, that they make use of the state jurisdiction) with the objective of resolving conflicts that could have been avoided in its genesis. The construction contracts are the most fertileground for the practical application of the institute. This study intends to draw a comparative analysisbetween the result of the activity developed by the boards and the usual consequences of the jurisdictional activity (state or arbitral); to do so, we will observe factors that compose what will conventionally be called " efficiency " – influenced by economic nuances inherent to the modern commercial contracts theory. Lastly, the discussion on the compatibility of these " committees " with the Brazilian law will be approached.

This article examines how DAPs - Dispute Review Boards, Dispute Adjudication Boards and Dispute Resolution Advisors – are being widely used around the world to prevent and/or manage construction disputes. Despite glowing reports, and the unprecedented success of DAPs at the international level, the process remains in its infancy in Australia.  This article analyses the barriers that have prevented greater use of DAPs in Australia, and considers how these can be overcome.

There are circumstances in which the use of Alternative Dispute Resolution (ADR)  as an instrument for dispute resolution maybe more suitable than litigation.  Although “international arbitration has become the principle method of resolving commercial disputes”,  its legal incidents may not meet the needs of the parties in all the situations—other forms of ADR have developed i.e. Expert determination (ED).

O artigo se propõe a uma análise evolutiva dos comitês de resolução de disputas no Brasil, abordando tanto os aspectos teóricos e jurídicos do mecanismo como também a sua prática pelo mercado, avaliando os caminhos seguidos até aqui e projetando a possível evolução do cenário.

Commercial arbitration practice in the Philippines has yet to fully evolve and this paper makes the case to look at US jurisprudence when Philippine courts are faced with public policy exception claims when an arbitral award is sought to be enforced or recognised.

Firstly introduced in the UK following Sir Michael Latham’s suggestion, who saw it as «the key to settling disputes in the construction industry» and then spread out in many common law Countries, adjudication allows each party to a construction contract to get a quick decision over «any dispute» which may arise during the works, while guaranteeing the losing party the opportunity to have the case reheard afresh by national court or arbitral tribunal. Indeed, the adjudicator’s decision is immediately binding, but just until the dispute is finally determined by legal proceedings, by arbitration or by agreement.
The introduction of this kind of interim arbitration (as it may be defined) has benefited not only the parties, but the whole legal system too, thanks to the externalization of dispute resolution in construction field. Even so, despite its success abroad, adjudication remains almost unknown in civilian Countries, where there are no studies investigating its consistency with Constitutional restraints.
By contrast, it seems desirable to reproduce this mechanism in civil law systems too, with a view to ensure a faster and more efficient justice with no further expenses for the State. Its constitutionality will thus be investigated from the point of view of an Italian observer.
Valentina Capasso, Adjudication as an EDR (Externalized Dispute Resolution) Mechanism, in Dir. comm. int., 2018, 2, 421 ff.

Contracts are designed to govern the relations between business partners and allocate risk among them, yet they cannot mitigate all risks; hence, dispute resolution mechanisms have been developed to assist. According to research, arbitration is considered one of the most efficient legally binding dispute resolution mechanisms. Since initiating an arbitration case against business partners often severs the business relationship between them, predicting the arbitrator's decision becomes valuable to the arbitrating parties. To do so, arbitration prediction models are suggested in this paper through modeling the arbitrator's award in two stages: evidence admissibility and evidence evaluation. While arbitrators currently admit evidence in a relatively unsystematic way, this proposed admissibility framework systemizes the current practice by preserving its subjectivity, yet aligning it with the widely deployed rules of arbitration. This research further proposes an evidence evaluation model, providing a rapid answer to the famous commercial arbitration battle, discovery. While the current arbitrators' practice in allowing discovery is not systematic, the proposed optimization model is a tool that could systematically assist arbitrators trading between the arbitration key characteristic, efficiency, and justice. This is achieved by assigning weights to evidence parameters such as sufficiency and credibility, which in turn provide numerical measures to reduce the decision's subjectivity.

I attempt to set out some basic skills for conflict resolution. I call them ‘secrets’ because they are rarely considered as a whole when we engage conflict situations. At the same time, in my opinion, mastery of these seven elements ensures and assures successful conflict resolution.

The complex nature of construction projects and the involvement of a large number of unpredictable correlated factors make them susceptible to disputes. Although a wide range of dispute resolution mechanisms exists, experts in the construction industry favor arbitration over litigation when legally binding dispute resolution mechanisms are concerned. Because initiating a litigation or arbitration case against a business partner often severs the business relationship between them, predicting the arbitrator’s decision becomes valuable to the arbitrating parties. Because arbitration has been extensively treated as a game, and because the proposed approach relies on the wealth maximization concept, which is in turn dependent on the sum of utility sources of a firm, modeling arbitration is best achieved as a game with disputing parties’ utility profiles that would have an agreement zone. A construction-specific utility framework for the disputing parties arbitrating before a single arbitrator is proposed based on the additive expected utility theory. The proposed additive utility framework preserves the industry practicality and, most importantly, considers direct short-term factors and indirect long-term factors that would address factual disputes related to claim entitlement and quantification. It is expected that such a framework could then be used to identify utility equilibrium points between the disputing parties, which would serve the purpose of predicting the arbitration outcome.

Dispute Review Boards (DRBs) are a very popular dispute avoidance process (DAP) used widely around the world as an effective tool for ensuring that the conflicts, which invariably arise during the course of construction projects, do not escalate into disputes. DRBs have enjoyed phenomenal success, with 98% of projects that used a DRB being completed with no outstanding disputes. However, Australia has not been part of the global DRB trend. Instead, Australia has embraced an alternative form of DAP, namely, project alliances. While alliances continue to grow in popularity within Australia, this DAP model remains virtually unknown internationally. This article examines why Australia has not embraced DRBs, and whether this country’s enthusiasm for alliances has been at the expense of DRBs, before considering whether there is room for both models of dispute management.

Communication skills are the greatest achievement of all humanity. Human being, as a social being, inevitably needs link
to others, since it is precisely through these links that the very construction of subjectivity takes place. These links are developed
thanks to communication processes of various types, levels, depths, etc. Therefore, the importance of knowledge of general
elements of communicational processes is evident in order to promote healthier and more enriching links with others. However,
communication is a very complex issue, where a great factor multiplicity intervene that it is important to know, by virtue of being
able to manage it in a better way. In every interpersonal process, in every space in which a group of people coincide, we are in
presence of a communicative process.

New models for resolving disputes within the scope of Brazilian judicial assistance were
inserted through the National Judicial Policy on Adequate Treatment of Conflicts, headed by
the National Council of Justice (NCJ). Among these new models, mediation has gained
prominence, since infra-constitutional legislation has also been modified to receive it.
However, even after almost ten years since the publication of Res.125/10 and more than three
years since the publication of the law regulating the activity, the statistics produced by the
Judicial Research Department of the NCJ still do not include data on the quality of the
provision of these services. The data collected by the NCJ shows that there is a growing
increase in the rate of settlement of lawsuits through agreements, which leads us to the
question: how effective are these agreements reached in mediation hearings? Once finalized,
are they actually fulfilled or are we just postponing a judicial intervention? Looking for
answers, this research aimed for identifying, through samples extracted from the cases served
by voluntary judicial mediators, at CEJUSC of the Judicial City of Campinas, State of São
Paulo/Brazil, during a temporary period elected to raise how many of these cases resulted in
an agreement. In the case of fruitful cases, these cases were monitored over 12 months and the
effectiveness index of these agreements was quite significant, since they reached 66.21% of
the total samples, i.e. more than half of those agreements were in progress or were fully
complied with without further intervention by the judiciary. The subject is of extreme
relevance, since it involves questions of public policies of the Brazilian State. Thus, this
research may help in the choice of areas for which the investments will be directed or serve as
the basis for other studies.

Construction projects involve many parties from different background and interests (e.g. owner, engineer, supplier, consultant, and contractor), thus, conflicts or disputes among the involved parties are common to happen during planning and construction stages. The aim of this paper is to study the practice of construction dispute resolution in Indonesia. A thorough literature review of construction dispute resolution and open ended interviews with 40 participants (i.e. 20 contractors, 10 owners, and 10 neutral parties) were conducted. The most frequently disputes are identified in 4 aspects (i.e. technical, administration, legal, and combination of technical, administration, and legal aspects). In addition, the preferable construction dispute resolutions are discussed based on each dispute perspective. This article concludes that (i) the most frequent disputes occurrence in Indonesia are caused by technical aspects, (ii) negotiation is chosen as the most preferable construction dispute resolution in Indonesia, and (iii) there are four main priorities in construction dispute resolution in Indonesia (Preservation of Relationship, Confidentiality, Neutrality, and Enforceability).

Las controversias y disputas en el sector infraestructura, y de modo particular en el de construcción, son inevitables, altamente complicadas y pueden llegar a ser críticas en proyectos de construcción. Asimismo, demanda la producción, revisión y análisis de abundante documentación
que en la mayoría de casos supera en capacidad y recursos a los profesionales que trabajan en estas tareas.

La aplicación de Inteligencia Artificial (en adelante AI) se ha desarrollado recientemente con el objetivo de facilitar los procesos de resolución de conflictos de construcción, tanto como la AI se ha vuelto más especializada. Desarrollos recientes en capacidades de almacenamiento a gran escala y avances relacionados en el análisis de datos legales han creado herramientas sin precedentes para identificar patrones como estructuras semánticas, citas y criterios temporales.
De esta forma, herramientas como la AI (a través de procesamiento y recuperación de documentos legales, como el análisis semántico de documentos) aportarían a agilizar la revisión como el análisis de documentación, delimitando de mejor manera los reclamos, y permitiría
tanto a las partes ejercer una mejor defensa de sus reclamos como a los tribunales y/o expertos dirimir sobre las controversias que sometan a sus fueros.

"Confidentiality is a paradigmatic aspect of arbitration." One of the main reason Arbitration is preferred over litigation is the confidentiality of the proceedings and the award. It maintains the autonomy of the parties and prevents them from unwanted advertising. Privacy in arbitration proceedings gives a sense of security to the parties; while confidentiality goes one step further to ensure that the parties do not disclose information related to the content of the proceedings. The statistical survey of US / European users conducted in 2012 by the LCIA showed that confidentiality was the most important perceived benefit of arbitration.

Dispute Boards (DBs) (e.g. Dispute Review Boards (DRBs) and Dispute Adjudication Boards(DABs)) are becoming increasingly well-known around the world as a means of managing conflict so as to avoid disputes on construciton projects. However, there has been little discussion of the role that lawyers can play in relation to DBs. This article seeks to fill that gap.

This paper investigates how contract structure influences inter-firm dispute resolution processes and outcomes by examining a unique dataset consisting of over 150,000 pages of documents relating to 102 business disputes. We find that the level of contract detail affects the type of dispute resolution approach that is adopted when conflict arises, and that different approaches are associated with different costs for resolving the dispute. We also find that the effect of contract choice on dispute resolution approach is moderated by the degree of coordination required in the relationship, and that the effect of dispute approach on costs is moderated by the degree of power asymmetry between the parties. Thus, even after controlling for various attributes of the exchange relationship and the dispute, the choice of contracting structure has important strategic implications.

Writing a dissenting judgment seemingly connotes a difference of opinion to an issue before the Court. This is a situation that regularly recurs in the appellate Courts. The occurrence does not weaken the bond of camaraderie between the appellate judges; it rather expands the frontiers of knowledge and shows the vibrancy and development of the judiciary concerned.

The value of a dissenting judgment depends on the acceptability of the reasoning espoused in the dissenting judgment by successive legal scholars and judges. When a Judge writes a dissenting judgment, he is making a contribution to legal learning and thought. The acceptability in the future of such contribution depends on many imponderables. But it is undoubted that legal scholars will have cause to examine and evaluate the depth of the reasoning embedded in a dissenting judgment and may propagate the acceptance of the minority over the majority judgment. Put simply, I would say that the potency of a dissenting judgment is a matter for the future and depends on the direction which legal learning and experience dictate in the future.

The writer is of the firm view that the growth and progressive development of our Law particularly our public law will be greatly assisted if judges form the habit of practice independence of thought. A dissenting judgment which relates to the interpretation or application of the provision of the law very often assists the legislature in deciding what amendments are to be made in the law. Further, the students of law today in the different Universities are the judges of the future. They read the judgments from the Courts including dissenting opinions. Their minds in the process are moulded in a manner, which may be manifest in shaping the dissenting judgments of the future. The case of P.I.P. Ltd., v Trade Bank (Nig.) Plc  drives home this point where a dissenting judgment was described Per Nweze J.C.A as:

An appeal to the brooding spirit of the law, to the intelligence of a future day, when a latter decision may possibly correct the error into which the dissenting opinion believes the Court to have been betrayed.

The decision of the Supreme Court in Chime v Ude  will be the major analysis of this paper. The writer will endeavour to analyse the lead-judgment /majority decision with the dissenting judgment of Kutigi JSC (as he then was) .

Để hỗ trợ doanh nghiệp vận tải hoạt động trong thời điểm Covid-19, nhà nước đã ban hành nhiều hướng dẫn, tạo thuận lợi trong công tác lưu thông hàng hóa nhưng vẫn đảm bảo an toàn dịch bệnh. Nhằm giúp các doanh nghiệp cập nhật kịp thời những hướng dẫn trên cũng như hiểu rõ vấn đề pháp lý về điều khoản bất khả kháng để áp dụng miễn trách và các phương pháp khắc phục thiệt hại, chia sẻ rủi ro giữa doanh nghiệp Logistics và đối tác, Trung tâm Trọng tài Quốc tế Việt Nam (VIAC), Trung tâm Hòa giải Việt Nam (VMC) thuộc VIAC phối hợp với Hiệp hội Doanh nghiệp Dịch vụ Logistics Việt Nam (VLA) và Phòng Thương mại và Công nghiệp Việt Nam Chi nhánh (VCCI) tại TP. Hải Phòng  tổ chức Lớp đào tạo trực tuyến với chủ đề "Vận tải mùa Covid-19 và những lưu ý cho doanh nghiệp ngành logistics"

A dispute is where two parties differ in the assertion of a contractual
right, resulting in a decision being given under the contract, which in
turn becomes a formal dispute. The value of a dispute is the additional
entitlement to that included in the contract, for the additional work or
event which is being claimed.

While a wide range of dispute resolution mechanisms exist, practitioners favor legally binding ones such as litigation and arbitration. Since initiating a litigation or arbitration case against a business partner may dissolve the business relationship between them, predicting the arbitrator’s decision becomes valuable to the arbitrating parties. This paper proposes a construction-specific utility framework for the arbitrating party through decision theory, and based on expected utility theory. The proposed framework preserves the industry practicality and most importantly, considers direct short term factors and indirect long-term factors as well. It is suggested that the arbitrating parties’ utility functions could be then used to identify equilibrium points among them when interact via game theory principles, which would serve the purpose of predicting the arbitration outcome.

Paying parties often rely upon jurisdictional objections as a delaying tactic, in order to “frustrate” adjudication process, which may undermine the attainment of the legislative intent of the security of payment legislation. Encouraging adjudicators (who are not required to be legally trained) to determine questions relating to their jurisdiction is only the tip of the iceberg. This article explores, not only the hidden complexities associated with the jurisdiction of adjudicators, but also the unhealthy practices adopted by stakeholders as an inevitable result of lack of legislative direction and inconsistent case law on dealing with jurisdictional issues. Moving forward, the article proposes a roadmap with six identified hold points to address the problem towards necessary reform in the security of payment legislation. The proposed roadmap stands as an alternative path to the introduction of review mechanisms within the SOP legislation and it is devised to suit any jurisdiction operating SOP legislation.

BRAGANÇA, Fernanda; BRAGANÇA, Laurinda. Dispute Boards dans les contrats d'ingénierie au Brésil: pratique, prévisions normatives et institutions. ANDRÉA, Gianfranco Faggin et al. Rio de Janeiro: Pembroke Collins, 2020, pp. 414-426. Disponível em: https://www.caedjus.com/wp-content/uploads/2020/11/estado-e-instituicoes-juridicas.pdf

1. Sachliche Feststellungen des Schiedsgerichts sind für staatliche Gerichte grundsätzlich bindend und unterliegen nicht der Revision. Eine Ausnahme ist jedoch unter den Voraussetzungen zur Aufhebung eines Schiedsspruchs nach Art. 1206 §§ 1, 2 plZPO möglich.
2. Art. 1206 § 1 Abs. 4 plZPO erfordert eine enge Auslegung, um die Wahrscheinlichkeit der Nichtvollstreckung des Schiedsspruchs so gering wie möglich zu halten. Ein Schiedsspruch kann nur dann aufgehoben werden, wenn gegen grundlegende Prinzipien wie ein faires Verfahren verstoßen wird.
3. Art. 45 plVerf gilt nur für Verfahren vor staatlichen Gerichten und nicht für Schiedsverfahren.

Unbroken Circles for Schools is a revolutionary program designed to help schools deal with student conflict and behavior issues. It combines Collaborative Justice (Conflict Resolution/ADR paired with Restorative Justice) and the author's own experience to offer up sound best practices. A unique program, it offers a better modality of Conflict Resolution and Conflict Transformation. The program tenders hope in troubled individuals, builds self-esteem, improves student performance, and fosters a greater sense of community within our at-risk youth. This text defines the concepts, describes the methods to use and offers user friendly examples.

"Socio-legal researchers increasingly recognise the need to employ a wide variety of methods in studying law and legal phenomena, and the need to be informed by an understanding of debates about theory and method in mainstream social science. The papers in this volume illustrate how a range of topics, including EU law, ombudsman, judges, lawyers, Shariah Councils and the quality assurance industry can be researched from a socio-legal perspective. The objective of the collection is to show how different methods can be used in researching law and legal phenomena, how methodological issues and debates in sociology are relevant to the study of law, and the importance of the debate between "structural" and "action" traditions in researching law. It also approaches the methodological problem of how the sociology of law can address the content of legal practice from a variety of perspectives and discusses the relationship between pure and applied research. The editors provide a critical introduction to each of the six sections, and a general introduction on law, sociology and method. The collection will provide an invaluable resource for socio-legal researchers, law school researchers and postgraduates. Keywords: Law, sociology, method, methodology, positivism, structuralism, action theory, ethnomethodology, systems theory, autopoiesis, interpretive methods, discourse analysis, legal cultures, globalisation, socio-legal research, social theory, legal theory. "

Socio-legal researchers increasingly recognise the need to employ a wide variety of methods in studying law and legal phenomena, and the need to be informed by an understanding of debates about theory and method in mainstream social science. The papers in this volume illustrate how a range of topics, including EU law, ombudsman, judges, lawyers, Shariah Councils and the quality assurance industry can be researched from a socio-legal perspective. The objective of the collection is to show how different methods can be used in researching law and legal phenomena, how methodological issues and debates in sociology are relevant to the study of law, and the importance of the debate between "structural" and "action" traditions in researching law. It also approaches the methodological problem of how the sociology of law can address the content of legal practice from a variety of perspectives and discusses the relationship between pure and applied research. The editors provide a critical introduction to each of the six sections, and a general introduction on law, sociology and method. The collection will provide an invaluable resource for socio-legal researchers, law school researchers and postgraduates.

Keywords: Law, sociology, method, methodology, positivism, structuralism, action theory, ethnomethodology, systems theory, autopoiesis, interpretive methods, discourse analysis, legal cultures, globalisation, socio-legal research, social theory, legal theory.