Construction Arbitration and Alternative Dispute Resolution: Theory and Practice Around the World

✍ Scribed by Renato Nazzini

• Publisher: Informa Law from Routledge
• Year: 2021
• Tongue: English
• Leaves: 457
• Category: Library

✦ Synopsis

This book provides comprehensive, rigorous and up-to-date coverage of key issues that have emerged in the first quarter of the 21st Century in transnational construction arbitration and alternative dispute resolution (ADR).

Covering four general themes, this book discusses:

the increasing internationalisation of dispute resolution in construction law;

the increasing reliance on technology in the management of construction projects and construction arbitration/ADR;

the increasing prominence of collaborative contracting in construction and infrastructure projects;

the increasing importance of contractual adjudication such as dispute boards in construction and infrastructure projects;

the increasing prevalence of statutory adjudication mechanisms across the world; and

the greater incidence of investment disputes and disputes against States and State entities over construction and infrastructure concessions and agreements. Tapping on their substantial expertise in practice and in research, the contributor team of senior practitioners and academics in the area of construction law and dispute resolution provide readers with information that balances an intellectually rigorous academic contribution against the backdrop of real concerns raised in practice.

Construction Arbitration and Alternative Dispute Resolution is an invaluable resource for practitioners in the field, academics in arbitration and construction law, and post-graduate students in construction law and dispute resolution.

✦ Table of Contents

Cover
Half Title
Series
Title
Copyright
Contents
Detailed Contents
Notes on the contributors
Table of cases
Table of legislation
Table of international treaties and conventions
Table of arbitration rules
Chapter 1 Introduction
Part I The internationalisation of construction dispute resolution
Chapter 2 The problem of the law governing the arbitration clause between national rules and transnational solutions
Introduction
The need for a separate inquiry into the law governing the arbitration clause
The ‘main contract’ approach
The seat approach
The transnational approach
From national rules to transnational convergence
The non-discrimination principle
The estoppel principle
The validation principle
Conclusions
Chapter 3 The Singapore Convention on Mediation: its impact on international construction disputes
Introduction
Background
The application of the Singapore Convention
Key provisions of the Singapore Convention
Forms of mediated settlement agreements falling within the scope of the Convention
Enforcement under the Convention
Grounds for refusal to enforce an iMSA
Contract-related grounds for refusal
Mediator conduct-related grounds for refusal
Public policy
Subject matter of dispute not capable of settlement by mediation
How the Singapore Convention may impact international construction disputes
Desirability of mediation
Doubts about mediation
Mediation of construction disputes and the Singapore Convention
Conclusion
Part II Artificial intelligence: a game changer?
Chapter 4 The relevance of artificial intelligence for construction disputes
Introduction
Legal AI in construction disputes
AI and ICT within the construction industry
The state of the art
The immediate implications for today’s arbitration procedures
The immediate implications for the pre-arbitral stages of disputes
Windows of opportunity
Conclusion
Chapter 5 Administering AI in arbitration
Introduction
Definition of artificial intelligence and examples where AI is presently used in a legal context
Legal and non-legal barriers related to the use of AI
AI as decision-maker
Intuitu personae character of the arbitrator’s work
Hidden biases of the AI
AI and ‘reasoning’
Iura novit arbiter
Equitable element of arbitral decision-making
AI, outcome prediction and arbitrator selection
Liability for the use (or non-use) of AI
Conclusion: AI as acronym for ‘Augmented Intelligence’
Part III Good faith and collaborative dispute resolution
Chapter 6 The relevance of good faith in transnational construction contracts: a civil law perspective
Introduction
Sources of good faith in international construction arbitration
Law applicable to the contractual obligations of the parties
Contractual provisions agreed upon by the parties
Existence of an international general principle?
Lex mercatoria?
Effects of good faith
On the resolution of disputes
On the shaping of alternative approaches to contracting
Chapter 7 Searching for convergence between the common law and civil law traditions on good faith through international arbitration
Introduction
Common law: orthodox English law position
Civil law approach to ‘good faith’
International arbitration as a conduit for the convergence of common and civil law principles
Is there any evidence of convergence of principles of good faith in international treaty arbitration?
Is there any evidence of convergence in international commercial arbitration?
Any evidence of convergence between civil and common law?
Is there evidence of movement by English law towards a civil law approach to good faith?
Have other common law systems moved towards a general principle of good faith?
Has there been any movement in civil law jurisdictions towards more limited good faith obligations akin to the common law approach?
Conclusions
Chapter 8 Collaborative dispute resolution
Introduction
Good faith under English law: the traditional view
Managing disputes in good faith
Relational contracts
Collaborative dispute resolution methods
Formal dispute resolution
Conclusions
Part IV Contractual adjudication: dispute boards in international construction disputes
Chapter 9 Dispute boards: trends, observations, developments and procedures
Introduction
Dispute boards
What is a dispute board?
Legal basis for dispute boards
Demand for amicable dispute resolution
Types of dispute boards
DRBs
DABs
CDBs
DAABs
Fundamental procedures and development
Use of DBs
DAABs under FIDIC 2017: procedures and issues in practice
Making a claim
Obtaining the Engineer’s determination
Avoidance of Disputes
Obtaining the DAAB’s decision
Setting up the DAAB
Appointing the DAAB when one party is not cooperating
Bypassing the DAAB
Obtaining the DAAB’s decision
Amicable settlement
Arbitration
Other FIDIC Contracts
FIDIC’s Red Book (2010) and Yellow Book (2019) Subcontracts
Other recent FIDIC Contracts approach to dispute boards
Multilateral development banks
Jurisdiction and enforcement
Determining the applicable law
Enforcement of DB decisions
Singapore
Romania and Bulgaria
South Africa and Namibia
United Arab Emirates
The embracing of DBs
CERN’s LHC project and the use of dispute board
Caltrans and the use of dispute resolution boards
Conclusion
Chapter 10 Enforcement of DAB decisions under the FIDIC forms of contract
Introduction
FIDIC 2017
The issues
What is the contractual obligation of a party in relation to compliance with a DAB’s decision?
Does the ‘failure to pay’ amount to a ‘dispute’ that can be referred to arbitration?
What effect, if any, does a NOD have on the contractual obligation on a party to give prompt effect to the DAB’s decision?
Is it necessary for the parties to refer both the primary and secondary disputes in a single arbitration?
What sort of award?
Conclusion
Chapter 11 Emergency arbitration and the interplay with other pre-arbitral mechanisms
Introduction
The development of emergency arbitration
An overview of emergency arbitration procedures
The legal nature and effects of emergency arbitration
Emergency arbitration and other pre-arbitral relief
Dispute boards
Contractually agreed negotiations, mediation, and cooling-off periods
Conclusions
Part V Statutory construction adjudication: a global perspective
Chapter 12 Statutory adjudication in the United Kingdom
Introduction
The United Kingdom’s regime
This chapter
Recent developments in the law
Construction contracts and exclusions
Adjudication and insolvency
Crystallisation of a dispute
Smash and grab adjudications
Reserving the position
Failing to exhaust jurisdiction
Stay of execution
Fraud
The introduction of low value adjudication schemes
A consultation on the 2009 Act
Costs
In writing
Payment
Access to adjudication
Clarity of the adjudication process
Conclusion
Chapter 13 Statutory adjudication in Canada
Overview
The remedial aim of statutory adjudication
The authorized nominating authority
Basic concepts
Statutory minimums
Targeted adjudication
Proper invoice
Binding until and unless overturned
Enforcement of adjudicator’s determination
Adjudication timelines in Ontario
ODACC predetermined processes
Statutory timelines
Choosing an adjudicator
Minimum qualifications
Preparing a claim for adjudication
The notice of adjudication
Detailed submissions
Documents relied upon
Serving the claim
Responding to a claim
Rebuttals, replies, sur-rebuttals, and sur-replies
In-person hearings will be the exception, not the rule
The adjudicator’s determination
Form and timing
Interim binding nature of determination
Costs
Compliance with determination
Application to set aside adjudicator’s determination
Statutory grounds
Natural justice
Other Canadian jurisdictions
Federal
British Columbia
Manitoba
New Brunswick
Nova Scotia
Saskatchewan
Chapter 14 Statutory adjudication in Singapore
Introduction
Confidentiality
General scope and applicability: ‘construction’ and ‘supply’ contracts
Contracts made in writing
Exclusions
Anti-avoidance
Invalidation of ‘pay when paid’ provisions
Claims covered by SOP Act: ‘progress payments’
Stage 1: payment claim
Timing
Formal and substantive requirements
Other rules
Stage 2: response to payment claim
Implications of a failure to properly respond
Stage 3: other pre-adjudication requirements
Expiry of ‘dispute settlement period’
Notice of intention to apply for adjudication
Stage 4: adjudication application
Application deadline
Application requirements
Stage 5: appointment of adjudicator and adjudication response
Appointment of adjudicator by authorised nominating body
Adjudication response by respondent
Stage 6: the adjudication proper
Timelines for determination
Adjudicator’s powers and duties
The determination
Adjudication review
Determinations binding but not final
Setting aside by the courts
Enforcement of determinations
Enforcement as judgment debt
Suspension
Direct payment from principal
Lien on unpaid and unfixed goods
Chapter 15 Statutory adjudication in Australia
Introduction
An overview of adjudication in Australia
Eight ‘laboratories’ with divergent approaches
Cash flow and protection of vulnerable parties
Payment claim disputes
Scope of disputes depends on what can be claimed
Statutory payment process: NSW Act
Victoria’s ‘excluded amounts’ regime
‘West coast’ approach
Lessons for other jurisdictions?
Time for commencing an adjudication
Adjudicator nomination
Qualifications and conflicts of interest
‘West coast’ approach
‘East coast’ approach
Adjudicator bias: case law
Enforcement mechanisms
Errors and other grounds for challenging adjudication determinations
Limited to jurisdictional error?
Jurisdictional error examples
Review adjudications
Towards harmonisation?
Conclusion and summary
Part VI Contracting with the state in the 21st Century
Chapter 16 Achmea: from the judgment to the plurilateral agreement, towards the disappearance of intra-EU bilateral investment protection treaties
Eradicating the jurisdiction of intra-EU investment arbitral tribunals
The Achmea judgment
The aftermath of the Achmea judgment
The termination of intra-EU BITs by the Achmea Agreement
The Achmea Agreement against intra-EU BITs
Future difficulties
Conclusion
Chapter 17 State immunity and its implications when resolving disputes with – and enforcing outcomes against – states
Introduction
State immunity: some underlying concepts
Acts of a sovereign nature vs acts of a commercial nature
Adjudicative vs enforcement jurisdiction
The legislative regime governing state immunity in the UK
Structure of the State Immunity Act
Exceptions to immunity from the court’s adjudicative jurisdiction
Exceptions to immunity from the court’s enforcement jurisdiction
Measures of constraint involving committal or fines
Measures of constraint directed towards the state and its property
Post-judgment measures of execution for judgments and awards
State entities
Central banks and sovereign wealth funds
State immunity and arbitration
The state’s agreement to arbitration
Extension of the arbitration agreement to a non-party state
State bound by arbitration agreement executed by third parties without state’s knowledge
State bound to arbitrate when making a claim under an insurance policy containing an arbitration agreement pursuant to the conditional benefit principle
Agreements to arbitrate in international treaties
A tribunal’s award on its own jurisdiction may be sufficient to establish the agreement to arbitrate
The effect of the state’s consent on its immunity from jurisdiction
Proceedings ‘which relate to the arbitration’
Recognition and enforcement of an arbitral award
Challenges to arbitral awards
Ancillary/interlocutory applications
State immunity and the execution of arbitral awards
Property of the state
Ownership of property
Types of property and the nature of the state’s interest
Commercial use
Conclusions
Index