Magazine article Dispute Resolution Journal

International Construction: Dispute Resolution Comes in Tiers

Magazine article Dispute Resolution Journal

International Construction: Dispute Resolution Comes in Tiers

Article excerpt

International Construction: Dispute Resolution Comes in Tiers International Construction Arbitration Law By Jane Jenkins and Simon Stebbings. The Hague, The Netherlands: Kluwer Law International (www.kluwerlaw.com), 2006. Hardcover. $166. 442 pages.

What makes construction cases so different from other business disputes? For one, construction disputes are technically complex, requiring intensive investigations. These disputes also require a rapid decision, even if it's temporary, so the work on the project can continue. All project clients want work delivered on time and on budget.

Jane Jenkins and Simon Stebbings, partners in the London office of Freshfields Bruckhaus Deringer, wrote this book because they believe international construction disputes must be treated differently from other types of disputes.

Dispute Resolution Provisions

The authors point out that dispute resolution provisions are critical to avoiding disputes but they are often overlooked. "Parties frequently spend significantly less time and effort drafting and negotiating the dispute resolution provisions in their contracts than they do on the commercial and financial terms," say Jenkins and Stebbings.

Most dispute resolution provisions are found toward the end of the contract, and most are boiler plate provisions from other contracts. The drafter never considered whether they are appropriate for the project at hand. Worst, some drafters fail altogether to include dispute resolution provisions in the contract.

This book provides a guide for practitioners on drafting dispute resolution provisions, contract administration, and conducting construction arbitration. The authors note that, increasingly dispute resolution provisions in international transactions call for multiple processes, with arbitration as the final tier.

Multi-Tiered Options

Jenkins and Stebbings discuss the different options for tiered dispute resolution provisions. The first tier is mandatory discussions. While parties are free to negotiate at any time, the authors say that it is important to require mandatory discussions in the contract so that when the need arises, talks would not be perceived as a sign of weakness.

Alternative dispute resolution (ADR) processes like mediation and conciliation, minitrial/executive tribunal, and early neutral evaluation constitute another tier in most agreements. The book discusses the pros and cons of using these processes.

Unlike other types of disputes, construction projects require a means of achieving binding decisions on an interim basis so work can continue while parties await the outcome of litigation or arbitration proceedings. …

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