Best practice in construction disputes : avoidance, management and resolution

Description

Cover Page Full Title Copyright Foreword Preface Table of Cases Table of Statutes Table of Practice Directions Table of Abbreviations Table of Contents PART 1 Avoidance and Management of Disputes Chapter 1 Causes and Nature of Construction Conflicts and Disputes Construction: A Breeding Ground for Conflicts and Disputes Differentiating between ‘conflicts’ and ‘disputes’ The escalation of conflicts into claims and disputes Conclusion Causes of Construction Conflict Latent conditions Variations/change in scope Quality of the works Conclusion Causes of Construction Disputes Competitive tendering Lopsided risk allocation Perceived bias of the superintendent Failure to comply with the construction contract Conclusion Chapter 2 Theory of Conflict Should Conflict be Avoided? Task conflict Relationship conflict Conclusion Trust and Communication on Construction Projects Trust Communication Conclusion Conflict Management Integrating Dominating Obliging Avoiding Compromising Conclusion Chapter 3 Role of the Construction Contract in the Avoidance, Management and Resolution of Construction Disputes Standard Form Construction Contracts Purpose of standard form construction contracts Can Construction Contracts Facilitate Project Management? Traditional contract theory Relational contract theory Contracting for Dispute Avoidance Contractual duty to act in good faith and cooperate Risk management during construction Conflict management and on-site dispute resolution Conclusion Chapter 4 Introduction to the Concept and Philosophy of DAPs What are DAPs? How do DAPs Work? Primary prevention Secondary prevention Tertiary prevention Conclusion Chapter 5 Dispute Resolution Boards (DRBs) History of DRBs Development and Growth of DRB Use DRB guides and specifications Dedicated industry organisation to promote DRBs Embedded DRB provisions in standard form contracts International adoption Best Practice Drafting a DRB specification How DRBs stop conflicts escalating into disputes How DRBs resolve disputes Managing the cost of a DRB Conclusion Chapter 6 Dispute Adjudication Boards (DABs) History of DABs The dual role of the engineer and the inefficiencies of arbitration The World Bank’s interest in DRBs The operation of DABs Under the Microscope: The Dispute Avoidance, Management and Resolution Role of the DAB Capacity of DABs to avoid disputes Capacity of DABs to resolve disputes The Efficacy of DABs The Future of the DAB The Way Forward Dispute avoidance guidelines in FIDIC contracts Accreditation and certification of DAB members Conclusion Chapter 7 Dispute Resolution Adviser (DRA) The Development of the DRA The independent intervenor The dispute adviser The birth of the DRA Dispute avoidance during the course of construction The DRA’s approach to dispute resolution Evaluation v Facilitation The Increasing Use of DRAs in Hong Kong Hong Kong’s commitment to DRAs International Adoption Conclusion Chapter 8 Evolution of DAPs The Combined Dispute Board (CDB) The development of the CDB: The ICC’s Dispute Board Rules What is a CDB? The CDB: A flash in the pan or here to stay? Conclusion The Independent Dispute Avoidance Panel (IDAP) Composition of the IDAP General dispute avoidance How the IDAP helps parties prevent conflicts escalating into disputes Contemporaneous resolution of disputes The IDAP as a Dispute Avoidance Process: Gold, silver or bronze? Conclusion PART 2 Alternative Dispute Resolution (ADR) Chapter 9 Introduction to the Concept and Philosophy of ADR Defining ADR The Provenance of ADR ADR in the construction industry The Philosophy of ADR Willingness to resolve dispute Direct or facilitated negotiations Confidentiality Parties control the outcome How to Decide which ADR Model is Most Appropriate Facilitative model Advisory model Determinative model Hybrid model Conclusion Chapter 10 Negotiation Negotiation Styles Negotiating to Resolve Construction Conflicts and Disputes Negotiators Preparation Negotiation phase Best Practice Conclusion Chapter 11 Mediation Provenance of Mediation Different Models of Mediation and the Pros and Cons of Each Facilitative v evaluative models Transformative v settlement models Expert advisory mediation The most appropriate mediation model for construction disputes Preparing for a Mediation Participating in a Mediation Deal Mediation Conclusion Chapter 12 Senior Executive Appraisal/Mini-trials What is SEA? Appointment of panel Preparation Presentations Negotiation Provenance of SEA Advantages and disadvantages of SEA Advantages Disadvantages Role of Lawyers in SEA Conclusion Chapter 13 Expert Determination and Early Neutral Evaluation What Disputes are Appropriate for expert Determination and Early Neutral Evaluation? Expert Determination What is expert determination? Binding v Non-binding expert determination Best practice in expert determination Early Neutral Evaluation Provenance of ENE What is ENE? What cases are suitable for ENE? Best practice in ENE Conclusion Chapter 14 ADR Hybrids Med–ARB Provenance of med–arb The process Strengths and weaknesses of med–arb Conclusion ARB–MED Arbitration phase Mediation phase Ruling phase Strengths and weaknesses of arb–med Collaborative Settlement Process Document disclosure Lawyers meeting Confidential memorandum Settlement negotiations Conclusion Conclusion PART 3 Binding Dispute Resolution Chapter 15 Key Elements of a Successful System of Binding Dispute Resolution Natural Justice/Procedural Fairness The components of procedural fairness The no-bias rule The fair hearing rule Accessibility Costs of binding dispute resolution Speed of the process Increasing the accessibility of binding dispute resolution processes Finality Appealing final and binding determinations Commencing ‘fresh’ proceedings Conclusion Chapter 16 Adjudication What is Adjudication? Provenance of Adjudication The security of payment problem The Latham Report Statutory Adjudication Regimes The objectives of statutory adjudication Best practice in Construction Adjudication Nature of disputes that can be referred to adjudication The adjudication procedure Challenging an adjudicator’s determination Conclusion Chapter 17 Arbitration What is Arbitration? The Evolution of Arbitration Early history of arbitration The use of arbitration by the construction industry A glimmer of hope — The success of international arbitration Best Practice in Construction Arbitration Agreement to arbitrate Arbitration procedure The role of the courts, legislature and arbitral institutions Conclusion Chapter 18 Litigation Nature of Construction Litigation Highly technical disputes Number of parties Document intensive Pre-action Requirements Specialist Courts and Lists Case Management Appropriate Pleadings Rationalisation of Discovery Limiting discovery Discovery conference Electronic transfer of documents Efficient Use of Expert Witnesses Expert conclaves Hot-tubbing Limiting the number of experts called — Appointing a single expert Conclusion PART 4 Best Practice Chapter 19 Best Practice in the Avoidance, Management and Resolution of Construction Disputes Identifying Best Practice: A Futile or Fruitful Exercise? Striving for best practice Challenges to the Implementation of Best Practices Adversarial culture of construction Resistance to/fear of change Resistance from the construction industry Resistance from the legal profession The Way Forward: Overcoming Barriers to Change Expanding education and training programs Transforming the role of construction lawyers Reforming standard form construction contracts Conclusion Index