Best practice in construction disputes : avoidance, management and resolution

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