Journal articles on the topic 'Expert Dispute resolution (Law) Construction contracts'

ABSTRAKPaper ini membahas tentang state of the art penyelesaian sengketa konstruksi di Indonesia yang meliputi jenis sengketa, indikasi potensi sengketa, dan perbandingan peraturan penyelesaian sengketa jasa konstruksi. Metode yang digunakan adalah mix method yang terdiri dari expert judgment, studi literatur dengan memperbandingkan riwayat penyelesaian perselisihan kontrak konstruksi mengacu kepada UU No.02/2017, Perpres No.16, UU No. 30 / 1999, dan PP No. 22/2020, dan Dispute Resolution Management Matrix (DRM-Matrix). Hasil analisis menunjukkan bahwa dua hal pokok penyelesaian sengketa yaitu pilihan penyelesaian sengketa dan penyelesaian sengketa di luar pengadilan (litigasi dan non litigasi). Penyempurnaan diberlakukan dalam PP No.22 Tahun 2020 yang menjelaskan tentang tahapan penyelesaian sengketa yang menyangkut mediasi, konsiliasi, dan arbitrase, juga terkait dengan penunjukkan dewan sengketa.Kata kunci: kontrak, konstruksi, perselisihan, state of the art ABSTRACTThis paper discusses of state of the art construction dispute resolution in Indonesia, which includes types of disputes, indications of potential disputes, and comparison of construction service dispute resolution regulations. The proposed method is a mixed-method consisting of expert judgment, literature study by comparing the history of construction contract dispute settlement referring to Law No. 02/2017, Presidential Decree No. 16, Law No. 30/1999, and PP. 22/2020, and the Dispute Resolution Management Matrix (DRM-Matrix). The results show that there are two main issues for dispute resolution, namely the choice of dispute resolution and dispute resolution outside the court (litigation and non-litigation). Improvements are enforced in Government Regulation No.22 of 2020 which explains the stages of dispute resolution involving mediation, conciliation and arbitration, as well as the appointment of a dispute board.Keywords: contract, constructions, dispute, state of the art

Construction contracts are becoming more complicated, and the increase in complexity of construction processes, documents, and conditions of contracts has contributed to a higher possibility of disputes and conflicting interpretations. The judicial system has been the means for dispute resolution for claims that cannot be solved through other means such as negotiation and arbitration. Knowledge of previous outcomes of judicial processes will both inform participants in a dispute and increase the likelihood of a less-expensive out-of-court dispute-resolution process. This paper presents a methodology to classify, categorize, and analyze Canadian case-law construction claims. In total, 567 Canadian construction court cases have been collected from 10 different sources and are classified into 12 categories that follow the Canadian Construction Documents Committee (CCDC) standard construction contract document CCDC 2-1994. The proposed methodology is implemented in a computer-integrated system called the Canadian construction claim tracker (CCCT), which consists of one central database and three modules, namely a statistical module, a prediction module, and a classification module. The CCCT provides its users with easy and quick access to past case-law claim information.Key words: construction courts, claims, litigation, artificial neural networks, Canadian Construction Documents Committee.

Purpose This paper aims to investigate the use of alternative dispute resolution (ADR) techniques in the Palestinian construction industry. It also seeks to identify some of the drivers and barriers to the greater use of particular ADR techniques. Design/methodology/approach In this study, 12 semi-structured in-depth interviews were conducted with senior ADR practitioners comprising nine construction professionals, two eminent lawyers and a retired judge. Findings This research has explored the practices of mediation, adjudication and expert evaluation in the Palestinian construction industry and has identified deficiencies in implementation and the roles that the cultural and legal contexts play in this. The research findings cast some doubt on the results of previous studies asserting the widespread use of construction mediation. Originality/value This paper contributes to knowledge by bringing new insight into the practice of particular ADR techniques in the Palestinian construction industry and in identifying challenges to the more widespread adoption of these ADR techniques. This paper exposes the myth of the popularity of construction mediation and the dilemma to the use of mediation brought by the social construction and conceptualisation of the mediator’s role.

PurposeThe purpose of this paper is to focus on the Fédération Internationale des Ingénieurs‐Conseils (FIDIC) White Book standard form of building contract. It tracks the changes to this contract over its four editions, and seeks to identify their underlying causes.Design/methodology/approachThe changes made to the White Book are quantified using a specific type of quantitative content analysis. The amended clauses are then examined to understand the nature of the changes made.FindingsThe length of the contract increased by 34 per cent between 1990 and 2006. A large proportion of the overall increase can be attributed to the clauses dealing with “conflict of interest/corruption” and “dispute resolution”. In both instances, the FIDIC drafting committees have responded to international developments to discourage corruption, and to encourage the use of alternative dispute resolution. Between 1998 and 2006, the average length of the sentences increased slightly, raising the question of whether long sentences are easily understood by users of contracts.Research limitations/implicationsQuantification of text appears to be particularly useful for the analysis of documents which are regularly updated because changes can be clearly identified and the length of sentences can be determined, leading to conclusions about the readability of the text. However, caution is needed because changes of great relevance can be made to contract clauses without actually affecting their length.Practical implicationsThe paper will be instructive for contract drafters and informative for users of FIDIC's White Book.Originality/valueQuantifying text has been rarely used regarding standard‐form contracts in the field of construction.

Abstract Frequently included in mergers and acquisitions (M&A) contracts purchase price adjustment clauses allow for upward or downward adjustments to the purchase price depending on a selected metric to help the parties of a transaction to overcome the information asymmetry about financial variables caused by the time lag between signing and closing. As a complex weave of technical accounting, financial, and legal issues, regardless of how objectively and meticulously conceived and drafted, it is quite often that disruptive issues arise in connection the with these clauses. In addition to the general arbitration clause typically contained in the M&A contracts, as a common practice, parties agree to submit any dispute concerning the values reported in the financial schedules to calculate the amount of an adjustment to an independent accounting firm for an expert determination. Since most of the time contracts do not provide any particular provision as to the relation between these two mechanisms, the practice shows that neither the demarcation of the two from each other nor the interaction between them is always unproblematic. This article, after explaining the price adjustment clauses, discusses the potential problems of which the parties should be well aware and address considering the case law and different approaches.

<p><strong><span>Abstrak</span></strong><span><br />Kontrak jasa konstruksi disusun oleh penyedia jasa konstruksi dan pengguna jasa konstruksi (sektor swasta atau pemerintah). Seringkali persiapan kontrak kerja konstruksi dilakukan secara tidak seimbang karena kontrak disiapkan oleh salah satu pihak, yaitu penyedia jasa konstruksi. Oleh karena itu, kontrak kerja konstruksi yang dikaitkan dengan teori keadilan oleh John Rawls menjadi issue yang menarik. Dalam artikel ini, penulis akan menelaah keseimbangan yang seharusnya ada dalam kontrak kerja kontruksi yang seharusnya diwujudkan oleh kedua pihak dalam menyusun kontrak kerja kontruksi.Selanjutnya juga akan dianalisis mengenai penyelesaian sengketa dari sudut pandang hukum perdata. Penyelesaian berdasar hukum perdata merupakan sesuatu yang masuk akal mengingat pada dasarnya, issue yang diselesaikan adalah wanprestasi.</span></p><p><span> </span></p><p><strong><em><span>Abstract</span></em></strong><span><br />Construction service contracts are concluded by and between the service provider (providers of construction services) and the service user (private or government). Frequently, the preparation of construction contracts<span class="apple-converted-space"> </span>are </span>unequal because the contract has already been prepared by one party (service user). Therefore, it is an interesting issue to associate unequal construction contracts with the theory of justice promoted by John Rawls. In this article, the author will examine the balance that should exist in the construction contract that should be realized by both parties in the contract. Later on, the resolution of the dispute emerging from construction contract will also be analyzed from the civil law perspective. Dispute settlement based on civil law is basically appropriate considering that at the last resort, the relevant issue is<span class="apple-converted-space"> </span>breach of contract.</p>

The Contract Disputes Act of 1978 (“CDA”) governs disputes “relating to a contract” between federal executive agencies and contractors. It establishes the process for parties to seek administrative remedies for claims under covered contracts. It also limits the right to judicial review of agency decisions to specific “boards of contract appeals” (“BCA”) and the United States Court of Federal Claims (“COFC”). According to the CDA’s sponsors, Congress enacted the law to bring reliability and order to a hodgepodge of conflicting and inconsistent rules for adjudicating contract disputes used by the various executive agencies. The law aimed to simplify the process for resolving agency-contractor disputes in light of the growing complexities and importance of Government procurement programs. In introducing the bill, its primary sponsor underscored the need for an efficient adjudicatory process in which both Government agencies and the contracting industries had confidence: One cannot dispute the almost universal expressions of industry and the practicing bar that the system needs change. A good remedies system is a major element in good procurement, and a good system depends not only on fairness and justice, but also on whether the people who are subject to the system believe it is fair and just. In some respects, the CDA fell short of providing a comprehensive framework for Government contract dispute resolution and its stated aim to “provide to the fullest extent practicable, informal, expeditious, and inexpensive resolution of disputes.” In particular, the Act did not prescribe any period of time for a party to submit an administrative claim for monetary or other relief after occurrence of the breach or other injury. After sixteen years and many complaints from both Government agencies and contractors about dealing with stale claims, Congress finally adopted a CDA limitations period as part of the Federal Acquisition Streamlining Act of 1994 (“FASA”). That statute of limitations, now codified at 41 U.S.C. §7103(a) (4), provides: Each claim by a contractor against the Federal Government relating to a contract and each claim by the Federal Government against a contractor relating to a contract shall be submitted within 6 years after the accrual of the claim. Decisions by BCAs and Federal Circuit courts under the CDA statute of limitations were relatively rare in the several years following the amendment. Since the early 2010s, however, the number of cases has skyrocketed. This spike in limitations disputes undoubtedly is attributable to the massive increase in military procurement following September 11, including unprecedented spending for goods and services in Afghanistan, Iraq, and other conflict zones. The sheer volume of defense contracts and contractual activity often made it difficult for the parties to recognize and submit claims within six years of the occurrence of the underlying facts. In a relatively short period of time, the tribunals with jurisdiction over defense contract litigation had to decide a large number of limitations disputes with little guidance from direct precedent or legislative or regulatory history. These circumstances have led to case law that is not always consistent in analysis or reconcilable in outcome. Part I of this Article provides an overview of the architecture and key features of the CDA. Part II examines the salient legislative and regulatory history surrounding the adoption of the CDA statute of limitations. Part III discusses when a CDA claim “accrues” and triggers the six-year time period for submitting a claim. In Part IV, we review some of the major issues that arise under the statute in significant and recurrent types of contractor-agency disputes. Part V concludes with a brief evaluation of whether the CDA statute measures up to the “long tradition of judicial authority to formulate rules ensuring fair and predictable enforcement of statutes of limitations.” Increasing litigation about limitations periods are challenging CDA tribunals to develop coherent and consistent criteria for parties to determine when the six-year period begins to run on their potential claims. Arguably, the trial judges have made that challenge more difficult by attempting to impose precedent under the Tucker Act’s non- discovery-accrual standard on FAR 31.201’s “discovery” rule language. That challenge has been compounded by a general tendency of the BCAs and COFCs to find that claims do not accrue until the claimant possesses the information on which the claim is based. It is reasonable to conclude that the decisional law has not matured to the ideal, and perhaps, idealistic, state of consisting of “rules ensuring fair and predictable enforcement of statutes of limitations.” It may also be observed that, despite the FAR Council’s express intent and “knew or should have known” definition of “accrual” in FAR 33.201, the decisional law to date has not developed or applied typical discovery rule analysis in examining the facts of the cases or in judgments whether claims are timely or untimely. With rare exception, the decisions have not dismissed as untimely claims based on when a claimant “should have known” or been aware of the relevant facts where the claimant did not have actual knowledge or possess the information showing that it had a claim. As a result, the precedent offers virtually no guidance on issues traditionally fundamental to a “reasonably should have learned” analysis, which include the following: (1) What information is sufficient to put a claimant on “notice”? (2) Does “notice” itself trigger the period (as Gray suggests), or does the statute initiate when a diligent claimant discovers the facts, or reasonably would have discovered the facts? (3) When and under what circumstances does a claimant have an affirmative duty to make a reasonable inquiry aimed towards “discovery” of potential claims? (4) When and under what circumstances may a claimant rely on the other party’s contractual duties to provide information in deter- mining the nature and extent of any “diligence” expected of the claimant? On a more fundamental level, however, the cases have never ad- dressed whether the FAR’s discovery rule definition of “accrual” appropriately serves as controlling over the definition of the otherwise undefined term “accrual” in section 7103(4)(a) of the CDA. The FAR Council undertook to define the word “accrue” in Section 4(a) pursuant to its general authority to promulgate regulations “as may be necessary to implement this Act,” and not in response to any specific delegation. The failure to examine whether the FAR Council’s adoption of its definition of “accrue” is sufficient under the recent Supreme Court decision relating to proper construction of statutory limitations provisions and, separately, deference to federal agencies in implementing regulations, raises questions of whether any “discovery rule” should apply in CDA statute of limitations cases. In several recent cases, the Supreme Court has sent a strong signal that the courts should not “graft” a “discovery rule” on the term “accrues” or the like in a federal statute of limitations absent “textual, historical, or equitable reasons” to do so. In Gabelli v. SEC, the SEC in 2008 filed a civil enforcement action against defendants for securities law violations between 1999 and 2002 and sought civil penalties, which are subject to a statute of limitations that require an action to be brought “within five years from the date when the claim first accrued.” The SEC argued that the statute is subject to a “discovery rule,” delaying accrual until it discovered or “could have been discovered with reasonable diligence.” The Court rejected that argument: “In common parlance a right accrues when it comes into existence . . . .” . . . Thus the “standard rule” is that a claim accrues “when the plaintiff has a complete and present cause of action.” . . . That rule has governed since the 1830’s when the predecessor to §2462 was enacted. . . . And that definition appears in dictionaries from the 19th century up until today. See, e.g., 1 A. Burrill, A Law Dictionary and Glossary 17 (1850) (“an action accrues when the plaintiff has a right to commence it”); Black’s Law Dictionary 23 (9th ed. 2009) (defining “accrue” as “[t]o come into existence as an enforce- able claim or right”). The Court added: “[T]he cases in which ‘a statute of limitation may be suspended by causes not mentioned in the statute itself . . . are very limited in character, and are to be admitted with great caution; other- wise the court would make the law instead of administering it.’” At a minimum, the CDA forums will need to address, if and when any litigant raises the question, whether “accrues” in section 7103(a) (4) (A) means (1) when the claimant “knew or should have known” of the cause, or (2) in light of Gabelli and other recent precedent, when the claimant “has a complete and present cause of action” regardless of the claimant’s state of mind. In this regard, while the FAR Council and the CDA forums have relied significantly on Tucker Act precedent, neither appears to have considered that, as in the CDA, the Tucker Act does not define “accrue,” and since its enactment, the federal courts consistently have construed “accrue” in the Tucker Act to mean the date when “when all the events have occurred which fix the alleged liability of the United States and entitle the claimant to institute an action.” The Supreme Court, moreover, recently clarified that under the Chevron deference analysis, “deference is not due [a regulatory definition of a statutory term] unless a ‘court, employing traditional tools of statutory construction,’ is left with an unresolved ambiguity. . . . Where . . . the canons supply an answer, ‘Chevron leaves the stage.’” Notably, there is no indication in the record that the FAR Council determined that the CDA statute’s use of “accrue” was “ambiguous,” or adopted its “discovery” definition standard to clarify an ambiguity. On the contrary, it noted the “discovery requirement must remain,” notwithstanding little support and much objection among commentators, because “many pricing defect cases have their original events at the beginning of the contract or on contract award, but often cannot be discovered by the Government until years later.” The CDA forum’s “discovery” rule, and the CDA forum’s default use of that definition, may be vulnerable in light of Gabelli, a growing hostility to Chevron deference, and the regulatory record.

Purpose Statutory adjudication was introduced into the security of payment (SOP) legislation as a fast-track payment dispute resolution process with an express object to facilitate cash flow within the construction contractual chain. After more than a decade of the operation of the regime in Australia and Singapore, it becomes apparent that there are many operational problems that jeopardise the intended object of the legislation, particularly in adjudicating complex payment disputes. The aim of this paper is to explore views of the industry stakeholders regarding some operational problems of statutory adjudication of as well as possible solutions. Design/methodology/approach “Expert interviews” method is adopted to collect the empirical data, involving interviews with 23 practitioners from Australia and Singapore. Findings The study identified many operational problems jeopardising the attainment of the object of the SOP legislation such as bias of authorised nominating authorities, short adjudication timeframes, inadequate regulations of adjudicators, jurisdictional challenges, involvement of courts and lawyers and complex drafting of the legislation. The study also analysed the views of industry experts with regard to the opportunities for improvement in the operation of the SOP legislation such as following the Queensland model as amended, and introducing a legislative review mechanism and establishing a peer review process. It also suggested specific amendments to make the legislation a more user-friendly. Practical implications The implication of this study is a better understanding of the most critical problems inherent in statutory adjudication that need serious consideration by the legislatures and policymakers. In addition, the study also provides some practical measures as suggested by the industry practitioners for each identified problem which may stand as a reliable reference for potential reform in the SOP laws. Originality/value There is inadequate empirical research conducted to investigate problems in the operation of statutory adjudication. The study provides original empirical findings which become much necessary nowadays in light of the dynamic moves towards law reform in SOP laws, particularly in Australia. The study provides some practical measures as suggested by the industry practitioners for each identified problem which may stand as a reliable reference for potential reform in the SOP laws.

PurposeStrong and independent judiciary symbolizes transparency and impartiality in the dispute resolution process. However, litigation is often time-consuming and affects the working relationship between the disputants. In the construction context, where projects typically have a short life span of three to four years, dispute resolution through litigation induces unaffordable process delays. Despite the inherent challenges associated with litigation, it is observed that disputing parties resort to litigation. This behavior, called the litigation dilemma, ostensibly appears counterintuitive to rational decision-making.Design/methodology/approachThe study identifies 35 “decision to litigate” (DTL)-triggers from a review of the literature and court cases followed by expert interviews and groups them into thematic research domains using Exploratory Factor Analysis (EFA) followed by Confirmatory Factor Analysis (CFA).FindingsDTL studies in construction stands benefited through interdisciplinary research. “Presumptuous decision-making,” “construction project characteristics,” “milieu influence,” “interest in amicable resolution,” “positional focus” and “opportunism” are the six focus areas to decode the DTL in construction.Research limitations/implicationsThe study identifies factors that consolidate the knowledge from various fields with the substantive experience of construction professionals from across the world to help understand the dynamics behind the DTL in the context of contract-linked disputes in construction.Originality/valueThe findings from the domains of law, behavior, sociology and economics can help understand the above dilemma in the context of contractual disputes in construction. However, studies that explore the “decision to litigate” (DTL) contractual disputes in construction are limited, providing a vast scope for further research. The current study addresses a part of this gap.

Multi-tier dispute resolution clauses have come to be recognised as a commonly accepted method of dispute resolution clauses in commercial contracts - they often find place in construction contracts. The article discusses the conceptual nature of the multi-tiered clauses and explains the benefits of these clauses, as well as a few concerns related thereto. The article also refers to the UNCITRAL Model Law on Commercial Conciliation on the enforceability of the ADR tiers in the multi-tier dispute resolution clause, and the statutory regime governing enforceability of the multi-tier clauses in a few jurisdictions. It further discusses the implications of non-compliance of each of these tiers, especially with reference to the judicial opinion, in common law and civil law systems, with regard to the enforceability of these tiers – importantly, it addresses the question if and when these clauses are to be seen as condition precedent to an arbitration/litigation. The article concludes by setting out the common pitfalls to be avoided and the pointers to be considered when drafting an enforceable multi-tiered dispute resolution clause.

PurposeThis article investigates recent studies of construction law in different areas, including civil engineering; construction building technology; transportation; multidisciplinary studies and the environment, as well as their changing trends in the years between 2000 and 2019.Design/methodology/approachThe transformation trend of construction law is investigated based on collecting main keywords from the Web of Science (WoS) database selectively from different viewpoints and using Scientometric Analysis by CiteSpace and HistCite software. The top journals, top universities, and the most active countries in publishing and expanding construction law, keyword co-occurrence network, top keywords with the strongest citation bursts, cluster analysis, the most cited articles are determined both generally and yearly.FindingsBy interpreting the Scientometric results, focal points of legal issues and their changing trends during the last two decades are reviewed. Scholars’ data concerning interesting topics, construction law industry future needs, knowledge gaps, and speculation about future views and direction are obtained.Research limitations/implicationsRestrictions on data search, limiting the category of studies to a specific domain, and limiting research time to 20 years are some limitations of this article.Social implicationsAll these results address legal issues, comprehensive laws, plenary contracts, and efficient dispute resolution based on cultures and themes.Originality/valueGiven the importance of legal issues at all stages of the construction cycle, a review of this multidisciplinary and new science over the past two decades can provide hot issues, knowledge gaps, and a better view of the future.

This article examines the shift of contract objectives from what originally set for non-profit objectives to business ones. Such shift is found in the three contracts; wakalah (power of attorney), hawalah (underground banking), and kafalah (guarantee). Referring to their uses in several Islamic financial products in Indonesia and comparing to the sharia resolution of Sharia Authority Council Malaysia and Islamic law (fiqh), the majority of these contracts is proven to apply fees (ujrah) and used both independently and in combination with other contracts. Here, the fees are mostly applied in the Islamic financial institutions, but unfortunately the customers who are involved in the contracts get less. This, in turn, affects and changes the contract classification which originally included the three in the non-profit contract and eventually turns them into the business contract. If the contracts are set for business objectives, they are then considered as service/lease based contracts (ijarah). In the construction of a real agreement (contract), this shift has implications on changes in the rights and responsibilities of the parties involved and can raise a dispute cause of misunderstanding of the status of the contract as voluntary (tabarru’) or business (tijari).

One of the concepts of fiqh muamalah which is widely practiced by Islamic banking is akad (agreement) murabaha trading. Akad is much in demand by sharia banking due to security factors and the lack of risk for Islamic banks than mudlarabah and musharaka contracts. Murabahah is a type of trading with the determinatin that are more specific than general trading. Murabaha is a part of sharia banking products. There are dispute between the bank and its custumers, there shall be alternatives to the dispute over the dispute. To the parties to the dispute may settle concensus deliberation, thourgh dispute settlement institutions or through ligition proceedings within the courts set forth in the dispute resolution clause. Based on the background of the above problem, it can be formulated the problem will be identified as follows (1) How to dispute murabaha agrement on Bank Muamalat according to the perspektive of sharia economic law ? (2) How to settle Aqad (agreement) Murabaha dispute with Bank Muamalat Tbk. Darmo, Surabaya Branch Office ?The research method used in this research is normative juridical method with 2 (two) variants approach that is statute approach and conceptual approach. Source of data used are primary data covering material of primary law, secondary and tertiary.This study aimed to (1) analyze the dispute of aqad (agreement) murabaha at the Bank Muamalat according to the perspektive of sharia economic law; and (2) analyze and find the form settlement of aqad murabahah dispute in Bank Muamalat Tbk. Darmo, Surabaya Branc Office. This research is expected to cuntribute thought or provide solutions in the field of law related to the application of Adaq Murabahah in sharia banking institutions in Indinesia through theoretical analytics, be it from philosophical and sociological revew is expected to provide legal protection for customer and Bank Muamalat Tbk. Darmo Surabaya branch office.The results of this study indicate that the findings of the murabahah dispute agreement at the Bank Muamalat Branch Office Darmo Surabaya according to the perspective of sharia economic law caused by the control of the business aspects of the contract. Settlement of Aqad Murabahah dispute with Bank Muamalat Tbk. Darmo Surabaya branch office is conducted by Settlement of dispute through litigation and non-litigation. The completion of disputes with litigation is done through the religious courts. The final result of a dispute completion through litigation is a verdict that states a win-lose solution. Non- completion can be identified by alternative dispute resolution (ADR) with arbitration, negotiation, mediation, conciliation, expert judgment and fact finding.The research method used in this research is normative juridical method with 2 (two) variants approach that is statuce approach and conceptual approach. Sources of data used are primary data that is literature data covering material of primary law, secondary and tertiary. Keywords : Akad, Dispute, Murabahah.