Adr and Adjudication in Construction Disputes

by Hibberd, Peter; Newman, Paul

• ISBN13: 9780632038176
• ISBN10: 0632038179
• Edition: 1st
• Format: Hardcover
• Copyright: 1999-10-05
• Publisher: Wiley-Blackwell

Summary

For some years there has been growing dissatisfaction with litigation and arbitration as a means of settling construction disputes, and increasingly parties have been turning to adjudication and alternative dispute resolution (ADR). This trend was given a major impetus by the introduction of the 1996 Housing Grants, Construction and Regeneration Act and the Scheme for Construction Contracts, which resulted in statutory adjudication being introduced in most of the main building and engineering standard forms. This book surveys the growth of ADR and looks in detail at the various methods: * adjudication and expert determination * mediation and conciliation * dispute review boards and disputes advisers * other forms, such as mini-trial and mediation-arbitration It discusses the Housing Grants, Construction and Regeneration Act and the Scheme for Construction Contracts, and their effect on adjudication and construction contracts considering both procedural and legal issues. It looks in detail at the adjudication clauses of all the main building and engineering contracts.

Author Biography

Peter Hibberd is the author of ADR and Adjudication in Construction Disputes, published by Wiley.

Table of Contents

Preface	ix
List of Abbreviations	xiii
Construction Contracts: An Inevitable Source of Conflict?	1	(15)
Conflict, claims and disputes	1	(1)
The problem of profit	2	(1)
The contract as an agreement and a means of redress	3	(2)
Allocation of risk	5	(1)
Standard forms of contract and their drafting	6	(2)
Standard forms of contract and dispute resolution	8	(1)
The procurement process and its management	8	(2)
Is conflict inevitable?	10	(2)
Using and alleviating conflict	12	(4)
Arbitration and Litigation: A Tarnished Reputation	16	(20)
Problems of traditional dispute resolution	16	(5)
The challenge of ADR	21	(2)
Can arbitration ever be simple?	23	(3)
Arbitration rules	26	(5)
When not to arbitrate	31	(5)
The Growth of ADR in the United Kingdom, Australia and Hong Kong	36	(21)
ADR in the UK	36	(5)
ADR in Australia	41	(5)
ADR in Hong Kong	46	(11)
Mediation and Conciliation	57	(31)
Definition	57	(2)
Approaches to mediation	59	(3)
The mediator	62	(1)
Functions of a mediator	63	(1)
Skills of a mediator	64	(2)
Mediation agreement	66	(1)
Mediation procedure	66	(3)
Guidelines for mediation	69	(5)
Progressing the mediation	74	(2)
Types of dispute suited to mediation	76	(3)
Circumstances where mediation may not work	79	(2)
Advantages and disadvantages of mediation	81	(3)
Conciliation schemes	84	(4)
Adjudication and Expert Determination	88	(17)
Adjudication	88	(7)
The adjudicator	95	(3)
Adjudication and expert determination clauses	98	(7)
Dispute Review Boards and Dispute Advisers	105	(10)
Dispute review board	105	(4)
Dispute adviser	109	(3)
Refinements to dispute review boards	112	(3)
Other Forms of ADR	115	(20)
The mini-trial	115	(7)
Mediation-arbitration (MedArb)	122	(9)
Rent-a-judge	131	(1)
Other ADR techniques	132	(3)
Practical and Legal Concerns in Using ADR to Resolve Disputes	135	(16)
Practical concerns	135	(5)
Legal concerns	140	(11)
Adjudication and the `Construction' Act	151	(19)
Legislation on construction contracts	151	(1)
Housing Grants, Construction and Regeneration Act 1996	152	(9)
Exclusion orders	161	(1)
Approved Scheme for Construction Contracts	162	(6)
Other matters related to the statutory need for adjudication provisions	168	(2)
JCT Standard Forms of Building Contract and Associated Subcontract Forms	170	(20)
Generally	170	(1)
JCT Standard Form of Building Contract 1980 (JCT 80)	170	(1)
JCT Standard Form of Building Contract With Cotractor's Design 1981 (JCT 81)	171	(2)
Amendment 18 JCT Standard Form of Building Cotract 1980	173	(6)
Amendment 12 JCT Standard Form of Building Contract With Contractor's Design 1981	179	(1)
Amendment 12 JCT Intermediate Form of Building Contract 1984 Edition	180	(1)
Amendment 11 Agreement for Minor Building Works 1980 Edition	181	(1)
Subcontract forms of contract	181	(3)
Subcontract forms of contract for nominated subcontractors	184	(2)
Standard Form of Employer / Nominated Subcontractor Agreement NSC/W 1991 Edition	186	(1)
NAM/SC subcontract conditions	186	(1)
Standard Form of Subcontract for Domestic Subcontractors (DOM/1)	186	(1)
DOM/1 1998 revision	187	(3)
General Conditions of Government Contracts for Building and Civil Engineering Works	190	(13)
Introduction	190	(1)
Form GC/Works/ 1 Editions 1 and 2	190	(1)
Form GC/Works/ 1 Edition 3 (Revised 1990)	190	(4)
GC/Works/ 1 (1998)	194	(8)
PSA/ 1	202	(1)
Engineering Forms of Contracts	203	(31)
ICE Conditions of Contract 6th Edition 1991	203	(1)
ICE Conditions of Contract 6th Edition Revised 1998	204	(3)
ICE Design and Construct Conditions of Contract 1992	207	(1)
ICE Design and Construct Conditions of Contract Revised 1998	208	(1)
ICE Conditions of Contract for Minor Works 2nd Edition 1995	208	(1)
ICE Conditions of Contract for Minor Works 2nd Edition 1995 Revised 1998	209	(1)
ICE Conciliation Procedure 1994	209	(2)
ICE Adjudication Procedure 1997	211	(5)
FIDIC Conditions of Contract for Works of Civil Engineering and Construction Fourth Edition 1987	216	(2)
Supplement to Fourth Edition of FIDIC First Edition 1996	218	(4)
FIDIC model terms of appointment for a dispute review board	222	(2)
Procedural rules for a dispute review board	224	(1)
IChemE Model Form of Conditions of Contract for Process, Plant, Lump Sum Contract, 1995	225	(1)
The Red Book and the Housing Grants, Construction and Regeneration Act	225	(1)
Reference to an expert	226	(3)
Disputes	229	(1)
Arbitration	230	(1)
IChemE Yellow Book Subcontract 2nd Edition 1997	230	(1)
IChemE Model Form of Conditions of Contract for Process Plant, Reimbursable Contracts, 1992	231	(1)
IChemE expert procedures	231	(3)
New Engineering Form of Contract and the Adjudicator's Contract	234	(18)
Generally	234	(1)
The consultative documents	234	(1)
First edition	235	(3)
Subcontract	238	(1)
Engineering and Construction Contract	238	(4)
Subcontract 2nd Edition	242	(1)
NEC Engineering and Construction Contract and Subcontract Addendum 1998	243	(1)
Addendum clause Y2.5	243	(2)
The future	245	(1)
NEC Adjudicator's Contract	246	(5)
Professional Services Contract	251	(1)
Model Rules for Adjudication	252	(12)
Generally	252	(1)
CIC Report on Appointment of Adjudicators	252	(1)
CEDR Rules for Adjudication	253	(2)
Rules of conduct	255	(1)
CEDR mediation	256	(1)
CIC Model Adjudication Procedure	257	(2)
CIC Adjudication Advice Service	259	(1)
ORSA Adjudication Rules (now TecSA rules)	259	(5)
Appendix 1	264	(3)
Australian Standard AS 2124-1992	264	(1)
Australian Standard AS 4300-1995	265	(2)
Appendix 2	267	(5)
Extracts from Australian Department of Defence contracts	267	(5)
Appendix 3	272	(1)
Adjudicator Nominating Bodies	272	(1)
Appendix 4	273	(12)
The Secretary of State for Transport and Severn River Crossing pIc Concession Agreement	273	(12)
Appendix 5	285	(5)
The Woolf Reforms and the Civil Procedure Rules	285	(5)
References	290	(8)
Table of Cases	298	(3)
Index	301