Escolar Documentos
Profissional Documentos
Cultura Documentos
October 2012
October 2012
(1)
Adjudication!
October 2012
(2)
Estidama!
October 2012
October 2012
(3)
The ICES survey 2012
on Dispute Resolution!
October 2012
October 2012
October 2012
My Hypothesis!
October 2012
October 2012
October 2012
HOW?
October 2012
October 2012
10
October 2012
What is Adjudication?
A process whereby the [neutral third party]
adjudicator who may not be a lawyer has to
reach a decision on matters referred to him
[by] the complaining party. (1.1)
October 2012
11
and
12
October 2012
13
14
October 2012
ADR
Litigation
15
October 2012
Negotiation
Theoretically gives the parties most control
over the dispute resolution process.
Without the intervention of a third party:
typically consists of a sequence of proposals
and counter proposals that continue until
agreement is reached or negotiations break
down . (1.2)
Negotiations often break down!
October 2012
WHY?
16
October 2012
Negotiation contd
Heres just one of many reasons; the human
ego and lack of negotiating skills:
There will be many times that others would
gladly change their minds and agree with you
except for one thing:
they have already made a definite
commitment, and cannot change position in
good grace
Skillful persuaders know how to leave the door
open so that others can escape from their
previous position without losing face .. (5.0)
17
October 2012
Mediation
The least adversarial dispute resolution
method; utilizing skilled persuaders!
the facilitation, by a third party, of a
negotiated agreement in which the
mediator does not decide the dispute, but
facilitates communication and problemsolving by the parties.(1.3)
The optimum solution?
October 2012
BUT WOULD
IT WORK?
18
October 2012
Conciliation
Utilizes similar techniques to Mediation, except:
Its more formalized; no meetings without both
parties present.
Results in a settlement proposal, made by the
conciliator.
Its a means of amicable settlement.
Non-binding on the parties; therefore open to
further dispute!
October 2012
19
October 2012
20
10
October 2012
Expert Determination
Used where the parties have appointed a third
party expert and: submit an issue for the
determination of a third party .(1.5)
Its used primarily in disputes of a technical
nature which require an opinion on a
specific issue or issues.(1.6)
The parties may agree in advance, to be
contractually bound by the determination.
21
October 2012
Adjudication
Discussed earlier: internationally proven;
used by the Multilateral Development Banks
(incl. the World Bank); on projects worldwide.
FIDIC MDB Harmonised Construction Contract 2010; and
throughout the FIDIC suite of contracts.
22
11
October 2012
Adjudication contd
The DB procedure amounts to serial adjudication
over 90% of disputes referred to a DB will not
go beyond that procedure into arbitration or
litigation .(Dr. Robert Gaitskell QC CEng).(4.0)
Speedy resolution; thereby facilitating the works,
enhancing cash-flow and project delivery.
Disposes of the argument, before tensions build;
thereby preserving business relationships.
23
October 2012
Arbitration
An independent, impartial and finally binding,
private dispute resolution process; proven
worldwide.
Typically the default method, after the clients
own dispute procedure in the UAE; and the
final method under FIDIC contracts.
Award is enforceable in many countries
(pursuant to the New York Convention); therefore
may be attractive to foreign parties.
October 2012
24
12
October 2012
Arbitration contd
Takes many months or 1 2 years to reach a
resolution.
Formal, adversarial, typically with only one
Arbitrator in UAE.
Heard in private; but may still damage
business relationships.
Similar cost to litigation; and substantially
more than any of the foregoing methods.
25
October 2012
Litigation
Not a form of ADR, but mentioned here to put
ADR in context.
Settlement of the dispute through the courts.
A judicial process that is finally binding;
subject to appeal.
May not be enforceable outside the UAE
jurisdiction; therefore may not be attractive to
foreign parties.
October 2012
26
13
October 2012
Litigation contd
May take many months or years conclude.
Costs similar to Arbitration.
Public hearing that may damage reputations.
Can result in a breakdown of business
relationships.
27
October 2012
Estidama!
October 2012
28
14
October 2012
What is Estidama?
Estidama is Arabic for Sustainability!
But with a difference.
It is comprised of 4 fundamental pillars:
Environment
Economic
Cultural
Social
29
October 2012
30
15
October 2012
31
October 2012
Comprises
Mandatory and optional sustainability
requirements, to achieve:
Minimum One Pearl Rating for all developments.
Minimum Two Pearl Rating for government
developments.
The maximum is Five Pearls.
October 2012
32
16
October 2012
How?
An essential part of the strategy for achieving
Estidama is to fundamentally change the way
we approach design, construction and real
estate development.(2.2)
To achieve Pearl Credit Points, under the Pearl
Rating Categories.
October 2012
33
34
17
October 2012
Integration
Has the potential
Adjudication.
to
benefit
from
October 2012
Innovation
Has the further potential to benefit from
Adjudication.
Innovating Practice:
encouraging innovation in building design
and construction to facilitate market and
industry transformation.(2.6)
October 2012
36
18
October 2012
Estidama
I propose to you; that Adjudication would be
the most effective dispute resolution
procedure; for Abu Dhabi, as it:
Integrates the team
Results in a contractually binding decision
Gives a quick solution at moderate cost.
October 2012
Implementation
Currently the focus of the Pearl rating system
appears to be on design and construction.
The benefits of adopting the most efficient
dispute resolution process are not usually
considered.
The UPC could help to facilitate the adoption
of adjudication; by awarding significant credit
points for its demonstrable and beneficial use.
October 2012
38
19
October 2012
How?
An essential part of the strategy for achieving
Estidama is to
fundamentally change
the way we approach design, construction
and real estate development.(2.7)
39
October 2012
Comfort Break
Help yourself to the refreshments.
Please wait until the end of the
presentation before completing the
questionnaire in your folder.
40
20
October 2012
October 2012
42
21
October 2012
43
October 2012
Agree 61%
Disagree 6%
Sometimes 13%
October 2012
44
22
October 2012
Bespoke
Agree
NEC3 3%
Disagree
52%
Sometimes
68%
50%
100%
45
October 2012
October 2012
68%
29%
Agree
Disagree
45%
32% 23%
Sometimes
46
23
October 2012
39%
Employer's own
procedures are used.
48%
Agree
39% 16%
6% 13%
74%
Disagree
Sometim
es
47
October 2012
39%
Agree
Contractors disagree
29% 29%
Disagree
Sometim
es
disagree
October 2012
48
24
October 2012
48%
26% 19%
Agree
Litigation is the
preferred method.
61%
32%
Disagree
0%
Disputes are usually
settled before
reaching arbitration.
Sometim
es
26%
65%
3%
49
October 2012
Contract
EOT
97%
100%
Specs
Specs
68%
80%
Variations
60%
40%
Contract Variations
74%
74%
20%
Const
29%
Design
48%
EOT
Design
Const
0%
Type of Dispute
October 2012
50
25
October 2012
58%
13% 19%
Agree
Agree
48%
Disagree
51
October 2012
Reduce Cost
84%
80%
60%
40%
20%
0%
Reduce
Delay
74%
Improve
Const
32%
Improve
Design
32%
and answers!
Reduce Delay
Reduce Cost
Improve Design
Improve Const
Agreed Impact
October 2012
52
26
October 2012
Adjudication
68%
Mediation
61%
Arbitration
16%
Litigation 0%
53
October 2012
(A)
TRUST
(C)
COST
(B)
DISPUTES
54
27
October 2012
Trust
FIDIC contract is used, without the use of the
adjudication provisions.
Clients own dispute procedure is mainly used.
Engineer / CA; does not usually act impartially;
and sometimes acts unfairly.
The lack of impartiality by the dispute resolver;
leads to mistrust; a priceable Risk!
55
October 2012
Disputes
Disputes mainly relate to:
Extension of time.
Interpretation of contract.
Valuation of variations.
Interpretation of drawings & specifications.
56
28
October 2012
57
October 2012
58
29
October 2012
Dispute Resolution
Arbitration is not the preferred method.
A quicker settlement of disputes would reduce
delays and cost; as well as improving the quality
of design and construction.
Adjudication would be the preferred method for
settling disputes.
59
October 2012
Adjudication
Settles disputes impartially and quickly, which
builds trust; resulting in time and cost savings,
as well as improved quality.
Is contractually binding, giving certainty.
Achieves Estidamas tenets of Integration and
Innovation, at reduced cost; as well as being
the preferable method of dispute resolution.
October 2012
60
30
October 2012
Reflection
We need not all agree, but if we
disagree, let us not be disagreeable in
our disagreements (Martin R.
DeHaan).(6.0)
61
October 2012
Closing Thought
An essential part of the strategy for
achieving
Estidama
is
to
fundamentally change (UPC).(2.2)
October 2012
62
31
October 2012
Conclusion
Does my Hypothesis stand?
Based on my research and the findings of the
dispute resolution survey; I maintain my
assertion that:
Adjudication can significantly assist Abu
Dhabi in achieving its Estidama goals!
63
October 2012
End of Presentation
Questions
Learning
Integration
October 2012
64
32
October 2012
Afterward
Your response will form part of an article on
the survey and following CPD presentation; to
be published in the ICES Civil Engineering
Surveyor magazine. This article will also be
used as part of my dissertation for a Masters
Degree in Construction Law and Arbitration.
65
October 2012
Bibliography
Kindly note the following that have been cited
throughout this presentation:
(1.0) Crook JA & Betancourt JC, What is Alternative
Dispute Resolution (ADR)? (CIArb, London WC1A 2LP,
2010).
(1.1) Ibid. @ p. 5; citing, Reynolds, Michael et al.
Construction Litigation Practice, (Welwyn Garden City, 2000,
p.57.
(1.2) Ibid. @ p. 19; citing, Forgas Joseph On Feeling Good
and Getting Your Way: Mood Effects on Negotiator
Cognition and Bargaining Strategies, (1998) 74 Journal of
Personality and Social Psychology, p. 565.
(1.3) Ibid. @ p. 15; citing, Menkel-Meadow, Carrie, Lawyer
Negotiations: Theories and Realities-What we Learn from
Mediation, (1993) 56 Modern Law Review, p. 372.
October 2012
66
33
October 2012
Bibliography contd
(1.0) Crook JA & Betancourt JC, What is
Alternative Dispute Resolution (ADR)? ; contd
(1.4) Ibid. @ p. 5; citing, Levine, David, Early Neutral
Evaluation: A Follow-Up Report, (1986) 70 Judicature,
p. 237.
(1.5) Ibid. @ p. 9; citing, Jones, Doug, Expert
Determination in Commercial Contracts in Cato, Mark,
The Expert in Litigation and Arbitration (London, 1999),
p. 789.
(1.6) Ibid. @ p. 9; citing, Wright, Ian, et al. Alternative
Dispute Resolution in Ramsey, Vivian et al.,
Construction Law Handbook (London, 2009), p. 905.
67
October 2012
Bibliography contd
(2.0) Abu Dhabi Urban Planning Council (UPC),
The Pearl Rating System for Estidama, Version 1.0
(UPC, Emirate of Abu Dhabi, April 2010).
October 2012
68
34
October 2012
Bibliography contd
(3.0) Abu Dhabi Commercial Conciliation and
Arbitration
Center
(ADCCAC),
Procedural
Regulations 2005.
(4.0) Gaitskell R QC, Trends dispute resolution in
the credit crunch (Construction Law International
Journal, Vol. 6, issue 3, October 2011) @ p. 6-12.
69
October 2012
Bibliography contd
(5.0) Giblin L, The Art of Dealing With People
(Embassy Books, Mumbai 400 023, 2001); at p. 48.
(6.0) Taddeo D, Notable Quotables 3,000
Quotations from A to Z (Creation House Press,
Florida 32746); at p. 39.
October 2012
70
35
October 2012
Disclaimer
This survey and/or presentation material may not be
used for any commercial purposes whatsoever. The
opinions expressed in this survey and/or
presentation, do not necessarily reflect the views of
the Chartered Institution of Civil Engineering
Surveyors (ICES), its Council of Management or
other committees or members, or those involved in
conducting the survey. No material may be
reproduced in whole or in part without the written
permission of the ICES.
END.
October 2012
71
36