Arbitration in Construction Argument Essay

Arbitration in Construction Arguments A Procedural and Legal Overview


A Procedural and Legal Guide



BE (Civil) (UNSW), LLB (Hons), MBA, CLP, MIEM, PEng (M) Advocate and Solicitor

A paper based on a lecture sent on twenty four May 2003 in Seremban to The Institution of Technical engineers, Malaysia (Negri Sembilan Branch)

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INTRODUCTION Contrary to public opinion and expertise, arbitration is definitely not the only means of resolving disputes arising from construction agreements. 1 In comparison to other means of dispute quality, arbitration as a way of managing disputes really does however possess well-defined and usually well-understood components: this enables it to gain identification as living in its extremely definite place in the industry of argument resolution " industry”. Further more, even though there exists some chafing to arbitration's monopoly in standard forms of construction contracts as the sole and compulsory means of question resolution, it will not be wrong to mention that settlement as a means of resolving development industry conflicts is at the moment relatively well-entrenched. Besides, or because of this, there is also the legislative protection and control pertaining to arbitration primarily in the form of Settlement Act 1952 (hereinafter termed as " the 1952 Act”). That is the reason for what reason apart from arbitration and lawsuit, the rest of the argument resolution components are along referred to as Alternate Dispute Image resolution (or ADR for short). This paper is a short overview of the legal and procedural landscape of arbitration from its commencement to it is conclusion and thereafter. Being an overview, this paper can not be treated while an exhaustive treatment of the niche, nor is this an attempt so to do: in depth and respected expositions is available elsewhere. two

See, for an overview of other challenge resolution systems, Oon Chee Kheng, Resolution of Construction Industry Arguments – An understanding being a paperback on a lecture presented to The Institution of Engineers, Malaysia (Negri Sembilan Branch) about 24 Might 2003. two For example , Sir Michael J Mustill and Stewart C Boyd, Legislation and Practice of Commercial Arbitration in England, Second Edition (1989) (hereinafter termed as " Mustill and Boyd”). Sir Michael jordan J Mustill is later on to be Lord Mustill, Master of Charm in Normal, House of Lords. CK OON & CO. Promoters and Solicitors 1

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Arbitration in Construction Arguments A Procedural and Legal Overview

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THE NATURE OF ARBITRATION The 1952 Action does not specify arbitration. Settlement as a means of resolving (construction industry) differences must on the other hand be distinguished from other way of dispute quality. For example , in Sports Maska Inc v. Zittrer, 3 the Canadian Supreme Court docket observed that the courts are certainly not bound by language applied and what is described as a professional determination is reality an arbitration. Further more, arbitration as a means of fixing disputes must also be distinguished from other processes such as value or documentation. In the case of Ajzner v. Cartonlux Pty Limited, 4 it is held that the process concerning a reference to a person described as a great " arbitrator” was not a great arbitration although a reference to a valuer to make a dedication in accordance with that person's skill and knowledge. The differentiation is important pertaining to the following reasons: (a) (b) (c) (d) Arbitration is definitely governed by the 1952 Action, ADRs are certainly not. An arbitrator is immune from legal suits; 5 whereas there is certainly potential legal responsibility for valuer, certifier and expert. Decisions of an arbitrator, valuer, certifier and expert have different legal effects and consequences. An arbitrator will have to observe strictly the rules of natural rights whereas a valuer, certifier or an expert may not need to.

In Collins v. Collins, 6 Romilly MR said, " A great arbitration is actually a reference to the decision of one or more persons, possibly with or without an umpire, of a particular matter in...

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