International Construction Law Review
THE “BEST” METHOD OF RESOLUTION OF CONSTRUCTION DISPUTES: ELUSIVE OR ILLUSORY?
DR DONALD CHARRETT
BE, LLB, M Const Law, Ph D, FIE Aust, MIAMA
1
“An ordered efficient dispute resolution mechanism leading to an enforceable award or judgment by the adjudicator, is an essential underpinning of commerce. Disputes arising from commercial bargains are unavoidable. They are part of the activity of commerce itself. Parties therefore often deal with the possibility of their occurrence in advance by the terms of their bargain.”2
“ … honest business people who approach a dispute about an existing contract will often be able to settle it. This requires an honest and genuine attempt to resolve differences by discussion and, if thought to be reasonable and appropriate, by compromise, in the context of showing a faithfulness and fidelity to the existing bargain.”3
INTRODUCTION
The argument about what is the “best” method of resolution of construction disputes has been a topic of discussion at recent construction law conferences, if perhaps somewhat tongue-in-cheek. For example, at the Second International Construction Law Conference in London in 2008, there was a debate entitled “Arbitration—is it the best form of dispute resolution?”
At the IBA Vancouver Conference in 2010, the International Construction Projects Committee ran a session entitled “Construction dispute resolution—is it broken or can it be fixed?” The questions posed in the publicity for that session are typical of the search for the “best” dispute resolution method:
- Is 21st-century arbitration too much like litigation?
- Is it failing to deliver cost-effective and timely decisions?
- Should arbitration be more like adjudication?
- Should tribunals have more inquisitorial powers?
- Is disclosure necessary in every arbitration?
- Should arbitrators be able to direct what evidence is heard?
1 Melbourne TEC Chambers.
2 Comandate Marine Corporation v. Pan Australia Shipping Pty Ltd [2006] FCAFC 192, 157 FCR 45, 95 [102], per Allsop JA.
3 United Group Rail Services Ltd v. Rail Corporation New South Wales [2009] NSWCA 177, [70], per Allsop JA.
Pt 1] Resolution of Construction Disputes
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