International Construction Law Review
INTRODUCTION
DOUG JONES, AO
HUMPHREY LLOYD
This edition of The International Construction Law Review (now in its 30th year of publication) begins with an interesting proposal by Christian Stubbe, Rechtsanwalt, Heidelberg, Germany, and Michael Wietzorek, Referendar at the Regional Court, Krefeld, Germany (at page 4). Stubbe and Wietzorek have devised an alternative to the more traditional dispute board (DB) model that they believe overcomes all the perceived disadvantages of traditional DBs. In order to deal with perceived issues with the efficacy and cost of DBs, Stubbe and Wietzorek propose the “one plus one” model, where a single person is appointed as a DB at the beginning of the project. If disputes arise that are outside the appointee’s areas of expertise, the appointee may appoint a relevant expert to the DB as a temporary member. The permanent member and the temporary member will come to a joint decision or, if they are unable to do so, the permanent member will have a deciding vote, but the temporary member will provide a dissenting opinion. This model certainly has its merits and is a valuable contribution to the growing body of literature about DBs.
Next, Dr Stéphanie van Gulijk, of Tilburg University, The Netherlands, tackles the problem of communication between the various parties of a construction project (at page 16). Dr van Gulijk suggests that increased levels of communication could have a significant positive impact on safety in complex building projects. After canvassing the current law in The Netherlands with regard to communication obligations for construction project participants, Dr van Gulijk suggests three ways that communication could be enhanced: increased regulation, ICT solutions and the implementation of a supervising constructor. Of these solutions, Dr van Gulijk argues that increased regulation is an outdated concept, and that we should instead be looking to solutions such as Building Information Modelling (BIM), VISI communication and Systems Engineering to encourage communication within a construction project.
Olivier Kott’s article, “The Benefits of a ‘Civil’ Approach in International Arbitration” (at page 29) makes a valuable contribution to the global discussion of more effectively managing costs in arbitration. Olivier Kott is a Senior Partner of Norton Rose Canada LLP. His thesis is that parties should incorporate civil law principles into their arbitration agreements, such as an obligation of good faith and co-operation with each other. Under Quebec’s civil law code, parties have an obligation to share with the other party all relevant information and evidence in their possession and under their control. Kott sees this as a preferable alternative to the fiercely adversarial approach often found in arbitrations, with extensive, prolonged and expensive discovery processes. Kott acknowledges that, even in Quebec where these obligations are imposed on litigants, resolving the issues of time and cost in civil proceedings continues to be a work-in-progress.
The International Construction Law Review [2013
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