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THE UNIVERSITY OF SALFORD

School of the Built Environment

MSc [Quantity Surveying] Sri


Lanka

Dispute Resolution Methods in Sri Lankan


Construction Industry with Emphasis on
the Adoptability of Permanent Dispute
resolution Boards (PDRB) for Major
Works

Edmond Hettigoda

2014

Contents

Dedication

From page to
Page
ii

Abstract

iii

Abbreviations

iv

CHAPTER ONE Introduction Problem Statement and


Objectives of the Study
1.0
1.1
1.2
1.3

Problem Statement and Objectives of the Study


Background
Conceptual Framework
Organization of the Study

CHAPTER TWO - Review of the Focal Literature


2.1 History of Alternate Dispute Resolution
2.2 Types of ADRs
2.3 Dispute Review Boards (DRBs)
2.4 Dispute Resolution Board Foundation.
2.5 Use of DRBs in Sri Lankan Construction Industry
2.6 Unique Features of Permanent DRB

1-1
2-4
5-4
5-5

6-6
7-8
9-11
12-13
14-16

CHAPTER THREE - Research Methodology


3.1 Review of selected literature
3.2 Identification of Populations
3.3 Selection of Samples
3.4 Formulation of the Survey Instrument
3.5 Data collection
3.6 Data Analysis

17-23
23-23
24-25
25-27
28
28-31

CHAPTER FOUR - Data Analysis and Findings


4.1 Response Rate
4.2 Data Analysis

32
33-60

CHAPTER FIVE - Conclusions, Discussion and


Recommendations
5.1 Conclusions
5.2 Discussion
5.3 Recommendations

61-69
70-71
71-72
1

References

72-74

Annexures

75-81

This
work
is
dedicated to my
Boss, Dr Surath
Wickramasinghe
firstly for giving
me
the
opportunity
to
enter
the
construction
field,
secondly
for
the
trust
placed over the
past 36 years by
pushing me up
on the ladder
and lastly for
compelling
me
and
fully
sponsoring
me
to undertake this
study.

ABSTRACT
The objective of this study to review Dispute Resolution
Methods in Sri Lankan Construction Industry with Emphasis on
the Adoptability of Permanent Dispute resolution Boards
(PDRB) for Major Works. With the increasing of the construction
projects, the construction industry of Sri Lanka needs a fast
and cost effective dispute resolution method. Drawbacks of
litigation have opened up the Alternative Dispute Resolution
(ADR) methods to settle construction disputes.
Dispute Avoidance Procedures which include Dispute Review
Board (DRB) and Dispute Adjudication Board (DAB) are widely
used in the dispute resolution of the construction industry since
those procedures are encourage to resolve construction
disputes at site level. After 30 years civil war in the north and
east provinces in Sri Lanka, the foreign donor agencies have
funded for the economic infrastructure development projects.
DAB is used in Sri Lanka under the FIDIC 1999 (Red Book)
specially for the foreign funded development projects.
Five point likert scale type questionnaire was sent to 50
respondents identified by Judgment Sampling method from the
identified population comprising Employers, Consultants,
Contractors and Arbitrators including lawyers and claim
consultants. Data was analysed on the basis of Mean Weighted
Average.
A questionnaire survey was carried out among contractors,
consultants employers and construction related persons with
legal backgrounds organizations. The research findings
revealed a dis-satisfaction with current Arbitration Practice and
showed trust on PDRBs. Setting up Regulatory Institute for DRB
found highly desirable.

ABBREVIATIONS

ADR

- Alternate Dispute Resolution

DAB

- Dispute Adjudication Boards

DRB

- Dispute Resolution Boards

DRBF

- Dispute Resolution Board Foundation

FIDIC
Engineers

- The International Federation of Consulting

ICC

- International Chamber of Commerce

ICLP

- Institute for Development of Commercial Law

ICTAD
- The Institute for Construction Training and
Development
MDB
NCASL
PDAB

- Multilateral Development Banks


- National Construction Association of Sri Lanka
- Permanent Dispute Adjudication Board

SDB

- Standard Bidding Documents

SLNAC

- Sri Lanka National Arbitration Center

CHAPTER ONE
1.0 Problem Statement and Objectives of the Study
Due to the lengthy process and associated high costs, litigation
has earned the perception of inefficiency in the minds of the Sri
Lankan Construction Industrys stakeholders be it Contractors,
Consultants or Employers. In the early days the disputes were
settled informally at site or at senior management level by the
Contractor and the Employer with the good offices of the
Consultant (Engineer) acting as the expert of the subject.
However due to the complexity of modern construction
contracts this practice is found inadequate for a solution
acceptable to the parties to a dispute. Therefore, varieties of
Alternate Dispute Resolution (ADR) methods have been
adopted in the Sri Lankan Construction Industry while the most
common method being Arbitration. Introduction of the
Arbitration Act in 1995 facilitated the promotion of arbitration
immensely. There is a provision in the act to the effect that no
court proceedings can commence if there is an arbitration
clause in the Agreement. This made Arbitration virtually
compulsory for Sri Lankan Construction Contracts as almost all
standard contract documents adopted by Sri Lankan
Construction Industry contain an Arbitration Clause. Regulatory
functions of the Arbitration including Training of Arbitrators
were established in post 1995 period with the establishment of
institutions such as the Institute for Development of
Commercial Law (ICLP), Sri Lanka, and the National Arbitration
Center (SLNAC)
However, Arbitration in Sri Lankan Construction Industry had
drawbacks in the recent past as opined by Wijeratne (2006)
that the one of the main concerns comprised the transportation
(applying) of court procedure to arbitration, resulting in
inordinate delay and defeating the main objective of
Arbitration. He also noted that there are trends and practices
which are not compatible with modern arbitration practices in
1

the developed countries. Abeynayake & Weddikkara (2013)


observed that dissatisfaction being due to the perceived
complexity, slowness and expense of the Arbitration Process.
Pre-Arbitral status of the Engineers decision has been removed
from the Contract documents published recently by the
Institute of Construction Training and Development (ICTAD) in
their SBD/02 2007, and in the MDB (Multilateral Development
Banks) harmonized version of FIDIC Red Book (Pink Book) by
the multilateral donor and lending agencies. The above
constituted the vast majority of large scale contracts in Sri
Lanka. Introduction of the above named contract documents
required the establishment of Dispute Adjudication Boards
(DAB) at the commencement of a Construction Contract.
However as the concept of the Dispute Boards is new to the Sri
Lankan Construction Industry, the aim of this Study is to
investigate the adoptability of Permanent Dispute Adjudication
Board (PDAB) in the Industry.
In this context it is necessary to have the following objectives in
the Study.
To review the alternate dispute resolution (ADR) methods
applied in large scale contract in Sri Lanka and in the other
parts of the world.
To examine the advantages/dis-advantages of ADR with
particular emphasis on PDAB.
To investigate and review the obstacles that may be
encountered in adopting PDAB.
To make recommendations to further improve the
adoptability of PDABs in Sri Lankan Construction Industry.

1.1 Background
In the post independent era the Sri Lanka Construction Industry
has evolved from its primary stage to be abreast with the
Construction Industry in the Asia-Pacific region. Subsequent to
2

the establishment of the Institute for Construction Training and


Development (ICTAD), the National Construction Association of
Sri Lanka (NCASL) was established in 1981. The establishment
of both Institutions was made consequent to a World Bank
funded project to establish regulatory functions as well as
development of the Construction Industry in Sri Lanka. The
country experienced a Construction boom with the overall
policy shift to liberalize the economy, after a closed economy
that prevailed up to 1977, and the need for a Regulatory Body
in it was as a result of same
Currently, Sri Lanka is evolving into a status; similar to what
Asia-Pacific countries experienced in 1990 .This is as a result of
the end of a 3-decade civil war, in 2009. ICRA Lanka (2011)
noted that a large number of both public sector and private
sector investments over 150 billion rupees (USD one billion
Approx.) was estimated in the construction industry. The scales
of the projects required the involvement from International
Contractors and Consultants, as per the choice of the Investors.
In the year 1995, Sri Lanka enacted the Arbitration Legislation
No Act 11 of 1995, being the first such legislation in South-Asia
Region. (Wijeratne, 2006)
The Arbitration Act (No 11 of 1995) was readily embraced by
the Construction Industry as an Alternate dispute Resolution
(ADR) method. The Act had influenced the Alternate Dispute
Resolution Methods dramatically in the Sri Lankan Construction
Industry. It made Arbitration a popular means of dispute
resolution in the Sri Lanka Construction Industry. Abeynayake
and Weddikkara (2013).
As noted previously, the Sri Lankan Construction Industry is in
the process of evolving to be abreast with that of the developed
countries with International Contractors and Consultants
playing a substantial role. It is therefore prudent to seek speedy
and inexpensive methods to resolve Construction Disputes.
The Sri Lankan Construction Industry mainly uses the Standard
Bidding Documents (SDB/ 02) published by the Institute of
3

Construction Training and Development (ICTAD) and the RED


Book of the International Federation of Consulting Engineers
(FIDIC Red Book) for Major Construction works.
Significant development in the area of dispute resolution is the
introduction of the MDB (Multilateral Development Banks)
harmonized version of FIDIC Red Book (Pink Book) by the
multilateral donor and lending agencies. By making use of
same being mandatory in their projects Multilateral
Development Banks spearheaded the introduction of Dispute
Resolution Boards (DRB) in the Sri Lankan Construction
Industry.
However, Decisions of DAB are not binding and a dis-satisfied
party may refer the dispute to Arbitration as per the aforesaid
Conditions of Contracts.
Abeynayake. and Weddikkara (2011), have noticed significant
advantages of DAB practice but have identified certain
obstacles in reaping the full benefits from it. In addition,
Ekanayake K. (2013) opines that it is the expectation of Sri
Lankan Contractors that the DAB member appointed by the
Contractor should only look after the interests of the Contractor.
The dearth of competent members who fully understand the
process of DRB, lack of a Legal support system, and the
absence of governing procedural rules, comprised the areas of
lacuna highlighted in both aforementioned publications.
Since PDABs are mandatory in large scale Multilateral Bank
/Donor funded projects, Sri Lankan Construction Industry is not
unaware of the Advantages/Disadvantages of same. ICTAD
SBD/02 was revised in 2007 to include the provision of PDAB to
be in line with FIDIC Pink Book However it is not fully embraced
by the Sri Lankan Construction Industry in other locally and
internationally funded projects. Thus the advantages of the
PDRBs remain untapped. It is therefore prudent that research
be carried out to:
1. Identify why the PDABs are not widely accepted as an
Alternate Dispute Resolution method.
4

2. Determine what action to be taken to eliminate obstacles


that is identified under 1 above.
3. Ascertain, if legislative and/or Institutional changes are
required.
Danuri et al (2012) identified five attributes for successful and
well received ADR method as
a) Faster, less procedural, cost effective & enforceable
b) Regulation & governments support
c) Professionalism & ethics
d) Training
e) Facility(regulatory Body)
Research needs to be focused on the aforementioned
attributes.

1.2 Conceptual Framework


As previously mentioned, the Aim of this research is to
investigate the adoptability of PDABs for the major construction
work in Sri Lanka. There are two (one Nationally and one
Internationally) accepted Standard Bidding Documents
currently mandated for use in Sri Lanka by the Government of
Sri
Lanka
and
Multilateral
Development
Banks(MDB)
respectively. Therefore, researching the perceptions of the
construction industry players to adopt same in all projects
became appropriate its Survey results thus constituted
attitudes, opinions and behaviors and were useful in uncovering
patterns and trends.
In order to quantify the study problem by way of generating
numerical data or to transform the attitudes, opinions and other
variables to useful statistics and to generalize the results from
sample populations Quantitative research method has been
adopted. While the Judgment sampling has been be made to
select the respondents.
Questionnaire survey consisting
5

Structured Questions has been formulated. Responses were


called for in a Likert Scale (five point). Data Analysis was made
on the basis of Mean Weighted Rating. As the survey studied
the known variables such as years of experience in the
industry; level at the management structure variation sampling
method was applied.

1.3 Organization of the Study


The study has been presented in five Chapters. Chapter one
has enumerated the introduction, problem statement, and
organization of the study. Chapter two dealt with review of
literature related to Alternate Dispute Resolution (ADR)
methods with emphasis of PADBs. The Methodology and
procedure for selecting sample populations and data gathering
are presented in the Chapter three. Chapter four shows the
results of data analysis and the outcome form the study.
Chapter five contains a summary of the study and its findings,
conclusions, a discussion and recommendations.

CHAPTER TWO
Review of the Focal Literature

2.1 History of Alternate Dispute Resolution


Danuri et al(2012) identified that the oldest dispute resolution
method being litigation. They also opined, after a literature
review of the subject, that litigation, despite being capable of
meting out justice, contractors resist same due to several
reasons. These are not only confined to excessive costs and
time delays but also to other business considerations such as
fear of losing relationships and potential customers staying
away. They also noted that it has been always the contractual
requirements that both contracting parties to achieve
settlement of dispute without going to the final and binding
resolution method, such as arbitration or litigation, by firstly
referring to a multi-tier dispute resolution mechanism either
voluntarily or involuntarily.
Mackie. et al (2011) states that the origins of Alternate Dispute
Resolution goes back to 400 BC where Athens Instituted the
position of a public arbitrator to relieve the workload of courts
The history of Alternative Dispute Resolution forum at
international level can be traced back from the period of
Renaissance, when Catholic Popes acted as arbitrators in
conflicts between European countries. Many international
initiatives are taken towards alternative dispute resolution. The
growth of international trade is bound to give rise to
international disputes which transcend national frontiers and
geographical boundaries. ADR has given fruitful results not only
in international political arena but also in international business
world in settling commercial disputes among many cooperative houses. ADR is now a growing and accepted tool of
reform in dispute management in American and European
commercial communities. ADR can be considered as a cooperative problem-solving system. Schapiro (1981), as quoted
by Gould (2004) identified that there are two ends to the
7

dispute resolution spectrum. One being litigation (Courts) and


the other being Settlement. He goes on to assert that the
former fits almost none of the societies.
Alternative Dispute Resolution means parties attempting to
resolve disputes by not resorting to litigation. Gould (2004)
provided an overview of dispute resolution techniques. Tucker
(2005) in his overview of Alternative Dispute Resolution
Methods in the Construction Industry opined that ADR methods
are powerful and effective tools. He further reasoned that most
companies usually have extremely solid reasons to prefer
litigation over ADR.
It is therefore prudent to conclude that the practice to resort to
Alternate Dispute Resolution Methods for Construction disputes
is a time tested procedure by the Industry stakeholders in
Construction, as they are not satisfied with the litigation
process. Furthermore, Internationally accepted Contract
Documents by the Federation of Consulting Engineers (FIDIC)
New Engineering Contracts (NEC), Joint Contracts Tribunals
(JCT) includes Arbitration as an alternative dispute resolution
method.

2.2 Types of ADRs


Study of literature revealed that several types of ADRs are used
in the Construction Industry. Harmon (2003), Agarwal (2001).
Studies by these authors have discussed at length about the
alternative methods and the following have been identified as
commonly practiced methods of ADRS
Arbitration - one of the oldest methods of ADR and the
binding nature of its award identified in most of the
countries.
Conciliation A method of ADR based on agreements by
mutual consent.
Mini-Arb- Where the neutral adviser informs the parties
about the respective strengths and weaknesses of their
claims. This method is normally a time bound process.
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Expert Assessment - System of appointing experts


wherein the experts are not governed by any rules of
procedures and do not give awards or judgments, but give
only opinions.
Dispute Review Boards (DRB) Common in long term
contracts, considered as fast, inexpensive and avoids
disruption of the construction work..
The most popular form of ADR practiced in Sri Lanka is
Arbitration, and construction disputes are generally settled
through
Arbitration
Talgodapiliya.
(2010).
Whilst
the
Contractors and Employers adopt several other methods of ADR
,Talgodapitiya was of the view that resolving a dispute after a
project has been completed, with the involvement of lawyers,
Judges, Arbitrators and others who are far removed from the
actual project, cause
excessive costs and delays. The
Association of Consulting Engineers of Sri Lanka is strongly
lobbying for Permanent Dispute Boards for major contracts
(value exceeding Rs 600 Million
Sri Lanka. Mendis (2013)

Advantages/Dis-advantages of ADR
The literature review shows that the use of ADR has been
discussed at length. The discussions and researches conclude
that the advantages of ADR are much higher than the
disadvantages.
Gould
(2004)
identified
the following
advantages and disadvantages of ADR for which many other
writers agree with slight variations of opinion. The advantages
identified by Gould are;
Maintains a Business Relationship:
Speed
Lower Cost
Confidentially
Flexibility
Greater Satisfaction
9

Disadvantages identified are:


I will disclose my hand
There is pressure to settle
Impression of weakness or liability

2.3 Dispute Review Boards (DRBs)


Origin of dispute review boards goes back to the year 1975 on a
tunnel project in USA. The process was reported to have
received well since then and used in a number of other projects
in its first decade in operation. Hydro project in Honduras, was
the first International project to use DRB.
Agarwal(2001) identified few interesting features in DRB which
are not found in other ADR methods. First, the Dispute Review
Board generally consists of three members. Second, the
Employer and the Contractor, both have a right to select one
member each on the Dispute Review Board. Third, the third
member of the Dispute Review Board is selected by the two
selected Members. Fourth, most of the actions like selection of
a Member, appointment of a Member, etc., have to be taken
within the prescribed time frame, but he should be approved by
the parties. Fifth, the Members of the Dispute Review Board,
before they can assume office, have to sign a Declaration of
Acceptance. Sixth, the Dispute Review Board has power only to
make Recommendations to the parties. Seventh, it is not
bound by the rules of procedure or evidence. Eighth, if either
party does not express its disagreement with the
recommendations of the Board within 14 days of its receipt, the
recommendations become final and binding on the parties to
the agreement Ninth, the recommendations of the Dispute
Review Board are not considered secret or confidential. The
clause specifically provides that the recommendations of the
Board shall be admissible as evidence in any subsequent legal
or judicial proceedings between the parties like arbitration,
10

litigation, etc. Last, if the parties so agree, a Dispute Review


Board can also act as an arbitral tribunal.
Abeyesinghe and Weddikkara (2013) also shared the same
sentiments about DRBs when describing advantages and
disadvantages of Dispute Review Board (DRB) process.
Bunni(2005) identified additional advantages of DRB in detail
and mentioned that DRB achieved much success in
comparatively short time due to significant advantages of DRB
against that of traditional methods.
Mackie. et al (2011) states that the spread of DRB systems
were noticed, firstly in the common law countries such as
United Kingdom, Canada, Australia and New Zealand and then
in emerging countries such as Sri Lanka, India and China. Sri
Lanka introduced Arbitration Act No 11 of 1995. Abeyenayake
and Weddikkara( 2013) found that this Act together with other
established institutions such as Institute for Development of
Commercial Law(ICLP), Sri Lanka Arbitration Center (SLNAC)
and International Chamber of Commerce (ICC) facilitate the
Alternative Dispute Resolution (ADR) in Sri Lanka. Use of other
methods of ADR is informal in nature and very little reliable
data is available. However, direct negotiations between the top
management of the parties do happen privately to resolve
disputes.
The process involved in DRBs is to have an independent board
of three people to evaluate the disputes as they occur in the
Construction process Gould. (2004).
There are three different types of Dispute Boards identified by
Gould. They are:
Dispute Review Boards (DRB)
Dispute Adjudication Boards (DAB)
Combined Dispute Boards
Bunni (2005) identified that the nature of Dispute Review Board
(DRB) is more consensual or amicable than other methods. The
nature of DAB is of a decision making role as that of an
11

Engineer vested in the FIDIC Red Book. The combined Dispute


Boards concept was developed by International Chamber of
Commerce (ICC) and it intends giving a choice of flexibility in
selecting between recommendation of DRB and non-binding
decision of a DAB.
Bunni (2005) and several other writers identified the following
varieties of dispute Boards:
1.Single member Dispute Boards
2.Two member Dispute Boards
3.Three member Dispute Boards
4.Appointment
standing DB)

linked

to

specific

date

(Permanent

or

5.Appointment linked to a dispute arisen (Ad-hoc DB)


Hunt (2002) described the operation of the DRB in the following
manner.
A DRB is a purely contractual institution. The clause
providing for the DRB in a contract needs to specify precisely
how it is constituted and how it operates, including all
necessary administrative arrangements. Planning and
forethought will lead to smoother implementation.
A DRB has two primary functions. The first is to become
familiar with the project during its construction (on the
assumption that the contract involves construction). The
second is to resolve, efficiently and cost-effectively, any
disputes referred to it during that phase.
The DRB is usually set up at the commencement of the
project. However, some DRBs have been constituted at other
stages of a project. For example, was a member of a DRB on
a major infrastructure project in Australia, which was
constituted to deal with disputes arising during the operation
phase after construction works were completed.
The usual sort of 'model' for a DRB involves the following:
12

1. The process commences with a call for a nomination from


each party of an independent person experienced in the
work being undertaken.
2. The nominees must usually be acceptable to both parties.
The nominees, once appointed, choose a third person to
be the chairman or chairwoman
3. Once appointed, members of the DRB do not act as
advocates or representatives of the parties who
nominated them. They participate as independent,
impartial members.
4. How the DRB is to operate is specified in the contract
documents, or any procedural rules incorporated by
reference (eg. the DRBF guidelines). The matters which
should be specified include:
a)Duration and timetable for visits of the DRB to the
project (eg. two days per visit, at least one visit per
quarter); b)The procedure for visits; c) Information to be
provided to DRB members (usually the project documents,
all site meeting minutes and progress reports as they
come to hand);(d) the procedure for dealing with disputes,
including when and how they are to be presented and
considered, in what circumstances the DRB's decision
become binding, and in what circumstances reasons are or
are not required;(e) administrative matters, including
remuneration of the DRB members.
He went on to describe advantages of DRBs indicating that The
DRB process can effectively avoid risks or minimize same. The
advantages can be summed up in the old adage that
'prevention is better than cure'.

2.4 Dispute Resolution Board Foundation.


Dispute Resolution Board Foundation (DRBF) is an institution
formed in 1996 in America dedicated to promoting the
avoidance and resolution of disputes worldwide using the
unique and proven Dispute Resolution Board (DRB) method.

13

Objectives of this non-profit making entity is to provide training,


set rules and procedures concerning the DRBs worldwide.
They keep a track of the disputes referred to DRB method of
ADR and hold conferences to promote DRBs in Construction
dispute resolution.
The rules of DBRF are somewhat similar to ICC, UNICTRAL in
composition but yet to be recognized by International
Conventions for its adoptability.

2.5 Use of DRBs in Sri Lankan Construction Industry


As mentioned earlier, the standard conditions used in Sri Lanka
using DRBs are the ICTAD SBD/02 and the FIDIC Pink Book. Both
these documents mandate the use of DRBs. However the
difference is that while FIDIC Pink Book stipulates the
permanent DRB, the ICTAD SBD/02 calls for a single member,
Ad-Hoc, DRB for the projects not exceeding the value of Rs 500
Million (USD 4 M Approx).
However, for the purpose of projects over Rs 500 Million, ICTAD
SBD/02 (2nd edition 2007) also stipulate three member DRB and
follows the FIDIC Pink Book procedure in respect of
appointment, composition etc.
Features of FIDIC forms of contract(Pink Book) are
Mandatory compliance with the DB provisions
Generally, DB is permanently installed at project initiation
and disagreements or disputes are given early attention
and addressed contemporaneously without the need for
the historical reconstruction of events as in arbitration.
The claims and responses are more carefully and
realistically prepared than in arbitration leading to a
higher degree of credibility as spurious matters are
eliminated.
The parties could mutually agree to initially select panel
members with expertise from a range of disciplines, and in
the event of disputes the actual DB members could be
14

appointed from the technical specialists or experts with


appropriate skills in their fields.
Not only do DBs work well, but they indeed work faster,
cheaper, and in a much less contentious manner than
arbitration tribunals.
The decision of a DB decision is binding on the Parties
upon its receipt and the parties shall comply with it
without delay, notwithstanding any expression of
dissatisfaction28; it is admissible as evidence as per
agreement of the parties or to the extent permitted by law
in subsequent arbitration or litigation.
SBD/02 published by ICTAD closely resembles the FIDIC Pink
Book in this respect for projects over Rs 500 M.
Important point to make is that DRBs under the
aforementioned Conditions of Contracts used in Sri
Lanka are Dispute Adjudication Boards and their
decisions are final and binding unless a party to the
contract expressed its dissatisfaction within the
stipulated period by the contract.
Abeynayake & Weddikkara(2013) noted that
In Sri Lankan construction industry, Adjudication
practically proceeds mostly according to FIDIC and ICTAD
conditions of contracts. At the commencement of the
contract, parties agree to the appointment of an adjudicator
known as the Dispute Adjudication Board (DAB) or as sole
adjudicator. The adjudicator or the DAB is required to act as
impartial experts and not as arbitrators. It is therefore
essential that the adjudicator must only be a person suitably
qualified to interpret technical and contractual matters.
According to the current practice of adjudication in Sri
Lanka, there are seven functions and powers of the
adjudicator. The latter can be indicated as follows;
1. Establish the procedure to be applied in deciding a
dispute, within the procedural rule laid down.
2. Decide upon the adjudicators own jurisdiction, and the
scope of any dispute referred to it.
15

3. Take the initiative and ascertaining the facts and matters


required for a decision.
4. Make use of their own specialist knowledge.
5. Decide upon the payment of interest in accordance with
the Contract.
6. Decide to grant provisional relief such as interim or
conservatory measures.
7. Open up, review and revise any opinion, instruction,
determination, certificate or valuation of the engineer
related to the dispute.

2.6 Unique Features of Permanent DRB

Permanent or Standing DRB contains a unique feature that it


promotes Dispute Avoidance. This can be considered as a proactive approach whilst the Ad-Hoc DRB embraces re-active
approach. Gotz (2012) has identified the dual purposes of PDRB
as helping to avoid of disputes and to decide on unavoidable
disputes. He went on to say that this dualistic concept has a
wide acceptance throughout the world and has to some extent
become the international standard in the Construction
Industry.

Chapman (2006) observed that decisions of FIDIC Pink Book


being coercive and binding in the interim. Chapman further
noted that 98% of the decisions of PDABs did not go to
Arbitration or Litigation and of the 2% that went over, 50%of
same upheld the decisions of PDABs.

16

One of the concerns expressed by the writers that affect the


use and the adoptability of PDRBs is the enforcement of
PDBR/PADBs decisions.

Hunt(2002) described one such situation as follows;

DRBs are not a guaranteed recipe for a trouble-free,


litigation-free project. An example of what can go wrong
was the project for the construction of a portion of a
subway for the Los Angeles County Metropolitan
Transportation Authority, which has embroiled the
process in unwelcome litigation. For two years, the
Authority and its contractor litigated the status and
authority of the DRB following the purported termination
of the contract by the Authority.

The parties had had numerous disagreements prior to


the termination. The contractor requested a DRB hearing
following the notice of termination. The Authority did not
participate in the hearing and argued that the DRB no
longer existed by virtue of the termination of the
contract. The DRB conducted a hearing without the
Authority at which the DRB found that the Authority's
purported termination was in breach of the contract. For
a variety of reasons, including the behavior of one
member of the DRB, the California Court of Appeals
upheld the decision of a lower Court to remove the DRB.
The behavior which was criticized by the Court in that
case provides a useful checklist for appropriate conduct
of DRB members, namely:

17

1. Private communications: communications with DRB


members must be made in the presence of both
parties.
2. Perceived bias or lack of objectivity: DRBs have been
successful primarily because of the integrity,
knowledge and experience of the members and the
faith of the principal and contractor in the objectivity
and integrity of the members of the DRB, whose
members must therefore avoid any appearance of
partiality or subjectivity.
3. Appearance of prejudgment of issues: Members of
DRBs must decide disputes or differences which come
before them based on the facts and circumstances of
each particular dispute or difference.
4. Advice beyond the scope of the referred dispute or
difference: Members of DRBs should limit their advice
or recommendations to the particular dispute or
difference formally referred to the DRB. Members of
DRBs are not consultants, peer reviewers or
construction managers. Furnishing technical or legal
advice is not the function of a DRB.

In addition many Lawyers with construction background such as


Glover (2012), Charrett (2009),Gould (2004) had written about
the subject of enforceability of DRB decisions. Gould is of the
view that England, New Zealand, Australia and Singapore may
feel more confident to enforce decisions immediately, following
the approach of the domestic courts in those countries.

Neelakandan
and
Neelakandan(2012)
observed
that
Commercial Law of Sri Lanka is almost wholly based on the
principles of English Commercial Law. Adjudication which is
much similar to DABs are widely accepted in U.K with the
18

introduction of Housing Grants, Construction and Regeneration


Act 1996. Hence enforcing decisions by a PDRB may not cause
a serious Legal issue in Sri Lankan legal context.

However the following dis-advantages have been identified by


Odigie(2009).

Dispute Boards are not arbitral tribunals and their


determinations are not enforceable like arbitral awards.
Under the laws of most countries, the award of an arbitral
tribunal would, almost by definition, not be subject to
review on the merits, whereas a decision of a Board is
subject to such review
While the Determination of the Dispute Boards may
become contractually binding on the parties they are not
enforceable at law, as such.
The DB has not gained international acclaim.
Dispute resolution must be properly tailored, otherwise
due to uncertainty of dispute types and the required
expertise, a large panel of experts in related fields must
be maintained during construction.
The DBs mission is limited to the contracts life, thus a DB
clause does not survive the nullity of the contract.
An arbitral tribunal (appointed to hear the dispute de
novo) is totally free to consider or disregard the
recommendation of the DB.

19

Interestingly it is reported in DBRF forum that JICA conducted


DB promotion seminars and surveys with Japanese ODA loan
recipient agencies in Phnom Penh, Hanoi, Jakarta, Dhaka, and
Colombo in years 2009/2010. However, the outcome of same
is little known.

Literature review shows that having a team of experts readily


available to address any issue that may arise in a construction
contract will help same not to be grown to a proportion of a
fully-fledged dispute thus it can minimize dis-agreements that
may otherwise affect the stakeholders of a project.

20

CHAPTER THREE
Research Methodology
As previously mentioned, the Aim of this research is to
investigate the adoptability of PDABs for the major construction
work in Sri Lanka. There are two (one Nationally and one
Internationally) accepted Standard Bidding Documents
currently mandated for use in Sri Lanka by the Government of
Sri
Lanka
and
Multilateral
Development
Banks(MDB)
respectively. Therefore, researching the perceptions of the
construction industry players to adopt same became
appropriate. Furthermore the attributes influencing the dissatisfaction of the Arbitration Practice were explored and
discussed. As the perceptions of the Stakeholders of the
Sri
Lankan Construction Industry are to be identified in the study,
its most suitable approach under normal circumstances is to
have a Qualitative Approach. However due to the
comparatively small number in the related populations the
Quantitative Approach was considered to be more appropriate.
Accordingly a questionnaire survey on research questions
based on a five point Likert scale was adopted. Data have been
analyzed on Mean Rated rating method.
3.1 Review of selected literature
Learning materials provided by the University of Salford for the
dissertation indicates two different types of research. One being
the Qualitative method and the other being
Quantitative
Method.
3.1.1 Qualitative Method
Qualitative Method enforces a difficulty on a study as it is
not possible to create the control required to quantify the
result. The result of Qualitative method only represents
complex data which cannot isolate singular result or
provide generalization. The findings reflect the qualities of
phenomena rather than the quantification of findings. The
qualitative approach is inductive by its nature. Accordingly
the technique is suitable for theory building rather than
21

theory testing. One of the criticisms of the qualitative


approach is that the views of the researcher influences the
findings produced by qualitative techniques thus, the
findings are not considered to have objectivity. Action
research introduced to counter this omission. However
action research is considered to be an invasive technique
since the researcher deliberately creates a change and
learns from the involvement in the real world scenario
being observed.
The researcher does not remain
disinterested or independent, but acknowledges his role
and tries to understand qualitatively the nature of his
contribution to the phenomenon being observed. The main
issue with the action research is to produce findings which
can be generalized and the result may be challenged
under scientific scrutiny.
3.1.2 Quantitative Method
The quantitative approach, also known as the scientific
method, is based on the assertion that there is a single
reality which is the objective. In a quantitative approach it
is possible to maintain a distance from the subject. This is
highlighted by the fact that the researcher portrays an
image of a dis-interested party and makes the study a
positivistic ideal. Quantitative approaches are considered
to be repeatable, and capable of isolation from reality
without compromising the cause and effect being
researched. Concepts are derived from deduction of the
evidence. It is therefore evident that results can be
quantified. This makes the approach being suitable to
testing of a theory.
3.1.3 Surveys and Questionnaires
Surveys or questionnaires are popular methods to
collecting data for theory testing. The researcher uses a
prescribed conceptual frame of reference, and the
collection of the data is designed to populate the
conceptual framework. There are a number of approaches
including questionnaires, interviews, the examination of
22

documentary evidence, observational studies, the review


of diaries, and schedules. Questionnaires and Interviews
are commonly used by the researchers in their studies.
3.1.4 Sampling
Sample size and the representativeness of the sample
play a vital role in a successful data collection. In order
that the researcher analyze the data confidently it is vital
that sufficient respondents to be selected to maintain the
representativeness. I
There are several methods to select the sample size and
to determine its representativeness. Marshall(1996)
observed that
Choosing a study sample is an important step in
any research project since it is rarely practical,
efficient or ethical to study whole populations.
The aim of all quantitative sampling approaches is
to draw a representative sample from the
population, so that the results of studying the
sample can then be generalized back to the
population. The selection of an appropriate
method depends upon the aim of the study.
Sometimes less rigorous methods may be
acceptable, such as incidental or quota samples,
but these methods do not guarantee a
representative sample. The most common
approach is to use random, or probability
samples. In a random sample the nature of the
population is defined and all members have an
equal chance of selection. Stratified random
sampling and area sampling are variants of
random sampling, which allow subgroups to be
studied in greater detail.
There are three main types of sampling used by the
researchers, they are:
Convenience sample
23

Judgment sample
Theoretical sample
Marshall(1996) described that Convenience Sample being
the least rigorous in terms of selection, cost and the time
but lacks quality of data and intellectual credibility. He
went on to describe that Judgment Sampling which is also
known as purposeful sample, is a common sampling
technique.
Theoretical Sample, according to Marshall is an iterative
process of qualitative study design. In this, samples are
usually theory driven to a greater or lesser extent.
Theoretical sampling necessitates building interpretative
theories from the emerging data and selecting a new
sample to examine and elaborate on this theory. It is the
principal strategy for the grounded theoretical approach
but will be used in some form in most qualitative
investigations necessitating interpretation.
There should be a definition to the unit of analysis in a
research. Unlike quantitative research which normally
requires the sample to be randomly selected, in
qualitative research samples are more often non-random,
purposeful and small in numbers. However, Marshall
(1996) found that Quantitative researchers often fail to
understand the usefulness of studying small samples. This
is related to the misapprehension that generalizability is
the ultimate goal of all good research. According to Lund
Research Ltd (2012) non-probability sampling represents a
valuable group of sampling techniques that can be used in
research that follows qualitative, mixed methods, and
even quantitative research designs. Rather than using
probabilistic methods (i.e., random selection) to generate
a sample, non-probability sampling requires researchers to
use their subjective judgments, drawing on theory (i.e.,
the academic literature) and practice (i.e., the experience
of the researcher and the evolutionary nature of the
research process). Unlike probability sampling, the goal is
24

not to achieve objectivity in the selection of samples.


When following a qualitative research design, nonprobability sampling techniques, such as purposive
sampling, can provide researchers with strong theoretical
reasons for their choice of units (or cases) to be included
in their sample.
Purposive sampling, also known as judgmental, selective
or subjective sampling, reflects a group of sampling
techniques that rely on the judgment of the researcher
when it comes to selecting the units (e.g., people,
cases/organizations, events, pieces of data) that are to be
studied. These purposive sampling techniques include
maximum variation sampling, homogeneous sampling,
typical case sampling, extreme (or deviant) case
sampling, total population sampling and expert sampling.
Each of these purposive sampling techniques has a
specific goal, focusing on certain types of units, all for
different reasons. The different purposive sampling
techniques can either be used on their own or in
combination with other purposive sampling techniques.
3.1.5 Data analysis
Survey monkey (2013) explains the Mean weighted rating
as appear below.
Rating Scale
Rating Scale questions calculate a weighted average
based on the weight assigned to each answer choice. If
needed, weight of each answer can be changed, even
after the survey has collected responses. The rating
average is calculated as follows, where:
w = weight of answer choice
x = response count for answer choice

25

x1w1 + x2w2 + x3w3 ... xnwn


Total
If an N/A column is on Rating Scale question, any N/A
responses will not factor into the rating average.
If a 5-point rating scale question has been used. The
weights assigned to each answer choices are shown in
parentheses
Strongly Disagree (1)
Disagree (2)
Neither Agree nor Disagree (3)
Agree (4)
Strongly Agree (5)
If the research question is What is your view to the
statement Arbitration is the best form of Alternative
Dispute Resolution

26

After collecting responses to the survey, the results will look


something like this.

Strong
ly
Disagr
ee

Arbitratio
n is the
best form
of
Alternativ
e Dispute
Resolutio
n.

20.45
%
9

Disagr
ee

Neither
Agree
nor
Disagr
ee

Agree

Strong
ly
Agree

Tota
l

Averag
e
Rating

27.27%
12

20.45%
9

11.36
%
5

20.45
%
9

44

2.84

The average rating of 2.84 indicates that the average


sentiment among respondents is that Arbitration is not the
best form of Alternative Dispute. The average rating was
calculated as follows:

(9*1) + (12*2) + (9*3) + (5*4) + (9*5)

44
125/44 = 2.84
Ranking
Ranking questions calculate the ranking average for each
answer choice to determine which answer choice was
most preferred overall. The answer choice with the largest
ranking average is the most preferred choice.
The ranking average is calculated as follows, where:
w =weight of ranked position
x = response count for answer choice

27

x1w1 + x2w2 + x3w3 ... xnwn


Total
Weights are applied in reverse. In other words, the
respondent's most preferred choice (which they rank as
#1) has the largest weight, and their least preferred
choice (which they rank in the last position) has a weight
of 1. The default weights cannot be changed.
For example, if a Ranking question has 5 answer choices,
weights are assigned as follows:
The #1 choice has a weight of 5
The #2 choice has a weight of 4
The #3 choice has a weight of 3
The #4 choice has a weight of 2
The #5 choice has a weight of 1
Weights are applied in this way to ensure that when the
data is presented on a chart, it's clear which answer
choice is most preferred.
If N/A option is on the Ranking question, any N/A
responses will not factor into the ranking average.
3.2 Identification of populations
The unit of analysis for this research is the construction
industry players or the social reality contingent therefrom. This
forms the paradigm to be studied with regard to the
perceptions of the Players towards fully embracing the use of
PDRBs in major construction contracts in Sri Lanka.
The study is mainly focused on the adoptability of Permanent
Dispute Resolution Boards for Major works in the Sri Lankan
Construction Industry. it is observed that the populations falling
into the study preview is comparatively small. They belong to
the following five sub-groups
28

General Contractors with C1 grading from ICTAD permitted


to undertake Project over the value of Rs 500 Million (USD
4 Million approx.)
Architects, Engineers and other consultants undertaking
projects over Rs 500 Million. There is no national grading
system available but relevant Professional Bodies regulate
their practices.
Employers or Developers investing in projects over the
value of Rs 500 Million on a regular basis
State Agencies implementing projects over Rs 500 Million
in value on a regular basis. This sub-group mainly handles
Donor funded projects which are mostly Infrastructure
oriented.
Arbitrators, Construction Lawyers and Claim consultants
involved in Construction Claims for Major Works.
The estimated populations of the afore mentioned sub-groups
are as follows
General Contractors with C1 grading from ICTAD has a
population of fifty two as per the ICTAD database.
However there are only about ten actively handling or
have handled contracts over Rs 500 Million in the recent
past.
It is generally known that Architects, Engineers and other
consultants undertaking projects over Rs 500 Million has a
population of about twenty. There is no reliable database
available for this sub-group.
Employers or Developers investing in projects over the
value of Rs 500 Million on a regular basis is also limited to
about twenty. Here too no reliable database is available
State Agencies implementing projects over Rs 500 Million
in value on a regular basis has a population of about
twenty five. Ceylon Electricity Board, National Water
Supply and Drainage Board, Sri Lanka Ports Authority,
Road Development Authority, and the Airport and Aviation
Authority are some of them. Department of Education,
Ministry of Health, Ministry of Economic development,

29

Irrigation Department are the other line ministries that


implement major works.
It is generally known that the population of the subcategory of Arbitrators, Construction Lawyers and Claim
consultants involved in Construction Claims for Major
Works is not more than thirty. There is no reliable
database to verify accuracy.
3.3 Selection of Samples
Despite commonly being used for qualitative research,
Judgment Sampling has been opted to select the samples from
populations. Marshall(1996) opined that , if the subjects are
known to the researcher, they may be stratified according to
known public attitudes or beliefs, and during interpretation of
the data it is important to consider subjects who support
emerging explanations and, more importantly, subjects who
disagree (confirming and disconfirming samples). The main
objective of selecting judgment sampling is to focus on
particular characteristics of an identified population of interest
that can best answer research questions. This described
method represents Maximum Variation sampling. Accordingly
selecting the samples were done on the following basis.
As all populations identified had not more than thirty in
number, ten from each sub-category was selected as probable
respondents. Judgment sampling method was employed to
select the ten respondents from each sub-category.
The respondents must have a minimum of five (5) years
experience in the construction industry. This criterion has been
adopted in a similar research conducted by Abeynayake and
Weddikkara (2013).
The respondents ideally are professionals from the industry who
are routinely involved in the business of administration and
working with construction contracts. The Managing Director or
Project Manager of a Construction company, or other persons
such as the Contract Manager falls into this category. Cheung
and Suen (2002) considered that these respondents, having the
experience, knowledge, good skills and senior managerial
30

positions in the industry were essential, so that their views


provided a good reflection in the field of research However, due
to time and cost constraint, it would be difficult for this study to
use the entire population in the quest of gaining knowledge
about something Sekaran (2006). This is to limit the scope of
the study within a manageable amount of data. Respondents
will be selected from organizations handling construction
contracts over Rs 500million (USD 4.0 Million) each. This is
following the ICTAD threshold for Major contracts in Sri Lanka.
3.4 Formulation of the Survey Instrument
SNAP Surveys (2014) describe the objectives of a quantitative
research as:
In a quantitative research the objective is to quantify
the problem by way of generating numerical data or
data that can be transformed into useable statistics.
It is used to quantify attitudes, opinions, behaviors,
and other defined variables and generalize results
from a larger sample population. Quantitative
Research uses measurable data to formulate facts
and uncover patterns in research. Quantitative data
collection methods are much more structured than
Qualitative data collection methods. Quantitative
data collection methods include various forms of
surveys online surveys, paper surveys, mobile
surveys and kiosk surveys, face-to-face interviews,
telephone interviews, longitudinal studies, website
interceptors,
online
polls,
and
systematic
observations.
A structured Questionnaire has been prepared to include
questions that will reveal perceptions of the respondents on a
several aspects related to adoptability of PDRB or PDAB in the
Sri Lankan Construction Industry. Responses were called for on
a five point Likert scale. There were five main questions
covering the areas such as;

31

1. Satisfaction level of the respondents with regard to


Arbitration process currently practiced in Sri Lanka
with regard to:
Speed of resolution of a dispute
Procedure of the Arbitration
Cost of Arbitration
Acceptability of the decision of Arbitration
2. Perceptions of Respondents concerning
Speed of resolution of a dispute by a DRB
Procedure of the DRB
Cost of DRB
Acceptability of the decision of DRB
3. If permanent DRB provisions are made in the
Contract what will be the opinions of the
respondents in respect of:
Helping to avoid disputes at grassroots level
It will be a waste of money to maintain such a high
level panel
It will promote more disputes
It will be conducive that Dispute Resolution Board is
fully informed about the conditions of site that gives
rise to the dispute from outset.
4. What are the respondents views about the
enforceability of DRB decisions, in the light of DRB
decisions can be challenged in an Arbitration
Enforceability will be easy as DRBS have made their
decisions being fully conversant with site conditions
in a more informed manner
It will be a waste of Time and Money that Arbitration
will re-open and have new proceedings that will take
more time and incur more cost.
DRB process can replace the arbitration if necessary
legislative provisions are made in law

32

5. To improve DRBs respondents ideas were called


for concerning:
Dispute Boards should have an institution to set out
procedures and rules.
Dispute Boards should be recognized by law as an
alternative to the Arbitration Panel
Train more Professionals to be panel members of
DRBs by Government authorities such as ICTAD.
Copy of the research instrument is appearing in annex 1
The survey Instrument has been coded to reflect the identity of
the respondents sub-group. The coding thus applied is as
follows:

General Contractors with C1 grading from


ICTAD.
Architects, Engineers and other consultants
undertaking projects over Rs 500 Million.

Code A
Code B

Employers or Developers investing in projects


over the value of Rs 500 Million on a regular
basis.

Code C

State Agencies implementing projects over


Rs 500 Million in value on a regular basis.

Code D

Arbitrators, Construction Lawyers and Claim


consultants involved in Construction Claims
for Major Works.
3.5 Data collection

Code E

Having identified the respondents to the study by the Judgment


Sampling method, an information sheet was prepared to
include the objectives of the study, anonymous nature of the
respondents, data being kept securely etc.
The information sheet also provided the contact details of the
researcher, contact details of the supervisor and the contact
details of the University Head of Department to enable the
33

respondent to obtain further details and/or to verify the


authenticity of the research if found necessary. Moreover a
consent form was also sent to the respondents to confirm their
willingness to take part in the survey. (see copies in Annex 2)
Upon obtaining the Informed Consent in the aforesaid manner,
the Questionnaire was hand delivered to each respondent.
Copy of the Ethical approval received from the university is in
annex 3.
The respondents were requested to complete the
Questionnaire within a week of receipt of same. Respondents
were also contacted via telephone and via e-mail to ascertain if
they fully understood the Questionnaire. A number of
respondents requested the researcher to clarify Question no 3
of the Questionnaire particularly as they were not
comprehensively knowledgeable about full time DRBs.
Clarification was provided citing the ICTAD SBD/02 and FIDIC
Red Book by reading out relevant clauses and explaining the
contents there in. The completed Questionnaires were handpicked to avoid postal delays, upon expiry of the one week
period.

3.6 Data Analysis


As explained in the section 3.1.5 the collected data was
analyzed mainly using the Mean Weighted Average Scale. The
objective to adopt this method was to translate concepts into
measurable factors.

In the data analysis the following aspects were considered


Response rate
34

Demographic data
Findings

Data has been analyzed with a view to obtain answers to the


research problems as identified in Section 1.0 of Chapter One.
Emphasis was also made to analyze data to be in line with the
five attributes of success for a ADR method as described in the
Section 1.1 of Chapter One.

The responses to each Question were analyzed to realize the


Mean rating using the following formula, as previously
discussed.

x1w1 + x2w2 + x3w3 ... xnwn


Total

Where x= w = weight of answer choice


x = response count for answer choice

5-point rating scale question was used with the weights


assigned to each answer choices as follows shown in
parentheses
35

Strongly Disagree (1)


Disagree (2)
Neither Agree nor Disagree (3)
Agree (4)
Strongly Agree (5)

Concluding Remarks

This chapter has discussed the selection of the survey method


(qualitative or quantitative). As explained, the Quantitative
method was preferred due to its ability to transform data to
measureable units.
Review of literature related to Quantitative research method
has also been done herein in order to ascertain the needs of a
quantitative method in respect of sampling and data analysis.
Thereby, Judgment sampling was selected to obtain reliable
and quality data from a fairly small population consisting five
sub categories.

Preparation of the research Instrument was done on a basis of


five point Likert scale. Questions were formulated to obtain
perceptions of the respondents to the research problems
identified. There were five main questions each having several
sub-sections to achieve the above. To keep the data
anonymous the Questionnaire was prepared in three sections.
36

The first section contained the personal information in a tear-off


manner; The second section being the questionnaire proper
contained no personal information. In the third section (rear-off)
respondents were provided with the opportunity to have a
feedback if they wish so.

No sooner the receipt of filled questionnaires, these were coded


and the parts containing personal information were removed
from the questionnaire and stored securely.

Prior to sending the questionnaire informed consent of the


respondents has been obtained by means of an Information
Sheet / Informed consent form as required in the Ethical
Approval process of the University.

Data analysis has been made on the basis of Mean Weighted


Average scale to obtain Mean Rating and The Ranking Average.
In addition, response rate were analyzed.

Chapter four provides details of the findings from the data


analysis.

37

CHAPTER FOUR
Data Analysis and Findings
The ordinal data collected as described in Chapter four will
be analyzed to obtain results to ascertain the perceptions
/opinions of the respondents to each of the questions The
research questions in this connection are;

1. Satisfaction level of the respondents with regard


to Arbitration process currently practiced in Sri
Lanka with regard to:
Speed of resolution of a dispute
Procedure of the Arbitration
Cost of Arbitration
Acceptability of the decision of Arbitration
2. Perceptions of Respondents concerning
Speed of resolution of a dispute by a DRB
Procedure of the DRB
Cost of DRB
Acceptability of the decision of DRB
3. If permanent DRB provisions are made in the
Contract what will be the opinions of the
respondents in respect of:
Helping to avoid disputes at grassroots level
It will be a waste of money to maintain such a high
level panel
It will promote more disputes
It will be conducive that Dispute Resolution Board is
fully informed about the conditions of site that gives
rise to the dispute from outset.

38

4. What are the respondents views about the


enforceability of DRB decisions, in the light of DRB
decisions can be challenged in an Arbitration
Enforceability will be easy as DRBS have made their
decisions being fully conversant with site conditions
in a more informed manner
It will be a waste of Time and Money that Arbitration
will re-open and have new proceedings that will take
more time and incur more cost.
DRB process can replace the arbitration if necessary
legislative provisions are made in law
5. To improve DRBs respondents ideas were called
for concerning:
Dispute Boards should have an institution to set out
procedures and rules.
Dispute Boards should be recognized by law as an
alternative to the Arbitration Panel
Train more Professionals to be panel members of
DRBs by Government authorities such as ICTAD

4.1 Response Rate


The questionnaire was sent to fifty prospective respondents
who have confirmed their consent. Respondents belong to five
categories. Ten respondents from each category were supplied
with questionnaire.
The responses received from each category are as follows:
Category

No of
questionnair
e sent

No of
responses
received

Code A
Code B
Code C
Code D

10
10
10
10

6
8
5
8

Percentag
e
Responde
d
60%
80%
50%
80%
39

Code E

10

60%

The above reflects an average response rate of 66 percent from


the total sample.
4.2 Data Analysis
Each research question was analyzed, for the five categories of
population discussed earlier separately. Data was analyzed
using the Mean Weighted Average method using the formula
discussed earlier and the results are as follows.
Code A - General Contractors with C1 grading from ICTAD

Research Question

1). a. Are you satisfied with


the
current
alternative
Dispute Resolution Method of
Arbitration practiced in Sri
Lanka Construction Industry
in respect of Time?

Research Question

Not
satisfie
d at all

Not
satisfie
d

Cannot
say

Satisfie
d

Fully
satisfie
d

Not
satisfie
d at all

Not
satisfie
d

Cannot
say

Satisfie
d

Fully
satisfie
d

Total

Averag
e
Rating

1.83

Total

Averag
e
Rating

6
2.33

1). b. Are you satisfied with

40

the
current
alternative
Dispute Resolution Method of
Arbitration practiced in Sri
Lanka Construction Industry
in respect of Procedure?

Research Question

1). c. Are you satisfied with


the
current
alternative
Dispute Resolution Method of
Arbitration practiced in Sri
Lanka Construction Industry
in respect of Cost?

Not
satisfie
d at all

Not
satisfie
d

Cannot
say

Satisfie
d

Fully
satisfie
d

Total

Averag
e
Rating

3.17

41

Research Question

1). d. Are you satisfied with


the
current
alternative
Dispute Resolution Method of
Arbitration practiced in Sri
Lanka Construction Industry
in respect of Acceptability of
decision to parties?

Research Question

Not
satisfie
d at all

Not
satisfie
d

Cannot
say

Satisfie
d

Fully
satisfie
d

Not
satisfie
d at all

Not
satisfie
d

Cannot
say

Satisfie
d

Fully
satisfie
d

2). a. What were your


perceptions of a Dispute
Resolution Board in respect of
Time?

Research Question

Not
satisfie
d at all

Not
satisfie
d

Cannot
say

2). b. What were your


perceptions of a Dispute
Resolution Board in respect of
Procedure?

Research Question

Satisfie
d

Not
satisfie
d

Cannot
say

Satisfie
d

Fully
satisfie
d

Total

Averag
e
Rating

4.00

Total

Fully
satisfie
d

Averag
e
Rating

2.33

Not
satisfie
d at all

Total

Averag
e
Rating

4.00

Total

42

Averag
e
Rating

2). c. What were your


perceptions of a Dispute
Resolution Board in respect of
Cost?

Research Question

2). d. What
perceptions of
Resolution Board
Acceptability of
parties?

Not
satisfie
d at all

Not
satisfie
d

Cannot
say

Satisfie
d

Fully
satisfie
d

were your
a Dispute
in respect of
Decision to

Research Question

3). a. If a Dispute Adjudication


Board is appointed at the
commencement of contract
would you consider that it will
help to avoid dispute at a
grass root level?

Do
not
Agree
at all

Do
not
Agree

Cann
ot say

Agre
e

Fully
Agree

3.50

Total

Averag
e
Rating

4.50

Tota
l

Averag
e
Rating

3.83

43

Research Question

3).
b.
If
a
Dispute
Adjudication
Board
is
appointed
at
the
commencement of contract
would you consider that it will
be a waste of money to
maintain such a panel?

Research Question

3). c. If a Dispute Adjudication


Board is appointed at the
commencement of contract
would you consider that it will
promote more claims by the
contractor?

Research Question

Do
not
Agree
at all

Do
not
Agree

Do
not
Agree
at all

Do
not
Agree

Cann
ot say

Do
not
Agree
at all

Do
not
Agree

Cann
ot say

Cann
ot say

Agre
e

Fully
Agree

Agre
e

Tota
l

Fully
Agree

1.83

Tota
l

Agre
e

Fully
Agree

Averag
e
Rating

Averag
e
Rating

1.67

Tota
l

44

Averag
e
Rating

3).
d.
If
a
Dispute
Adjudication
Board
is
appointed
at
the
commencement of contract
would you consider that it will
be conducive hat Dispute
Resolution Board is fully
informed about the conditions
of site that gives rise to the
dispute from outset?

Research Question

Do
not
Agree
at all

4). a. What are your views


about the enforceability of
DRB decisions, in the light of
DRB
decisions
can
be
challenged in an Arbitration.
It will be easy as DRBS have
made their decisions being
fully conversant with site
conditions.

Research Question

Do
not
Agree
at all

Do
not
Agree

Cann
ot say

Do
not
Agree

Cann
ot say

Agre
e

Fully
Agree

Agre
e

4.00

Tota
l

Fully
Agree

Averag
e
Rating

3.50

Tota
l

45

Averag
e
Rating

4). b. What are your views


about the enforceability of
DRB decisions, in the light of
DRB
decisions
can
be
challenged in Arbitration. It
will be a waste of Time and
Money that Arbitration will reopen
and
have
new
proceedings that will take
more time and incur more
cost. Site conditions.

Research Question

4). c. What are your views


about the enforceability of
DRB decisions, in the light of
DRB
decisions
can
be
challenged in Arbitration. DRB
process can replace the
arbitration
if
necessary
legislative
provisions
are
made in law.

Research Question

5). a. To improve DRB's


Please indicate that Dispute
Resolution
Boards
should
have an institution to set out
procedures and rules.

Do
not
Agree
at all

Do
not
Agree

Do
not
Agree
at all

Cann
ot say

Do
not
Agree

Cann
ot say

Agre
e

Fully
Agree

Agre
e

2.67

Tota
l

Fully
Agree

Averag
e
Rating

3.17

Tota
l

Averag
e
Rating

4.17

46

Research Question

Do
not
Agree
at all

Do
not
Agree

5). b. To improve DRB's


Please indicate that Dispute
Resolution Boards should be
recognized by law as an
alternative to the Arbitration
Panel.

Research Question

5). c. To improve DRB's Please


indicate that train more
Professional to be Panel
members of DRB's by
Government Authorities such
as ICTAD.

Cann
ot say

Do
not
Agree
at all

Do
not
Agree

Cann
ot say

Agre
e

Agre
e

Fully
Agree

Fully
Agree

Tota
l

3.83

Tota
l

Question No 1

Satisfaction level concerning the time required in Arbitration represents an


average rate of 1.83 and considered very low

Satisfaction level concerning the procedure required in Arbitration is represents an


average rate of 2.33 and considered low
Satisfaction level concerning the cost required in Arbitration is represents an
average rate of 3.17 and considered neither high nor low

Satisfaction level concerning acceptably of decisions in Arbitration is represents


an average rate of 2.33 and considered low

Question No 2

Averag
e
Rating

4.50

The above indicate the following findings concerning the perceptions of Code A - General
Contractors with C1 grading from ICTAD to the research questions Summary of same is
set out below

Averag
e
Rating

Satisfaction concerning Dispute Resolution Board in respect of Time represents an


average rate of 4.00 and considered to be high.

47

Satisfaction concerning Dispute Resolution Board in respect of procedure


represents an average rate of 4.00 and considered to be high.

Satisfaction concerning Dispute Resolution Board in respect of cost represents an


average rate of 3.50 and considered to be neither high nor low.

Satisfaction concerning Dispute Resolution Board in respect of acceptability of


decisions represent an average rate of 4.50 and considered to be high.

Question No 3

If a Dispute Adjudication Board is appointed at the commencement of contract,


agreement level to the statement, that it will help to avoid dispute at a grass root
level represents an average rate of 3.83 and considered to be on the high
side.

If a Dispute Adjudication Board is appointed at the commencement of contract,


agreement level to the statement, that it will be a waste of money to maintain
such a panel represents an average rate of 1.83 and considered to be very
low.

If a Dispute Adjudication Board is appointed at the commencement of contract,


agreement level to the statement, that it will promote more claims by the
contractor represents an average rate of 1.67 and considered to be very low.

If a Dispute Adjudication Board is appointed at the commencement of contract,


agreement level to the statement ,that it will conducive that Dispute Resolution
Board is fully informed about the conditions of site that gives rise to the dispute
from outset represents an average rate of 4.00 and considered to be high.

Question No 4

Agreement level about the enforceability of DRB decisions, in the light of DRB
decisions can be challenged in Arbitration. It will be easy as DRBS have made
their decisions being fully conversant with site conditions represents an average
rating of 3.50 and considered to neither high nor low.

Agreement level about the enforceability of DRB decisions, in the light of DRB
decisions can be challenged in Arbitration. It will be a waste of Time and Money
that Arbitration will re-open and have new proceedings that will take more time
and incur more cost. Site conditions, represents an average rating of 2.67 and
considered to be low.

Agreement level about the enforceability of DRB decisions, in the light of DRB
decisions can be challenged in Arbitration. DRB process can replace the
arbitration if necessary legislative provisions are made in law, represent an
average rating of 3.17 and considered to be neither high nor low.

Question No 5

Agreement to the statement that to improve DRB's there should be an institution to


set out procedures and rules represents an average rating of 4.17 and considered
to be high.

48

Agreement to the statement that to improve DRB's those should be recognized by


law as an alternative to the Arbitration Panel represents an average rating of 3.83
and considered on the high side.

Agreement to the statement that to improve DRB's there should be a mechanism to


train more Professional to be Panel members of DRB's by Government Authorities
such as ICTAD, represents an average rating of 4.50 and considered to be high.

Code B - Architects, Engineers and other consultants


undertaking projects over Rs 500 Million

Research Question

Not
satisfi
ed at
all

Not
satisfi
ed

Canno
t say

Satisfi
ed

Fully
satisfi
ed

Total

1). a. Are you satisfied with


the
current
alternative
Dispute Resolution Method of
Arbitration practiced in Sri
Lanka Construction Industry
in respect of Time?

Research Question

Not
satisfi
ed at
all

Not
satisfi
ed

Canno
t say

Satisfi
ed

Fully
satisfi
ed

Total

1). b. Are you satisfied with


the
current
alternative
Dispute Resolution Method of
Arbitration practiced in Sri
Lanka Construction Industry
in respect of Procedure?

Avera
ge
Rating

2.00

Avera
ge
Rating

1.88

49

Research Question

Not
satisfi
ed at
all

Not
satisfi
ed

Canno
t say

Satisfi
ed

Fully
satisfi
ed

Total

1). c. Are you satisfied with


the
current
alternative
Dispute Resolution Method of
Arbitration practiced in Sri
Lanka Construction Industry
in respect of Cost?

Research Question

Not
satisfi
ed at
all

Not
satisfi
ed

Canno
t say

Satisfi
ed

Fully
satisfi
ed

Total

1). d. Are you satisfied with


the
current
alternative
Dispute Resolution Method of
Arbitration practiced in Sri
Lanka Construction Industry
in respect of Acceptability of
decision to parties?

Research Question

Not
satisfi
ed at
all

Not
satisfi
ed

Canno
t say

Satisfi
ed

Fully
satisfi
ed

Total

Avera
ge
Rating

2.13

Avera
ge
Rating

2.88

50

Avera
ge
Rating

2). a. What were your


perceptions of a Dispute
Resolution Board in respect
of Time?

Research Question

Not
satisfi
ed at
all

Not
satisfi
ed

Canno
t say

Satisfi
ed

Fully
satisfi
ed

Total

2). b. What were your


perceptions of a Dispute
Resolution Board in respect
of Procedure?

Research Question

Not
satisfi
ed at
all

Not
satisfi
ed

Canno
t say

Satisfi
ed

Fully
satisfi
ed

Total

2). c. What were your


perceptions of a Dispute
Resolution Board in respect
of Cost?

Research Question

Not
satisfi
ed at
all

Not
satisfi
ed

Canno
t say

Satisfi
ed

Fully
satisfi
ed

Total

2). d. What were your


perceptions of a Dispute
Resolution Board in respect
of Acceptability of Decision

4.00

Avera
ge
Rating

3.63

Avera
ge
Rating

3.50

Avera
ge
Rating

3.88

51

to parties?

Research Question

Do not
Agree
at all

Do not
Agree

Canno
t say

Agree

Fully
Agree

Total

3).
a.
If
a
Dispute
Adjudication
Board
is
appointed
at
the
commencement of contract
would you consider that it
will help to avoid dispute at
a grass root level?

Research Question

Do not
Agree
at all

Do not
Agree

Canno
t say

Agree

Fully
Agree

Total

Avera
ge
Rating

4.00

52

Avera
ge
Rating

3).
b.
If
a
Dispute
Adjudication
Board
is
appointed
at
the
commencement of contract
would you consider that it
will be a waste of money to
maintain such a panel?

Research Question

Do not
Agree
at all

Do not
Agree

Canno
t say

Agree

Fully
Agree

Total

3).
c.
If
a
Dispute
Adjudication
Board
is
appointed
at
the
commencement of contract
would you consider that it
will promote more claims by
the contractor?

Research Question

Do not
Agree
at all

Do not
Agree

Canno
t say

Agree

Fully
Agree

Total

3).
d.
If
a
Dispute
Adjudication
Board
is
appointed
at
the
commencement of contract
would you consider that it
will
be
conducive
hat
Dispute Resolution Board is
fully informed about the
conditions of site that gives
rise to the dispute from
outset?

1.75

Avera
ge
Rating

1.88

Avera
ge
Rating

4.13

53

Research Question

Do not
Agree
at all

Do not
Agree

Canno
t say

Agree

Fully
Agree

Total

4). a. What are your views


about the enforceability of
DRB decisions, in the light of
DRB
decisions
can
be
challenged in an Arbitration.
It will be easy as DRBS have
made their decisions being
fully conversant with site
conditions.

Research Question

Do not
Agree
at all

Do not
Agree

Canno
t say

Agree

Fully
Agree

Total

4). b. What are your views


about the enforceability of
DRB decisions, in the light of
DRB
decisions
can
be
challenged in an Arbitration.
It will be a waste of Time and
Money that Arbitration will
re-open and have new
proceedings that will take
more time and incur more
cost. Site conditions.

Avera
ge
Rating

3.75

Avera
ge
Rating

2.00

54

Research Question

Do not
Agree
at all

Do not
Agree

Canno
t say

Agree

Fully
Agree

Total

4). c. What are your views


about the enforceability of
DRB decisions, in the light of
DRB
decisions
can
be
challenged in an Arbitration.
DRB process can replace the
arbitration
if
necessary
legislative provisions are
made in law.

Research Question

Do not
Agree
at all

Do not
Agree

Canno
t say

Agree

Fully
Agree

Total

5). a. To improve DRB's


Please indicate that Dispute
Resolution Boards should
have an institution to set out
procedures and rules.

Research Question

Do not
Agree
at all

Do not
Agree

Canno
t say

Agree

Fully
Agree

Total

5). b. To improve DRB's


Please indicate that Dispute
Resolution Boards should be
recognized by law as an
alternative to the Arbitration
Panel.

Avera
ge
Rating

3.75

Avera
ge
Rating

4.13

Avera
ge
Rating

4.00

55

Research Question

Do not
Agree
at all

Do not
Agree

Canno
t say

Agree

Fully
Agree

Total

5). c. To improve DRB's


Please indicate that train
more Professional to be
Panel members of DRB's by
Government Authorities such
as ICTAD.

4.50

The above indicate the following findings concerning the perceptions of Code B Architects, Engineers and other consultants undertaking projects over Rs 500 Million to
the research questions Summary of same is set out below
Question No 1

Avera
ge
Rating

Satisfaction level concerning the time required in Arbitration represents an


average rate of 2.00 and considered very low
Satisfaction level concerning the procedure required in Arbitration is represents an
average rate of 1.88 and considered very low
Satisfaction level concerning the cost required in Arbitration is represents an
average rate of 2.13 and considered to be low.
Satisfaction level concerning acceptably of decisions in Arbitration is represents
an average rate of 2.88 and considered low

Question No 2

Satisfaction concerning Dispute Resolution Board in respect of Time represents an


average rate of 4.00 and considered to be high.

Satisfaction
concerning Dispute Resolution Board in respect of procedure
represents an average rate of 3.63 and considered neither high nor low .

Satisfaction concerning Dispute Resolution Board in respect of cost represents an


average rate of 3.50 and considered neither high nor low.

56

Satisfaction concerning Dispute Resolution Board in respect of acceptability of


decisions represents an average rate of 3.88 and considered to be on the high
side.

Question No 3

If a Dispute Adjudication Board is appointed at the commencement of contract,


agreement level to the statement ,that it will help to avoid dispute at a grass root
level represents an average rate of 4.00 and considered to be high.

If a Dispute Adjudication Board is appointed at the commencement of contract,


agreement level to the statement, that it will be a waste of money to maintain
such a panel represents an average rate of 1.75 and considered low.

If a Dispute Adjudication Board is appointed at the commencement of contract,


agreement level to the statement ,that it will promote more claims by the
contractor represents an average rate of 1.88 and considered to be very low.

If a Dispute Adjudication Board is appointed at the commencement of contract,


agreement level to the statement, that it will conducive that Dispute Resolution
Board is fully informed about the conditions of site that gives rise to the dispute
from outset represents an average rate of 4.13 and considered to be high.

Question No 4

Agreement level about the enforceability of DRB decisions, in the light of DRB
decisions can be challenged in Arbitration. It will be easy as DRBS have made
their decisions being fully conversant with site conditions represents an average
rating of 3.75 and considered neither high nor low.

Agreement level about the enforceability of DRB decisions, in the light of DRB
decisions can be challenged in Arbitration. It will be a waste of Time and Money
that Arbitration will re-open and have new proceedings that will take more time
and incur more cost. Site conditions, represents an average rating of 2.00 and
considered to be low.

Agreement level about the enforceability of DRB decisions, in the light of DRB
decisions can be challenged in Arbitration. DRB process can replace the
arbitration if necessary legislative provisions are made in law, represents an
average rating of 3.75 and considered to be on high side.

Question No 5

Agreement to the statement that to improve DRB's there should be an institution


to set out procedures and rules represents an average rating of 4.13 and
considered to be high.

Agreement to the statement that to improve DRB's those should be recognized


by law as an alternative to the Arbitration Panel represents an average rating of
4.00 and considered to be high.
Agreement to the statement that to improve DRB's there should be a mechanism
to train more Professional to be Panel members of DRB's by Government
Authorities such as ICTAD, represents an average rating of 4.50 and considered
to be very high.

57

Code C - Employers or Developers investing in projects over


the value of
Rs 500 Million on a regular basis

Research Question

Not
satisfi
ed at
all

Not
satisfi
ed

Canno
t say

Satisfi
ed

Fully
satisfi
ed

Total

1). a. Are you satisfied with


the
current
alternative
Dispute Resolution Method of
Arbitration practiced in Sri
Lanka Construction Industry
in respect of Time?

Research Question

Not
satisfi
ed at
all

Not
satisfi
ed

Canno
t say

Satisfi
ed

Fully
satisfi
ed

Total

1). b. Are you satisfied with


the
current
alternative
Dispute Resolution Method of
Arbitration practiced in Sri
Lanka Construction Industry
in respect of Procedure?

Research Question

Not

Not

Canno

Satisfi

Fully

Total

Avera
ge
Rating

2.00

Avera
ge
Rating

2.00

58

Avera

satisfi
ed at
all

satisfi
ed

t say

ed

satisfi
ed

1). c. Are you satisfied with


the
current
alternative
Dispute Resolution Method of
Arbitration practiced in Sri
Lanka Construction Industry
in respect of Cost?

Research Question

Not
satisfi
ed at
all

Not
satisfi
ed

Canno
t say

Satisfi
ed

Fully
satisfi
ed

Total

1). d. Are you satisfied with


the
current
alternative
Dispute Resolution Method of
Arbitration practiced in Sri
Lanka Construction Industry
in respect of Acceptability of
decision to parties?

Research Question

Not
satisfi
ed at
all

Not
satisfi
ed

Canno
t say

Satisfi
ed

Fully
satisfi
ed

Total

2). a. What were your


perceptions of a Dispute
Resolution Board in respect
of Time?

ge
Rating

2.40

Avera
ge
Rating

2.60

Avera
ge
Rating

3.80

59

Research Question

Not
satisfi
ed at
all

Not
satisfi
ed

Satisfi
ed

Not
satisfi
ed

Canno
t say

Satisfi
ed

Not
satisfi
ed

Canno
t say

Satisfi
ed

Fully
satisfi
ed

Total

2). b. What were your


perceptions of a Dispute
Resolution Board in respect
of Procedure?

Research Question

Not
satisfi
ed at
all

2). c. What were your


perceptions of a Dispute
Resolution Board in respect
of Cost?

Research Question

2). d. What were your


perceptions of a Dispute
Resolution Board in respect
of Acceptability of Decision
to parties?

Not
satisfi
ed at
all

Fully
satisfi
ed

Canno
t say

Total

Fully
satisfi
ed

Avera
ge
Rating

3.80

Total

Avera
ge
Rating

3.00

Avera
ge
Rating

3.60

60

Research Question

Do not
Agree
at all

3).
a.
If
a
Dispute
Adjudication
Board
is
appointed
at
the
commencement of contract
would you consider that it
will help to avoid dispute at
a grass root level?

Do not
Agree

Canno
t say

Agree

Fully
Agree

Total

Fully
Agree

Total

Research Question

Do not
Agree
at all

Do not
Agree

Canno
t say

Agree

3).
b.
If
a
Dispute
Adjudication
Board
is
appointed
at
the
commencement of contract
would you consider that it
will be a waste of money to
maintain such a panel?

Research Question

Do not
Agree
at all

Do not
Agree

Canno
t say

Agree

3.80

Fully
Agree

Avera
ge
Rating

Avera
ge
Rating

2.60

Total

61

Avera
ge
Rating

3).
c.
If
a
Dispute
Adjudication
Board
is
appointed
at
the
commencement of contract
would you consider that it
will promote more claims by
the contractor?

Research Question

Do not
Agree
at all

Do not
Agree

Canno
t say

Agree

Fully
Agree

Total

Canno
t say

Agree

Fully
Agree

Total

3).
d.
If
a
Dispute
Adjudication
Board
is
appointed
at
the
commencement of contract
would you consider that it
will
be
conducive
hat
Dispute Resolution Board is
fully informed about the
conditions of site that gives
rise to the dispute from
outset?

Research Question

Do not
Agree
at all

Do not
Agree

2.80

Avera
ge
Rating

4.00

62

Avera
ge
Rating

4). a. What are your views


about the enforceability of
DRB decisions, in the light of
DRB
decisions
can
be
challenged in an Arbitration.
It will be easy as DRBS have
made their decisions being
fully conversant with site
conditions.

3.60

Research Question

Do not
Agree
at all

Do not
Agree

Canno
t say

Agree

Fully
Agree

Total

4). b. What are your views


about the enforceability of
DRB decisions, in the light of
DRB
decisions
can
be
challenged in an Arbitration.
It will be a waste of Time and
Money that Arbitration will
re-open and have new
proceedings that will take
more time and incur more
cost. Site conditions.

Research Question

Do not
Agree
at all

Do not
Agree

Canno
t say

Agree

Fully
Agree

Total

4). c. What are your views


about the enforceability of
DRB decisions, in the light of
DRB
decisions
can
be
challenged in an Arbitration.
DRB process can replace the
arbitration
if
necessary
legislative provisions are
made in law.

Avera
ge
Rating

2.80

Avera
ge
Rating

3.17

63

Research Question

Do not
Agree
at all

Do not
Agree

Canno
t say

Agree

Fully
Agree

Total

Canno
t say

Agree

Fully
Agree

Total

Canno
t say

Agree

Fully
Agree

Total

5). a. To improve DRB's


Please indicate that Dispute
Resolution Boards should
have an institution to set out
procedures and rules.

Research Question

Do not
Agree
at all

Do not
Agree

5). b. To improve DRB's


Please indicate that Dispute
Resolution Boards should be
recognized by law as an
alternative to the Arbitration
Panel.

Research Question

5). c. To improve DRB's


Please indicate that train
more Professional to be
Panel members of DRB's by
Government Authorities such
as ICTAD.

Do not
Agree
at all

Do not
Agree

Avera
ge
Rating

4.20

Avera
ge
Rating

4.20

Avera
ge
Rating

4.20

64

The above indicate the following findings concerning the perceptions of Code C Employers or Developers investing in projects over the value of Rs 500 Million on a
regular basis to the research questions Summary of same is set out below
Question No 1

Satisfaction level concerning the time required in Arbitration represents an


average rate of 2.00 and considered low

Satisfaction level concerning the procedure required in Arbitration is represents an


average rate of 2.00 and considered low

Satisfaction level concerning the cost required in Arbitration is represents an


average rate of 2.40 and considered low

Satisfaction level concerning acceptably of decisions in Arbitration is represents


an average rate of 2.60 and considered low

Question No 2

Satisfaction concerning Dispute Resolution Board in respect of Time represents an


average rate of 3.80 and considered to be on the high side

Satisfaction
concerning Dispute Resolution Board in respect of procedure
represents an average rate of 3.80 and considered to be on the high side

Satisfaction concerning Dispute Resolution Board in respect of cost represents an


average rate of 3.00 and considered to be on the low side

Satisfaction concerning Dispute Resolution Board in respect of acceptability of


decisions represents an average rate of 3.60 and considered to be on the high
side

Question No 3

If a Dispute Adjudication Board is appointed at the commencement of contract,


agreement level to the statement ,that it will help to avoid dispute at a grass root
level represents an average rate of 3.80 and considered to be on the high
side

If a Dispute Adjudication Board is appointed at the commencement of contract,


agreement level to the statement ,that it will be a waste of money to maintain
such a panel represents an average rate of 2.60 and considered to be low
If a Dispute Adjudication Board is appointed at the commencement of contract,
agreement level to the statement ,that it will promote more claims by the
contractor represents an average rate of 2.80 and considered to be low

If a Dispute Adjudication Board is appointed at the commencement of contract,


agreement level to the statement ,that it will conducive that Dispute Resolution
Board is fully informed about the conditions of site that gives rise to the dispute
from outset represents an average rate of 4.00 and considered to be high

Question No 4

Agreement level about the enforceability of DRB decisions, in the light of DRB
decisions can be challenged in Arbitration. It will be easy as DRBS have made
their decisions being fully conversant with site conditions represents an average
rating of 3.60 and considered to be on the high side.

65

Agreement level about the enforceability of DRB decisions, in the light of DRB
decisions can be challenged in Arbitration. It will be a waste of Time and Money
that Arbitration will re-open and have new proceedings that will take more time
and incur more cost. Site conditions, represents an average rating of 2.80 and
considered to be low.

Agreement level about the enforceability of DRB decisions, in the light of DRB
decisions can be challenged in Arbitration. DRB process can replace the
arbitration if necessary legislative provisions are made in law, represents an
average rating of 4.17 and considered to be high.

Question No 5

Agreement to the statement that to improve DRB's there should be an institution


to set out procedures and rules represents an average rating of 4.20 and
considered to be high.

Agreement to the statement that to improve DRB's those should be recognized


by law as an alternative to the Arbitration Panel represents an average rating of
4.20 and considered to be high.
Agreement to the statement that to improve DRB's there should be a mechanism
to train more Professional to be Panel members of DRB's by Government
Authorities such as ICTAD, represents an average rating of 4.20 and considered
to be high.

Code D - State Agencies implementing projects over Rs 500


Million in value on a regular basis

Research Question

Not
satisfi
ed at
all

Not
satisfi
ed

Canno
t say

Satisfi
ed

Fully
satisfi
ed

Total

1). a. Are you satisfied


with
the
current
alternative
Dispute
Resolution
Method
of
Arbitration practiced in Sri
Lanka
Construction
Industry in respect of
Time?

Avera
ge
Rating

2.00

66

Research Question

Not
satisfi
ed at
all

Not
satisfi
ed

Canno
t say

Satisfi
ed

Fully
satisfi
ed

Total

1). b. Are you satisfied


with
the
current
alternative
Dispute
Resolution
Method
of
Arbitration practiced in Sri
Lanka
Construction
Industry in respect of
Procedure?

Research Question

Not
satisfi
ed at
all

Not
satisfi
ed

Canno
t say

Satisfi
ed

Fully
satisfi
ed

Total

1). c. Are you satisfied


with
the
current
alternative
Dispute
Resolution
Method
of
Arbitration practiced in Sri
Lanka
Construction
Industry in respect of
Cost?

Research Question

Not
satisfi
ed at
all

Not
satisfi
ed

Canno
t say

Satisfi
ed

Fully
satisfi
ed

Total

1). d. Are you satisfied


with
the
current
alternative
Dispute
Resolution
Method
of
Arbitration practiced in Sri

Avera
ge
Rating

1.63

Avera
ge
Rating

2.25

Avera
ge
Rating

4.00

67

Lanka
Construction
Industry in respect of
Acceptability of decision
to parties?

Research Question

Not
satisfi
ed at
all

Not
satisfi
ed

Canno
t say

Satisfi
ed

Fully
satisfi
ed

Total

2). a. What were your


perceptions of a Dispute
Resolution
Board
in
respect of Time?

Research Question

Not
satisfi
ed at
all

Not
satisfi
ed

Canno
t say

Satisfi
ed

Fully
satisfi
ed

Total

2). b. What were your


perceptions of a Dispute
Resolution
Board
in
respect of Procedure?

Avera
ge
Rating

4.00

Avera
ge
Rating

3.75

68

Research Question

Not
satisfi
ed at
all

Not
satisfi
ed

Canno
t say

Satisfi
ed

Fully
satisfi
ed

Total

2). c. What were your


perceptions of a Dispute
Resolution
Board
in
respect of Cost?

Research Question

Not
satisfi
ed at
all

Not
satisfi
ed

Canno
t say

Satisfi
ed

Fully
satisfi
ed

Total

2). d. What were your


perceptions of a Dispute
Resolution
Board
in
respect of Acceptability of
Decision to parties?

Research Question

Do not
Agree
at all

Do not
Agree

Canno
t say

Agree

Fully
Agree

Total

3).
a.
If
a Dispute
Adjudication
Board
is
appointed
at
the
commencement
of
contract
would
you
consider that it will help to
avoid dispute at a grass
root level?

Avera
ge
Rating

3.63

Avera
ge
Rating

3.75

Avera
ge
Rating

4.25

69

Research Question

Do not
Agree
at all

Do not
Agree

Canno
t say

Agree

Fully
Agree

Total

3).
b.
If a Dispute
Adjudication
Board
is
appointed
at
the
commencement
of
contract
would
you
consider that it will be a
waste
of
money
to
maintain such a panel?

Research Question

Do not
Agree
at all

Do not
Agree

Canno
t say

Agree

Fully
Agree

Total

3).
c.
If
a
Dispute
Adjudication
Board
is
appointed
at
the
commencement
of
contract
would
you
consider
that
it
will
promote more claims by
the contractor?

Research Question

Do not
Agree
at all

Do not
Agree

Canno
t say

Agree

Fully
Agree

Total

Avera
ge
Rating

1.63

Avera
ge
Rating

2.00

Avera
ge
Rating

70

3).
d.
If a Dispute
Adjudication
Board
is
appointed
at
the
commencement
of
contract
would
you
consider that it will be
conducive hat Dispute
Resolution Board is fully
informed
about
the
conditions of site that
gives rise to the dispute
from outset?

Research Question

Do not
Agree
at all

Do not
Agree

Canno
t say

Agree

Fully
Agree

Total

4). a. What are your views


about the enforceability of
DRB decisions, in the light
of DRB decisions can be
challenged
in
an
Arbitration. It will be easy
as DRBS have made their
decisions
being
fully
conversant
with
site
conditions.

Research Question

Do not
Agree
at all

Do not
Agree

Canno
t say

Agree

Fully
Agree

Total

4.13

Avera
ge
Rating

4.13

Avera
ge
Rating

71

4). b. What are your views


about the enforceability of
DRB decisions, in the light
of DRB decisions can be
challenged
in
an
Arbitration. It will be a
waste of Time and Money
that Arbitration will reopen and have
new
proceedings that will take
more time and incur more
cost. Site conditions.

Research Question

Do not
Agree
at all

Do not
Agree

Canno
t say

Agree

Fully
Agree

Total

4). c. What are your views


about the enforceability of
DRB decisions, in the light
of DRB decisions can be
challenged in Arbitration.
DRB process can replace
the
arbitration
if
necessary
legislative
provisions are made in
law.

Research Question

Do not
Agree
at all

Do not
Agree

Canno
t say

Agree

Fully
Agree

Total

5). a. To improve DRB's


Please
indicate
that
Dispute Resolution Boards
should have an institution
to set out procedures and
rules.

2.13

Avera
ge
Rating

4.00

Avera
ge
Rating

4.63

72

Research Question

Do not
Agree
at all

Do not
Agree

Canno
t say

Agree

Fully
Agree

Total

5). b. To improve DRB's


Please
indicate
that
Dispute Resolution Boards
should be recognized by
law as an alternative to
the Arbitration Panel.

Research Question

Do not
Agree
at all

Do not
Agree

Canno
t say

Agree

Fully
Agree

Total

5). c. To improve DRB's


Please indicate that train
more Professional to be
Panel members of DRB's
by
Government
Authorities such as ICTAD.

Avera
ge
Rating

4.25

Avera
ge
Rating

5.00

The above indicate the following findings concerning the perceptions of Code D - State
Agencies implementing projects over Rs 500 Million in value on a regular basis to the
research questions Summary of same is set out below
Question No 1

Satisfaction level concerning the time required in Arbitration represents an


average rate of 2.00 and considered low.

73

Satisfaction level concerning the procedure required in Arbitration is represents an


average rate of 1.63 and considered very low.

Satisfaction level concerning the cost required in Arbitration is represents an


average rate of 2.25 and considered low.

Satisfaction level concerning acceptably of decisions in Arbitration is represents


an average rate of 4.00 and considered high.

Question No 2

Satisfaction concerning Dispute Resolution Board in respect of Time represents an


average rate of 4.00 and considered to be to be high.

Satisfaction
concerning Dispute Resolution Board in respect of procedure
represents an average rate of 3.75 and considered to be on the high side.

Satisfaction concerning Dispute Resolution Board in respect of cost represents an


average rate of 3.63 and considered to be on the high side.

Satisfaction concerning Dispute Resolution Board in respect of acceptability of


decisions represents an average rate of 3.75 and considered to be on the high
side.

Question No 3

If a Dispute Adjudication Board is appointed at the commencement of contract,


agreement level to the statement ,that it will help to avoid dispute at a grass root
level represents an average rate of 4.25 and considered to be high.

If a Dispute Adjudication Board is appointed at the commencement of contract,


agreement level to the statement ,that it will be a waste of money to maintain
such a panel represents an average rate of 1.63 and considered to be very
low.

If a Dispute Adjudication Board is appointed at the commencement of contract,


agreement level to the statement ,that it will promote more claims by the
contractor represents an average rate of 2.00 and considered to be low.

If a Dispute Adjudication Board is appointed at the commencement of contract,


agreement level to the statement ,that it will conducive that Dispute Resolution
Board is fully informed about the conditions of site that gives rise to the dispute
from outset represents an average rate of 4.13 and considered to be high.

Question No 4

Agreement level about the enforceability of DRB decisions, in the light of DRB
decisions can be challenged in Arbitration. It will be easy as DRBS have made
their decisions being fully conversant with site conditions represents an average
rating of 4.13 and considered to be high.

Agreement level about the enforceability of DRB decisions, in the light of DRB
decisions can be challenged in Arbitration. It will be a waste of Time and Money
that Arbitration will re-open and have new proceedings that will take more time
and incur more cost. Site conditions, represents an average rating of 2.13 and
considered to be very low.

74

Agreement level about the enforceability of DRB decisions, in the light of DRB
decisions can be challenged in Arbitration. DRB process can replace the
arbitration if necessary legislative provisions are made in law, represent an
average rating of 4.00 and considered to be high.

Question No 5

Agreement to the statement that to improve DRB's there should be an institution


to set out procedures and rules represents an average rating of 4.63 and
considered very high.

Agreement to the statement that to improve DRB's those should be recognized


by law as an alternative to the Arbitration Panel represents an average rating of
4.25 and considered to be high.

Agreement to the statement that to improve DRB's there should be a mechanism


to train more Professional to be Panel members of DRB's by Government
Authorities such as ICTAD, represents an average rating of 5.00 and considered
to be very high.

Code E - Arbitrators, Construction Lawyers and Claim


consultants involved in Construction Claims for Major Works

Research Question

Not
satisfi
ed at
all

Not
satisfi
ed

Canno
t say

Satisfi
ed

Fully
satisfi
ed

Total

1). a. Are you satisfied with


the
current
alternative
Dispute Resolution Method
of Arbitration practiced in
Sri
Lanka
Construction
Industry in respect of Time?

Avera
ge
Rating

3.17

75

Research Question

Not
satisfi
ed at
all

Not
satisfi
ed

Canno
t say

Satisfi
ed

Fully
satisfi
ed

Total

1). b. Are you satisfied with


the
current
alternative
Dispute Resolution Method
of Arbitration practiced in
Sri
Lanka
Construction
Industry
in
respect
of
Procedure?

Research Question

Not
satisfi
ed at
all

Not
satisfi
ed

Canno
t say

Satisfi
ed

Fully
satisfi
ed

Total

1). c. Are you satisfied with


the
current
alternative
Dispute Resolution Method
of Arbitration practiced in
Sri
Lanka
Construction
Industry in respect of Cost?

Research Question

Not
satisfi
ed at
all

Not
satisfi
ed

Canno
t say

Satisfi
ed

Fully
satisfi
ed

Total

1). d. Are you satisfied with


the
current
alternative
Dispute Resolution Method
of Arbitration practiced in
Sri
Lanka
Construction
Industry
in
respect
of
Acceptability of decision to
parties?

Avera
ge
Rating

3.60

Avera
ge
Rating

3.67

Avera
ge
Rating

3.67

76

Research Question

Not
satisfi
ed at
all

Not
satisfi
ed

Canno
t say

Satisfi
ed

Fully
satisfi
ed

Total

2). a. What were your


perceptions of a Dispute
Resolution Board in respect
of Time?

Research Question

Not
satisfi
ed at
all

Not
satisfi
ed

Canno
t say

Satisfi
ed

Fully
satisfi
ed

Total

2). b. What were your


perceptions of a Dispute
Resolution Board in respect
of Procedure?

Research Question

Not
satisfi
ed at
all

Not
satisfi
ed

Canno
t say

Satisfi
ed

Fully
satisfi
ed

Total

2). c. What were your


perceptions of a Dispute
Resolution Board in respect
of Cost?

Avera
ge
Rating

4.00

Avera
ge
Rating

3.33

Avera
ge
Rating

3.33

77

Research Question

Not
satisfi
ed at
all

Not
satisfi
ed

Canno
t say

Satisfi
ed

2). d. What were your


perceptions of a Dispute
Resolution Board in respect
of Acceptability of Decision
to parties?

Research Question

Do not
Agree
at all

Do not
Agree

Canno
t say

Agree

Fully
Agree

Total

3).
a.
If
a
Dispute
Adjudication
Board
is
appointed
at
the
commencement of contract
would you consider that it
will help to avoid dispute at
a grass root level?

Research Question

Do not
Agree
at all

Do not
Agree

Canno
t say

Agree

Fully
Agree

Total

3).
b.
If
a
Dispute
Adjudication
Board
is
appointed
at
the
commencement of contract
would you consider that it

Fully
satisfi
ed

Total

Avera
ge
Rating

3.83

Avera
ge
Rating

3.67

Avera
ge
Rating

2.00

78

will be a waste of money to


maintain such a panel?

Research Question

Do not
Agree
at all

Do not
Agree

Canno
t say

Agree

Fully
Agree

Total

3).
c.
If
a
Dispute
Adjudication
Board
is
appointed
at
the
commencement of contract
would you consider that it
will promote more claims by
the contractor?

Research Question

Do not
Agree
at all

Do not
Agree

Canno
t say

Agree

Fully
Agree

Total

3).
d.
If
a
Dispute
Adjudication
Board
is
appointed
at
the
commencement of contract
would you consider that it
will
be
conducive
hat
Dispute Resolution Board is
fully informed about the
conditions of site that gives
rise to the dispute from
outset?

Avera
ge
Rating

2.00

Avera
ge
Rating

4.00

79

Research Question

Do not
Agree
at all

Do not
Agree

Canno
t say

Agree

Fully
Agree

Total

4). a. What are your views


about the enforceability of
DRB decisions, in the light
of DRB decisions can be
challenged in an Arbitration.
It will be easy as DRBS have
made their decisions being
fully conversant with site
conditions.

Research Question

Do not
Agree
at all

Do not
Agree

Canno
t say

Agree

Fully
Agree

Total

4). b. What are your views


about the enforceability of
DRB decisions, in the light
of DRB decisions can be
challenged in an Arbitration.
It will be a waste of Time
and Money that Arbitration
will re-open and have new
proceedings that will take
more time and incur more
cost. Site conditions.

Research Question

4). c. What are your views


about the enforceability of
DRB decisions, in the light
of DRB decisions can be
challenged in an Arbitration.
DRB process can replace
the arbitration if necessary

Avera
ge
Rating

2.83

Avera
ge
Rating

3.33

Do not
Agree
at all

Do not
Agree

Canno
t say

Agree

Fully
Agree

Total

Avera
ge
Rating

1.67

80

legislative provisions
made in law.

are

Research Question

Do not
Agree
at all

Do not
Agree

Canno
t say

Agree

Fully
Agree

Total

5). a. To improve DRB's


Please indicate that Dispute
Resolution Boards should
have an institution to set
out procedures and rules.

Research Question

Do not
Agree
at all

Do not
Agree

Canno
t say

Agree

Fully
Agree

Total

5). b. To improve DRB's


Please indicate that Dispute
Resolution Boards should be
recognized by law as an
alternative
to
the
Arbitration Panel.

Research Question

Do not
Agree
at all

Do not
Agree

Canno
t say

Agree

Fully
Agree

Total

Avera
ge
Rating

4.33

Avera
ge
Rating

3.83

81

Avera
ge
Rating

5). c. To improve DRB's


Please indicate that train
more Professional to be
Panel members of DRB's by
Government
Authorities
such as ICTAD.

4.33

The above indicate the following findings concerning the perceptions of Code E Arbitrators, Construction Lawyers and Claim consultants involved in Construction Claims
for Major Works to the research questions Summary of same is set out below
Question No 1

Satisfaction level concerning the time required in Arbitration represents an


average rate of 3.17 and considered neither high nor low.

Satisfaction level concerning the procedure required in Arbitration is represents an


average rate of 3.60 and considered on the high side.

Satisfaction level concerning the cost required in Arbitration is represents an


average rate of 3.67 and considered on the high side.

Satisfaction level concerning acceptably of decisions in Arbitration is represents


an average rate of 3.67 and considered on the high side.

Question No 2

Satisfaction concerning Dispute Resolution Board in respect of Time represents an


average rate of 4.00 and considered to be high.

Satisfaction concerning Dispute Resolution Board in respect of procedure


represents an average rate of 3.33 and considered to be neither high nor
low.
Satisfaction concerning Dispute Resolution Board in respect of cost represents an
average rate of 3.33 and considered to be neither high nor low.

Satisfaction concerning Dispute Resolution Board in respect of acceptability of


decisions represents an average rate of 3.83 and considered to be on the high
side.

Question No 3

If a Dispute Adjudication Board is appointed at the commencement of contract,


agreement level to the statement, that it will help to avoid dispute at a grass root
level represents an average rate of 3.67 and considered to be on the high
side.

If a Dispute Adjudication Board is appointed at the commencement of contract,


agreement level to the statement ,that it will be a waste of money to maintain
such a panel represents an average rate of 2.00 and considered to be low.

If a Dispute Adjudication Board is appointed at the commencement of contract,


agreement level to the statement ,that it will promote more claims by the
contractor represents an average rate of 2.00 and considered to be low.

If a Dispute Adjudication Board is appointed at the commencement of contract,


agreement level to the statement ,that it will conducive that Dispute Resolution

82

Board is fully informed about the conditions of site that gives rise to the dispute
from outset represents an average rate of 4.00 and considered to be high.=
Question No 4

Agreement level about the enforceability of DRB decisions, in the light of DRB
decisions can be challenged in Arbitration. It will be easy as DRBS have made
their decisions being fully conversant with site conditions represents an average
rating of 2.83 and considered to be low.
Agreement level about the enforceability of DRB decisions, in the light of DRB
decisions can be challenged in Arbitration. It will be a waste of Time and Money
that Arbitration will re-open and have new proceedings that will take more time
and incur more cost. Site conditions, represents an average rating of 3.33 and
considered neither high nor low.
Agreement level about the enforceability of DRB decisions, in the light of DRB
decisions can be challenged in Arbitration. DRB process can replace the
arbitration if necessary legislative provisions are made in law, represents an
average rating of 1.67 and considered very low.

Question No 5

Agreement to the statement that to improve DRB's there should be an institution


to set out procedures and rules represents an average rating of 4.33 and
considered high.

Agreement to the statement that to improve DRB's those should be recognized


by law as an alternative to the Arbitration Panel represents an average rating of
3.83 and considered to be on the high side.

Agreement to the statement that to improve DRB's there should be a mechanism


to train more Professional to be Panel members of DRB's by Government
Authorities such as ICTAD, represents an average rating of 4.33 and considered
to be high.

83

CHAPTER FIVE
Conclusions, Discussion and
Recommendations
Based on the findings upon analysis of data in the CHAPTER
FOUR, the Chapter five discusses the conclusions that can be
derived on same. This was done with a view to deriving
conclusions in line with the identified five attributes for
successful and well received ADR method as discussed in the
Chapter One. Discussion was focused on identifying the
reasons for varying perceptions by sub-groups and to
ascertain if there are common perceptions.

5.1 Conclusions
The Findings in the chapter four have been summarized to
identify the levels of agreement to each of the question by
different sub-groups of the population as set out below. Mean
Average Rating has been used as the criteria.
Question 1a.- Are you satisfied with the current
alternative Dispute Resolution Method of Arbitration
practiced in Sri Lanka Construction Industry in respect
of Time

Sub-group Code

Code A
Code B
Code C
Code D
Code E

Mean
average
Rating
1.83
2.00
2.00
2.00
3.17

Conclusion

very low
low
low
low
neither high nor
low

Assessment

84

It appears from the above that all sub-groups are not satisfied
with the time taken for arbitration except for sub group of legal
background; however they are also unable to express a firm
view.

Question 1b.Are you satisfied with the current


alternative Dispute Resolution Method of Arbitration
practiced in Sri Lanka Construction Industry in respect
of Procedure?

Sub-group Code

Code A
Code B
Code C
Code D
Code E

Mean
average
Rating
2.33
1.88
2.00
1.63
3.60

Conclusion

low
Very low
low
Very low
On the High side

Assessment
Other than the sub-group E constituting persons with legal back
grounds the sub-groups are not satisfied with cost in connection
with Arbitration.

Question 1c.- Are you satisfied with the current


alternative Dispute Resolution Method of Arbitration
practiced in Sri Lanka Construction Industry in respect
of cost?

Sub-group Code

Mean
average
Rating

Conclusion

85

Code A

3.17

Code B
Code C
Code D
Code E

2.13
2.40
2.25
1.67

Neither high nor


low
low
low
low
low

Assessment
No sub-group except the contractors, were satisfied with cost in
connection with Arbitration. Group A, the contractors too were
unable to decide.
Question 1d. Are you satisfied with the current
alternative Dispute Resolution Method of Arbitration
practiced in Sri Lanka Construction Industry in respect
of Acceptability of decision to parties?

Sub-group Code

Code A
Code B
Code C
Code D
Code E

Mean
average
Rating
2.33
2.88
2.60
4.00
3.67

Conclusion

low
low
low
high
On the high side

Assessment
As appear from the above sub-groups A, B and C are not
satisfied with the acceptability of Arbitration decisions while
sob-groups D and E are harboring a different view.

Question2a. What were your perceptions of a Dispute


Resolution Board in respect of Time?
Sub-group Code

Mean
average

Conclusion

86

Code A
Code B
Code C
Code D
Code E

Rating
4.00
4.00
3.80
4.00
4.00

high
high
high
high
high

Assessment
There is a unanimous agreement among the sub-groups that
DRBs are fast in dispute resolution.

Question2b.- What were your perceptions of a Dispute


Resolution Board in respect of Procedure?

Sub-group Code

Code A
Code B
Code C
Code D
Code E

Mean
average
Rating
4.00
3.63
3.80
3.75
3.33

Conclusion

high
On the high side
On the high side
On the high side
Neither high nor low

Assessment
It is generally accepted by all sub-groups that procedure for
DRB being satisfactory.

Question2c What were your perceptions of a Dispute


Resolution Board in respect of Cost?
Sub-group Code Mean
average
Rating

Conclusion

87

Code A
Code B
Code C
Code D
Code E

3.50
3.50
3.00
3.63
3.33

Neither high nor low


Neither high nor low
On the low side
On the low side
Neither high nor low

Assessment
It appears from the above that all sub groups are neither happy
nor unhappy about the cost of DRBs.

Question2d What were your perceptions of a Dispute


Resolution Board in respect of Acceptability of Decision
to parties?

Sub-group
Code
Code A
Code B
Code C
Code D
Code E

Mean
average
Rating
4.50
3.88
3.60
3.75
3.83

Conclusion

On
On
On
On

high
the high
the high
the high
the high

side
side
side
side

Assessment
There is a satisfaction in all sub groups regarding the
acceptability of decisions by DRBs in their contracts.

88

Question3.a If a Dispute Adjudication Board is appointed


at the commencement of contract would you consider
that it will help to avoid dispute at a grass root level?

Sub-group
Code
Code A
Code B
Code C
Code D
Code E

Mean
average
Rating
3.83
4.00
3.80
4.25
3.67

Conclusion

On the high side


high
On the high side
high
On the high side

Assessment
It can be derived from the above that all sub-groups consider
that appointment of a DRB at the commencement of contract
can avoid dispute at the grassroots level.

Question3.b If a Dispute Adjudication Board is appointed


at the commencement of contract would you consider
that it will be a waste of money to maintain such a
panel?

Sub-group
Code
Code A
Code B
Code C
Code D
Code E

Mean
average
Rating
1.83
1.75
2.60
1.63
2.00

Conclusion

Very low
Very low
low
Very low
low

Assessment
89

All sub groups unanimously agree that it is not a waste of


money to maintain a DRB panel.

Question3.c
If a Dispute Adjudication Board is
appointed at the commencement of contract would you
consider that it will promote more claims by the
contractor?
Sub-group
Code
Code A
Code B
Code C
Code D
Code E

Mean
average
Rating
1.67
1.88
2.00
2.00
2.00

Conclusion

Very low
Very low
low
low
low

Assessment
None of the sub-group considers that appointment of a DRB at
the commencement would promote more claims by the
contractors.

Question3.d If a Dispute Adjudication Board is appointed


at the commencement of contract would you consider
that it will be conducive that Dispute Resolution Board
is fully informed about the conditions of site that gives
rise to the dispute from outset?
Sub-group
Code
Code A
Code B
Code C
Code D
Code E

Mean
average
Rating
4.00
4.13
4.00
4.13
4.00

Conclusion

High
high
high
high
high

90

Assessment
All sub groups are of the view that appointment of a DRB at the
outset is conducive as the DRB will be well informed to resolve
a dispute.

Question 4.a
What are your views about the
enforceability of DRB decisions, in the light of DRB
decisions can be challenged in an Arbitration. It will be
easy as DRBS have made their decisions being fully
conversant with site conditions?
Sub-group
Code
Code A
Code B
Code C
Code D
Code E

Mean
average
Rating
3.50
3.75
3.60
4.13
2.83

Conclusion

Neither high nor low


On the high side
On the high side
high
low

Assessment
While sub-groups B, C and D seems to agree, sub-group E is not
convinced that DRB decisions based on knowledge at site level
matter in an Arbitration.

Question 4.b. What are your views about the


enforceability of DRB decisions, in the light of DRB
decisions can be challenged in an Arbitration. It will be a
waste of Time and Money that Arbitration will re-open
and have new proceedings that will take more time and
incur more cost. Site conditions
Sub-group
Code

Mean
average
Rating

Conclusion

91

Code A
Code B
Code C
Code D
Code E

2.67
2.00
2.80
2.13
3.33

low
low
low
low
low

Assessment
The perception of the entire population that it is not a waste of
money to have a DRB despite that the Arbitration can set aside
DRB decisions is apparent from the above
Question 4.c. What are your views about the
enforceability of DRB decisions, in the light of DRB
decisions can be challenged in an Arbitration. DRB
process can replace the arbitration if necessary
legislative provisions are made in law.

Sub-group
Code
Code A
Code B
Code C
Code D
Code E

Mean
average
Rating
3.17
3.85
4.17
4.0
1.67

Conclusion

Neither high nor low


On high side
high
high
Very low

Assessment
The mixed response indicates that the aspersions of sub-groups
vary. Legal persons view is quite different to that of other subgroups. However the majority appears to be of the view that
DRBs can replace Arbitration.

Question5a. To improve DRB's Please indicate that


Dispute Resolution Boards should have an institution to
set out procedures and rules.
92

Sub-group
Code
Code A
Code B
Code C
Code D
Code E

Mean
average
Rating
4.17
4.13
4.20
4.00
4.33

Conclusion

high
high
high
high
high

Assessment
The data appearing above indicates that all-sub-groups of the
population are in unanimous agreement that there should be a
Regulatory body to improve the performance of DRBs.

Question5.b To improve DRB's Please indicate that


Dispute Resolution Boards should be recognized by law
as an alternative to the Arbitration Panel.
Sub-group
Code
Code A
Code B
Code C
Code D

Mean
average
Rating
3.83
4.00
4.20
4.25

Conclusion

On high side
high
high
high

Code E

3.83

On high side

Assessment
As seen from the above there is a general copiousness that
DRBs should be recognized as an alternative to Arbitration.
However, some doubts appear to have in the minds of
contractors and legal persons concerning full implementation of
replacing Arbitration with DRBs but they do not reject the idea.

93

Question 5.c To improve DRB's Please indicate that train


more Professional to be Panel members of DRB's by
Government Authorities such as ICTAD.
Sub-group
Code
Code A
Code B
Code C
Code D
Code E

Mean
average
Rating
4.50
4.50
4.20
5.00
4.33

Conclusion

high
high
high
Very high
high

Assessment
It is clearly evident from the above, that all sub-groups of
population are in agreement to train panel members of DRBs by
ICTD or similar Government agency.

5.2 Discussion
The assessments contained in the section 5.1 of this chapter
indicate that:
It is the general perception of all sub-groups that
Arbitration process is not being satisfactory in terms with
time, procedure, cost and the acceptability of decisions.
Notable exception is that sub group D feels otherwise
supported by subgroup E to a certain extent. Interesting
to note that the two groups constitute the Public sector
Employers and sub-group E are quite alien to the routine
works of a project.
The general feeling of all sub-groups that DRB system is
satisfactory in all respects mentioned above. However a
doubt about the cost of DRB was noticed and most subgroups were unable to express a firm opinion
Perception of all sub-groups to a DRB constututed at the
commencement was unanimous and in the affirmative.

94

General feeling of the sub-groups in the light of


Arbitration can reopen and set-aside DRB decision:
1. DRB decision will prevail was expressed by subgroups B,C &D. sub-Group E does not support this
view while sub-group A was unable to decide on the
matter.
2. The statement it will be a waste of money and
time was opposed by the entire population.
3. The statement DRB can replace Arbitration if
necessary legislative provisions are made had
mixed responses. Sub-group E constituting Legal
community strongly protests. However others were
of the view that it is possible.
To improve DRB process:
1. Proposal to have a Regulatory Body was well received
by the entire population.
2. Proposal to recognize DRB as an alternate to
Arbitration was agreed by all parties generally.
3. Proposal to train panel members of DRBs by a
government authority was fully endorsed by the
entire population.
5.3 Recommendations
In view of the conclusions, assessments and discussions in the
previous sections ,it is recommended that action be taken by
the Stake Holders in the Construction Industry in Sri Lanka
should:
1. Reconsider the current Arbitration Practice and
devise an easy and user friendly system where
procedural rules, costs and time are predictable
and reasonable.
2. Strongly lobby for an institution in the like of
Dispute Board Resolution Foundation (DBRF) be set
up ideally in collaboration of same. This proposal
may be implemented by institutes already active in
the field of Arbitration.
3. Promote the training of professionals to increase
the number of trained professionals who can serve
95

in the DRB panels to cater for the increasing


demand that is envisaged due to boom in large
scale construction projects.

96

References
Abeynayake, M Weddikkara C(2013)- Special Features and
Experiences of the Full terms Dispute Adjudication Board'. As
Alternative Dispute Resolution Methods in the Construction
Industry of Sri Lanka International Conference on Building
resilience 17-19 Sep 2013 paper 375.

Agarwal. V (2001))- Alternative Dispute Resolution Methods


Document series14, United Nations Institute of Training and
Research 2001.

Bunni, N. G. (2005) The FIDIC Forms of Contract: 3rd Edition


Black well publications Ltd.

Chapman P. (2006)- Dispute Boards , Dispute Boards A new


force to be reckoned with in international construction. A Brief
overview Dispute Resolution Board Foundation 6 th International
Conference 6th / 7th May 2006 Budapest.
Charrett D. (2009), Dispute Boards and Construction
Contracts: - Viewed at: http://fidic.org/bookshop/additionalresources on 23rd Sep 2014.
Cheung.S, & Suen H.C.H., (2002) - A Multi-Attribute Utility
Model for Dispute Resolution Construction Management and
Economics, Vol 20, Taylor and Francis Ltd.
Danuri M.S.M et al(2012)- A revisit on the current practice of
dispute resolution and ADR in the Malaysian construction
97

industry Journal of Design and Built environment, Vol.10, June


2012.

Ekanayake K. (2013)- Advantages and disadvantages of


Dispute Review Boards Sri Lanka Institute of Engineers viewed
at http:/ ieslslen.blogspot.com on 20th Sep 2014.
Glover J. (2012)- Dispute adjudication or dispute avoidance
under the FIDIC form? Fenwick Elliot International Quarterly
Issue 04 Autumn 2012.
Gotz S.H (2012)- FIDIC/MDB Approach in respect of Dispute
Adjudication
Boards

As
viewed
at:
http://fidic.org/bookshop/additional-resources on 20th Sep
2014.

Gould N (2004)- Recent trends in dispute resolution Fenwick


Elliott Construction and energy law specilists.
Gould, N (2012) Enforcing a Dispute Boards Decision: Issues
and considerations, Fenwick Elliott. The Construction and
energy law specialists Sep 2012.

Gould.N (2003)- Dispute Resolution in the Construction


Industry. Kings College London and Society of Construction
law. Construction law seminar 9th Sep 2003.

Harmon K.M.J(2003)- Resolution Of Construction Disputes: A


Review of Current Methodologies Leadership and Management
in Engineering American society of civil Engineers October
2003.

98

Hunt.R( 2004 ) DISPUTE RESOLUTION BOARDS


Www.roberthuntbarrister.comon 26thNov 2014 .

as viewed at

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Trade Center, Colombo 01,
Sri Lanka.
Lund Research Ltd (2014) Quantitative dissertations as
viewed at dissertation.laerd.com on 10th Dec 2014.
Mackie.C et al (2011)- Alternative Dispute Resolution Guide
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Bank The world Bank Group 1818 H Street N.W Washington D.C
20433.

Marshall M.N.
(1996) Sampling for qualitative research
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Thousand Oaks : Sage
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Dec 2014.
Talgodapiliya. D. (2010). Dispute resolution in construction
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Tucker.P.M (2005) An Overview of Alternate Dispute


Resolution Use in The Construction Industry The University of
Texas at Austin August 2005.

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Construction Arbitration held on 23rd March 2006 at Taj
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100

Wright.J (2011)- Dispute Boards and Dispute avoidance


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101

Annex 1
Research Instrument
CODE

Section 1
Organization Wave
Name of Respondent
Position at the Firm

Middle Level

Senior Level

Owner/Director

Years of Experience

Less than 5 years

5 to 10 years

More than 10
years

Qualification

Bachelor Degree

Master Degree

More than 20 years of


Industry experience

Tear off

CODE

Section 2
1) Are you satisfied with the current alternate Dispute Resolution Method of
Arbitration practiced in Sri Lanka Construction Industry in respect of the
followings

Description

Not
satisfied
at all

Not
satisfied

Cannot
say

satisfied

Fully
satisfied

satisfied

Fully
satisfie
d

a. Time
b. Procedure
c.

Cost

d. Acceptability of decision to
parties
2) What are your perceptions of a Dispute Resolution Board in respect of

Description

Not
satisfied
at all

Not
satisfied

Cannot
say

a. Time
b. Procedure
c.

Cost

102

d. Acceptability of decision to
parties

3) If a Dispute Adjudication Board is appointed at the commencement of contact would you


consider?
Description

Do not
Agree
at all

Do not
Agree

Cannot
say

Agree

Fully
Agree

a. That it will help to avoid disputes at


a grass root level.
b. It will be a waste of money to
maintain such a panel.
c.

It will promote more claims by the


contractor.

d. It will be conducive that Dispute


Resolution Board is fully informed
about the conditions of site that
gives rise to the dispute from
outset.
4) What are your views about the enforceability of DRB decisions, in the light of DRB decisions can
be challenged in an Arbitration.

Description

Do not
Agree
at all

Do not
Agree

Cannot
say

Agree

Fully
Agree

Do not
Agree
at all

Do not
Agree

Cannot
say

Agree

Fully
Agree

a. It will be easy as DRBS have made


their
decisions
being
fully
conversant with site conditions.
b. It will be a waste of Time and
Money that Arbitration will re-open
and have new proceedings that will
take more time and incur more
cost.
c.

DRB process can replace the


arbitration if necessary legislative
provisions are made in law.

5) To improve DRBs please indicated that.


Description

a. Dispute Boards should have an

103

Annex 2
institution to set out procedures
and rules.

Participant Consent Form

b. Dispute
Boards
should
be
recognized by law as an alternative
to the Arbitration Panel.
c.

Train more Professionals to be


panel members of DRBs by
Government authorities such as
ICTAD.

Tear off

Section 3
Feedback Information
If you want to have a feedback on the findings of this study please indicate your e-mail address below.
Respondents e- mail address
..

Study of Dispute resolution methods in Sri Lankan Construction Industry

with emphasis on the adoptability of permanent Dispute Resolution


Boards (PDRB) for Major works

Ref No:@00371724

Name of Researcher: Edmond Hettiogda


(Delete as
appropriate)

I confirm that I have read and understood the information


104

sheet for the above study (version x- date) and what my


contribution will be.

Yes

No

Yes

No

Yes

No

I have been given the opportunity to ask questions (face to


face, via telephone and e-mail)

I understand that my participation is voluntary and that I can


withdraw from the research at any time without giving
any reason

I agree to take part in the above study

Yes

No

Name of
participant:

Signature
105

Date:

Name of researcher taking


consent:

Edmond Hettigoda

Researchers e-mail address:


gm@swa.lk
If you have any concerns about this research that have not been addressed by
the researcher, please contact the researchers supervisor via the contact
details below:
Supervisors name
Dr Udayangani Kulatunge
Supervisors email address:
U.Kulatunga@salford.ac.uk

Annex 2
Study of Dispute resolution methods in Sri Lankan
Construction Industry with emphasis on the adoptability of
permanent Dispute Resolution Boards (PDRB) for Major
works

Participant Information Sheet


I wish to invite you to be a participant as a resource person for the aforementioned study. Please take
time to read the below mentioned information carefully. Please do ask question if you require any
further information or clarifications on the provided information give your full consideration prior to take
part or not to take part in this study.
Study is focused in obtaining views of Construction Industry players with regard to Alternate Dispute
Resolution Methods adopted in the Sri Lankan Construction Industry. Particular emphasis will be
made on the adoptability of permanent Dispute Resolution Boards as provided by ICTAD conditions
SBD/02 and Harmonized version of FIDIC/MBD publication (FIDIC Pink Book).
Purpose of this study is to make recommendations for a speedier and cost effective Dispute
Resolution Method for the Sri Lanka Construction Industry to the satisfaction of all stakeholders of the
Industry.

106

You have been invited to take part in this study as I have identified you as key player of the industry
and are belonging to one of the following categories.
1.
2.
3.
4.

Senior Management level person of ICTAD grade C1-contractor


Consultant involved in Design and Administrative of contracts over Rs 500 million in value.
Active Construction lawyer and or Arbitrator.
Senior Manager of Client organization (Developer) carryout project over Rs 500 million in
value.
5. Senior Manager of a Statutory Agency handling projects over Rs 500 million.
Taking part of this study is voluntary and you are free to withdraw from the study at your discretion.
You will not be required to give reasons for withdrawal.
You will be required to fill questionnaires wherein you are given a choice of answers generally in the
following form.
a). Totally Disagree

b). Disagree

c). Not decided d). Agree

e). Strongly Agree

and I estimate that a time period of 2 days will be sufficient to fill the questionnaires. I foresee no risks
in your participating the data provided by you will be coded and no names of persons or organisations
will be disclosed.
The study attempts to make recommendations for a more efficient. Alternate Dispute resolution and if
successful it will be to the benefit of all stake holders including you.
If you have a concern or complaint to make in connection with this study or its question please contact

Edmond Hettigoda

Tel 0777554319

Or gm@swa.lk

It you still not satisfied with my answers please contract my supervisor to this .

Dr Udayangani Kulatunge

e- mail : U.Kulatunga@salford.ac.uk

If you still remain unhappy you can make a formal complaint to the Head of ant school Professor
Charles Egbu at University of Salford M54WT.
If you need feedback of this study please fill section C of the question and I will provide you with an
outcome of this study.
The data provided by you will be stored in a password protected fills accessed only by me.
Data will be retained for a period of 3 years and disposed safely thereafter.
Study is solely undertaken by and no-sponsors will be available for the study.

107

108

Annex 3

School of the Built Environment


Ethics Feedback Form
Student Name:
Supervisor:
Project Title:

Edmond Hettigoda
Student ID:
@00371724
Dr Udayangani
Ethics
Marcus Ormerod
Kulatunge
Reviewer:
Dispute resolution methods in Sri Lankan Construction
Industry with emphasis on the adoptability of permanent
Dispute Resolution Boards (PDRB) for Major works.

Feedback on Ethical Approval Application


Based on the documentation submitted ethical approval is granted.

Description

Decisio
n

Type 2 Approved
This is a Type 2 project. Provided that you address feedback set out above
(if any) to your Supervisors satisfaction, and that you carry out your data
collection substantially in accordance with the procedure you have
described, and using the explanatory and confirmatory documentation
supplied, then you have ethical approval for your research.

APPROVE
D

IMPORTANT REMINDER - EXTENSIONS


CHECK THAT YOU KNOW KNOW WHEN YOUR RESEARCH PHASE ENDS.
REQUEST ANY EXTENSION BEFORE YOUR CURRENT RESEARCH PHASE
ENDS BY REQUESTING AN EXTENSION FORM FROM sobe-programmesupport@salford.ac.uk (include your Student ID) AND THEN RETURNING
IT BEFORE YOUR RESEARCH PHASE ENDS

109