Training On: Disputes Resolution

Training on
Disputes Resolution
Presented
By
Zewdu Tefera Worke
(Engineering Contracts Lawyer)
Construction Disputes Management
Presentation Outline
 Training Objectives
 Formula: Focus
 Contract Enforcement
 Construction Disputes: Concept
 Alternative Disputes Resolution (ADR)
Mechanisms
 Construction Dispute Settlement Methods
 Construction Disputes Resolution Methods
Training Objectives
At the end of the training, the trainees able:
 to define the concept of construction dispute;
 to define & understand the concept & scope of
alternative disputes resolution (ADR) mechanisms;
construction disputes settlement methods;
construction dispute resolution (judgmental)
methods;
Formula on Construction Contract & Law

D
+KP and/or +LP: ROLE
V…?
(Developed by:
Zewdu Tefera Worke,
Engineering Contracts Lawyer: (2014))
Formula: Focus
 D: Delivery System
 K: Contract System
 L: Legal System
 Person related System
 R: Procurement System
 O & L: Contract Management System
 E: Enforcement System
 Focus: Enforcement System: viz., on
(construction) claims & disputes management;
Construction Disputes
Disputes Management
Submitted Claims
 EOT 1000 Days
 ETB 600 Million
Resolved Claims
 EOT 100 Days
 ETB 50 Million
Unresolved Claims
 EOT 900 Days
 ETB 550 Million
concept
 unresolved claim: existence of unresolved
construction claim within the construction
claims management framework;
 scope: scope of unresolved claim could be
in whole (total rejection) of claim or in part
(partial rejection) of the claims of the
claimant by the Engineer;
Construction Disputes…
concept
 illustration: claim for 1000 days of EOT; and
Birr 500 Million cost claim; by the contractor
 The Engineer granted 50 days of EOT; and
Birr 10 Million cost claim entitlement;
 unresolved claim: EOT 950 days; cost claim
Birr 490 Million; this is subject to disputes
management system if other added factors
considered;
Construction Disputes…
added factors: threefold
 level of dissatisfaction: there must be strong dissatisfaction on

the part of the claimant as related to such unresolved
construction claim;
 decision feature: strategic decision has to be made on the part
of the dissatisfied party to further purse the unresolved claim;
 time-bound: time scale to be observed (agreed or regulated by
law) if the Claimant strategically decided to further pursue the
unresolved claim;
 methods: available methods for further pursue the unresolved
claim (viz., dispute) could be twofold: viz., ADR or non-ADR;
ADR Mechanisms
Alternative Disputes Resolution

(ADR) Mechanisms
ADR Mechanisms
Concept of ADR
 concept of ADR includes all (construction)
disputes management methods except
litigation;
 private justice system: all such disputes
management methods forming an integral part
of ADR fall within private justice system;
 public justice system: litigation forming an
integral part of non-ADR method falls within
public justice system;
ADR Mechanisms…
Scope of ADR: twofold

settlement sub-methods
 negotiation;
 mediation;
 conciliation;
resolution (judgmental) sub-methods
 construction adjudication;
 construction arbitration;
construction litigation;
 (non-ADR) but forming part of judgmental sub-
method;
ADR Mechanisms…
Types of ADR: threefold

 traditional ADR; rules based on specific culture
or tradition and applicable to community-
based conflict;
 modern ADR; applicable to commercial
disputes like construction disputes;
 international ADR; applicable to state-to-state,
investor-state and other comparable (non-
commercial) disputes;
 focus: on modern ADR;
ADR Mechanisms…
Features of ADR
 settlement methods: process being non-

adjudicative or consensual;
 judgmental methods: process being
adjudicative;
Settlement Methods
Construction Dispute Settlement Methods

Settlement Methods…
Concept
 the settlement or management of

construction disputes directly by the
disputing parties themselves; or
 through the assistance of a neutral third
party;
Scope
 settlement method includes direct negotiation; and
assisted negotiation like construction mediation;
construction conciliation;
 direct negotiation; where the disputing parties
themselves or through their authorized
representatives directly settle the construction
dispute;
 assisted negotiation: where the disputing parties
settle the construction dispute through the assistance
of a neutral third party like mediator or conciliator;
Basic Principles
 party-autonomy: the right of the disputing
parties to select a given a settlement sub-
method to settle the construction dispute;
 self-empowerment: the power to settle or
not to settle the construction dispute by
the disputing parties;
Common Features: multi-fold

 outcome: controlling the outcome of the
construction dispute by the disputing
parties themselves: viz., self-
empowerment;
 process: designing the settlement process
by the disputing parties themselves (in case
of direct negotiation) or with a neutral third
party (in case of assisted negotiation);
common features…
interest:
 outcome of the dispute settlement process, if
any, being interest-based; i.e.,
 settling the construction dispute based on the
mutual interest of the disputing parties;
 Note: the signed construction contract &
applicable law thereto might not be the basis
for outcome of the dispute but the interest of
common features…
 time & cost: settlement sub-methods being cost
effective & non-time consuming to the
disputing parties;
 win-win: psychological benefit to the disputing
parties; viz., creating win-win situation to the
disputing parties;
 relationship: keeping & sustaining good future
relationship between the disputing parties after
settlement of the construction dispute;
Pre-conditions:
fivefold:
 negotiability:
 mandate;
 knowledge;
 skill; and
 good faith;
Pre-conditions…
negotiability;
 dispute: verification of the negotiability of
the construction dispute under
consideration;
 authority: verification of the existence of
any public policy or legal prohibition or
limitation thereon;
Pre-conditions…
mandate:
verification of legal mandate to negotiate (re:
public institutions); threefold viz.,
 agreement: legal mandate to enter in to
settlement agreement;
 negotiate: legal mandate to negotiate; and
 signing: legal mandate to sign on the
settlement document;
Pre-conditions…
knowledge:
 having substantive knowledge on the specific subject
matter (viz., construction dispute) to be negotiated; viz.,
 on building construction project;
 on engineering (infrastructure) project;
 on building and/or engineering construction projects
having interface with industrial (process/utility) plant
erection projects;
 objective; with a view to influence the content of
outcome;
Pre-conditions…
skill:
 having the required skill on the art of negotiation;
 objective: with a view to influence the process of
settlement;
good faith:
 having the required good faith in negotiation
process;
 objective: with a view to smooth the process & to
ensure outcome (being mutual interest);
Disputes Negotiation
Disputes Negotiation (Direct)

Disputes Negotiation
Concept: direct negotiation
 undertaking negotiation on the construction disputes by the
disputing parties directly or through their authorized
representatives;
consensual:
 characterized by the process of give and take with a view to
settle a construction dispute if it satisfies mutual interest of the
disputing parties;
 authority: see Civil Code Article 3307-3317: Compromise
 contract: see MDB-FIDIC Sub-clause 20.5: Amicable Settlement
 contract; see PPA (2011) Sub-clause 26.2 ..”….direct informal
negotiation….”?
Disputes Negotiation…
Types:
threefold:
 pre-contract negotiation;
 performance stage negotiation; and
 disputes negotiation;
pre-contract negotiation;
 deal: aimed to strike a construction deal
(contract) between the employer and the
winner contractor;
 mandate: mandate to undertake pre-
contract negotiation being inherent in legal
power to enter in to contract;
performance stage negotiation;

 by whom: negotiation between the Engineer & the
contractor during project or construction contract
performance;
 illustration: like variation related; or negotiation
between the Engineer & each contracting party (re:
construction claims management), if the
construction contract so provides;
 issue: is the Engineer negotiating say with the
contractor based on its agent role or professional
role?
dispute negotiation;
 by whom: negotiation between the
employer & the contractor or negotiating
through a neutral third party;
 mandate: requires specific legal mandate to
do so;
 focus: the training focuses on dispute
negotiation;
Methods
or negotiation styles; threefold:
 competitive bargaining;
 cooperative bargaining; and
 principled negotiation;
competitive negotiation;
 negotiators essentially concerned with
substantive results and to gain an
advantage and to ascertain the other
negotiator’s bottom line;
 advocate extreme positions;
 create extravagant issues;
 mislead the other negotiator;
cooperative negotiation:
 both negotiators focus on building up a
relationship of trust and cooperation;
 In this strategy the negotiators are
prepared to make concessions even on
substantives issues as the endeavor is to
preserve the relationship;
principled negotiation:
 interest: under this style of negotiation, the
negotiators focus on the (mutual) interests
of each of the disputants, with the goal of
creating satisfactory and elegant options
for resolutions, which may be assessed by
objective criteria;
 focus: on principled negotiation;
Strategy
significance:
 crafting & reviewing (from time to time) negotiation
strategy being sine qua non for effective negotiation;
structure;
 strategy contains technical (substantive) & mental
(psychological) preparation of the negotiating party;
value:
 strategy provides best alternatives to and benchmark
for the negotiating party within the style of
principled-negotiation; serves to settle or to walk out;
Mediation
Construction Disputes Mediation

Mediation
Concept
 mediation means a process of negotiation
(between the disputing parties) with the
presence of a neutral third party known as a
mediator, who is there only to assist the
disputing parties in terms of facilitating flow of
information and substantive communication
(negotiation) between the disputing parties;
 category: mediation being one of the settlement
sub-methods falling under assisted negotiation;
Mediation…
Types
 general mediation: all mediation principles
applicable to all forms of mediation;
 special mediation: mediation principles
applicable like to (commercial) construction
mediation;
 pure mediation: the mediator to play only a
mediator role;
 hybrid: the mediator to play or act as an
arbitrator if mediation fails known as med-arb;
Mediation…
Role
 facilitation: mediator plays a facilitative role if
mediation were selected & the mediator
appointed by the disputing parties; viz., party
autonomy;
 decision: no power to give decision on the
construction dispute by the mediator;
 parties: the disputing parties fully retain the
power to settle or not to settle the construction
dispute; viz., self-empowerment;
Mediation…
Process
 process; mediation has a well established & structured
process;
 design: a mediator designs the mediation process and
put on the table for and explains to the disputing
parties for their understanding & agreement;
 enforcement: mediation process to be enforced by the
mediator once agreed or endorsed by the disputing
parties;
 scope: mediation process may include the following
Mediation…
Process structure
 introduction and setting framework;
 statement taking:
 agenda construction:
 exploration:
 separate meeting:
 option generation or negotiation
 selecting an Option;
 closure;
Mediation process…
Introduction and setting framework:

(also known as setting the table);
 introduction: introduction of the mediator to
and with disputing parties;
 rules: introducing ground rules for the process;
 role: explaining role & status of the mediator;
 role: explaining role of the disputing parties;
 decision: explaining their right to self-
empowerment;…
Statement taking:
 known as (brief) story telling by the
disputing parties to the mediator one by
one;
 no interruption by the other disputing
party during story telling;
 taking note by the mediator;
List or Agenda construction:

(also known as agenda setting);
 agenda: disputing parties express their respective agenda;
 priority: the mediator try to establish the agenda on their
order of priority;
 consent: mediator to secure consent of the disputing
parties both on the content of the agenda & their priority;
 style: agenda to be written in the form of inviting
discussion or negotiation (avoiding positional reflection in
writing);
Exploration:
 alternative: also known as brainstorming
by the disputing parties each other;
 encouragement: mediator to encourage
the disputing parties to negotiate directly
in his/her presence;
 rules: mediator to ensure respect for
ground rules by the disputing parties;
Separate meeting:
(also known as caucuses);
 concept: meeting with the employer, the contractor
(or their authorized representatives), separately, by
the mediator;
 interest; mediator to understand disputing parties
real intention & interest;
 merit & option: provides opportunity to express on
the merit of the agenda and option for settlement;
 confidential; information disclosed during caucus
remain confidential;
Option generation or negotiation:

 negotiation: exchange on the substantive
aspect of the construction dispute by the
disputing parties through the help of the
mediator or undertaking real negotiation
(give & take);
 options: mediator to record the agreed
options and preparing the ground for final
settlement;
Selecting an Option;
 interest: mediator to allow to the parties to
choose the feasible option which satisfies
their interest;
 assistance: mediator to help in setting some
objective criterion for the parties to assess
the settlement option;
 agreement: reaching settlement agreement
by the disputing parties themselves;
Closure;
 option: closure with or without settlement;
 record: if with settlement: putting the
settlement in writing;
 role; consider the role of the mediator to
write the draft settlement agreement; or to
become a witness thereto and so forth;
Mediation…
Legal Status
 not yet: mediation is not yet known & regulated by
Ethiopian legal system;
 contract; see MDB-FIDIC Sub-clause 20.5: Amicable
Settlement;
 rules: the former Ethiopian Arbitration & Conciliation
Center (EACC) has developed mediation rules (2005);
 draft legislation: the former EACC has also sponsored
the drafting of Conciliation & Mediation draft
legislation and submitted same to the then Ministry
of Justice;
Conciliation
Conciliation of Construction
Disputes
Conciliation
Concept
 conciliation is a form of an assisted
negotiation where the conciliator facilitates
the negotiation process and to evaluate the
substantive position of the disputing
parties during such negotiation process;
 category: conciliation being one of the
settlement sub-methods falling under
assisted negotiation;
Conciliation…
Legal Status
 Compromise: conciliation being part of the concept
of compromise (negotiation) in Ethiopian legal
system & framework;
 Recognition: conciliation is clearly recognized in the
Ethiopian legal system;
 authority: see Civil Code Article 3318-3324 cum 3307-
3317;
 contract: see MDB-FIDIC Sub-clause 20.5: Amicable
Settlement ;
 New development; new law on conciliation;
Conciliation…
International Legal status…

 internationally, there are some relevant
conciliation rules as developed by: like
 UN Commission on International Trade Law
(UNCITRAL) Model Law on Commercial
Conciliation (2002);
 International Chamber of Commerce (ICC);
Conciliation…
Role of the Conciliator:

fourfold:
 facilitative role;
 evaluative role;
 predictive role; and
 suggestive role;
Conciliation…
facilitative role
 like the mediator, the conciliator is there to
facilitate the information flow between the
disputing parties & the negotiation
process;
 see Article 3320 (1) of the Civil Code;
Conciliation…
evaluative role: threefold

 merit: the conciliator is able to assess the
strength & weakness of the merit of the dispute
and reflect his/her opinion thereon;
 position: the conciliator is able to assess the
respective positions of the negotiating parties
and reflect his/her opinion thereon;
 behavior: the conciliator able to assess the
behavior of the disputing parties & reflect
his/her opinion thereon;
Conciliation…
predictive role
 dispute fate: the conciliator is to assess &
present to the negotiating parties, if
requested, the fate of the dispute if it were
submitted to a certain judgmental forum
like arbitration or litigation;
 typical: this role of the conciliator is typical
in construction disputes;
Conciliation…
suggestive role
 solution; in case the negotiating parties fail to settle the
construction dispute by themselves based on the
evaluation, and prediction, if any, made by the
conciliator, the conciliator recommends/suggests a
solution to the disputing parties to settle the dispute;
 see Civil Code Article 3320 (2): Duties of the Conciliator;
 self-empowerment: the negotiating parties are not
bound to accept the suggestion made by the conciliator;
 see Civil Code Article 3322 (2): Power of the Conciliator;
Conciliation…
Role…
 difference; the conciliator plays more active
and catalyst role than the mediator;
 role; the conciliator may act as an
arbitrator on the same construction dispute
between such same negotiating parties, if
the parties have agreed; known as concil-
arb;
Conciliation…
Process
 process; construction conciliation may critically
consider & adapt the process designed for construction
mediation taking in to consideration the active role of
the conciliator;
 process: the conciliation process may be designed or
proposed by the conciliator & presented to the
disputing parties for their understanding & agreement;
 enforcement: the construction conciliation process so
jointly designed is to be controlled & enforced by the
conciliator;
Resolution Methods
Construction Disputes Resolution Methods

Disputes Resolution Methods
Concept
 concept: dispute resolution method or judgmental
method is basically characterized by the presence
of a neutral, independent and impartial third
party, who is there to render or give his/her
solution (viz., decision) to the dispute;
 third party: such third party who has Resolutive
power on the construction dispute could be an
adjudicator or an arbitrator or a judge at the court
of law;
Concept….
solution: known as:
 decision in case of adjudication;
 award in case of arbitration; and
 judgment in case of litigation;
no self-empowerment:
 the disputing parties have lost their power
to give solution to their construction
dispute;
Scope: threefold
dispute resolution or judgmental sub-
methods are of the following; viz.,
 construction adjudication;
 construction arbitration; and
 construction litigation;
Common Features
all such judgmental sub-methods share the
following key features;
 outcome control;
 process design; and
 outcome being right-based;
Common features…
 outcome: outcome of the dispute controlled by such
specific neutral third party;
 process: process design possible in case of adjudication &
arbitration;
 process enforcement: designed process is to be enforced
by the adjudicator or by the arbitrator;
 litigation: no process design by the disputing parties and
the judge; process already designed & provided as per the
Civil Procedure Code;
 enforcement: process strictly be enforced by the judge in
case of litigation;
Common features…
 right-based: in adjudication; arbitration; and litigation
the outcome of the dispute being right-based;
fourfold factors:
 contract: the signed construction contract;
 law: the applicable law to such construction contract;
 evidence: evidence or proof submitted by the
disputing parties; and
 argument; written and/or oral argument made by the
disputing parties;
Common features…
 right-based: means the position of the
disputing parties & the solution to be given to
the construction dispute by such impartial third
party being based on such fourfold factors; viz.,
contract; law; evidence; and argument;
 difference: this is the key & structural difference
between all settlement sub-methods and all
judgmental sub-methods;
Construction Adjudication
Concept
 adjudication is a process whereby an
appointed neutral & impartial party is
entrusted to take the initiative in
ascertaining the facts and the law relating
to a dispute to reach a decision within a
short period of time;
 such decision being binding and/or final on
Construction Adjudication…
concept:
 adjudication is a process where a neutral third
party gives a decision, which is binding on the
parties unless or until it is revised in subsequent
settlement or arbitration or litigation;
concept:
 adjudication also comes in the various form of
dispute board (DB) and is unique to the
construction industry;
Legal Status
 law: statutory adjudication is not yet known
legally in Ethiopia;
 contract: contractual adjudication were known
in Ethiopia; based on PPA (2006); see Clause 25;
 contract: based on international standard
construction contracts like Sub-clause 20.2-20.4
MDB-FIDIC; FIDIC (1999);
 contract: PPA (2011) does not recognize
construction adjudication;
Features
the features were compared with construction arbitration;
uniqueness:
 adjudication is unique to the construction industry, in
terms of its historical emergence & current development
& application;
part of procurement:
 adjudication is part of the procurement planning; the
appointment of DAB members with their names is
communicated with tender documents to the
prospective bidders during such tendering phase;
Features…real time:
 adjudication is a real time dispute resolution
process;
 concept: it means that the members of the
dispute board are there right from the
commencement of the project up to its
completion;
 in principle, adjudication is a permanent
contractual body; it does not dissolve itself once
it issues its decision/recommendation;
Features….
inclusive mutual consent:
 appointment of dispute board members
shall be undertaken based on the mutual
consent of all the disputing parties;
 it means that the contracting/disputing
parties express their respective consent on
the appointment of all the three members
of the dispute board;
Construction Adjudication….
Features…
three partite agreement:
 there shall be an agreement to be signed
between the members of the board & the
disputing parties;
 all recent FIDIC versions & MDB-FIDIC
provide the contents of such agreement;
Features….
shared remuneration:
 the remuneration has to be paid to such
members equally by the disputing parties;
 it is reflected in the tripartite agreement to
be signed between the disputing parties &
the members of the dispute board;
Features…
one dispute:
 only one dispute at a time shall be referred
to such process;
short time:
 a decision has to be given within a short
period of time; extension of time is allowed
based on the consent of the disputing
parties;
Types:
threefold factors:
 outcome;
 organization; and
 legitimacy;
Types…
outcome based; threefold
 decision: dispute adjudication board (DAB);
 recommendation: dispute review board
(DRB)
 combined: combined dispute board (CDB)
may provide decision or recommendation;
Types…
organization based;
Two-fold
 permanent dispute board;

 ad hoc dispute board;
Types…
legitimacy based;
Two-fold
 statutory adjudication;
 contractual adjudication;
Process:
applicable to permanent, DAB (decision)
Agreement;
 having tripartite agreement between the DB
members and the disputing parties;
DAB;
 establishment of the DAB;
Dispute;
 emergence of a construction dispute; requires
exhaustion of the claims management process;
Process…
Notice of Reference;
 an interested disputing party giving notice of
planned dispute referral;
Meeting;
 undertaking joint meeting by the DAB members
with the disputing parties, if required;
Referral of Dispute;
 the disputing party referring or submitting the
dispute to the DAB;
Process…
Response to Referral;
 the other disputing party submitting its
response to the submitted construction
dispute;
Response to Response, if any; optional;
Exchange of Documents;
 by the disputing parties to & through the
DAB;
Process…
Site Visit;
 by members of the DAB in the presence of the
employer; the contractor; and the Engineer;
Hearing;
 unless the agreement requires documents only
adjudication, the DAB is required to plan and
undertake a hearing;
Deliberation;
 by members of the DAB on the merits of the dispute
based on the referrals, hearing and/or site visit;
Process…
Decision;
 decision with reasoning by the DAB
unanimously or by majority vote;
Enforcement;
 the decision of the DAB going to be honored by
the disputing parties & get enforced: viz.,
 EOT granted will be implemented;
 financial claim approved will be included in the
next IPC, if any;
Construction Arbitration
Concept
 concept: the arbitral submission is a contract
whereby the parties to a dispute entrust its
solution to a third party, the arbitrator, who
undertakes to settle the dispute in accordance
with the principles of law;
 authority; see Civil Code Article 3325 (1);
 New development; new law on arbitration;
 concept: arbitration is consensual; viz., based
on agreement to arbitrate;
Construction Arbitration…
Concept…
 party autonomy: the disputing parties may
select arbitration to submit their disputes
thereto based on their agreement to
arbitrate;
 self-empowerment: the disputing parties
lost their power to determine on the
outcome of the dispute;
Legal Status
 law: arbitration is recognized in the Ethiopian legal
system;
 law: authority: see Civil Code Article 3325-3346 cum 1675-
2026: Arbitral Submission
 law: authority: see provisions in the Civil procedure Code:
 contract: conditional arbitration is recommended under
PPA (2011); see Sub-clause 26.6;
 contract: arbitration is recommended in the international
standard conditions of construction contract like: under
Sub-clause 20.6 MDB-FIDIC; FIDIC (1999) New Red Book;
Features
 consensual: arbitration being based on the
agreement of the disputing parties;
 severability: agreement to arbitrate being
an independent contract;
 procedural flexibility; arbitration process
provides procedural flexibility; disputing
parties participate in process design;
Features…
enforceability:
 enforceability of the award by court;
neutral forum:
 arbitration provides neutral forum to the
disputing parties; (re: international);
expert judges:
 arbitration provides judges based on their
specific experience; parties select & appoint
their own private judges (viz., arbitrators);
Types: illustrative
three-fold:
 nature of dispute based;

 jurisdiction based; and
 ownership of process management based;
Types…
nature of dispute based
categories:
 commercial vs. non-commercial
arbitration;
commercial;
 construction arbitration part of commercial
arbitration;
Types…
jurisdiction based
 categories: local vs. international
arbitration;
 either: construction arbitration may take
either form based on specific agreement to
arbitrate;
Types…
ownership of process management based
categories:
 institutional vs. ad hoc arbitration;
either:
 construction arbitration may take either
form based on specific agreement to
arbitrate;
Process
 agreement: having an agreement to arbitrate;
 dispute: occurrence of a construction dispute;
 composition: composition of the arbitral tribunal;
 meeting: undertaking preliminary meeting;
 pleading: exchange of written
pleading/argument;
 hearing: undertaking oral hearing;
 costs: submission of cost of arbitration;
 award: rendition of final award;
Process…
agreement: having an agreement to arbitrate;
 number of arbitrators;
 place of arbitration;
 language of arbitration;
 applicable law to arbitration: viz., procedural &
evidential;
 arbitration institution agreed, if institutional;
 arbitration rules applicable governing the process;
 finality of the final award;…
Process…
dispute: occurrence of a construction dispute;
 pre-conditions, if any, to trigger arbitration
have to be fulfilled;
 contract; specific construction contract &
agreement to arbitrate has to be checked;
Process…
composition:
composition of the arbitral tribunal;
 by the disputing parties;
 by the arbitration institution, if agreed;
and/or
 by the court having jurisdiction;
Construction Arbitration….
Process…
undertaking preliminary meeting;
 road map: to establish the road map for the
arbitration process;
 role: to define the roles of the disputing parties &
of the arbitral tribunal in the arbitration process;
 power: to determine the power of the arbitral
tribunal;
 program; to agree on the procedural time table
for the arbitration process;
Process…
pleading: exchange of written
pleading/argument;
 by the claimant; request for arbitration;
 by the respondent; reply to the request for
arbitration;
 by the claimant; counter-reply to the reply; and
reply to the counter-claim, if any;
 by the respondent; counter-reply to the reply to
the counter-claim, if any;
Process…
hearing: undertaking oral hearing;
 opening statement: first by the claimant,
and then by the respondent;
 evidence-in-chief: introducing respective
evidence-in-chief of the identified
witnesses (expert and/or factual) by the
claimant & the respondent, respectively;
Process…hearing…
cross examination:
 undertaking cross examination of such
identified witnesses (factual and/or expert)
by the respondent to cross examine the
witnesses of the claimant; and
 by the claimant to cross examine the
witnesses of the respondent, if any;
 re-direct examination: undertaking re-direct
examination by the claimant & the respondent
its own identified witnesses (expert and/or
factual) if there were damaging statements or
testimonies given during cross-examination;
 clarifications: the member (s) of the arbitral
tribunal may have also certain defined role in
asking clarification questions at any stage of
such hearing;
closing statement:
 oral; then at the end of the hearing, closing
statement shall be given by the claimant &
by the respondent orally; and
 written: such closing statement
subsequently be submitted in writing, as
the tribunal may direct;
Process…
costs: submission of cost of arbitration;
 purpose: such cost submission aimed to
recover costs of the arbitration by one
disputing party from the other (by the
claimant from the respondent & vice versa);
 timing: submitted to the arbitral tribunal
mostly after hearing, if any, as the tribunal
may direct;
Process…
award: rendition of final award;
 objection: on the preliminary objection (s),
if any;
 merit: on the merit of the case (claims
and/or counterclaims, if any);
 cost: on apportionment of arbitration
costs; and
 other: on other related issues, if any;
Cost of arbitration:
international arbitration: illustrative
 claims expert fee; as claimant has engaged
claims expert to determine chances of
success & risks associated therewith;
 international law firm fee; to be paid to
lead counsel; to assistant counsel (s); and
to Para legal’s; such costs are calculated on
hourly basis and in foreign currency;
Cost…
case related costs:
 category of cost incurred as related to the
study, development & submission costs or
expenses of the case incurred by and to be
reimbursed to the law firm; like
 documentation cost; communication
expenses; accommodation costs; and so
forth;
Cost…
arbitrator (s) fee;
 to the sole arbitrator or to the members of the
collegiate arbitration tribunal;
 in case of ICC arbitration it is based on the sum in
(construction) dispute, as per the scale of ICC;
administrative expenses:
 this is the cost of the arbitration institution (like ICC
or LICA);
 in case of ICC arbitration, it is based on the sum in
(construction) dispute, as per the scale of ICC;
Cost..
direct hearing expenses;
 like transcription cost to be shared both by
the claimant & the respondent equally;
other hearing related costs;
 like accommodation; transportation; and
so forth for claimants/respondent’s team;
expert witness (es); eye witness (es);
Cost…
expert witness fee;
 to visit the project site, to study relevant
project documentation and to formulate
his/her expert testimony to be submitted
to the tribunal together with the written
pleading;
Cost…
other possible costs;
 as the case may be; like
 enforcement costs if the disputing party, as
a winner, indulges itself in the enforcement
of the final award by court having
jurisdiction or otherwise;
Role of Courts in Arbitration

Role of Courts
reason:
public policy to provide judicial assistance to
arbitration; threefold viz.,
 to its agreement;
 to its process; and
 to its outcome;
 foundation: coercion rests only with the
State;
Role of courts…
threefold:
 pre-arbitration (on agreement);

 during arbitration (on process); and
 post-arbitration (on outcome);
Role of the court…

pre-arbitration phase
 arbitrability: deciding by the court on arbitrability or
non-arbitrability of the (construction) dispute;
 objection: deciding by the court on the jurisdictional
plea that the court has no jurisdiction over the
(construction) dispute; also known as preliminary
objection;
 specific performance: deciding on the enforcement of
agreement to arbitrate if someone refuses to
perform, as agreed;
Role of the court…pre-arbitration…

validity:
 deciding on the validity of the agreement
to arbitrate;
appointment:
 appointing arbitrator (s) if requested by an
interested disputing party;

during arbitration phase
 injunctive relief proceeding; undertaking such
proceeding and issuing injunctive order;
 property attachment proceeding: undertaking such
proceeding and issuing injunctive order;
 compelling witnesses; giving order on witnesses to
appear before the arbitration tribunal;
 challenge proceeding: ruling on challenge raised
against member (s) of the arbitral tribunal by an
interested disputing party:

post-arbitration phase
 enforcement: on recognition &
enforcement of final award by the court;
 appeal: undertaking appeal proceeding as
related to final award by the court;
 set aside: undertaking set aside proceeding
as related to final award by the court;
Construction Litigation
Role of the Court
 Resolutive role of the court;

 facilitative role of the court;
Construction Litigation…
Role of the court…Resolutive Role

 concept: where the court hears & decides on construction
disputes and enforces its judgment thereon; this process
known as construction litigation;
 authority: based on the constitution & all applicable laws
concerning courts; viz., their respective establishment;
jurisdiction; and so forth;
 contract (local): see PPA (2011) Sub-clause 26.5: provides
construction litigation for construction disputes;
 contract (international): no construction litigation
proposed under MDB-FIDIC (2006 or 2010) or FIDIC New
Red Book (1999);
Construction Litigation…

Facilitative Role
concept;
the threefold role of courts in arbitration, as
discussed; viz.,
 pre-arbitration;
 during arbitration; and
 post-arbitration;
Finally,
Thank You

Training On: Disputes Resolution

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Training On: Disputes Resolution

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Training on

Formula on Construction Contract & Law

 level of dissatisfaction: there must be strong dissatisfaction on

Alternative Disputes Resolution

Scope of ADR: twofold

Types of ADR: threefold

 settlement methods: process being non-

Construction Dispute Settlement Methods

 the settlement or management of

Common Features: multi-fold

Disputes Negotiation (Direct)

performance stage negotiation;

Construction Disputes Mediation

Introduction and setting framework:

List or Agenda construction:

Option generation or negotiation:

International Legal status…

Role of the Conciliator:

evaluative role: threefold

Construction Disputes Resolution Methods

 permanent dispute board;

 nature of dispute based;

Role of Courts in Arbitration

 pre-arbitration (on agreement);

Role of the court…

Role of the court…pre-arbitration…

Role of the court…

Role of the court…

Role of the Court

 Resolutive role of the court;

Role of the court…Resolutive Role

Role of the court…

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