Global Advocacy and Legal Counsel ’s Post

🌐 🏗️Resolving Disputes with Clarity and Fairness In the fast-paced world of construction, disputes are not uncommon, but how we resolve them defines our industry's resilience and professionalism. This post's aim is to shed light on the role of arbitration in settling construction disputes and its benefits: Arbitration offers a streamlined process conducted by industry experts who understand the complexities of construction projects. This ensures disputes are handled efficiently without lengthy court proceedings. Unlike traditional litigation, arbitration allows parties to customize procedures and maintain confidentiality. This flexibility often leads to quicker resolutions and protects sensitive project information. By choosing arbitration, parties can maintain better relationships than adversarial court battles might allow. This collaborative approach focuses on solutions rather than exacerbating conflicts. Arbitration awards are typically easier to enforce internationally compared to court judgments, making it a preferred method for resolving cross-border disputes in the global construction industry. Each arbitration case provides an opportunity to learn from disputes and implement improvements in project management, contracts, and communication practices. Have you experienced arbitration in construction disputes? #ConstructionArbitration #DisputeResolution #ConstructionIndustry #ArbitrationBenefits #ProfessionalDevelopment #ProjectManagement

The dispute resolution clause in FIDIC’s 2017 forms of construction contract provides for multiple tiers or steps to be satisfied before a party can refer a dispute to arbitration. It also provides that, in certain cases, where a party fails to comply with a step (for example, an agreement of the parties under S-C 3.7.5, a final and binding determination of the engineer, or a decision of a dispute adjudication board), the other party may refer that failure directly to arbitration, bypassing whatever steps remain to be satisfied. However, the forms provide no guidance or recommendations as to how such direct arbitration is to proceed. Accordingly, I do so in the current issue of The International Construction Law Review [2024] ICLR 106. I hope that FIDIC, the ICC and users find this helpful.   https://lnkd.in/eNgVfciu   #Internationalarbitration #FIDIC #Internationalconstruction #arbitration #constructionlaw #construction #constructionindustry

The Importance of Arbitration Agreements in Construction Contracts In the construction industry, where projects often involve complex agreements and significant financial stakes, disputes can arise at any stage. Whether it’s issues related to project delays, cost overruns, or differences in contract interpretation, the potential for conflict is always present. This is where #Arbitration #Agreements play a crucial role. By incorporating a well-drafted arbitration clause in construction contracts, parties can ensure that any disputes are resolved in a timely, cost-effective, and confidential manner. Unlike traditional litigation, arbitration allows for the selection of industry experts as arbitrators, leading to more informed and fair decisions. Moreover, arbitration proceedings are generally faster than court cases, which is essential in the fast-paced construction industry where time is often of the essence. It also helps in maintaining business relationships, as the process is less adversarial and more collaborative. As someone deeply involved in the construction sector, I believe that every construction contract should include a robust arbitration agreement to safeguard the interests of all parties involved. It’s not just about dispute resolution—it's about fostering a smoother, more predictable business environment. #Arbitration #DisputeResolution #ConstructionContracts #ProjectManagement #BusinessContinuity

Following on from our recent arbitration series, is our new series on adjudication under the Construction Contracts Act. We've been seeing an uptick in adjudications recently, so it's timely to reflect on the adjudication process, its benefits and potential uses. In the first article of our series, we comment on some of the basics: what adjudication is, when to use it and why. In future installments we'll track through the adjudication process, and comment on where we see the future of adjudications.

The NEC form of construction contract requires the parties to act in a spirit of mutual trust and cooperation. What's the equivalent rule for international arbitration? Most arbitral rules side-step this question. They require the institution and the tribunal to 'act in the spirit of the rules', to be quick in their work, and to do their best to deliver an enforceable award (see e.g., r 42 of the ICC Rules 2021 or r 42 of the SIAC Rules 2016). There is no mention of the Parties (or lawyers or experts) in those provisions, and there is no guidance for them on what kind of behaviour is desirable. And no one knows what 'the spirit of the rules' means in the first place. The arbitration community would be better served by rules that actually set out the spirit in which the parties should behave. A great starting point would be an approach of mutual trust with the tribunal/institution and cooperation with all parties in the dispute resolution process. ____ If you want more of these insights sign up for my newsletter: https://lnkd.in/g_mQDNGB ____

Navigating "Time at Large" in Egypt's Construction Sector, The concept of "time at large" continues to be a significant challenge in Egypt's construction industry. Despite recent efforts to modernize the legal framework, ambiguities in contract terms, particularly regarding extensions of time and liquidated damages, leading to the majority of the local market disputes. The Egyptian courts, while possessing broader discretionary powers compared to common law jurisdictions, still face challenges in interpreting and enforcing time-related provisions. To address these issues, it is imperative for stakeholders to adopt best practices in contract drafting, project management, and dispute resolution. By incorporating clear and enforceable time provisions, implementing robust scheduling methodologies, and utilizing alternative dispute resolution mechanisms, such as mediation and arbitration, the construction industry can mitigate the risks associated with "time at large" and promote more efficient and predictable project delivery. A great topic Yaser AbdElrahim Elmasry!

𝐀𝐫𝐛𝐢𝐭𝐫𝐚𝐭𝐢𝐨𝐧 𝐜𝐥𝐚𝐮𝐬𝐞 𝐜𝐚𝐧𝐧𝐨𝐭 𝐛𝐞 𝐢𝐧𝐜𝐨𝐫𝐩𝐨𝐫𝐚𝐭𝐞𝐝 𝐛𝐲 𝐫𝐞𝐟𝐞𝐫𝐞𝐧𝐜𝐞 𝐢𝐧 𝐚 𝐛𝐚𝐜𝐤 𝐭𝐨 𝐛𝐚𝐜𝐤 𝐜𝐨𝐧𝐭𝐫𝐚𝐜𝐭 Mac Associates v. Parvinder Singh (Del HC, 2J, 27.02.2024) Facts: 1) M and P had an agreement on a back-to-back basis on the basis of the contract between P and D. 2) The contract between M and P did not have an arbitration clause but the contract between P and D had an arbitration clause. 3) Disputes arose between M and P and P filed a suit in which M filed an application u/s 8 of the A&C Act on the basis of the back-to-back clause r/w arbitration clause between P and D. 4) The said Application was dismissed and M filed an Appeal u/s 37 of the A&C Act. Issue: The question before the court was whether the arbitration clause between P and D can be said to be an arbitration agreement between M and P by application of Sec. 7(5) of the A&C Act (incorporation by reference)? Held: The court rejected the Appeal and held: (1) In a single contract, a general reference to GCC or any other conditions containing the arbitration clause is sufficient to constitute an arbitration agreement whereas in a two-contract case, there should be a specific reference to the arbitration clause. (2) The back-to-back contract (in the present case) is a two-contract case and the back-to-back clause cannot incorporate the arbitration clause unless and until there is a specific reference to the arbitration clause. My views: Back-to-back contracts are relatively new kinds of contracts that have recently attracted a lot of attention and jurisprudence in the Indian infrastructure sector. It is imperative to understand the difference between a back-to-back contract and annexing GCC to a single contract. Apart from the present case, the Indian courts have generally restrained from giving an expansive interpretation to back-to-back clauses. Thus, industry professionals and contract managers should be cautious of the impact of such contracts on their potential and actual disputes. #arbitration #constructionlaw #constructiondisputes #constructionindustry #infrastructure #claimsmanagement

A DOSE OF LAW | No arbitration agreement, no CIAC jurisdiction Published 10 June 2024, The Daily Tribune In recent years, the legal community has recognized arbitration as the preferred mode of resolving disputes. With respect to construction disputes, there has also been a rise in parties providing an arbitration clause in contracts. Pursuant to the Construction Industry Arbitration Law (CIAL), the Construction Industry Arbitration Committee (CIAC) was created to encourage the expeditious settlement of disputes in the Philippine construction industry. Despite the expedient nature of submitting disputes to the CIAC, the Supreme Court recently reminded in a case that CIAC has jurisdiction only when both parties agree to submit their construction dispute to arbitration. Dean Nilo Divina discusses the case of Karen Baldovino Chua v. Noel De Castro (G.R. No. 235894, 5 February 2024). Read it here: https://bit.ly/3yXLhju #ADoseOfLaw #construction #dispute #arbitration #ciac

This article delves into the complexities of "time at large" arguments in construction contract disputes, specifically focusing on how these arguments can arise in a civil law context, contrasting them with the more familiar English and Commonwealth common law settings. The authors, experienced international arbitration practitioners, highlight the challenges of navigating time-related issues in construction projects, particularly when contracts lack clear mechanisms for dealing with delays or when those mechanisms are poorly implemented. The article explores several key areas where "time at large" arguments might arise: Contractual Deficiencies: The authors emphasize that poorly drafted contracts, lacking clear extension of time provisions or having unclear liquidated damages clauses, can create significant uncertainty and potentially lead to the "time at large" situation. Failure to Properly Administer Contractual Procedures: When contract administrators fail to promptly assess and approve extension of time claims or fail to adequately manage and update project schedules, it can create ambiguity and undermine the contractor's ability to plan their work effectively. Inability to Operate Extension of Time Clauses: The authors discuss scenarios where, despite the existence of extension of time clauses, the contract structure or other circumstances hinder their proper operation, potentially leaving the contractor without clear timeframes to complete the project. Failure to Follow Contractual Programming Obligations: When contractors fail to submit adequate and approved project schedules, they can create confusion and hinder coordination, potentially leading to "time at large" situations. The authors then discuss the applicability of these arguments in civil law jurisdictions, noting the potential for courts to exercise broader discretion in adjusting damages or altering contract standards when deemed equitable. They highlight examples from the French and Peruvian Civil Codes to demonstrate these principles. The article concludes by emphasizing the importance of clear and well-defined contract language, highlighting the need for robust extension of time mechanisms and the importance of efficient project scheduling to prevent the "time at large" scenario. It also suggests that a short adjudication process can be a valuable tool for resolving disputes and ensuring a clear understanding of timeframes for all parties involved. #ConstructionLaw #TimeAtLarge #ContractDispute #ContractManagement #ConstructionProjectManagement #Delay #ExtensionOfTime #LiquidatedDamages #InternationalArbitration #CivilLaw #CommonLaw #LegalAdvice #Construction #YasoElmasry

🏗️ We are excited to launch our next article series exploring the use of adjudication to resolve construction disputes. 🔨 In our first article, we introduce the basics of adjudication and the types of disputes can be adjudicated. #adjudication #constructionlaw