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Multi-Party and Multi-Contract Arbitration in the Construction Industry

  • ID: 3788669
  • Book
  • 408 Pages
  • John Wiley and Sons Ltd
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Arbitration is the favoured method of dispute resolution in international construction projects. These projects invariably involve a multitude of parties coming from different jurisdictions and bound by numerous, most often bilateral, contracts. Disputes between the parties to such bilateral contracts frequently have repercussions for other parties. For example, an employer s claim for defective work against a main contractor can then trigger a related main contractor s claim against the subcontractor who ultimately caused the defects. In such cases, there is often a need to resolve the resulting multi–contract disputes in a single arbitration in order to reduce time and costs and also avoid the risk of inconsistent or conflicting arbitral awards stemming from the conduct of separate arbitrations on identical or similar issues.

Multi–Party and Multi–Contract Arbitration in the Construction Industry provides the first detailed review of these issues in the international construction sector. Following a concise introduction to multi–party arbitration in general and a review of different contractual models used in construction projects, the book provides an assessment of how multi–party arbitration is handled under the arbitration rules and laws commonly encountered in construction disputes. It demonstrates that contracting parties will seldom be able to rely on these rules and laws if they have failed to address this matter in their contracts. The book then makes a detailed analysis of the approaches taken in a range of international and popular domestic standard forms, and the case law pertaining to them. These approaches fall short of providing workable solutions for a variety of reasons. The book therefore endeavours to provide some guidelines on the regulation of multi–party arbitration in parties contracts and the applicable arbitration rules. The goal is to identify good practice which is likely to minimise problems.

The book is highly practical in its approach and aims to bridge the gap between the theoretical proposals regarding multi–party arbitration and their practical application.
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About the Author x

Foreword xi

Preface xiii

Acknowledgements xv

List of Abbreviations xvi

1 Introduction 1

1.1 General background and research problem 1

1.2 Scope of the book, limitations and literature review 4

1.3 Sources used 6

1.4 Structure of the book 9

1.5 Aims and contribution of the book 10

2 Multi –Party Arbitration in General 11

2.1 Terminology notes 11

2.2 Legal techniques introducing multi –party arbitration 15

2.3 Advantages of multi –party arbitration 18

2.4 Obstacles to multi –party arbitration 21

3 The Need for Multi –Party Arbitration in the Construction Sector 31

3.1 Specifics of construction disputes and construction arbitration 31

3.2 Introduction to international standard form construction agreements 33

3.3 Contractual structures in construction projects 40

3.4 Parties interests in multi ]party arbitration 46

4 Multi –Party Arbitration Solutions under Arbitration Rules 60

4.1 ICC Rules 61

4.2 CEPANI Rules 71

4.3 LCIA Rules 77

4.4 UNCITRAL Rules 80

4.5 Swiss Rules 84

4.6 Rules adopted by the American Arbitration Association ( AAA ) 90

4.7 Vienna Rules 94

4.8 DIS Arbitration Rules 99

4.9 SCC Rules 100

4.10 DIA Rules 101

4.11 Arbitration rules in Asia 102

4.12 Concluding remarks regarding arbitration rules 115

5 Multi –Party Arbitration Solutions under Arbitration Laws 121

5.1 UNCITRAL Model Law 122

5.2 The United Kingdom 124

5.3 The Netherlands 129

5.4 Belgium 131

5.5 New Zealand 132

5.6 Hong Kong 133

5.7 Canada 137

5.8 Australia 138

5.9 Other countries 139

5.10 Multi –party arbitration in the United States 140

5.11 Should arbitration laws deal with multi –party arbitration? 158

5.12 Concluding remarks regarding arbitration laws 164

6 Contractual Solutions to Multi –Party Arbitration 167

6.1 FIDIC Conditions of Contract 169

6.2 Blue Form 175

6.3 JCT Contracts 208

6.4 ACA standard forms 223

6.5 NEC3 226

6.6 IChemE contracts 234

6.7 ICC contracts 237

6.8 PPC and SPC International 238

6.9 ENAA Model forms 240

6.10 AIA standard forms 242

6.11 ConsensusDocs 247

6.12 AB 92 and ABT 93 250

6.13 Concluding remarks regarding contractual approaches 252

7 Proposed Solutions 255

7.1 Jurisdictional approach 256

7.2 Abstract consensual approach 262

7.3 Proposed contractual solutions 264

7.4 Institutional approach 313

8 Conclusion 325

Table 1 Summary of Multi–Party Arbitration Provisions under the Reviewed Arbitration Rules 328

Table 2 Summary of Multi–Party Arbitration Provisions under Arbitration Laws 333

Appendix 1 Second Alternative Clause of Clause 20 of the FIDIC Subcontract 337

Appendix 2 Multi –Party Arbitration Provisions under the Blue Form 351

Appendix 3 Multi –Party Arbitration Clauses under the ENAA Model Form International Contract for Process Plant Construction, 2010 and Related Subcontracts 355

Bibliography 358

Index 381

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Dimitar Kondev
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