North America

The fact-finding process in arbitration conducted in the arena of construction adjudication is of central importance. It is also a major contributor to cost. “Cost” continues to be seen as arbitration’s worst feature, followed by a number of factors including “lack of speed”. These findings point to the need for a greater level of cost consciousness in the arbitral process, combined with a greater level of efficiency, proportionality and expedition in the procedural management of an arbitral proceeding and its ultimate disposition.

In civil engineering works the assessment by the contractor at tender stage of the ground conditions that are likely to be encountered during the works constitutes a baseline assumption for the purposes of its bid price.  Where conditions turn out to be different from what was expected at tender stage, the impact on project duration and cost may be significant.

Dispute Resolution is a fast evolving arena with several methods no longer being merely alternatives but an appropriate dispute resolution mechanism instead. With Singapore in 2019 being the venue and the named Convention on the Enforcement of Mediation Settlement and corresponding Model Law of the United Nations Commission on International Trade Law great advances are surely expected with all forms of ADR.

Disputes about the meaning of contractual clauses are a common issue on construction projects. This is the case when dealing with bespoke contracts but even standard forms of contract can give rise to such issues. All the more so in an international context when the parties own native languages are not the ones used to draft, and operate, the contract. Different legal systems will have different ways of identifying what the words mean and whether, for example, it is possible to look at pre-contractual communications, the parties’ conduct or whether the words make commercial sense.