North America

The inclusion of arbitration agreements in construction contracts is the new normal.  Large or small, complex or simple, arbitration is an undeniably popular method of dispute resolution in the construction industry.   One of its key benefits is said to be the ability to choose your decision maker.  This feature of arbitration is particularly attractive in the context of a construction dispute, where a deep understanding of complex matters of design, engineering, delay and disruption is required and is not guaranteed in the litigation context.  But just how many hig

This paper looks at the major project risks, discussing the following: Understanding the true project risks - time/program/liquidated damages/ prolongation, design, output guarantee, quality, cost; Negotiating appropriate risk allocation - reaching appropriate negotiated positions which are acceptable to all stakeholders; Risk mitigation and avoidance - effective risk workshops, understand the true risks and identifying effective controls.

This paper aims at analyzing the new developments in alternative dispute resolution mechanisms in Argentina. In particular, this paper focuses on the new laws issued by the Congress regulating domestic commercial arbitration, international commercial arbitration, dispute boards under Public Private Partnership Agreements, and recent case law. Argentine has been moving towards the regulation of both domestic and international commercial arbitration.

Two senior lawyers and two experienced experts discuss the role of experts across jurisdictions and the common tensions that arise from both the experts’ and lawyers’ perspectives. This paper also includes practical suggestions as to how these tensions can be resolved (or at least managed).

Over the past two decades, more than a dozen jurisdictions around the world have enacted legislative reform programs to promote ‘security of payment’ within their construction industries. There are two linked foundations to these reforms: ensuring prompt payment for work done, and rapid interim adjudication of disputes over the amount of payment due for that work. This paper examines the reform processes currently underway in North America, focusing on those recently implemented in Ontario, Canada.

The construction project delivery environment has undergone dramatic changes due to Globalization and growth in both project size and complexity.   In the past three decades we have seen the rise of the megaproject, large-scale, complex ventures that typically cost over a billion dollars; take many years to develop and construct; and involve multiple public and private stakeholders.   Megaprojects are not just magnified versions of smaller projects.

The Civil and Common Law approaches to fixed damages upon the occurrence of breaches of contract has taken different paths. Penalties are frowned upon in the Common Law but liquidated damages enforced. The reverse is broadly true in the Civil Law. There are a variety of approaches to the enforceability of liquidated damages in Common Law jurisdictions, some recently evolving, and in the Civil Law a wide discretion is given to judges and arbitrators to adjust penalties (or liquidated damages) to the particular circumstances of the case.

Dispute Resolution in construction disputes continues grow in sophistication throughout the international legal community. In this paper we discuss the primary concepts of dispute resolution.  There are several ADR approaches used in  resolving construction disputes (mediation, arbitration, DBs, adjudication, expert determination, etc.) . The paper investigates what makes one approach better that the others.  Is there a trend of preference for one ADR approach over another? What are the key elements to consider when selecting an ADR approach for a project?

Until recently Australian courts have followed the decisions of English courts, which have restricted the meaning of the expression ‘consequential loss’ to loss that falls within the second limb of Hadley v Baxendale.  However, since 2008 there have been a number of cases which have refused to follow English precedent.  This paper deals with the various approaches to interpretation taken by different Supreme Courts of the Australian States.

Depositions in international arbitration proceedings is a controversial problem. This paper explores the nature of depositions as a United States-based discovery mechanism and examines the role that depositions could take as part of international arbitrations.