Dispute Resolution and Conflict Management in Construction Also Available from E & FN Spon
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Dispute Resolution and Conflict Management in Construction Also available from E & FN Spon Engineering Law and the ICE Contracts Fourth edition M W Abrahamson Construction Management and Economics Edited by R Bon and W Hughes The Construction Net A Bridges Understanding JCT Standard Building Contracts Fifth edition D M Chappell Financial Protection in the UK Building Industry W Hughes, P Hillebrandt and J Murdoch Post Construction Liability and Insurance J Knocke An Introduction to Building Procurement Systems J W E Masterman Construction Contracts J Murdoch and W Hughes Understanding the Building Regulations S Polley Project Management Demystified G Reiss Programme Management Demystified G Reiss Failures and the Law H P Rossmanith Procurement Systems Edited by S Rowlinson The Building Regulations Explained J Stephenson Building Education and Research Edited by J Yang and W P Chang For more information about these and other titles please contact. The Marketing Department, E & FN Spon, 11 New Fetter Lane, London, EC4P 4EE Tel: 0171 842 2180 Dispute Resolution and Conflict Management in Construction An international review Edited by Peter Fenn, Michael O’Shea and Edward Davies E & FN Spon An imprint of Routledge London and New York This edition published 1998 by E & FN Spon, an imprint of Routledge 11 New Fetter Lane, London EC4P 4EE This edition published in the Taylor & Francis e-Library, 2005. “To purchase your own copy of this or any of Taylor & Francis or Routledge’s collection of thousands of eBooks please go to http://www.ebookstore.tandf.co.uk/.” Simultaneously published in the USA and Canada by Routledge 29 West 35th Street, New York, NY 10001 © 1998 E & FN Spon All rights reserved. No part of this book may be reprinted or reproduced or utilized in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system without permission in writing from the publishers. The publisher makes no representation, express or implied, with regard to the accuracy of the information contained in this book and cannot accept any legal responsibility or liability for any errors or omissions that may be made. Additional disclaimer This publication presents material of a broad scope and applicability. Despite the best efforts of all concerned in the publishing process, some typographical or editorial errors may occur, and readers are encouraged to bring these to our attention where they represent errors of substance. The publisher, editor and authors must disclaim any liability, in whole or in part, arising from information contained in this publication. The reader should verify the applicability of the information to particular situations and check the references prior to any reliance thereupon. Since the information contained in the book is multidisciplinary, international and professional in nature, the reader is urged to consult with an appropriate licensed professional prior to taking any action or making any interpretation that is within the realm of a licensed professional practice. Publisher’s note This book has been produced from camera-ready copy supplied by the authors British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library ISBN 0-203-97982-6 Master e-book ISBN ISBN 0 419 23700 3 (Print Edition) Contents Foreword viii Acknowledgements ix About the editors xi List of contributors xii Introduction and Commentary xv National Monographs Australia 1 Canada 35 China 44 England and Wales 57 Estonia 80 Hong Kong 88 Iraq 112 Ireland 132 Italy 143 Japan 181 Malaysia 212 The Netherlands 247 Oman 259 Portugal 268 Quebec 298 Romania 332 Scotland 353 Sweden 366 Switzerland 399 United States of America 436 Appendix—Guidelines for authors 456 Index 471 Foreword There is a great deal of anecdotal evidence of the occurrence of construction disputes and the research carried out by TG15 to gain empirical evidence both of the incidence of disputes and the techniques used to resolve them will be a most useful insight for those involved in the construction industry. It is only too easy to draw exclusively from one’s own experience or the traditions of the cultures in which one is working for ideas and techniques of dispute management and resolution. This is too narrow an approach as we all have plenty to learn from each other. TG15 has carried out much of its work via the Internet. The group first set up its home page in 1994 and the majority of correspondence is e-mail. This book, and indeed this foreword, has been produced by the transfer of electronic files. The effect of Information Technology on global construction is just beginning, and the implications for construction disputes are obvious. This book will be a valuable first stop for anyone considering construction, whether design, construction or advice, in a new street of the “Global Village”. This book gives an interesting insight into the management and resolution of disputes in a number of countries and will be a useful source of background information on the countries concerned. Even if not working in the countries listed readers looking for new ideas or fresh approaches will find inspiration. Although the book reveals a wide range of techniques it also shows, perhaps comfortingly, that many problems are not limited to particular jurisdictions or cultures and that there are inherent features of the industry and its disputes that are common to us all. John Bishop Honorary President Official Referee’s Solicitors Association March, 1998 Acknowledgements There are many people and organisations that deserve recognition and thanks. The editors in their roles as members of Conseil International du Bâtiment pour la Recherche l’Étude et la Documentation (CIB), The International Council for Building Research, Studies and Documentation saw the need for an international study of the area of construction disputes. CIB agreed and formed International Task Group TG15, which was to study construction conflict management and dispute resolution. The first acknowledgement must therefore go to CIB for providing the vehicle for the group in particular the Deputy Secretary General Chris Pollington. Once the group was formed the many members of TG15 provided valuable guidance in drafting the required guidelines for the authors of the national monographs. The second acknowledgement is to the members of TG15 who have contributed their time to direct the group, attend meetings and provide advice on dispute resolution around the world. During the period that TG15 has been in existence the administration of the group has been shared; first UMIST then Masons Solicitors carried the burden and expense of running a group with more than 130 members in over 30 countries. The contributions of Masons and UMIST are gratefully acknowledged. The production of this book is further example of the commitment of Masons and UMIST; the time of the editors has been freely given. Peter Fenn was a visiting professor at the University of Kentucky during the book’s final stages and the contribution of UK in particular the Chair of the Department of Civil Engineering Dr Donn Hancher must be recorded. The final two acknowledgements go to the parties who carried out the real hard work. The monographs were written, for no financial reward, by eminent international experts; their contributions are the essence of this book. We are deeply grateful for their contributions. We only hope that our editing into a complete volume, and our commentaries on their work have not detracted from the quality of their work. Any mistakes that have crept in are the responsibility of the editors and not the contributors. Although we have covered many countries, time and space have limited us. We hope to produce a second edition and would actively encourage potential authors to join TG15 and to contribute to the second edition. This book was produced from a collection of files by Sue Shepherd at Masons. We hope that the final product is testimony to the excellent work carried out by Sue; her patience despite our hurried e-mails and scribbled notes was beyond the call of duty. The material in this book is for general background information only. Detailed professional advice should be obtained before taking or refraining from action based on any of it. Neither the editors or the authors can accept responsibility for any loss or damage occasioned as a result of reliance placed on any part of the contents of this book. Peter Fenn Michael O’Shea, Edward Davies Lexington Manchester KY USA England About the editors Peter Fenn is a lecturer at The University of Manchester Institute of Science and Technology. Peter is a Chartered Surveyor, a registered mediator and a Fellow of the Chartered Institute of Arbitrators. During the period of this book’s production Peter was Scholar-in-Residence, and a Visiting Professor, at the University of Kentucky. Michael O’Shea is a solicitor at Masons Solicitors and Privy Council Agents. Michael is a Chartered Surveyor and before qualifying as a solicitor he had previously held posts with construction companies and as a lecturer at the University of Salford. Edward Davies is a solicitor and a partner in Masons Solicitors and Privy Council Agents. Edward is a graduate of Manchester University, Guildford College of Law and Kings College London. He is a trained mediator and a Visiting Research Fellow at the University of Manchester Institute of Science and Technology.