arbitration still best road to construction dispute resolution
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ARBITRATION STILL BEST ROAD TO DISPUTE RESOLUTION
Adam Tanielian2012
INTRODUCTION: CONSTRUCTION AND DISPUTES ARE CHANGING
Technological aspects of construction have become more complex. The business of
construction has similarly become more complicated, involving more parties, more foreign
participant, more cultures and languages, more applicable laws, which increase the likelihood
of disputes. Not surprisingly, the number of construction claims has increased in recent years
(Makarem, Abdul-Malak, and Srour 2012; Allen 2011; Ho & Liu 2004). Sweet & Maxwell
(2010) found that difficult economic conditions have pressured developers to reduce costs,
which in turn led to a 31% increase in the number of disputes forced into arbitration in the
UK and Irelandfrom 779 in 2007 to 1018 in 2009.
An EC Harris (2012) study found that disputes worldwide increased in length of time to
resolution between 2010 and 2011the longest in the US (14.4 mos., up 26.3%), followed
by Asia (12.4 mos., up 8.7%), then Europe (11.7 mos., up 17%), Middle East (9 mos., up
9%), and UK (8.7 mos., up 28.8%). Despite the rise in time to resolution in the US and Asia,
those regions saw decreases in US$ value of disputes in the same time periodfrom $64.5m
to $10.5m in the US, and from $64.5m to $53.1m in Asiawhich Harris attributed to the
generally depressed market.
Business Strategy
Numerous authors have written on the impact on the construction and civil engineering
industries made by the global financial crisis (Frei 2010; Nistorescu & Ploscaru 2010; ILO
2009). Although the devastating effects witnessed in 2008-2009 economic and financial
crises may not be seen again soon, still more recent statistics suggest the threats are not going
away any time soon. Construction companies need to adapt to the new markets by developing
and implementing longer-term dispute resolution strategies, utilizing multiple dispute
resolution methods (DRMs), including alternative dispute resolution methods (ADRMs).
Multiple options are available to parties to disputes and those seeking to prepare for, avoid, or
mitigate disputes. Both public and private institutions offer trained, experienced professionals
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to assist in the process. Proprietors, partners, managers, engineers, and even experienced
foremen generally have knowledge of the most common disputes: changes, incomplete
information, ambiguous contractual terms, unrealistic dates and delays.
What is dispute resolution?
According to Connerty (2006), it is arguable whether non-binding ADR mechanisms such as
partnering, adjudication, dispute resolution boards, and mediation are a form of dispute
resolution per se or whether they are actually a form of dispute avoidance. Connerty
distinguished the full-scale conflict involved in both litigation and arbitration from the
types of conflicts resolved through non-binding processes. Although multiple other authors
considered negotiation a DRM, Connerty considered it a method of dispute avoidance.
Kersuliene, Kazimieras, & Turskis (2010) grouped negotiation, conciliation, mediation, and
arbitration together as ADRMs. Chinyere (2011) considered both litigation (binding) and
negotiation (non-binding) conventional/traditional DRMs, but labeled arbitration (binding)
and mediation (non-binding) as ADRMs. Harmon (2003a) considered all nonlitigation
methodsboth binding and nonbindingas ADRMs.
Existing and potential disagreements among authors and experts regarding what qualifies a
dispute and what dispute resolution is as opposed to dispute avoidance creates a need
to make an operational definition. In this article, a dispute will be defined as only where
binding resolution is utilized. Only binding methods will be considered DRMs. Non-binding
methods will be considered dispute avoidance or pre-dispute options, which are ADRMs and
not DRMs.
Purpose of This Study
Dynamic new dispute resolution strategies are needed to cope with existing and future
changes in the construction industries. Costs and time are of high and increasing importance,
especially in developed nations where growth in the short and medium terms is not expected
to exceed 4-5%. Prior research has given a relatively clear picture of legal, engineering,
managerial and academic opinion on the subject of arbitration, but the fields have seldom
been addressed together. This study uses an interdisciplinary approach to provide information
and analysis of dispute resolution issues for construction industry professionals who face
serious challenges in the coming years. The American Federal Arbitration Act (FAA) is
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compared with the Model Law. American and Canadian cases as reviewed. Arbitration is
once again endorsed as the best avenue for binding dispute resolution in any jurisdiction, but
special attention to American inconsistencies is recommended for domestic arbitration in the
USA.
TAILOR STRATEGIES TO MEET SPECIFIC NEEDS
Culture
Chan and Tse (2003) agreed that cultural issues make project management more difficult and
contribute to disputes. Gad and Shane (2012) found that international construction disputes
accounted for almost 20% of ICC international arbitration cases. Issues relating to culture,
economics, trade customs, and cross-cultural psychology are often underlying causes of
disputes relating to interpretation of contracts, perceptions relating to time and
conscientiousness. Unfortunately, there is no universal definition for culture. Business
academics tend to cite the famous Hoffstede (1971) IBM survey studies, but those results are
also scrutinized for subjectivity, sampling technique, and due to changes which occurred in
the more than 40 years since.
Psycho-social divisions within nations, races, religions and larger cultures are constants
worldwide. A culture may best be perceived as a collection of subcultures under the rule of
state laws, which often supersede and substitute for the softer socio-cultural belief system,
although laws are applied and enforced unevenly between jurisdictions and seldom
extraterritorially. Culture transcends national boundaries more than domestic statutes and
may be more easily implemented at the local level than formal international custom or law.
Culture is a bit of a wild card or element of the unknown in the risk management matrix.
Although cultural differences have been found to contribute and partially cause disputes,
when it comes to dispute resolution, cultural perceptions are less divided. For example, Gad
and Shane (2012) made a cross-cultural study of contractors based in English-speaking
countries who do business in the Middle East and Asia. All experts in that study
recommended arbitration first as a dispute resolution method, above litigation.
Enforceability of the decision, Binding outcome, and Time taken to resolve the dispute
were three of the top four most important factors influencing expert opinion.
Adjudication for Avoidance and Mitigation
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Dispute avoidance is a key component to a functional business strategy in any jurisdiction.
Skilled, trained and experienced dispute resolution counselors can help firms stay within
financial constraints. Numerous authors have taken up advocacy of private adjudication in
construction claims (Jaffe & McHugh 2010; Maritz 2009; Ameer Ali 2006). Adjudication is a
great idea for pre-dispute stages which has gained significant recognition worldwide.
The UK Housing, Grants and Reconstruction Act provides all parties to construction
contracts rights to invoke private adjudication as a means of resolving claims. Under the Act,
adjudication decisions are binding until the dispute is finally determined by legal
proceedings, by arbitration (if the contract provides for arbitration or the parties otherwise
agree to arbitration) or by agreement. If a dispute can be avoided in this middle step, that
may save parties time and money. However, if rights to arbitrate or litigation are invoked
after adjudication, the result is wasted time and monetary resources.
Arbitration: Best Method
Studies have suggested that the presence of a third, independent party significantly improves
chances of dispute resolution (Harmon 2003). ADRMs such as dispute resolution boards,
mediation, and private adjudication are widely used and recommended by experts, but such
ADRMs do not offer any binding resolution, and thus may not resolve a dispute in the
medium to long term. Although lex loci and lex fori vary among the worlds jurisdictions, in
general, both arbitration and litigation are binding DRMs, which are preferable to many
parties to disputes.
Arbitration was not as popular as negotiation in a Chan & Suen (2004) study, nor as popular
as negotiation or mediation in concurring studies (Harris 2012, Cheung & Suen 2002), but
arbitration is nearly always preferable to litigation. Various authors have examined the pros
and cons of arbitration versus litigation, and the differences between the two (Stipanowich
2010; Kirbyson 2008; Soderstrom 2005; Resnick 2002). There is some argument about which
procedure is preferable, but experts tend to agree that arbitration is faster, less expensive, and
more private than litigation, which fits into the new business model better. In cases involving
international contracts, support for arbitration significantly increases.
Popular opinion among lawyers and other experts suggests that arbitration is the best DRM
available. The New York Convention on the Recognition and Enforcement of ForeignArbitral Awards and implementing statutes certainly help place arbitration alongside and
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above litigation. In recent cases where private parties arbitrated claims against states, such as
Walter Bau v. Thailand(2009), G.E. Transport v. Albania (2010), andExxon v. Venezuela
(Venezuela vows to reject 2012), some nations showed lack of commitment to the cause of
international arbitration when they failed to carry out awards without delay, or bordered on or
threatened nonpayment of awards rendered in favor of private claimants.
Certain inconsistencies and lacks of commitment to treaty principles leave room for
discussion regarding the modification of the international system to protect against
noncompliant states. Despite the presence of noncompliance on the state end, most awards
are carried out. Public and private endorsement of arbitration via consistent utilization and
approval of the arbitral system does validate the process. The one drawback to arbitration is
that there is no appeal, but probability of erroneous awards can be reduced with selection of
arbitrators based upon expertise and experience in construction and engineering.
JUDGES OFTEN ENDORSE ARBITRATION
Whereas in centuries past, English and American courts treated arbitration with hostility and
skepticism (Kaufmann-Kohler 2005), no such opposition to the private tribunal exists today.
In the USA and Canada, there are strong policies favoring arbitration under the American
FAA and Canadian Model Law-implementing statutes. Supreme Courts in both countries
have commented on the advantages and benefits of arbitration.
In Southland v. Keating (1984), the US Supreme Court commented:
In enacting 2 of the federal Act, Congress declared a national policy favoring
arbitration and withdrew the power of the states to require a judicial forum for the
resolution of claims which the contracting parties agreed to resolve by arbitration.
The dissent in the Supreme Court of Canada (SCC) echoed that same pro-arbitration
sentiment in Seidel v. TELUS (2011), saying:
Access to justice in Canada no longer means access just to the public court system.
Historically, judges were reluctant to relinquish their grasp on dispute resolution, and
they even viewed alternative dispute resolution as antithetical to the parties interests.
This era is gone.
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Abella J., delivering the SCC opinion inNewfoundland and Labrador Nurses Union v.
Newfoundland and Labrador(2011), made clear that arbitration allows the parties to the
agreement to resolve disputes as quickly as possible knowing that there is the relieving
prospect not of judicial review.
Justice Scalia, quoting Stolt-Nielsen v. AnimalFeeds (2010) inAT&T v. Concepcion (2011) in
the USA, concurred:
In bilateral arbitration, parties forgo the procedural rigor and appellate review of the
courts in order to realize the benefits of private dispute resolution: lower costs, greater
efficiency and speed, and the ability to choose expert adjudicators to resolve
specialized disputes the informality of arbitral proceedings is itself desirable,
reducing the cost and increasing the speed of dispute resolution.
FAA Compares to Model Law
Although the FAA is not technically a Model Law-implementing statute, it functions
similarly for international cases. In Circuit City v. Adams (2001), Justice Stevens, dissenting,
remarked that there is little doubt that the Courts interpretation of the Act has given it a
scope far beyond the expectations of the Congress that enacted it. This broad and expanded
scope keeps the FAA regime competitive and compatible with the Model Law systems.
5 of the FAA authorizes the court to assist in appointment of arbitrators in a nearly identical
fashion to article 11 of the Model Law. Article 16 of the Model Law discusses the
competence-competence principle, which the U.S. Supreme Court upheld in First Options v.
Kaplan (1995), citing 9-10 of the FAA in the opinion.
7 of the FAA grants arbitrators rights to issue summonses, and in the case that a person
refuses to appear, 7 provides that the tribunal may petition the court to compel attendance
under threat of penalty for contempt if such a party continues to refuse. The Model Law
grants no such authority to arbitrators, although in article 27 it does grant arbitrators rights to
apply to a public court for assistance in taking evidence.
Article 17 of the Model Law grants tribunals powers to order interim measures, and in article
9 rights for parties to approach a court for the purposes of an interim measure. Although the
FAA is silent on interim measures, which has been considered a cause for inconsistent
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judgments in U.S. Courts (Eiland 2012), the U.S. 9th Circuit Court of Appeals left the door
open on interim measures in Toyo Tire v. Continental Tire (2010), when it held that:
a district court may issue interim injunctive relief on arbitrable claims if interim
relief is necessary to preserve the status quo and the meaningfulness of the arbitration
process.
Article 33 of the Model Law and 11 of the FAA are in agreement regarding correction,
interpretation or modification of awards. 10 of the FAA outlines grounds for vacation which
closely resembles article 34 of the Model Law. Chapter 2 of the FAA cites the New York
Convention as the applicable treaty law for recognizing and enforcing foreign arbitral awards,
which equates to articles 35 and 36 of the Model Law.
FAA in Domestic Cases
In cases likeHubert v. Turnberry Homes LLC(2006), state law was superseded by the FAA.
FAA pre-emption helps create broader equality between litigation and arbitration when it
comes time to enforce and recognize awards. Indiana Code 32-28-3-17, which invalidated
arbitration clauses in construction contracts which required arbitration outside of Indiana, was
preempted inLaSalle Group, Inc. v. Electromation of Del. County, Inc. (2008). A similar
Louisiana law was preempted in OPE Intern. LP v. Chet Morrison Contractors, Inc. (2001).
2 of the FAA requires arbitration clauses to be held valid and enforceable. Courts are
frequently requested to compel arbitration under 4 and rarely refuse. One such case of
refusal wasHirsch Holdings v. Hannagan-Tobey (2008), where an Oklahoma trial court
granted motion to compel arbitration based upon the interrelatedness of two contracts a
purchasing agreement with a litigation clause and a patent licensing agreement with an
arbitration clause. The appeals court properly reversed the decision in support of reasoning
seen in First Options v. Kaplan (1995), wherein Justice Breyer, delivering the opinion for the
unanimous court, stated thatarbitration is simply a matter of contract between parties; it is a
way to resolve those disputesbut only those disputesthat the parties have agreed to
submit to arbitration.
In a case relating to construction of an ethanol plant, Delta-T Corp. v. Pacific Ethanol, Inc.
(2009), multiple agreements were reviewed by the Federal District Court in Eastern Virginia
to determine whether the earlier arbitration provisions were modified by subsequent
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agreements. The Court decided that two provisions could be read together to require
arbitration, and ordered the parties to proceed to arbitration in another show of strong policy
in favor of arbitration.
Domestic Courts are most often unwilling to disturb awards, as seen inB.L. Harbert Intl,
Inc. v. Hercules Steel Co. (2006), where the Eleventh Circuit rejected a contractors manifest
disregard of law claim, calling the erroneous motion to vacate an arbitral award an example
of the poor loser problem. In Gissel v. Hart(2009), the South Carolina Supreme Court
reviewed an award which was contested on the grounds that factual and legal errors were
committed by the arbitrator. The trial court denied motion to vacate and confirmed the award.
The appeals court reversed the trial courts decision. The Supreme Court held that the court is
not required to review the merits of an award, found no abuse of power, and reversed the
appeals court decision, reinstating and confirming the award.
Lex Loci Americana
When designing a domestic strategy in the US, there are several anomalous cases and statutes
which may limit the extent to which courts are willing to compel arbitration or hold
arbitration clauses as valid and binding.
Kansas Statute 16-121 requires any litigation, arbitration or other dispute resolution
procedure arising out of a construction contract to occur within the territory of the state.
Arizona Statute 32-1129.05(B) likewise requires any mediation, arbitration or other dispute
resolution proceeding arising from a construction contract for work performed in [Arizona]
to be conducted in Arizona. InAlley Cat v. Chauvin (2009), the Kentucky Supreme Court
held that it does not have jurisdiction to enforce an arbitration agreement under the state
Uniform Arbitration Act (KRS 417.045 et seq.) unless the agreement specifies Kentucky as
the location of the proceeding. Nebraskas Construction Payment Act LB552 likewise makes
any provisions requiring an arbitral forum outside of Nebraska void and unenforceable.
Although the Federal Courts are generally more reliable than state courts on the issue of
arbitration, as seen inDigital Tech. Licensing v. Sprint Nextel (2011), the District Court may
hold not jurisdiction to compel arbitration in a different domestic forum. Further
inconsistencies may be witnessed in enforcement and recognition stages because not every
state has adopted the manifest disregard of the law doctrine, although the Supreme Courtimplemented the doctrine and found it within the FAAs scope in Wilko v. Swan (1953). The
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doctrine was used in the Oklahoma case Sooner Builders & Investments, Inc. v. Nolan
Hatcher Construction Services LLC(2007), but it was rejected as grounds for vacatur in the
Minnesota caseItron, Inc. v. WEB Construction, Inc. (2009).
RULES OF ARBITRATION
To arbitrate or not to arbitrate? That is not the question. The question is where to arbitrate,
under what rules and applicable laws.
The number of arbitrators and arbitral institutions has increased in the past few decades
(Drahozal 2007), which Sweet & Maxwell (2010) said reflects the rise of the number of
construction disputes settled in the arbitral process. Due to rises in the number of arbitration
service providers, parties to contracts and disputes have more options and considerations.
Discretion
UNCITRAL, ICC, AAA and LCIA grant broad discretionary powers to tribunals which,
combined with the limited ability and will of courts to review awards, is reason to take
precautionary measures in selecting arbitrators. Park (2004) reiterated the judicial maxim that
one sides delay is the others due process. For this reason, discretion over discovery and
expediency of the arbitral process can become a double-edged sword.
Tribunals have discretion to control the discovery and hearings processes, which most
significantly affect the overall length of the proceedings. Article 20 of ICC rules, article 14 of
LCIA rules, articles 17 and 23 of UNCITRAL rules, R-21 and R-23 of AAA rules all provide
tribunals with similar discretionary powers which may be used to shorten or extend the length
of proceedings. Article 14.1 of LCIA and 17.1 of UNCITRAL rules contain the same
directive for tribunalsto avoid unnecessary delay [and/or] expense in order to provide a
fair and efficient means or process for resolution ofthe parties dispute. The explicit
avoidance of excess cost and delay assures tribunals keep in mind the primary advantages of
arbitration as opposed to litigation.
Parties to arbitration, too, have discretion over the process which may be used to their mutual
advantage. Lacking a fixed institution, UNCITRAL rules offer parties the broadest discretion
over design of the process. Justice Scalia, inAT&T v. Concepcion, said the point of
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affording parties discretion in designing arbitration processes is to allow for efficient,
streamlined procedures tailored to the type of dispute.
Expediency
Excluding outliers, the average time to arbitrate at LCIA (2012) is approximately 11 months.
The most common time limit in articles of LCIA rules is 30 days, leading to the relatively
short average duration of the process. If the response time can be cut to half or less than the
30 day maximum allowed under article 2, if the Court can expedite the appointment of the
tribunal under article 5.4 to 15 days or less, if challenges of arbitrators and to jurisdiction can
be avoided, and if written submissions can be furnished in half the maximum time available
under article 15.2, then it is feasible that the process may be concluded within 6 months or
less.
Sussman (2009) found that median time from filing to award in business-to-business cases at
the AAA was just under 8 months, with international cases concluding within 12 months on
average. The same report found that average time from filing to conclusion of trials in US
states and federal courts was between 18.4 and 30.7 months, 43.1 months if appeals were
included. 15-day time limits in rules 4, 6, 10, 11, 12, and 13 help keep AAA arbitrations
anomalously short in time.
ICC cases can easily be resolved within 12 months using time limits from articles 5, 8, 18,
and 24. If parties can expedite the initial stages of request, answer, composition of the
tribunal, and drawing up of the terms of references, then the arbitral process could easily be
concluded within 8 months on average with outliers at half that time.
UNCITRAL rules provide the standard 30-day time limits in articles 4, 6, 7, 8, 9, and 13. A
long 45-day limit is given in article 25 for communication of written statements. Considering
that there is no Court or fixed body overseeing UNCITRAL arbitrations, parties and tribunals
must move things along independently.
Confidentiality
The private nature of arbitration is one of its most attractive features. Public court cases are
subject to public exposure, and as such companies run the risk of being embarrassed by
rulings against them. When competition in bidding and performance is at its peak, the
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importance of a companys image should not be underestimated. Career civil engineers,
architects, and assorted construction workers understand that claims and disputes are almost
as much a part of the business as port-a-johns, but the last thing marketing and sales
departments need is a reputation for delays, cost overruns, and legal disputes. Rules of
arbitration offer parties an option to keep everything about the case private, including the
existence of the dispute.
Article 6 of the Statutes of the International Court of Arbitration in appendix one of ICC
rules, and article 1 of the internal rules of the Court state that the entire work of the Court is
confidential. Article 30 of LCIA rules resembles article 34(5) of UNCITRAL rules, which
require parties to keep all awards confidential unless they agree otherwise. Article 28 of
UNCITRAL rules and R-23 from the AAA require hearings be held in private unless parties
decide otherwise under UNCITRAL and unless the law requires otherwise under AAA rules.
RECOMMENDATIONS
Any of the main arbitral institutions offer expertise and experience in dispute resolution.
AAA has services customized for the construction industry, so when and if possible, AAA
may be the most appealing venue for construction firms. However, if more control over the
process is desired by the parties, especially at large firms where personnel and counsel have
broad and vast experiences in dispute resolution, UNCITRAL rules may be the most suitable
for the speediest awards. Domestic jurisdictions in the USA should harmonize their laws
more, but until that time comes, if it ever does, authors of arbitration provisions in contracts
need foresee any possible complications relating to the lex loci contractus, lex loci rei sitae,
lex loci solutionis, lex loci arbitri, and lex fori. Local contract writers and adequate research
prior to issuing contracts is obviously essential.
A truly stubborn party to arbitration may be able to stall drive up costs, but with sufficient
planning and modern project management techniques which include dispute avoidance and
mitigation, there should be no reason to consider it probable that arbitration will result in
higher costs and delays than litigation. Although courts have not made a habit of reviewing
awards on merits, the probabilities of erroneous awards are similarly low given scrutiny in
the arbitrator selection and appointment process. All things considered, arbitration shows up
to work and outperforms litigation in the efficiencieswhere firms need every penny and
fraction of a percent today.
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List of Statutes
AAA Arbitration Rules
Arizona Revised Statutes 32-1129.05(B)
Convention on the Recognition and Enforcement of Foreign Arbitral Awardsthe NewYork Convention
ICC Arbitration Rules
Indiana Code 32-28-3-17
Kansas Statutes Annotated (K.S.A.) 16-121
Kentucky Uniform Arbitration Act, K.R.S. 417.045 et seq.
LCIA Arbitration Rules
Model Law on International Commercial Arbitration
Nebraska Construction Payment Act LB552
UK Housing Grants, Construction and Regeneration Act
UNCITRAL Arbitration Rules
US Federal Arbitration Act, U.S.C. Title 9
List of Cases
Alley Cat v. Chauvin, 274 S.W.3d 451, 455 (Kentucky Supreme Court 2009).
AT&T Mobility LLC v. Vincent Concepcion et ux., 131 S.Ct. 1740, No. 09-893 (SupremeCourt of the United States 2011).
B.L. Harbert Intl, Inc. v. Hercules Steel Co., 441 F.3d 905 (US 11th Circuit Court ofAppeals 2006).
Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 194 F.3d 1070, No. 991379 (US SupremeCourt 2000).
Delta-T Corp. v. Pacific Ethanol, Inc., 2009 WL 77869 (US District Court for EasternVirginia 2009).
Digital Technology Licensing LLC v. Sprint Nextel Corporation, Civil Action No. 07-5432(SRC) (US District Court for New Jersey 2011).
First Options of Chicago, Inc. v. Manuel Kaplan, et ux. and MK Investments, Inc., No. 94-560, 514 US 938 (US Supreme Court 1995).
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G.E. Transport S.P.A. and Athena S.A. v. Republic of Albania, 693 F.Supp.2d 132, CivilAction No.: 08-2042 (RMU) (US District Court for District of Columbia 2010).
Gissel v. Hart, 676 S.E.2d 320, 382 S.C. 235 (Supreme Court of South Carolina 2009)
Hirsch Holdings, LLC v. Hannagan-Tobey, LLC, 79 P.3d (Oklahoma Civil Court of Appeals2008).
Hubert v. Turnberry Homes LLC, 2006 WL 2843440 (Tennessee Court of Appeals 2006).
Itron, Inc. v. WEB Construction, Inc., A08-0442 (Minnesota Court of Appeals 2009).
LaSalle Group, Inc. v. Electromation of Del. County, Inc., 880 N.E.2d 330 (Indiana CourtAppeals 2008).
Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (TreasuryBoard), 2011 SCC 62, 3 S.C.R. 708 (Supreme Court of Canada 2011)
OPE Intern. LP v. Chet Morrison Contractors, Inc., 258 F.3d 443, 447 (US 5th Circuit Courtof Appeals 2001).
Seidel v. TELUS Communications Inc., 2011 SCC 15, 1 S.C.R. 531 (Supreme Court ofCanada 2011)
Sooner Builders & Investments, Inc. v. Nolan Hatcher Construction Services, L.L.C., 2007OK 50, 164 P.3d 1063
Southland Corp. et al. v. Keating et al., 465 U.S. 1, No. 82-500 (Supreme Court of the United
States 1984).
Stolt-Nielsen S.A. et al. v. AnimalFeeds International Corp., 130 S.Ct. 1758, No. 08-1198(Supreme Court of the United States 2010).
Toyo Tire Holdings of Americas Inc. v. Continental Tire North America, Inc., No. 10-55145,609 F.3d 975 (US Ninth Circuit Court of Appeals 2010).
Walter Bau AG (In Liquidation) v. The Kingdom of Thailand (2009)
Wilko v. Swan, 346 U.S. 427 (US Supreme Court 1953).
References
Allen, M. (2011). Construction disputes on the rise. EC Harris Global.
Ameer Ali, N. (2006).A Construction Industry Payment And Adjudication Act: ReducingPayment-Default and Increasing Dispute Resolution Efficiency in Construction. MasterBuilders, (4th Quarter).
Chan, E., Suen, H. (2004).Dispute resolution management for international constructionprojects in China. Management Decision, 43(4), 589-602.
-
7/31/2019 Arbitration Still Best Road to Construction Dispute Resolution
14/15
Chan, E., Tse, R. (2003). Cultural Considerations in International Construction Contracts.ASCE Journal of Construction Engineering and Management, 129(4), 375-381.
Cheung, S., Suen, H. (2002).A multi-attribute utility model for dispute resolution strategyselection. Construction Management and Economics, 20, 557-568.
Chinyere, I. (2011). Procedures and Arrangement for Dispute Resolution Management inInternational Construction Development Projects. Interdisciplinary Journal of Researchin Business, 1(9), 61-71.
Drahozal, C. (2007). Commercial Norms, Commercial Codes, and International CommercialArbitration. Vand JTL, 33, p79-132.
EC Harris (2012). Global Construction Disputes: Moving in the Right Direction.
Eiland, M. (2012). The Institutional Role in Arbitrating Patent Disputes. Pepperdine DisputeResolution Law Journal, 9(2), 283-323.
Frei,M. (2010).Implications of the Global Financial Crisis for the Quantity SurveyingProfession. Davis Langdon.
Gad, G., Shane, J. (2012).A Delphi Study on the Effects of Culture on the Choice of DisputeResolution Methods in International Construction Contracts. ASCE ConstructionResearch Congress.
Harmon, K. (2003).Effectiveness of Dispute Review Boards. ASCE Journal of Constructionand Engineering Management, 129(6), 674-679.
Harmon, K. (2003a).Resolution of Construction Disputes: A Review of CurrentMethodologies. Leadership in Management and Engineering, October issue, 187-201.
ILO (2009). The crisis in the construction industry. World of Work Magazine, 66, 16-17.
Jaffe, M., McHugh, R. (2010). U.S. Project Disputes: Has the Time to Consider AdjudicationFinally Arrived? AAA Handbook on Construction Arbitration and ADR, May issue.
Kaufmann-Kohler, G. (2005). Global Implications of the FAA: The Role of Legislation inInternational Arbitration. Paper presented at the American Bar Association FederalArbitration Act at 80 Anniversary Lecture Series, Dublin, Ireland.
Kersuliene, V., Zavadskas, E., Turskis, Z. (2009). Selection of Rational Dispute ResolutionMethod by Applying New Step-Wise Weight Assessment Ratio Analysis (SWARA).Journal of Business Economics and Management, 11(2), 243-258.
Kirbyson, G. (2008).Litigation v. arbitration. Retrieved from www.canadianlawyermag.com
London Court of International Arbitration (2012), Frequently Asked Questions, retrieved
from www.lcia.org
Makarem, A., Abdul-Malak, M., Srour, I. (2012).Managing the Period Preceding the
Calling for DABs Decision. ASCE Construction Research Congress.
-
7/31/2019 Arbitration Still Best Road to Construction Dispute Resolution
15/15
Maritz, M. (2009).Adjudication of disputes in the construction industry. Essays Innovate, 3,78-79.
Nistorescu, T., Ploscaru, C. (2010).Impact of Economic and Financial Crisis in theConstruction Industry.
Park, W. (2004).Arbitrations Protean Nature: The Value of Rules and the Risks ofDiscretion. Mealeys International Arbitration Report, 19(5), 1-21.
Soderstrum, B. (2005).Litigation v. Arbitration: Pros and Cons. Brown, Winick, Graves,Gross, Baskerville & Schoenebaum.
Stipanowich, T. (2010).Arbitration: The New Litigation. University of Illinois LawReview, 2010(1), 1-59.
Sussman, E. (2009). Why Arbitrate? The Benefits and Savings. NYSBA Journal, Octoberissue, 20-24.
Sweet & Maxwell (2010). Construction disputes leap by almost a third during credit crunch .Retrieved from www.sweetandmaxwell.co.uk
Venezuela Vows to Reject Arbitration in Exxon Case. (2012).Reuters, retrieved fromhttp://www.nytimes.com/2012/01/09/business/venezuela-will-not-recognize-world-bank-ruling-in-exxon-case.html