Dispute Resolution

Alliances and Dispute Review Boards: Best Friends or Worst Enemies?

by paula gerber

Gerber, Paula ‘Alliances and Dispute Review Boards: Best Friends or Worst Enemies?’ (2012) 10(1) Australian Journal of Civil Engineering 57-66.

Dispute Review Boards (DRBs) are a very popular dispute avoidance process (DAP) used widely around the world as an... more Dispute Review Boards (DRBs) are a very popular dispute avoidance process (DAP) used widely around the world as an effective tool for ensuring that the conflicts, which invariably arise during the course of construction projects, do not escalate into disputes. DRBs have enjoyed phenomenal success, with 98% of projects that used a DRB being completed with no outstanding disputes. However, Australia has not been part of the global DRB trend. Instead, Australia has embraced an alternative form of DAP, namely, project alliances. While alliances continue to grow in popularity within Australia, this DAP model remains virtually unknown internationally. This article examines why Australia has not embraced DRBs, and whether this country’s enthusiasm for alliances has been at the expense of DRBs, before considering whether there is room for both models of dispute management.

Should DAPs be included in standard form contracts?

by paula gerber

Paula Gerber & Brennan Ong 'Should DAPs be included in standard form contracts?' (2012) 143 Australian Construction Law Newsletter 6-20.

Dispute Avoidance Processes (DAPs), such as Dispute Review Boards (DRBs), Dispute Adjudication Boards (DABs) and... more Dispute Avoidance Processes (DAPs), such as Dispute Review Boards (DRBs), Dispute Adjudication Boards (DABs) and Dispute Resolution Advisors (DRAs) are now a common feature of construction projects around the world. However, Australia has been slow to embrace DAPs. There is no history of DABs or DRAs being used in this country and only modest use of DRBs. The failure of the Australian construction industry to embrace DAPs is surprising given the proven international track record of DAPs in ensuring that construction projects reach completion with no outstanding disputes. One possible explanation for the lack of uptake of DAPs in Australia may be the complete absence of any provisions relating to DAPs in any Australian standard form contract. This article considers how provisions relating to DAPs have been incorporated into standard form contracts in other jurisdictions, whether Australia should follow suit, and if so, how this could be achieved.

La généralisation des enquêtes judiciaires et la construction du pouvoir princier dans le duché de Bourgogne (xiie-xiiie siècles)

by Armando Torres Fauaz

Regional networks, the resolution of disputes and the appellate jurisdiction in Communal Italy: the case of the Lombard League’

by Gianluca Raccagni

in Law and disputing in the Middle Ages: proceedings of the ninth Carlsberg Academy Conference on medieval legal history (DJØF Publishing, forthcoming)

The Influence of Relational Experience and Contractual Governance on the Negotiation Strategy in Buyer-Supplier Disputes

by Fabrice Lumineau

Lumineau F. & Henderson J. 2012. “The Influence of Relational Experience and Contractual Governance on the Negotiation Strategy in Buyer-Supplier Disputes.” Journal of Operations Management, 30(5): 382-395.

This paper theoretically refines and empirically extends the debate on the type of interplay between relational... more This paper theoretically refines and empirically extends the debate on the type of interplay between relational experience and contractual governance in an under-researched area: supply chain disputes. We define relational experience as either cooperative or competitive; distinguish between control and coordination functions of contractual governance; and assess their interplay on the negotiation strategy used in disputes. Using a unique data set of buyer-supplier disputes, we find, in particular, that increasing contractual control governance weakens the positive effect of cooperative relational experience on cooperative negotiation strategy. However, increasing contractual control governance for a buyer-supplier dyad with competitive relational experience will increase cooperative negotiation strategy. Contractual coordination governance reinforces the positive effect of cooperative relational experience. Through this study, we reach a better understanding of how and when contractual and relational governance dimensions interact; rather than whether they act as substitutes or complements as has been studied in prior research. We discuss the implications of these findings for the field of supply chain management.

An Empirical Investigation of Interorganizational Opportunism and Contracting Mechanisms

by Fabrice Lumineau

Lumineau F. & Quélin B. V. 2012. “An Empirical Investigation of Interorganizational Opportunism and Contracting Mechanisms.” Strategic Organization, 10(1): 55-84.

This study investigates contracting mechanisms in situations of opportunistic disputes between organizations. We... more This study investigates contracting mechanisms in situations of opportunistic disputes between organizations. We specifically explore the relationships between the formal versus informal nature of opportunism and the formal versus informal nature of contractual governance. We use a unique data set of 102 buyer-supplier disputes to explore in depth different types of opportunism—that is, strong form versus weak form opportunism—and different types of contracting mechanisms—that is, the controlling and coordinating functions of formal contracts and the cooperative and competitive sides of relational contracts. Our detailed empirical analysis suggests distinct relationships between the different contracting mechanisms, the different types of opportunism, and the level of legal fees necessary to deal with the dispute. These findings enable us to derive implications for research on the role of contractual mechanisms in dealing with interorganizational opportunism.

Understanding the balance of power in Eastern Iceland: Some remarks on the Saga of the Men of Svinafell.

by gregory cattaneo

Forthcoming in Sredniowiecze polskie i powszechne, Vol. 8, Publication of the University of Silesia, Poland, 2012.

The objective of this study is to analyze the conflict presented in a less known saga: the Saga of the Men of... more The objective of this study is to analyze the conflict presented in a less known saga: the Saga of the Men of Svinafell (Svínfellinga saga). Until now none of the studies dealing with conflict in Iceland took this saga into consideration. Moreover facing the scarcity of studies concerning the Eastern Quarter, it seems interesting to look at this saga under this scope in order to offer another perspective on mechanisms of conflicts’ resolution in Medieval Iceland and more precisely around the middle of the 13th century

Avrupa Birliği ve Bölgesel İhtlafların Çözümü

by Uluslararası İlişkiler

Bahar Rumelili, "Avrupa Birliği ve Bölgesel İhtilafların Çözümü", Uluslararası İlişkiler, Cilt 4, Sayı 16 (Kış), 2007-2008

Bu çalışmanın öne sürdüğü tez, Avrupa Birliği’nin (AB) sınırları dışındaki devletlerle kurduğu kimlik ilişkilerinin,... more Bu çalışmanın öne sürdüğü tez, Avrupa Birliği’nin (AB) sınırları dışındaki devletlerle kurduğu kimlik ilişkilerinin, bu devletleri ilglendiren ihtilafların çözümüne destek olma yetisini etkilediğidir. AB’nin ürettiği “Avrupa” kimliği özünde dışlayıcı olan Avrupalılık anlayışı ile özünde kapsayıcı olan demokratiik ve kapitalist kimliklerini bir araya getiren ikili melez bir kimliktir. Bu ikili kimlik çerçevesinde AB, Orta ve Doğu Avrupa devletlerine karşı kapsayıcı bir yaklaşım geliştirirken, Fas’ı özde farklı tanımlayarak dışlamış, Türkiye’ye karşı da ikircikli bir tutum takınmıştır. Bu farklı kimlik ilişkileri, AB’nin sınırındaki söz konusu devletlerin taraf oldukları ihtilafların çözümüne katkıda bulunma yetisini etkilemiştir. Polonya-Almanya ve 1999 sonrası Türk-Yunan ilişkileri örnekleri, AB’nin kapsayıcı bir yaklaşımla sınırlarındaki anlaşmazlıkları da olumlu etkileyebildiğini göstermektedir. Fas-İspanya ve 1999 öncesi Türk-Yunan ilişkisi örnekleri ise, AB’nin dışlayıcı bir yaklaşım geliştirdiğinde üye ve üye olmayan devletler arasındaki anlaşmazlıkları nasıl daha da kötüleştirebileceğini göstermektedir.

Integrating conflict resolution into EAPs

by Sherrill Hayes

Conflict resolution (CR) has been known by several different names, including conflict management, dispute resolution,... more Conflict resolution (CR) has been known by several different names, including conflict management, dispute resolution, and alternative dispute resolution. Regardless of the name, the core skills and interventions are the same, and some of them will be familiar to employee assistance professionals. Opportunities for collaboration between EA and CR professionals have expanded over the last few years (Margulies 2008; Porter and Sawyer-Harmon 2005; Wilburn 2006), in part because of the similarities between the two fields. Both seek to empower individuals to resolve their own problems, use similar skill sets, and encourage alternative means of resolving workplace disputes and conflicts. This article provides an overview of some of the basic skills and interventions used by conflict resolution professionals and lists CR-specific references and resources. It also offers examples of direct applications of CR skills to EA practices.

Parenting Coordination: Resolving High Conflict Disputes in the USA

by Sherrill Hayes

Research has demonstrated the significant negative impact of ongoing inter-parental conflict on children. In addition... more Research has demonstrated the significant negative impact of ongoing inter-parental conflict on children. In addition to the
harm they may be causing their children, ‘high conflict’ separated and divorced parents have frustrated attorneys and created additional workloads for the courts. In reaction to these issues, courts and state legislatures have often turned to third-party, alternative dispute resolution (ADR) processes such as mediation, arbitration, and parent education for solutions. A recent addition to the ADR spectrum is parenting coordination (PC). Although this practice has been known by different names in different states,all of these designations essentially refer to a consistent idea of a child-focused ADR process in which a mental health or legal professional with mediation training and experience assists high conflict families to implement their custody order.

Dispute Avoidance Procedures (" DAPs")-The Changing Face of Construction Dispute Management

by paula gerber

Community based divorce education programmes: Short-term and longer-term impacts

by Sherrill Hayes

co-author Lori Pelletier

Evaluation of a community-based parenting education program for parents in conflict over child custody and visitation.... more Evaluation of a community-based parenting education program for parents in conflict over child custody and visitation. The evaluation shows the positive short and longer term impacts of this program on parenting attitudes and behaviors and situates it in similar programs across North America.

Understanding Conflict Resolution from the Inside Out OR Why 800 Pound Gorillas Aren’t Great Mediators

by Sherrill Hayes

Imagine you are a party to mediation and you arrive at your mediation session only to be faced with an 800 pound... more Imagine you are a party to mediation and you arrive at your mediation session only to be faced with an 800 pound gorilla, in a suit of course, who will be your mediator so you ask yourself,
“Can a gorilla be a mediator?” This article examines the philosophical and theoretical foundations of human conflict, reviews some of the thinking about mediation in the last 30 years, and introduces the author's "critical incident and intervention approach" to working with conflict.

Competition and Comity in the Fragmentation of International Law

by William Worster

The international legal system encompasses a variety of legal norms, but the perceived increase in... more The international legal system encompasses a variety of legal norms, but the perceived increase in "fragmentation" of these norms has recently been seen as a problem for the system as a whole. Consequently, many writers have suggested forms of increased comity among international tribunals in order to combat the problems associated with fragmentation; indeed, locating harmonies among international legal regimes within a coherent international legal system appears to be the dominant trend. Yet these perspectives dismiss, or at the very least, largely overlook, the benefits of competition among international tribunals.

Fragmenting norms could provide opportunities for better norms, particularly since differing legal traditions bring differing norms to adjudication, all of which may have their relative strengths. This continual updating of law and legal dispute resolution is healthy for the law to maintain legitimacy while keeping up with social change. How popular courts weigh the need for equality, the right to a hearing, and so on might suggest a balance among principles that is the most just approach. Other tribunals may look to the decisions of more popular fora as examples of justice, and reform themselves and their image appropriately. Thus, increased competition may increase the diversity of legal norms and the legitimacy of the norms applied.

Any objection to the beneficial role of fragmentation is based on one's conception of justice and whether justice can be a democratic and competitive preference. If international tribunals are created by States in order to do justice among them, then being recognized as the most attractive forum is evidence that a particular tribunal may have a better appreciation for justice. Fragmentation may not be a problem to be solved, but rather, a sign that the international legal system needs to consider a variety of legal norms. As society's definition of justice evolves, so do many tribunals, not necessarily towards a top-down, constitutionalized, hierarchical system overseeing a coherent, unitary international legal order, or for that matter towards a network of friendly, lending, and borrowing professionals. Instead, they may affirm a bottom-up, vigorous system where different legal actors compete for the best realization of justice.

The legal conditionality of performance bond in Malaysian construction contract

by Azizan Supardi

Azizan Supardi, Hamimah Adnan and Jamaluddin Yaakob
Built Environmental Journal, Volume 4, No. 2, 2007, pp. 11-22

In construction contracts, a 'performance bond' is a bond taken out by the contractor, usually with a bank or... more In construction contracts, a 'performance bond' is a bond taken out by the contractor, usually with a bank or insurance company (in return for payment of a premium), for the benefit of and at the request of the employer, in a stipulated maximum sum of liability and enforceable by the employer in the event of the contractor's default, repudiation or insolvency. There are two types of performance bonds: Conditional bond or default bond; and Unconditional bond or on-demand bond. However, in Malaysia, the question of whether the performance bond in a construction contract is a conditional or an unconditional guarantees is still one of the issues relating to performance bond that has been discussed. Therefore, the objective of this research is to determine the phrase(s) in the Performance Bond in a construction contract that determine whether the performance bond is a conditional or unconditional on demand guarantee. In order to achieve this objective, the research was conducted by analyzing relevant court cases. From the findings, it can be concluded that unless an undisputed meaning of the words in the performance bond to make the performance bond to be purely conditional or unconditional 'on-demand' bond, most court interpreted performance bond to be an on-demand performance bond which is only conditional upon the beneficiary asserting the basis of the claim upon the issuer of the bond contending that there has been breach of contract.

Security of payment in Malaysian construction industry: issues on sub-contract's direct payment

by Azizan Supardi

Azizan Supardi and Hamimah Adnan
3rd International Conference on Mechanical and Electrical Technology, Dailan, China, 26-27 August 2011, pp. 407-412

In Malaysia, sub-contractors have to bear with the current structure of payment mechanisms in the standard forms of... more In Malaysia, sub-contractors have to bear with the current structure of payment mechanisms in the standard forms of contract, which are payment upon certification, direct payment from the employer, and contingent or conditional payment. However, „direct payment‟ provision is applied for in most of the nominated sub-contracts and not to the domestic sub-contractors; thus the Construction Industry Payment and Adjudication (CIPA) Act is proposed. This paper, though, is to disclose the findings on legal cases and sub-contractors‟ perspective on direct payment, by preliminary analyzing the quantitative questionnaire survey to the first 81 from the identified 1,500 sub-contractors throughout the country. Before that, from 186 cases, only 5 selected cases are analysed that thoroughly addressed the judgment of direct payment. It is found out that the particularly small sized subcontractors are definitely need to enhance their knowledge of the so-called the „Security of Payment‟ Regime to benefits from the proposed Act

The adequacy of Malaysian security of payment legislation for sub-contractors in construction industry

by Azizan Supardi

Azizan Supardi, Hamimah Adnan and Mohammad Fadhil Mohammad
Sixth International Conference on Construction in the 21st Century, Kuala Lumpur, Malaysia, 5-7 July 2011, pp. 677-684

In Malaysia, the particularly small sized subcontractors are definitely benefited from payment provisions in the... more In Malaysia, the particularly small sized subcontractors are definitely benefited from payment provisions in the proposed Construction Industry Payment and Adjudication Act (CIPA Act). However, they need to enhance their knowledge of the so-called the ‘Security of Payment’ Regime to benefits from the Act. Due to this, this on-going research attempts to introduce payment framework to the sub-contractors, in giving the knowledge, to claim for payment. This paper, though, is to disclose the finding of the level of knowledge that the sub-contractors have to the proposed Act, by preliminary analyzing the quantitative questionnaire survey. It was found that the adequacy of security of payment framework to the particularly small sized sub-contractors needs to be produced, and the analysis on effectiveness of the various avenues incorporated in the construction contract or statutes in the other developed countries as well as the proposed Act needs to be done. However, as long as the regime remains in proposal, the sub-contractors have to bear with the current structure of payment mechanisms in the standard forms of contract, which are payment upon certification, direct payment from the employer, and contingent or conditional payment.

Security of Payment in Malaysian Construction Industry: Eradication of Sub-contract's Contingent Payment

by Azizan Supardi

Azizan Supardi and Hamimah Adnan
International Conference on Energy, Environment, Entrepreneurship, Innovation, Lanzarote, Canary Islands, Spain, 27-29 May 2011, pp. 116-121

In Malaysia, the sub-contractors have to bear with the current structure of payment mechanisms in the standard forms... more In Malaysia, the sub-contractors have to bear with the current structure of payment mechanisms in the standard forms of contract, which are payment upon certification, direct payment from the employer, and contingent or conditional payment. However, with.the proposed Construction Industry Payment and Adjudication Act (CIPA Act), contingent payment will be no longer valid. This paper, though, is to disclose the findings on legal cases and sub-contractors’ perspective on contingent payment, by preliminary analyzing the quantitative questionnaire survey to the first 79 from the identified 1,500 sub-contractors throughout the country. Before that, from 186 cases, only 3 selected cases are analysed that thoroughly addressed the main issue of contingent payment. It is found out that the particularly small sized subcontractors are definitely benefited from payment provisions in the proposed Act. However, they need to enhance their knowledge of the so-called the ‘Security of Payment’ Regime to benefits from the proposed Act.

Legal Comparison Between Conditional And Unconditional On Performance Bond In Malaysian Construction Contract

by Azizan Supardi

Azizan Supardi, Hamimah Adnan and Jamaluddin Yaakob
International Surveying Research Journal, Volume 1, No. 1, 2011, pp. 45-55

In Malaysia, during the research period of 20 years since the famous case of Teknik Cekap Sdn Bhd v Public Bank Berhad... more In Malaysia, during the research period of 20 years since the famous case of Teknik Cekap Sdn Bhd v Public Bank Berhad [1995] 3 MLJ 449 to Suharta Development Sdn Bhd v United Overseas Bank (M) Bhd & Anor [2005] 2 MLJ 762, the question of whether the performance bond in a construction contract is a conditional or an unconditional guarantees is still one of the issues relating to performance bond that has been discussed much of the time. Therefore, the objective of this paper is to determine the phrase(s) in the Performance Bond in a construction contract that determine whether the performance bond is a conditional or unconditional on demand guarantee. In order to achieve this objective, this pure legal research was conducted by content analyzing relevant court cases. From the findings, it can be concluded that unless an undisputed meaning of the words in the performance bond to make the performance bond to be purely conditional or unconditional ‘on demand’ bond, most court interpreted performance bond to be an on-demand performance bond which is only conditional upon the beneficiary asserting the basis of the claim upon the issuer of the bond contending that there has been breach of contract.

Security of Payment in Malaysian Construction Industry: Sub-contract 'Payment Upon Certification'Cases

by Azizan Supardi

Azizan Supardi and Hamimah Adnan
2nd International Conference on Construction and Project Management, Singapore, 16-18 September 2011, pp. 220-224

In Malaysia, the sub-contractors have to bear with the current structure of payment mechanisms in the standard forms... more In Malaysia, the sub-contractors have to bear with the current structure of payment mechanisms in the standard forms of contract, which are payment upon certification, direct payment from the employer, and contingent or conditional payment. However, ‘payment upon certification’ provision mostly applied for nomiinated sub-contracts and not to the domestic sub-contractors; thus the Construction Industry Payment and Adjudication (CIPA) is proposed. This paper, though, is to disclose the findings on legal cases and subcontractors’ perspective on payment upon certification, by preliminary analyzing the quantitative questionnaire survey to the first 81 from the identified 1,500 sub-contractors throughout the country. Before that, from 186 cases, only 12 selected cases are analysed that thoroughly addressed the main issue of payment upon certification. It is found out that the particularly small sized subcontractors are definitely need to enhance their knowledge of the so-called the ‘Security of Payment’ Regime to benefits from the proposed Act.