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arbitration & project management

14 replies [Last post]
Sat, 2004-06-19 00:43
Emelyn Martinez
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Hello Planet Planners!

I am presently preparing my paper for a directed study proposal. I am working on Construction Arbitration. Since this is a very broad subject, will you please suggest a specific area on Project Management that I can focus on, towards the improvement of the construction arbitration system.

Your suggestions will be very much appreciated.

Thanks.
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Replies

Thu, 2004-07-15 13:39
#1
Stuart Ness
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Emelyn,
I don’t think you can assume that if you are stuck with lawyers you can go to court litigation. Most Contracts specify that disputes are to be resolved either by the courts or by arbitration (and more often now, mediation in advance of arbitration). So the dispute resolution procedure is already established by the Contract; you cannot (usually) change your mind and go to the court instead of arbitration if arbitration is already the agreed method of resolving disputes as set out in the Contract.
Even in some jurisdictions where disputes have to be resolved in the first instance by the local courts (such as in parts of the Middle East), if the parties are from different countries, it is usual for the final resolution to be held by a court of arbitration, usually based in a third country, such as Switzerland. But even here, you can still get by without lawyers!

;-)
Cheers,
Stuart
www.rosmartin.com
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Thu, 2004-07-15 08:14
#2
Emelyn Martinez
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Hi, Planet Planners!

It seems that these forum is getting hotter each day! It is true that the best thing in construction disputes is to prevent it in the first place. But if it is no longer unavoidable, arbitration is always the last recourse...but hopefully, without these lawyers. If you go for these lawyers, go to court litigation. I do agree with Stuart and I am really excited on my progress on my paper. I hope to hear more from all of you, Planet Planners.

Regards,
Emelyn

Excess: To Stuart, thanks for the e-mails. I’m giving it a thought for now. It will surely help.
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Wed, 2004-07-14 04:38
#3
Stuart Ness
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Shahzad,
I agree with you entirely that you should avoid arbitration in the first place (and then, of course you don’t have to deal with the lawyers!) That is why I always advocate "Dispute Avoidance and Claims Management".

In a way, being in arbitration itself may be a sign of failure in that the Dispute Avoidance and Claims Management procedures have failed. Involving lawyers just heaps failure on failure!

Cheers,
Stuart
www.rosmartin.com
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Wed, 2004-07-14 04:33
#4
Stuart Ness
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Hi Gilbert,

It isn’t just the cost of the lawyers, it is the additional cost of all their in-house support staff, which is usually completely (and even more) ignorant of the technicalities of the case. It is very very difficult (and expensive) to try and explain to a lawyer how you are entitled to an EOT or additional costs or to some subtlety in a EPC or LSTK Contract, and then have them re-hash your argument and get it all wrong.!

Lawyers are not usually trained in construction claims management and they have to learn from us guys - yet they claim their huge fees for us teaching them!! And if you try to explain critical paths, disruption models, schedule impact studies etc., they are totally lost (and can lose your case for you!!)

Cheers,
Stuart
www.rosmartin.com
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Wed, 2004-07-14 04:25
#5
Stuart Ness
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Hi Shahzad,

I disagree with you that all arbitrations all over the world need to involve lawyers. The problem is that most people THINK this, but it is not true.
I know lots of technocrats who are arbitrators and mediators, and I even know a number of lawyers (some of them my best friends) who agree that lawyers are completely unsuited to the arbitration/mediation process. I have represented Clients in arbitrations and mediations myself, at a fraction of the cost of any lawyers.
Lawyers are OK in their place (i.e. in courts of law!), but they need the complete support of us technocrats in getting their cases right in the first place.
I was working on a case in the USA a few years ago, and I was dealing with a Senior Partner in the New York office of an international law firm, and he could not understand the difference between prolongation and acceleration!!
The ICC Arbitration Rules (for example) are straightforward and uncomplicated, and they can easily be followed by non-lawyers.

Best wishes,
Stuart
www.rosmartin.com
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Wed, 2004-07-14 03:08
#6
Shahzad Munawar
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We should avoid arbitration first and then lawyers. If in any case, arbitration must, then we also cannot ignore the presernce of lawyers.

In all World the system of arbitration has been made on that parameters that you cannot ignore Lawyers in any case and cannot proceed arbitration without them
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Wed, 2004-07-14 02:56
#7
Gilbert Rayco
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This is very interesting topic. We have ongoing case (arbitration) company already spending huge amount of $$ss for the lawyers and still growing everyday. My question is do we really need them?? Do we need somebody to twist the facts 360 degree? I’m for technocrat or technocrat becomes lawyer.



GRayco
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Tue, 2004-07-13 23:12
#8
Emelyn Martinez
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Hi, Stuart!

Your talk must be a great scene! I should have enjoyed it much if I were there. I want to create the same effect on my paper - a controversial paper.

Your bullet points will be greatly appreciated.

Best regards,

YEN
emelyn_martinez@yahoo.com

Excess: I am now considering creating a website www.erasethelawyers.com. ; )
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Mon, 2004-07-12 06:51
#9
Stuart Ness
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Hi Emelyn,
Wish we could find a website called www.erasethelawyers.com but it doesn’t seem to exist! ;-)

I am a member of the European Branch of the Chartered Institute of Arbitrators, and a few years ago I gave a talk at one of the meetings in Geneva, entitled "How lawyers have high-jacked the arbitration process". You can imagine the reception I got, since more than half the audience comprised very well paid Swiss lawyers!!

In many countries (including here in The Netherlands and in the USA) the arbitration process has been high-jacked by the lawyers who see it as another area of gaining more fees for themselves and excluding the technocrats, who are far more able to make judgements about the facts of a case than are the lawyers. Indeed, the whole reason for arbitration coming into existence in the first place was to avoid the expensive and long legal process, though arbitration itself has now become lengthy and expensive. Why? Because of the lawyers!!

I can’t point you to any suitable website, but I could put together some bullet points for you if you wish.
Cheers
Stuart
www.rosmartin.com
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Mon, 2004-07-12 06:41
#10
Stuart Ness
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Hi Shahzad,
The problem with Hudson’s is that it is written by Duncan Wallace - he is a lawyer!!
Cheers,
Stuart
www.rosmartin.com
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Sun, 2004-07-11 23:42
#11
Emelyn Martinez
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Thanks for the replies.

I guess it makes sense getting rid of these lawyers. I’ve attended an international conference on construction arbitration a few weeks back and it seems that the conference hall was jampacked with lawyers and lawyers and lawyers. In our country, the Philippines, the minimum requirement to qualify as an arbitrator is that one should be at least 40yrs. old. It’s my wildest dream to become one but I still got a long, long way to go ’coz I’m just 26. During the open forum, these so-called senior lawyers raised technical questions that can be easily solved by technocrats like us. Gosh! It should be our world.

I’ll consider the idea of erasing these lawyers in the arbitration system. Would you mind if you give me websites where I can gain more info regarding the subject matter?

Thanks.

YEN
emelyn_martinez@yahoo.com
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Fri, 2004-07-09 04:47
#12
Shahzad Munawar
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See Hudson, good book for arbitration point of view. So read it.
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Wed, 2004-07-07 18:21
#13
Ed Fish
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Get the lawyers out!! Couldn’t agree more. The issue is about Dispute Resolution NOT I’ve won, I’ve won. The fight should not be about legal technicalities, but about reasonable balance in contract law. Look at some of the IChemE’s work on arbitration/expert witness/etc.

If you find a good answer you could be made for life! ;-)
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Wed, 2004-07-07 15:19
#14
Stuart Ness
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Emelyn,
One of the best ways to improve the Construction arbitration service would be to get rid of the lawyers!
Construction arbitrations usually revolve around the facts of the case rather than points of law, and it is in the detail of what happened and when during the course of a project that usually determines the success of an arbitration. Lawyers in construction arbitrations do nothing other than add another layer of (expensive) management to the arbitration process.

It is even worse in mediation, another area of ADR that has been high-jacked by the lawyers! Lawyers are entirely unsuited by their very training to become mediators, since they have been trained to represent either one side or another. Arbitrations and mediation should be left up to us technocrats!!
Stuart
http://www.rosmartin.com
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