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Multi-Party and Multi-Contract Arbitration in the Construction Industry

Multi-Party and Multi-Contract Arbitration in the Construction Industry

Dimitar Kondev

ISBN: 978-1-119-25178-1

Jan 2017, Wiley-Blackwell

408 pages

$100.99

Description

Multi-Party and Multi-Contract Arbitration in the Construction Industry provides the first detailed review of multi-party arbitration in the international construction sector.

Highly practical in approach, the detailed interpretation and assessment of the arbitration of multi-party disputes will facilitate understanding and decision making by arbitrators, clients and construction contractors.

About the Author x

Foreword xi

Preface xiii

Acknowledgements xv

List of Abbreviations xvi

1 Introduction 1

1.1 General background and research problem 1

1.2 Scope of the book, limitations and literature review 4

1.3 Sources used 6

1.4 Structure of the book 9

1.5 Aims and contribution of the book 10

2 Multi-Party Arbitration in General 11

2.1 Terminology notes 11

2.2 Legal techniques introducing multi-party arbitration 15

2.3 Advantages of multi-party arbitration 18

2.4 Obstacles to multi-party arbitration 21

3 The Need for Multi-Party Arbitration in the Construction Sector 31

3.1 Specifics of construction disputes and construction arbitration 31

3.2 Introduction to international standard form construction agreements 33

3.3 Contractual structures in construction projects 40

3.4 Parties’ interests in multi]party arbitration 46

4 Multi-Party Arbitration Solutions under Arbitration Rules 60

4.1 ICC Rules 61

4.2 CEPANI Rules 71

4.3 LCIA Rules 77

4.4 UNCITRAL Rules 80

4.5 Swiss Rules 84

4.6 Rules adopted by the American Arbitration Association (‘AAA’) 90

4.7 Vienna Rules 94

4.8 DIS Arbitration Rules 99

4.9 SCC Rules 100

4.10 DIA Rules 101

4.11 Arbitration rules in Asia 102

4.12 Concluding remarks regarding arbitration rules 115

5 Multi-Party Arbitration Solutions under Arbitration Laws 121

5.1 UNCITRAL Model Law 122

5.2 The United Kingdom 124

5.3 The Netherlands 129

5.4 Belgium 131

5.5 New Zealand 132

5.6 Hong Kong 133

5.7 Canada 137

5.8 Australia 138

5.9 Other countries 139

5.10 Multi-party arbitration in the United States 140

5.11 Should arbitration laws deal with multi-party arbitration? 158

5.12 Concluding remarks regarding arbitration laws 164

6 Contractual Solutions to Multi-Party Arbitration 167

6.1 FIDIC Conditions of Contract 169

6.2 Blue Form 175

6.3 JCT Contracts 208

6.4 ACA standard forms 223

6.5 NEC3 226

6.6 IChemE contracts 234

6.7 ICC contracts 237

6.8 PPC and SPC International 238

6.9 ENAA Model forms 240

6.10 AIA standard forms 242

6.11 ConsensusDocs 247

6.12 AB 92 and ABT 93 250

6.13 Concluding remarks regarding contractual approaches 252

7 Proposed Solutions 255

7.1 Jurisdictional approach 256

7.2 Abstract consensual approach 262

7.3 Proposed contractual solutions 264

7.4 Institutional approach 313

8 Conclusion 325

Table 1 Summary of Multi-Party Arbitration Provisions under the Reviewed Arbitration Rules 328

Table 2 Summary of Multi-Party Arbitration Provisions under Arbitration Laws 333

Appendix 1 Second Alternative Clause of Clause 20 of the FIDIC Subcontract 337

Appendix 2 Multi-Party Arbitration Provisions under the Blue Form 351

Appendix 3 Multi-Party Arbitration Clauses under the ENAA Model Form – International Contract for Process Plant Construction, 2010 and Related Subcontracts 355

Bibliography 358

Index 381

"Dr Dimitar Kondev's book on multi-party and multi-contract arbitration in the construction industry tackles a complex topic, which presents many hurdles in practice. Dr Kondev has successfully accomplished this difficult task. He leads the reader through the intricacies and pitfalls of this subject in an efficient and well-structured manner. He also takes a convincing stance on the most controversial issue and proposes pragmatic and workable solutions to the recurring problems that arise with respect to multi-party arbitration in construction disputes. This book might be of interest not only for practitioners specialised in construction arbitration but also for the arbitration community...

In view of the foregoing, there is no doubt that this book is a must read for arbitration practitioners.  Let us hope that Dr Kondev’s recommendations will be well received and implemented by the practitioners and drafters of international standard forms and arbitration rules. This would be a significant step-forward in enhancing dispute resolution in the construction industry."

Fabrice Robert-Tissot, International Business Law Journal (RDAI 2018/1, pp 121-124)

“This is the first book which deals with multi-party and multi-contract arbitration in the construction sector.… In his book, Dr Kondev makes an in-depth analysis of the legal regulation of this type of arbitration contained in the most popular institutional arbitration rules and the arbitration laws of different jurisdictions.  The book also offers an up-to-date and thorough review of how multi-party and multi-contract arbitration is dealt with in the most widely used international standard forms of construction contract (such as the FIDIC books, NEC3, etc.) and some domestic standard forms (used mostly in Great Britain, the US and some Scandinavian countries)… The book also contains practical guidelines for drafting multi-party arbitration clauses… Because of the importance of the matters discussed in this treatise, it would be of great value to lawyers, arbitrators and academics in the field of international commercial arbitration.”

Society and Law (5/2017, pp 111-112)

"Complex arbitration disputes involving multiple parties and multiple contracts are both an evergreen – as demonstrated by the extensive literature on the subject – and a hot topic – confirmed, eg, by numerous amendments to arbitration rules in recent years... Given this background, is it possible to add anything new or meaningful? KONDEV has demonstrated that it definitely is. On the one hand, his study is clearly structured, well written, and thoroughly researched; this alone makes it stand out and merit a strong recommendation. On the other hand, KONDEV adds a specialist perspective to the debate, namely that of the construction industry... The author ‘attempted to bridge the gap between the theoretical proposals regarding multi-party arbitration and their practical application’ (pp 326-327). It is submitted that he fully succeeded. Anyone dealing with multi-party, multicontract issues in the construction industry will benefit from this new book – drafters of contracts or rules as well as counsel, arbitrators, or judges in pending proceedings."

Johannes Landbrecht, 36 ASA Bulletin 1/2018 (March), p. 256

“Another publication on multi-party arbitration? Was that necessary, given that a lot has been written about this topic over the years already? It was. For at least two reasons. First, most of the existing contributions discuss the issue in a general context without regard to the peculiarities of disputes and specific contractual frameworks found in the construction industry. Second, many articles identify the numerous problems of multi-party arbitration without providing any self-contained practical solutions. Dimitar Kondev’s 408-page book fills these two gaps…

For a number of reasons, Kondev’s book is of great value. It provides a useful overview of different approaches in arbitration rules, arbitration legislation and standard form contracts. It explains the importance of tailoring arbitration agreements to reflect the peculiarities of each project, the peculiarities of the underlying contracts, the peculiarities of the applicable arbitration rules and relevant national laws. Finally, the author addresses concerns and provides thoughts and ideas that are absolutely essential for drafting multi-party arbitration clauses. Not only, but in particular, the last two chapters of the book are very inspiring, even for experienced practitioners, and the various committees and working groups involved in the development of standard form contracts and arbitration rules.”

Hein-Jürgen Schramke, Construction Law International 13 (1) (March 2018)