Multi-Party and Multi-Contract Arbitration in the Construction Industry / Edition 1

by Dimitar Kondev

Overview

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.

Product Details

ISBN-13:	9781119251729
Publisher:	Wiley
Publication date:	04/17/2017
Pages:	416
Product dimensions:	6.60(w) x 9.70(h) x 1.00(d)

About the Author

Dimitar Kondev, Mag. Jur., LL.M. Ph.D. in Law, MCIArb, MIR, is a lawyer specializing in construction law and dispute resolution.  He is an Associate in the International Arbitration Group of White & Case in Paris and a lecturer in International Construction Law at the Aarhus University, Denmark.  His practice includes construction law in general, construction disputes and international commercial arbitration. He has experience in various sectors, including commercial development, energy and infrastructure. Dimitar has authored several articles published in the International Construction Law Review, Construction Law International and other journals. He is registered as dispute adjudicator under the Bulgarian list of FIDIC dispute adjudication experts (BACEA National List).

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Table of Contents

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

1.2.1 Scope of the book 4

1.2.2 Limitations 4

1.2.3 Literature review 5

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

2.1.1 Definition of multi‐party arbitration 11

2.1.2 Multi‐party and multi‐contract arbitration: divergent or similar concepts? 12

2.1.3 Group of contracts doctrine 14

2.2 Legal techniques introducing multi‐party arbitration 15

2.2.1 Single request for arbitration 16

2.2.2 Joinder 16

2.2.3 Intervention 16

2.2.4 Consolidation 17

2.3 Advantages of multi‐party arbitration 18

2.3.1 Avoids risk of inconsistent findings 18

2.3.2 Less time and fewer costs 19

2.3.3 Fewer factual errors 20

2.4 Obstacles to multi‐party arbitration 21

2.4.1 Consensual nature of arbitration 21

2.4.2 Arbitration as a two‐party setup 23

2.4.3 Arbitration as a confidential process 24

2.4.4 Setting aside proceedings and non‐recognition and / or non‐enforcement of arbitral awards 26

2.4.5 Practical difficulties 30

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

3.2.1 FIDIC Conditions of Contract 33

3.2.2 NEC contracts 36

3.2.3 ICC contracts 37

3.2.4 ENAA model forms 38

3.2.5 IChemE contracts 39

3.2.6 PPC International and SPC International 39

3.3 Contractual structures in construction projects 40

3.3.1 ‘Build‐only’ projects 40

3.3.2 ‘Design‐build’ or ‘turnkey’ projects 41

3.3.3 Construction management 43

3.3.4 Management contracting 44

3.3.5 ‘Design‐build‐operate’ (‘DBO’) model 45

3.3.6 Partnering and alliancing 46

3.4 Parties’ interests in multi‐party arbitration 46

3.4.1 Employer 46

3.4.2 Contractor 51

3.4.3 Subcontractor 52

3.4.4 Designer 53

3.4.5 Engineer 54

3.4.6 Suppliers 56

3.4.7 Technical consultants 56

3.4.8 Guarantors 56

3.4.9 Concluding remarks 58

4 Multi‐Party Arbitration Solutions under Arbitration Rules 60

4.1 ICC Rules 61

4.1.1 Multi‐contract claims and prima facie assessment 62

4.1.2 Joinder 67

4.1.3 Consolidation 69

4.2 CEPANI Rules 71

4.2.1 Multiple parties and multi‐contract claims 71

4.2.2 Joinder and intervention 73

4.2.3 Consolidation 75

4.3 LCIA Rules 77

4.4 UNCITRAL Rules 80

4.5 Swiss Rules 84

4.5.1 Prima facie test 84

4.5.2 Consolidation 84

4.5.3 Joinder and intervention 88

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

4.6.1 Construction Industry Arbitration Rules (‘CIAR’) 90

4.6.2 ICDR Rules 92

4.7 Vienna Rules 94

4.7.1 Joinder 95

4.7.2 Consolidation 98

4.8 DIS Arbitration Rules 99

4.9 SCC Rules 100

4.10 DIA Rules 101

4.11 Arbitration rules in Asia 102

4.11.1 CIETAC Rules 102

4.11.2 SIAC Rules 106

4.11.3 HKIAC Rules 109

4.11.4 JCAA Rules 114

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

5.10.1 Legal framework 140

5.10.2 United States’ case law on multi‐party arbitration 146

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

6.2.1 Clause 18(2) of the 1984 Blue Form 175

6.2.2 Use of the Blue Form in conjunction with the FIDIC Conditions of Contract 183

6.2.3 Commentary on clause 18(2) 189

6.2.4 Clause 18(8) of the 1991 Blue Form 201

6.2.5 Clause 18(10) of the 1998 Blue Form 205

6.2.6 Clause 18C(4) of the 2008 Blue Form 206

6.3 JCT Contracts 208

6.3.1 JCT 80 approach to multi‐party arbitration 209

6.3.2 Commentary on the JCT 80 approach 219

6.3.3 New JCT approach 222

6.4 ACA standard forms 223

6.5 Nec3 226

6.5.1 Main contract provisions 227

6.5.2 Subcontract provisions 229

6.5.3 Do NEC3 provisions create a self‐contained mechanism for joint adjudication? 230

6.5.4 Compatibility between the joint adjudication provisions and the dispute notification requirements 232

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

7.3.1 IBA guidelines for Drafting International Arbitration Clauses 267

7.3.2 AAA Guide to Drafting Alternative Dispute Resolution Clauses for Construction Contracts 271

7.3.3 Drafting Multi‐Party Arbitration Clauses 273

7.3.4 Sample multi‐party arbitration clause 303

7.4 Institutional approach 313

7.4.1 How to create a workable multi‐party arbitration mechanism under arbitration rules? 315

7.4.2 Compatibility of arbitration agreements 319

7.4.3 Other circumstances 322

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

Editorial Reviews

"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)

“As surprising as it may sound, Multi-Party and Multi-Contract Arbitration in the Construction Industry appears to be the first published monograph dealing specifically with the topic of multi-party and multi-contract arbitration in the construction sector. [Dr Kondev's] dual background as practicing lawyer and scholar allows him to address with success the topic of this book from both theoretical and practical standpoints...

Dr Kondev’s expertise and well researched approach makes this monograph a highly informative read. Dr Kondev’s insightful book will be of use first and foremost to construction practitioners who are looking for a comprehensive study of the difficulties raised by the multi-party and multi-contract nature of construction disputes. That book, however, should also appeal to general arbitration practitioners and academics looking to deepen their understanding of multi-party and multi-contract arbitration, as much of the insights transpose well into areas of arbitration practice other than construction."

Dr. Remy Gerbay, ICC Dispute Resolution Bulletin, Issue 2 (2018), pp. 83-84

“Dr Kondev’s book provides a useful in-depth analysis of the three main legal sources of the regulation of multi-party arbitration: the arbitration agreement, applicable arbitration rules and arbitration laws… Dr Kondev’s clear analysis leads him to conclude that the current legal framework has largely failed to provide workable solutions for the construction sector. He suggests two ways in which this framework could be improved: through the contractual regulation of multi-party disputes and by amendments to the arbitration institutional rules. Of particular practical use, recognising that the drafting of multi-party arbitration clauses can be a daunting complex exercise, Dr Kondev considers in detail the drafting of such clauses. He provides clear, and sensible guidelines, as a checklist for the drafter.

Overall Dr Kondev has achieved his aim: to contribute at the theoretical level and to produce a book with a clear practical approach to the problems discussed. His book is of interest to anyone involved or interested in international construction arbitration including in-house lawyers, arbitrators, private practitioners, academics and those involved in drafting international standard forms and arbitration rules. “

Marion Smith QC, 35 The International Construction Law Review, No. 3 (2018), pp. 359-360

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