Resolving Construction Disputes in the Courts: A Consideration of the Future of Construction Law in the Age of Private Dispute Resolution
Resolving Construction Disputes in the Courts: A Consideration of the Future of Construction Law in the Age of Private Dispute Resolution

Summary/Abstract: The prevalence of disputes in construction projects has made dispute management and resolution a major preoccupation of industry participants and their advisors. This preoccupation currently involves, in addition to a focus on dispute avoidance processes, a reliance on arbitration as the principal dispenser of justice. Arbitration provides construction disputants with important advantages that were previously unavailable in the law courts: flexibility, finality, enforceability advantages and procedural advantages, to name but a few. However, two implications of the status quo give rise to concerns. First, there is the consideration of the future of construction law in the age of private dispute resolution and the threat posed to the rule of law by such processes. Secondly, when considering the costs of dispute resolution through private processes, particularly arbitration, there appears to be noticeable and growing disenchantment with the arbitration model. This paper argues that these implications highlight the need for an alternative to arbitration in the resolution of international construction disputes. Over the last few decades, courts have shown a remarkable ability to innovate and respond to the needs of the dispute resolution community and can provide this alternative.

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