scholarly journals Trends of Adjudication Cases in Malaysia

2019 ◽  
Vol 266 ◽  
pp. 03001
Author(s):  
Quratul Ain Mazani ◽  
Siti Suhaidah Sahab ◽  
Zulhabri Ismail
Keyword(s):  
Dispute Resolution ◽  
Construction Industry ◽  
Cash Flow ◽  
Alternative Dispute Resolution ◽  
Court Cases ◽  
Resolution Method ◽  
Court Referrals ◽  
Settlement Of Disputes ◽  
Work Done

The construction industry is a fertile source of dispute. Payment disputes in the Malaysian construction industry are ancient issues that have been causing problems among construction players for decades. The settlement of disputes can be done by using the Alternative Dispute Resolution (ADR) in lieu of other alternatives or as a complement to Litigation. This paper is focused on Adjudication as a preferred dispute resolution method for the Malaysian construction industry. The enforcement of the Construction Industry Payment and Adjudication Act (CIPAA 2012) in 2014 is intended to provide swift dispute resolution and relief to unpaid construction industry claimants for work done, and facilitate cash flow in the construction industry as a whole. The purpose of this research is to establish the trends of adjudication cases that were intervened by the court within the period of April 2014 until February 2018, which is since the implementation of CIPAA 2012 in Malaysia. In order to determine a vast majority of matters that have been referred for adjudication under CIPAA 2012 and parties in dispute constitute the highest number of referrals, sixty-two court cases were identified. This research also reviewed previous case laws to identify the factors contributing to court referrals. Based on the review, most of adjudication cases in the Malaysian construction industry involve the Main contractor and Employer as dispute parties with the intention of challenging adjudication decisions as there has been excess of jurisdiction pursuant to Section 15 (d) applied by appellants together with the application enforcement of adjudication decision under Section 28 by respondents. The findings will be used as a platform to establish the dispute scenario of the Malaysian construction industry under the CIPAA 2012.

scholarly journals Dispute Review Board: Concept and introduction to develeoping countries

2009 ◽  
pp. 6-10
Author(s):  
Ming-Lee Chong ◽  
Heap-Yih Chong
Keyword(s):  
Developing Countries ◽  
Content Analysis ◽  
Data Analysis ◽  
Dispute Resolution ◽  
Construction Industry ◽  
Alternative Dispute Resolution ◽  
Effective Alternative ◽  
Analysis Approach ◽  
Resolution Method ◽  
The World

Dispute review board (DRB) is an effective alternative dispute resolution method in U.S. construction industry since 1952. Subsequently, this method has implemented in many high profiled projects around the world. However, the concept and procedures of DRB are relatively new in developing countries, namely Malaysia. The paper aims to investigate on the viability of DRB implementation in Malaysian construction industry. Three reputed experts were interviewed, who targeted initially as to their expertise and significant involvements or experiences in dispute resolution. The data analysis was carried out using content analysis approach. The consensus results has confirmed the concepts of DRB and also identified the practicality and barriers of DRB implementation. These qualitative findings have forecasted the trend of DRB practice and created an important insight in dispute resolution for developing countries. It is concluded that an optimistic viable outcome toward DRB has achieved.

scholarly journals IMPLEMENTASI KEBIJAKAN PERATURAN MAHKAMAH AGUNG NOMOR I TAHUN 2008 TENTANG PROSEDUR MEDIASI DI PENGADILAN AGAMA BANDUNG KELAS I.A

1970 ◽  
Vol 18 (1) ◽  
pp. 1-18
Author(s):  
Kun Budianto
Keyword(s):  
Dispute Resolution ◽  
Islamic Law ◽  
Regulatory Policy ◽  
Mediation Process ◽  
Court Cases ◽  
Policy Rules ◽  
Litigation Process ◽  
Settlement Of Disputes ◽  
Sense Of Justice ◽  
Religious Courts

This article discussed regulatory policy on mediation in religious courts way dispute resolution through mediation according to Islamic law and implementation of mediation in settlement court cases in Religious Courts Bandung Class I A. This research base on the policy rules by mediation in the  Religious Courts;  (a)  the  benefits to  be  gained if mediation used as a means in the  settlement  of  disputes,  namely  the  mediation process  could overcome  the  problem  of  accumulation of  matter,  the  mediation process is viewed as a means of dispute resolution that is faster and cheaper than the litigation process, enforcement of mediation can expand access for all parties to gain a sense  of  justice,  (b)  provision their peace  efforts in legislation.  (c) Indonesian society is a society that likes peace. The Implementation of the mediation process done with two ways, namely mediation initial litigation, and over litigation.

scholarly journals The Nature of Payment Problems in the New Zealand Construction Industry

2011 ◽  
Vol 11 (2) ◽  
pp. 22-33 ◽  
Author(s):  
Thanuja Ramachandra ◽  
James Olabode Rotimi
Keyword(s):  
New Zealand ◽  
Construction Industry ◽  
Cash Flow ◽  
General Construction ◽  
Court Cases ◽  
Significant Percentage ◽  
Construction Companies ◽  
Financial Obligations ◽  
Specific Construction ◽  
Property Developers

Delay and loss of payment is a serious problem in the construction industry of many countries. These affect the cash flow of contractors which is critical to meeting their financial obligations. Payment defaults by the principal leads to insolvency of contractors and in turn other parts of the project chain. In recognition of some of these problems, most countries have established payment-specific construction industry legislation and other contractual measures to mitigate the problems, but nevertheless the problem persists. In this context, the paper examines the nature of payment problems in the construction industry in New Zealand. It is part of a larger study, that seeks solutions to payment losses in the construction industry.The study uses two approaches; an analysis of liquidators’ reports, and an analysis of court cases involving payment disputes to determine the magnitude of payment problems on construction parties. The findings are presented using simple descriptive and interpretive analyses. The study finds that trade creditors are impacted negatively (payment delays and losses) by the liquidation of property developers, general construction and construction trade companies. 75% of trade creditors are unable to be paid fully by these categories of construction companies after liquidation proceedings. Liquidation proceedings take an average 18 months before they are finalised. The analysis of court cases found that 80% of payment disputes are between principals and contractors; with considerably significant percentage of disputes resulting in outright loss of payments. Only 40% of the cases are successful, in which case claimants are able to fully recover the amount in dispute. Payment losses are more prevalent in liquidation than delays and unlike in legal disputes, there is no security for those losses. The study finds that construction parties use remedies contained in the security of payment provisions within standard conditions of contract, and legislative documents.

COMPARISION OF ALTERNATIVE CONSTRUCTION DISPUTE RESOLUTION MEASURES

2020 ◽  
Vol 7 (2) ◽  
Author(s):  
Ulrike Quapp ◽  
Klaus Holschemacher
Keyword(s):  
Dispute Resolution ◽  
Construction Industry ◽  
Alternative Dispute Resolution ◽  
Construction Projects ◽  
Legal Aspects ◽  
Construction Process ◽  
Legal Proceedings ◽  
Advantages And Disadvantages ◽  
Industry Practice

Construction projects often are particularly susceptible to conflicts due to their long-term character and complexity. In Germany, courts must deal with around 100,000 construction dispute litigations per year. Alternative Dispute Resolution (ADR) can be an alternative to expensive as well as time-consuming litigation and can help to relieve the judicial system. Furthermore, ADR may contribute to the satisfying settlement of a dispute between parties involved in the construction process and thus help to reach construction projects’ completion on time and within budget. Often, ADR mechanisms such as adjudication, mediation, and conciliation will be used. The paper analyzes the development of ADR in Germany in conjunction with European legal aspects. With special reference to the construction industry practice in Germany, various ADR measures and their advantages and disadvantages, as well as the current situation, will be explained. The authors conclude that, although ADR in Germany has experienced an upswing since the 1990s, it is used only to a small extent for settling disputes in construction projects. An increased knowledge about the advantages and disadvantages of different ADR measures in the construction industry would lead to more frequent uses of ADR. That, and a clever and detailed contract design, which helps to avoid conflicts basing on unclear contract contents, could save money and relieve the courts from time-consuming legal proceedings.

A model for proactive mediation of construction disputes

1995 ◽  
Vol 22 (1) ◽  
pp. 15-22 ◽  
Author(s):  
Francis T. Hartman ◽  
George F. Jergeas
Keyword(s):  
Dispute Resolution ◽  
Construction Industry ◽  
Cost Reduction ◽  
Alternative Dispute Resolution ◽  
Construction Disputes ◽  
Area Of Interest ◽  
New Process ◽  
The Cost ◽  
Alternate Dispute Resolution ◽  
Management Contracts

Alternative dispute resolution methods remain an area of interest and study because of the continued increase in the incidence of disputes, be they claims or litigation. Practice in the industry tends to stimulate litigation if negotiation of claims is unsuccessful. At variance with this is the declared preference of construction industry practitioners for mediation over arbitration and for arbitration over litigation. Mediation has had a high success rate when used in construction dispute resolution. The cost of mediation is significantly lower than litigation or arbitration. The probability of the parties to the dispute being able to work together effectively after the dispute has been resolved is higher, and the dispute can be resolved more quickly than by arbitration or litigation. This paper presents the findings of a study undertaken to identify a better process for construction contracting. An essential part of the new process is the use of proactive mediation. Proactive mediation is the use of a mediator prior to a dispute arising to help identify and address potential problems before they become difficult or unsolvable issues. The proposed methodology has been tested through a process which obtained the input of over 60 senior industry practitioners. Key words: mediation, construction management, contracts, claims, cost reduction, alternate dispute resolution, risk management.

scholarly journals O Recurso Extraordinário 795.567/PR: análise dos fundamentos do Acórdão em face da natureza jurídica da Transação Penal

2016 ◽  
Vol 1 (35) ◽  
Author(s):  
Everton Luis Comoreto ◽  
Karin Milene Bender ◽  
Paulo Eduardo De Almeida Vieira
Keyword(s):  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
Rio Grande ◽  
Point Of View ◽  
Criminal Prosecution ◽  
Rio Grande Do Sul ◽  
Consent Decree ◽  
Resolution Method ◽  
Legal Nature ◽  
De Se

O Recurso Extraordinário 795.567/PR: análise dos fundamentos do Acórdão em face da natureza jurídica da Transação PenalThe Extraordinary Appeal 795,567/PR: analysis of the grounds of judgment from the perspective of the Criminal Consent Decree legal nature Everton Luis Comoreto[1]Karin Milene Bender[2]Paulo Eduardo de Almeida Vieira[3] RESUMO: O instituto da Transação Penal foi analisado sob o ponto de vista de sua natureza jurídica e os efeitos produzidos. Além disso foram analisados brevemente alguns conceitos básicos acerca a definição e origem do instituto da Transação.  Por fim, analisou-se de maneira também breve algumas teorias acerca da Jurisdição, em especial a voluntária, a fim de melhor conceituar a transação, em sentido amplo, como método autocompositivo de solução de litígios. Ainda, analisou-se as teorias acerca da ação penal e sentença condenatória para uma melhor percepção das suas diferenças para com o instituto da transação. Como finalização, utilizou-se os fundamentos expostos no Acórdão resultante do Recurso Extraordinário n. 795.567/PR, e que versou acerca da questão trazida inicialmente, isto é, a possibilidade ou não de se extrair os efeitos extrapenais da sentença homologatória da Transação Penal, confrontando-os com toda a teoria exposta, prevendo a possibilidade da sua utilização como precedente em julgamentos futuros referentes ao tema. PALAVRAS-CHAVE: Transação Penal. Autocomposição. Direito Processual Penal. ABSTRACT: The institute of Criminal Consent Decree (Transação Penal) was analyzed from the point of view of its legal nature and the effects produced. In addition, some basic concepts on the definition and origin of this institute were briefly analyzed. Finally, some theories on Jurisdiction were also briefly analyzed, especially the non-contentious one, in order to better conceptualize the criminal consent decree, in a broad sense, as a alternative dispute resolution method. It was also briefly examined some theories about criminal prosecution and enforceable judgment for a better perception of their differences to the criminal consent decree. At last, the expressed grounds brought in the Extraordinary Appeal 795,567/PR judgment, which dealt with the question initially raised, namely, the possibility to apply the non-criminal effects of a criminal sentence to a criminal consent decree ratification, were confronted with all the theory exposed, facing the possibility of its use as a precedent in future trials concerning the theme. KEYWORDS: Criminal Consent Decree. Alternative Dispute Resolution.  Criminal Procedure.[1] Mestrando em Qualidade Ambiental pela Universidade Feevale, Rio Grande do Sul pela. Bacharel em Direito pela Universidade Feevale, Rio Grande do Sul, 2015.[2] Mestre em Geologia pela Universidade do Rio dos Sinos - UNISINOS, Rio Grande do Sul, 2003. Discente de Especialização em Direito Público na Fundação Superior do Ministério Público, Rio Grande do Sul.[3] Professor na Universidade Feevale, Rio Grande do Sul. Doutorando em Direito Público pela Universidade do Vale do Rio dos Sinos - UNISINOS, Rio Grande do Sul. Mestre em Direito pela Universidade do Vale do Rio dos Sinos - UNISINOS, Rio Grande do Sul, 2004.

Mediation and Alternative Dispute Resolution

2021 ◽  
pp. 470-491
Author(s):  
Edwin Glasgow QC ◽  
Marion Smith QC
Keyword(s):  
Dispute Resolution ◽  
Construction Industry ◽  
Alternative Dispute Resolution ◽  
Standard Form ◽  
Civil Procedure ◽  
England And Wales ◽  
Industry Standard ◽  
The World ◽  
The Uk ◽  
Resolution Processes

This chapter focuses on alternative dispute resolution (ADR), which is used as a collective description of various methods of resolving disputes other than through the formal adversarial processes of litigation or arbitration. It emphasizes how ADR is now recognized in construction industry standard form contracts that provide for dispute resolution processes. It also mentions courts in the UK and throughout the world that support and actively encourage ADR, specifically in England and Wales that includes ADR as part of the Civil Procedure Rules (CPR). This chapter considers the use of ADR to assist in resolving disputes in the construction industry. It concentrates on mediation but also looks at negotiation and early neutral evaluation.

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