Professional Documents
Culture Documents
– Presentations
– Dialogue
2
Dispute Prevention, Management
and Resolution on Infrastructure
and Construction Projects
Multi-Tiered Approach to Management and
Resolution of Disputes
Randy Hafer, Partner
Kilpatrick Townsend & Stockton LLP
November 4, 2014
© 2014 Kilpatrick Townsend
Facts and Figures*
4
Principal Causes of Construction Disputes
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Principal Causes of Construction Disputes
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Principal Causes of Construction Disputes
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Give Peace A Chance – Resolve Claims and
Disputes Early
8
Give Peace A Chance – Resolve Claims and
Disputes Early
Partner
Kilpatrick Townsend & Stockton LLP
Randy Hafer is head of Kilpatrick Townsend's Construction and
Infrastructure Projects Team. The Team represents clients on all types of
projects across the nation and internationally and is ranked highest
among the nation’s leading construction practices. Mr. Hafer has been
involved in matters across the United States and internationally on a wide
variety of construction projects, including tunnels, wastewater treatment
plants, airports, power plants, mass transit systems, mining facilities,
bridges and highways, hospitals, office buildings, sports arenas, resort
condominiums, universities and schools, manufacturing and processing
facilities, and military facilities. He works directly with construction project
participants to avoid disputes and effectively and efficiently resolve, on a
“real-time” basis, those disputes that cannot be avoided. He is well-versed
and experienced in negotiation, mediation, arbitration, dispute review
boards, and other forms of construction alternative dispute resolution
(ADR). Mr. Hafer has also helped create and has successfully
implemented customized dispute resolution processes to fit the particular
needs of a project when other more traditional ADR procedures are not
working.
• Background.
• Contractual process: not statutory (unlike English
adjudication).
• Short timescale to decision – issues resolved in “real
time”.
• May be binding or advisory.
• Independent and impartial.
• Interim: Step prior to reference to arbitration.
Initial considerations
28
Four Essential Functions:
• An arbitration clause must produce mandatory
consequences for the parties.
• It must empower the arbitrator to settle the disputes
likely to arise between the parties.
• It must allow for an efficient and rapid procedure
leading to an award that is judicially enforceable.
• It must exclude the intervention of state courts in the
settlement of the conflict, at least before an award is
issued.
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The Arbitration Clause
• What is to be arbitrated?
• By whom is it to be arbitrated?
• Where is it to be arbitrated?
• How is it to be arbitrated?
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The Arbitration Clause
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The Arbitration Clause
35
Examples of Pathological
Arbitration Clauses
Internally Inconsistent:
“The arbitration shall be conducted in Dar es Salaam,
Tanzania and, unless otherwise agreed by the
Parties, the number of arbitrators shall be three, with
such arbitrator to be nominated by agreement of the
Parties within 30 days from the date when the
claimant’s request for arbitration has been
communicated to the other party, or failing such
agreement, appointed in accordance with the ICC
Rules”
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Examples of Pathological
Arbitration Clauses
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Examples of Pathological
Arbitration Clauses
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Examples of Pathological
Arbitration Clauses
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Examples of Pathological
Arbitration Clauses
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Examples of Pathological
Arbitration Clauses
Providing for Conflicting or Unclear
Procedures:
“Disputes hereunder shall be referred to arbitration, to be
carried out by arbitrators named by the International
Chamber of Commerce in Geneva in accordance with the
arbitration procedure set forth in the Civil Code of
Venezuela and in the Civil Code of France, with due
regard for the law of the place of arbitration.”
“All disputes hereunder shall be referred to arbitration
before the ICC in Switzerland in accordance with the
arbitration procedures set forth in the French Civil Code
and the Civil Code of Argentina, insomuch as those
procedures are not in conflict with the law of the place of
arbitration.”
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Examples of Pathological
Arbitration Clauses
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Examples of Pathological
Arbitration Clauses
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Examples of Pathological
Arbitration Clauses
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Examples of Pathological
Arbitration Clauses
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Examples of Pathological
Arbitration Clauses
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Examples of Pathological
Arbitration Clauses
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Examples of Pathological
Arbitration Clauses
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Examples of Pathological
Arbitration Clauses
“Other”:
Naming as arbitrator a specific person – who is now
deceased, incapacitated, or who refuses to act.
Failing to name the seat of the arbitration.
Adopting the rules of an institution without a clear
understanding of those rules.
Neglecting to specify applicable law.
49
Enhancing Business Opportunities in Africa:
The Role, Reality, and Future of Africa-Related Arbitration
November 2-4, 2014
50
Dispute Prevention, Management and
Resolution on Infrastructure and Construction
Projects
John Hinchey
Chartered Arbitrator, CIArb
JAMS International
November 4, 2014
Changes and Trends in International
Disputes Resolution Procedures
John Hinchey is recognized in the United States and internationally as a leader in construction
law, with extensive experience in resolving significant construction disputes as an arbitrator and
mediator. He has published extensively on arbitration and dispute resolution subjects, including
the International Construction Arbitration Handbook (ThomsonWest, 2014 edition);
Construction ADR, “International Arbitration” (ABA, 2013); Chapter 12, “Dispute Resolution
in Managing Gigaprojects (American Society of Civil Engineers, 2012); A Guide for Cross-
Border Transactions (ABA, 2009); and the Handbook on Arbitration Practice (AAA, 2010). He
has lectured and spoken widely on arbitration subjects at King’s College, London; the University
of Melbourne; the Society of Construction Law in Sydney, Australia; the New Delhi, India
Branch of CIArb; and the Straus Institute of Dispute Resolution, Pepperdine University, Malibu,
California; and in cities throughout the United States and Canada. Prior to his retirement in
2011 from King & Spalding, an international law firm, he led the firm’s construction disputes
practice for 18 years. He serves on the Board and is a Fellow of the College of Commercial
Arbitrators; is a Chartered Arbitrator, Fellow, Diplomate and faculty member of the Chartered
Institute of Arbitrators. He serves on the Council of Distinguished Advisors to The Straus
Institute, Pepperdine University School of Law; is an Advisory Board member of the Institute for
Transnational Arbitration; an Advisory Board member of the Construction Contract Law
Reports, published by Thomson West; and serves on the editorial board of the Institution of Civil
Engineers (ICE) Journal of Management, Procurement and Law (2010-2011). A more complete
CV for Mr. Hinchey may be accessed at www.jamsadr.com/hinchey.