Articles

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Kenya leads the way with next generation adjudication clause for new Kenyan JBCC Green Book

Adjudication has played a role in the resolution of construction disputes in Kenya for a number of years. It is not governed by statute but has largely developed as a result of the adoption of international standard form contracts, especially FIDIC, for both public and private sector projects. Despite this, the most widely used construction contract in Kenya, the Joint Building and Construction Council (JBCC) Green Book (1999 edition), does not contain an adjudication clause.

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The parties’ rights and obligations to resolve contractual disputes

By Uwe Pulitz BACKGROUND In the typical (employer design/contractor execution) standard-form contract (SfC) the principal contractor’s obligations vis-a-vis the employer and subcontractors are described and likewise the respective rights and obligations between the principal contractor and a subcontractor are described in the standard-form subcontract (SfS). Similar provisions are included in standard professional services contracts (PSC) between the employer and each consultant.

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Common disputes and how to minimise/avoid them

By Uwe Pulitz

The choice of an appropriate standard form construction/building contract (SfC), or a bespoke contract, must be determined at project initiation when the scope and parameters are defined. The more information and the greater the resolution of direct and peripheral matters the better the ultimate delivery of the project in accordance with defined quality and performancce criteria for delivery on time and within budget and to limit/avoide possible disputes.



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State of the Industry and its Impact on Adjudication

The Master Builders Association has recently engaged with government and other Employer Organisations due to the current and tragic state of the Construction Industry in South Africa.
The MBSA and SAFCEC has gone to great lengths, even going as far as writing the nation’s President. Issues such as Business Forums/Construction Mafia and late/non-payment by government entities made the headlines of their desperate plea for action.



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CAASA Standard documents

As the independent association in South Africa focussing solely on construction adjudication, CAASA has initiated the compilation and publishing of a set of standard use documents to be adopted and implemented by Adjudicators when carrying out their related duties. Besides the required administrative documents such as nomination requests and appointment letters, the two main documents are the Adjudicator’s Agreement, as well as the all-important Adjudication Rules. These are now available for implementation and use by adjudication practitioners, as well as for inclusion by reference and agreement between contracting parties at the time of contracting.



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WHY PROJECTS GO WRONG, WHAT CAN WE DO ABOUT IT?

The history of construction is littered with projects that should never have seen the light of day. Ironically, some of them are now regarded as a great success, but for entirely different reasons.

The Sydney Opera House is one example. The Danish architect Jorn Utzon, won a competition in 1957 to design the national opera house. Work began in 1959. The original budget was A$ 7 million with a 4-year construction period.. Utzon resigned in 1966 due to political interference. It was completed in 1973 at a final cost of A$ 103 million and over 10 years late. In 2002, a further A$ 45 million was spent to bring the building more in line with his original concept.


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Is Adjudication becoming Arbitration?

On Wednesday 24 October 2018 CAASA held an interactive session with its members to discuss whether adjudication is gradually morphing into arbitration. The session was well attended and was a great opportunity to hear the thoughts of others in the industry as well as to network.


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MDA Adjudication 2017

[pdfviewer width="600px" height="849px" beta="true/false"]http://www.adjudicators.co.za/wp-content/uploads/2018/09/MDA-Adjudication-2017-FINAL.pdf[/pdfviewer]

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CAASA Dispute avoidance

At the start of a building contract, when excitement still surrounds the creation of the new facility, little thought is given to aspects that may not happen or may not function as intended, resulting in a (often-avoidable) dispute



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Research analysis of the development of Adjudication based on returned questionnaires from Adjudicator Nominating Bodies (ANBs) and from a sample of Adjudicators

[pdfviewer width="600px" height="849px" beta="true/false"]http://www.adjudicators.co.za/wp-content/uploads/2016/09/Report-14-April-2016-2.pdf[/pdfviewer]

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Writing a Judgment – address by The Hon MM Corbett at the First Orientation course for New Judges

[pdfviewer width="600px" height="849px" beta="true/false"]http://www.adjudicators.co.za/wp-content/uploads/2016/06/Corbett.Writing-a-Judgment.SALJ_.1998.pdf[/pdfviewer]

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Creating and Environment for Reconstruction Growth and Development in the Construction Industry

The white paper on Creating an Environment for Reconstruction Growth and Development in the Construction Industry (1999) argues that the conventional mechanisms and procedures for final dispute resolution currently in use, normally arbitration or litigation, are both costly and time consuming. It further argues that small and emerging contractors are disadvantaged – and even imperiled - in the event of a major dispute arising. The paper advocates the use of Alternative Dispute Resolution (ADR) mechanisms on contracts and recommends that the Latham report should be used as the point of departure in this regard.

[pdfviewer width="600px" height="849px" beta="true/false"]http://www.adjudicators.co.za/wp-content/uploads/2016/06/CIDB-Construction-Procurement-Article-Adjudication.pdf[/pdfviewer]

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Adjudication Decision Writing Checklist

 

[pdfviewer width="600px" height="849px" beta="true/false"]http://www.adjudicators.co.za/wp-content/uploads/2016/06/Adjudication-Decesion-Writing.Checklist-1.pdf[/pdfviewer]

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Adjudication in South African construction industry practice: towards legislative intervention

Adjudication in South African construction practice has, through various initiatives of the South African government and Construction Industry Development Board, the increased use of international standard form construction contracts, and the South African High Court’s robust approach in enforcing adjudicators’ decisions, become relatively commonplace in both the public and private sectors as the first tier in dispute resolution procedures on construction projects across the South African construction industry.

[pdfviewer width="600px" height="849px" beta="true/false"]http://www.adjudicators.co.za/wp-content/uploads/2016/06/Adjudication-Article-Hattingh-and-Maritz.pdf[/pdfviewer]

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Award Writing

Notes to an address by Mr. Justice Blackie In this article I want to cover two important aspects of writing an award. The first is the order or structure of the award (how best to set out and deal with the contents of an award): the second is the style of writing the award (How best to express yourself in the award).

[pdfviewer width="600px" height="849px" beta="true/false"]http://www.adjudicators.co.za/wp-content/uploads/2016/06/Mr.-Justice-Blackie.11-9-10.Revised-Talk.pdf[/pdfviewer]

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Does South Africa have enough Adjudicators?

The Construction Industry Development Board (CIDB) is poised to legislate the introduction of its long awaited Prompt Payment Regulations which will introduce payment security legislation to South Africa (SA).  Amongst other things these regulations will introduce statutory adjudication to most construction contracts.  Is South Africa ready for this? Are there enough adjudicators?  If not, is anything being done to ensure that when the regulations are enacted, adjudication does not become yet another white elephant and added to the list of other good ideas which were never efficiently and properly executed?  This article considers these questions and also provides limited guidance to those seeking to appoint adjudicators using one of the existing Adjudicator Nominating Bodies (ANBs) in SA.

[pdfviewer width="600px" height="849px" beta="true/false"]http://www.adjudicators.co.za/wp-content/uploads/2016/03/Are-there-enough-Adjudicators.pdf[/pdfviewer]

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Making Sense

Louise Rood has some handy tips on effective communication for lawyers.

[pdfviewer width="600px" height="849px" beta="true/false"]http://www.adjudicators.co.za/wp-content/uploads/2016/03/Rood.De-Rebus.August-2006.pdf[/pdfviewer]

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