Donohoe, S. (2015), "Guest editorial", International Journal of Law in the Built Environment, Vol. 7 No. 3. https://doi.org/10.1108/IJLBE-07-2015-0012Download as .RIS
Emerald Group Publishing Limited
Article Type: Guest editorial From: International Journal of Law in the Built Environment, Volume 7, Issue 3
It gives great me great pleasure to serve as a guest editor in this special edition of International Journal of Law in the Built Environment, covering dispute and conflict resolution in international construction.
The modern construction industry is a truly global affair, which involves a multitude of participants often engaged in demanding yet complex projects. When things go wrong, they often go wrong spectacularly, leading to recriminations and costly and time-consuming legal battles. Parties use various legal mechanisms in an attempt to recover what they feel is their rightful entitlement. By operating, some might say manipulating, contract conditions, parties aim to recoup losses incurred due to breaking of promises made by others. But what are these losses and why should they be recovered at all? These questions are not quite as simple as they seem. Construction contracts have traditionally allowed direct losses to be recovered but have tended to exclude indirect or consequential losses. This brings us to the first paper included in this special edition provocatively entitled “Isn’t all loss consequential?” in which the author, Mason, probes the demarcation between “direct” and “consequential” loss. This is not a vague theoretical exercise in jurisprudential gymnastics but a real live issue on which millions of pounds, dollars, euros or yen might hang in the balance.
At this point, it is a fair point to consider “why do these loss incurring situations arise at all?” The answer is complex and to a certain extent varies with each project, but one issue that seems to recur throughout published literature is a breakdown in trust between the various participants in the construction process. This leads nicely into the second paper in this special edition which explores the nature of trust and investigates whether trust can be prepared once it has broken down. The paper offers a fresh insight into the problematic concept from the perspective of a Delphic study. Crossley blends the theoretical aspects of the topic with pragmatic and practical advice and, as a result, produces a thought-provoking paper.
Whereas the first two papers in this special edition might be thought to concern the subject of conflict, the next two papers involve the resolution of disputes. Since the introduction in England and Wales of statutory adjudication, several countries, including Australia, Singapore, Malaysia, Hong Kong and others have introduced adjudication as a method of speedy and cost-effective way of dealing with disputes in the construction industry. While these various adjudications are generally supported through a framework of legislation, problems can still arise. One major problem is the recovery by parties of costs arising as a result of using adjudication. The recovery of costs is the focus of Charlson and Hetherton’s paper entitled, “When statutes collide”. Although this paper concentrates on English adjudication, the principles expounded in the paper are applicable to a global audience.
While there is no doubt that adjudication has proven to be popular and widely used internationally in the modern construction industry, it is not the only means of resolving disputes in international construction. Many societies and cultures around the world display a tendency to shun formal dispute resolution methods. Agapiou’s paper on mediation looks at this often overlooked method of dispute resolution. This paper’s inclusion is both timely and apt for a special edition of this type, as it identifies barriers to mediation and postulates what can be done to encourage parties to use mediation as a low-cost alternative to other dispute resolution methods.
The final paper in this special edition represents an acknowledgement of time pressures inherent in the modern construction industry. It is generally accepted that the majority of major construction projects are financed using borrowed money. Hence, there is a pressure inherent in all modern construction projects to maximise returns or minimise exposure to financial risk. Acceleration of construction works creates its own legal issues, and this is explored in Whaley, McAdam and Crowe’s paper which tackles a highly controversial yet developing area of law in the built environment.
Conflicts and disputes are regarded as inevitable in the construction industry, and this collection of papers provides some useful insights into how they arise and measures to alleviate them. I commend this special edition of International Journal of Law in the Built Environment to you.
Guest Editor, School of Architecture, Design and Environment, Plymouth University, Plymouth, UK