218.765-Construction Adjudication - Law Assignment Help

Assignment Task

Task 

Option A – Comparative payment and adjudication legislation

1 Background for option A

1.1 Adjudication as a dispute resolution process has now been statutorily enacted in over a dozen jurisdictions. These Acts of Parliament only apply to the construction industry and include issues affecting payment. They also introduce a speedy dispute resolution method called adjudication. Several other jurisdictions are also considering introducing similar legislation. This includes Mauritius. However, internationally there are only a small number of jurisdictions that have adopted such legislation.

1.2 While on the face of it these Acts appear to cover similar issues - payment and adjudication, a further study of the Acts shows there are significant differences. For example, the objectives of the New Zealand Construction Contracts Act 2002 and the Malaysian equivalent Construction Industry Payment and Adjudication Act 2012 are similar:

New Zealand Construction Contracts Act 2002

3 Purpose

The purpose of this Act is to reform the law relating to construction contracts and, in particular,—

(a) to facilitate regular and timely payments between the parties to a construction contract; and

(b) to provide for the speedy resolution of disputes arising under a construction contract; and

(c) to provide remedies for the recovery of payments under a construction contract.

Malaysian Construction Industry Payment & Adjudication Act 2012

An Act to facilitate regular and timely payment, to provide a mechanism for speedy dispute resolution through adjudication, to provide remedies for the recovery of payment in the construction industry and to provide for connected and incidental matters.

1.3 But when you scrutinise both the Acts in detail there are significant differences. And when you read the Queensland equivalent Act, you will find even the overall purpose of the Act is quite different.

Queensland Building Industry Fairness (Security of Payment) Act 2017

An Act to provide for the security of payment in the building and construction industry by providing for effective, efficient, and fair processes for securing payment

3 The main purpose of Act

(1) The main purpose of this Act is to help people working in the building and construction industry in being paid for the work they do.

(2) The main purpose of this Act is to be achieved primarily by—

(a) requiring the use of statutory trusts for particular contracts related to the building and construction industry; and

(b) granting an entitlement to progress payments, whether or not the relevant contract makes provision for progress payments; and

(c) establishing a procedure for—

(i) making payment claims; and

(ii) responding to payment claims; and

(iii) the adjudication of disputed payment claims; and

(iv) the recovery of amounts claimed; and

(d) enabling the use of a statutory charge in favour of subcontractors for payment of the work they do.

 

1.4 Mauritius is now considering introducing their own equivalent Act. In the form of a draft Bill for now, it provides:

Draft Mauritius Construction Contracts (Special Provisions) Bill 2016

An Act —

a) to prohibit or modify certain provisions in construction contracts;

b) to imply provisions in construction contracts about certain matters if there are no written provisions about the matters in the contracts;

c) to provide a means for adjudicating any disputes arising under construction contracts, and for related purposes.

2. The brief for option A

2.1 Review current legislation found around the world, focusing primarily on the Acts in (i) New Zealand, (ii) Malaysia, and (iii) Queensland, Australia and the proposed Mauritius Construction Contracts (Special Provisions) draft Bill 2016.

2.2 Compare and contrast the key concepts found in the 3 Acts and the proposed draft Bill under the following headings:

(i) Whether the scope covers only written contracts, or they include oral contracts
(ii) Whether the scope includes construction professional services contracts
(iii) Whether the scope covers payment only disputes or all disputes
(iv) The extent to which the duration for payment is to be absolutely restricted or be left open to the parties to decide
(v) The overall duration of the adjudication process including timeframes for the adjudicator to make the decision or determination
(vi) Whether legal representation should be prohibited
(vii) Whether the qualifications of the adjudicator must be prescribed under the Act or regulations
(viii) How adjudicators’ fees should be determined
(ix) Whether the adjudicator’s determination or decision may be reviewed by another person
(x) The extent to which the Act complies with modern plain language writing guidelines. Use the document attached titled ‘Plain language drafting guidelines - Naseem April 2022’ as a basis of what plain language is.

2.3 Prepare a report to the Construction Industry Development Board of Mauritius advising them on the best direction they should take for their proposed Bill under the 10 aspects above. Include justifications in the advice.

 

Option B: Comparative dispute resolution clauses 

1 Background for option B

1.1 Standards New Zealand is now reviewing the most commonly used construction contract in New Zealand – the NZS 3910:2013. 

1.2 The support for plain language writing is consistently visible with the committee’s agreed principles including words and phrases like: ‘clarity’, ‘whether it is understandable to the parties’, ‘efficiency’, ‘simplicity’, ‘concise’, ‘precise’, ‘easy to follow’, ‘useable’, and ‘practical’. See the Chair’s update dated 2 March 2022. 

1.3 Refined plain language improvements to NZS 3910:2013 would make a relatively clearly written contract even better. More importantly it will benefit all users - both regular day-to-day primary users, as well as occasional secondary users who may be involved during dispute resolution.

1.4 Further, complying with plain language writing standards could make the NZS 3910:2013 internationally class leading.

 

2 The brief for option B

2.1 Review the dispute resolution clauses found in 3 published standard forms of construction contracts such as FIDIC 2017, JCT, NEC4, JBCC, or AS4000.

2.2 Compare and contrast how the selected 3 contracts have provided for dispute resolution compared to NZS 3910:2013 under in the following aspects:

(i) What methods of dispute resolutions are either suggested or mandated,

(ii) How effective and practical they are, and

(iii) The extent to which the clauses comply with plain language drafting guidelines.

2.3 Then re-write the NZS 3910:2013 dispute resolution clause in modern plain language.

2.4 Prepare a report to the NZS 3910:2013 review committee that includes the comparison of the 4 contracts and the re-drafted NZS 3910:2013 dispute resolution clause advising them on the best direction forward during their review. Include justifications in the advice.

2.5 Use the document attached titled ‘Plain language drafting guidelines - Naseem April 2022’ as a basis of what plain language is.

 

3 Breakdown of marks for option B

3.1 The marks are broken down into 60% for the clause comparison and 40% for the re-write of the NZS 3910:2013 dispute resolution clause. The marks for presentation are included within the breakdown above.

3.2 Reminder: Report format means there must be a contents page with sections of the report identified numerically.

 

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