국제건설계약분쟁과 그 해결
Disputes in International Construction Contract and Resolution Thereof
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In this paper, we first examined the characteristics of international construction contracts and disputes therof. International construction contracts and the disputes thereof are large volume, long term and complex due to different cultures, languages, customs & laws of the parties and countries involved. Situation goes worse due to involvement of multi-party and intervention of the relevant governments. In order to resolve these disputes rapidly and efficiently, various mechanisms of dispute resolution procedure have been adopted between the Owner, Contractor and/or other related parties such as litigation, arbitration and other forms of alternative dispute resolution. Traditionally, arbitration has been frequently employed for resolution of disputes in international construction contracts. ICC has been well known for those arbitration cases. Although arbitration was better than litigation in resolving international disputes, still it was remote from the construction site and took long time to reach a conclusion. There have been efforts to streamline the court procedure for construction disputes. For example, in the UK the Technology and Construction Court was established to cope with the problems in resolving construction disputes by litigation, The TCC judge has proved the need of the special court and procedure. The most popular mechanism for dispute resolution of construction contract is the adjudication procedure which has been developed in England and widely used in common law countries. In adjudication procedure such as DAB or DRB adjudicators are appointed at the outset of the construction and follow up the development of the construction project. They frequently visit the site to become familiar with the project. Once a dispute arises, adjudicators easily find solutions and issue determinations which bind the parties. In comparison to litigation or arbitration procedure a decision of which is rendered by the judge or arbitrator who are appointed after arising disputes, adjudication has advantages since the adjudicators are selected at the time of the conclusion of contract before occurrence of conflicts. The parties to an international construction contract should find the best mechanism of dispute resolution depending upon the nature and the types of disputes. Further the parties are required to carefully design the mechanism which fit the contract and the dispute. Lessons from the mechanism for international dispute resolution will apply to the domestic dispute resolution, which is less sophisticated than the international counterpart.
Abstract
In this paper, we first examined the characteristics of international construction contracts and disputes therof. International construction contracts and the disputes thereof are large volume, long term and complex due to different cultures, languages, customs & laws of the parties and countries involved. Situation goes worse due to involvement of multi-party and intervention of the relevant governments. In order to resolve these disputes rapidly and efficiently, various mechanisms of dispute resolution procedure have been adopted between the Owner, Contractor and/or other related parties such as litigation, arbitration and other forms of alternative dispute resolution. Traditionally, arbitration has been frequently employed for resolution of disputes in international construction contracts. ICC has been well known for those arbitration cases. Although arbitration was better than litigation in resolving international disputes, still it was remote from the construction site and took long time to reach a conclusion. There have been efforts to streamline the court procedure for construction disputes. For example, in the UK the Technology and Construction Court was established to cope with the problems in resolving construction disputes by litigation, The TCC judge has proved the need of the special court and procedure. The most popular mechanism for dispute resolution of construction contract is the adjudication procedure which has been developed in England and widely used in common law countries. In adjudication procedure such as DAB or DRB adjudicators are appointed at the outset of the construction and follow up the development of the construction project. They frequently visit the site to become familiar with the project. Once a dispute arises, adjudicators easily find solutions and issue determinations which bind the parties. In comparison to litigation or arbitration procedure a decision of which is rendered by the judge or arbitrator who are appointed after arising disputes, adjudication has advantages since the adjudicators are selected at the time of the conclusion of contract before occurrence of conflicts. The parties to an international construction contract should find the best mechanism of dispute resolution depending upon the nature and the types of disputes. Further the parties are required to carefully design the mechanism which fit the contract and the dispute. Lessons from the mechanism for international dispute resolution will apply to the domestic dispute resolution, which is less sophisticated than the international counterpart.
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