International Construction Law Review
DISPUTE ADJUDICATION IN CIVIL LAW COUNTRIES—PHANTOM OR EFFECTIVE DISPUTE RESOLUTION METHOD?
DR GÖTZ -SEBASTIAN HÖK1
Kanzlei Dr Hök, Stieglmeier & Kollegen, Berlin, Germany
Complaints are made worldwide about lengthy, expensive and ineffective construction disputes. Germany is a typical example. However, in the words of a an eminent former judge of the German Federal Supreme Court the bad reputation of court proceedings stands in a remarkable disproportion to the daily practice in the courts.2 There continue to be as many construction disputes as always, even if they are expensive and take too long.3
In contrast a great variety of alternative dispute resolution methods including dispute adjudication are available. However, in reality on the German domestic level alternative dispute resolution methods are rarely used. The reasons for this are not very clear. To some extent baseless fears and irrational anxieties and actual lack of persuasive arguments in favour of alternative dispute resolution methods are certainly contributing factors. There is also insufficient and inadequate information about dispute adjudication. Moreover the term alternative dispute resolution and its subtitles such as dispute review and dispute adjudication are more or less vague and lack precision. Probably, and more importantly, civil law practitioners frequently do not have encouraging experiences with alternative dispute resolution methods apart from arbitration.
Last, but not least, the great variety of suggested methods causes perplexity. There is statutory adjudication4 and contractual adjudication.5 Moreover the ICC has Combined Dispute Boards6 and local institutions have published adjudication rules.7 Fast track arbitration8 and dispute adjudication are similar features. There is also the Italian arbitrato irrituale
1 The author thanks HH Humphrey LLoyd, QC, for his friendly review of this article.
2 Quack [2010] ZfBR 211.
3 Ibid.
4 See UK Housing Grants, Construction and Regeneration Act 1996.
5 See FIDIC 1999, sub-cl. 20.4; NEC3, Option W1 and Option W2.
6 A Combined Dispute Board (CDB) normally issues Recommendations with respect to any dispute referred to it but may issue a Decision if a party so requests and no other party objects.
7 The German Institution of Arbitration has published Adjudication Rules.
8 See Patil, The Law of Arbitration and Conciliation (5th ed., Pune, 2008), 28
Pt 4] Dispute Adjudication In Civil Law Countries
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