BOOK REVIEW - Les Modes de Règlement des Différends dans Les Contrats Internationaux de Construction
Les Modes de Règlement des Différends dans Les Contrats Internationaux de Construction by Gustavo Scheffer da Silveira. Published by Collection Bruylant sous la direction de Francarbi (2019). Pages 702. Paperback. €125.00. ISBN: 978-2-8027-6288-1.
The quest for efficiency in construction disputes is an increasingly hot topic in the arbitration community. The rise of construction arbitration mega-cases – some of which have famously settled after almost a decade of hard-fought proceedings, lengthy submissions and multiple hearings – has shown that efficiency and cost management must be at the forefront of innovation when considering the way forward. For instance, the 2019 update of the Report of the ICC Commission on Arbitration and ADR on Construction Industry Arbitrations (“Recommended Tools and Techniques for Effective Management”) gives a useful account of the evolving forms of pre-arbitral dispute resolution mechanisms and provides insightful case management techniques.
The author of the book, Gustavo Scheffer da Silveira, has spent several years working as counsel at the ICC, the favoured arbitral institution for construction disputes. From this vantage point, the author has provided a thorough analysis of the available dispute resolution techniques that are used in construction disputes and most notably of the dialogue that exists, or must exist, between pre-arbitral mechanisms and arbitration itself.
The author starts by analysing dispute resolution methods which are most adopted for construction disputes. These disputes are described as exceptionally complex due to the following factors: the multiplicity of contracts and parties, the variety of operations relating to international commerce (from the sale of goods to financing, insurance, leasing, etc.), the technical complexity which is increased by the fact that many civil works comprise unique characteristics and constraints. Other constraints come into play: cultural, economical, political, climatic, geotechnical, etc. The conclusion is that in these circumstances disputes are “unavoidable”. These disputes are also inevitably complex. The author thus analyses the available dispute resolution mechanisms, from negotiation to mediation, expert determination to arbitration, in a detailed and unsparing analysis.
In particular, the author, while recognising that arbitration is the most common forum for construction disputes, summarises criticisms from several scholars which provide an exacting account of arbitration in general, and its excesses and deficiencies: excessively busy arbitrators, dilatory tactics by counsel, or even the standardisation of arbitration which distracts it from the necessary “tailor made” approach that arbitration should
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