I am alive to the fact that no two built environment projects are alike. This stems from the fact that plans, specifications, site conditions, construction methods, the disciplines involved, and the goals of the participating parties all vary. I am also aware that today’s projects are more complex, the technology more advanced and the trades working on them more specialized. The handshake agreement of the past is gone, replaced by a complex set of documents governing the parties’ dispute that, more often than not, seek to dictate solutions to disputes through the imposition of unilateral obligations.
Construction Adjudication is a mandatory mechanism of dispute resolution which primarily applies in the construction industry. This form of ADR is formulated with a view of proffering the quick flow of cash as a remedy in the ensuing process of a construction project. Adjudication is necessary for resolving construction claims relating to aspects such as; interim payments, extension of time arising from delays in the completion of works, work defects as well as disruption in the work process. Ad hoc adjudication applies in instances where the parties have agreed, or are deemed to have agreed, to submit their dispute, without an effective reservation, to adjudication thereby giving an adjudicator ad hoc jurisdiction to decide the dispute in circumstances where the Act does not apply and where there is no pre-existing contractual agreement to adjudicate. Alternatively, there exists standing adjudication in which an adjudicator is generally appointed at the start of the contract and would generally be expected to keep themselves abreast of developments on the site.
Extension of time
The concept pf extension involves the negotiation between the contractor and the employer or any other concerned party therein, with a view of changing the date for completion of works to a later date, which is different from what was initially agreed. It involves the following elements. First, it can be a result of effluxion of time without completion of the project by the contractor, necessitating the negotiation of a side contract, which will then identify the terms of engagement for the remaining period. Further on, the concept of time an be a ground upon which the offended party can request for termination of the contract, due to non-failure to complete the works on the given time. Further, through an extension of time, the contractor can be fined for failure to complete and hand over the property to the employer, whether the contract was a FIDIC or a project management contract.
Concurrent delay is a form of construction engagement process in which a delay in the construction, management and completion of a given project is causes by two issues or factors at the same time. Further, it can be as a result of action of the either the parties, whether the employer or the contractor, whose one activity subsequently leads to the other taking action, which when combined concurrently lead to the delay of completion and handover of works. For contracts experiencing concurrent delay as a result of natural such as calamities like earthquake, the contractor is entitled to extension of time. However, they are not entitled to a monetary claim. This is as opposed to man-made factors such as delayed payments, upon which a contractor can successfully sustain a monetary claim and win.
In a world that development has become the primary and to some extent the sole purpose, a lot has been considered to be pre-requisite to human development, as the lead, peace, emerges as the most necessary condition for development. Throughout the globe, and Africa in particular, conflicts have marred continent’s progress. It is from this inconvenient background that institutions and other societal structures have, over a long time, sought ways to cultivate peace and halt conflicts. Conflict resolution techniques such as litigation, mediation, negotiation, adjudication, conciliation, expert opinion, and other traditional dispute resolution mechanism have since been deployed.
There are ‘inherent and pervasive uncertainties and risks involved in the construction industry’ that often cause disputes in construction operations. Some of these risks include negligent behaviour by a party to the construction contract, contradictory information spanning the numerous documents governing construction operations, the complex inter-play of different areas of the law in construction operations and blatantly inadequate drafting of contracts. Due to the requirement of fast in-project decision-making in construction, litigation which can be protracted, does not particularly offer an attractive venue for dispute resolution.
Arif, F., & Morad, A. A. (2014). Concurrent delays in construction: International legal perspective. Journal of Legal Affairs and Dispute Resolution in Engineering and Construction, 6(1), 04513001.
Gardezi, S. S. S., Manarvi, I. A., & Gardezi, S. J. S. (2014). Time extension factors in construction industry of Pakistan. Procedia Engineering, 77, 196-204.
Kraiem, Z. M., & Diekmann, J. E. (1987). Concurrent delays in construction projects. Journal of Construction Engineering and Management, 113(4), 591-602.
Peter Rosher, ‘Adjudication in Construction Contracts’ (2016) International Business Law Journal 497, 499.
See generally, Penal Reform International, Access to justice in Sub-Saharan Africa, 2000, 11, available at http:// www.gsdrc.org/docs/open/SSAJ4.pdf, on 4 December 2021.
Tecle Hagos Barta, ‘Adjudication and Arbitrability of Government Construction Disputes’ (2009) 3 Mizan Law Review 1, 2.
Williams, T. (2003). Assessing extension of time delays on major projects. International Journal of Project Management, 21(1), 19-26.