Construction Arbitration and Alternative Dispute Resolution

Renato Nazzini

Document

Page 379

Index

‘1996 Act’. See Housing Grants, Construction and Regeneration Act (UK) [1996]
‘2009 Act’. See Local Democracy, Economic Development and Construction Act 2009 (the ‘2009 Act’)

AA 96. See Arbitration Act 1996

AAA. See American Arbitration Association (AAA)

Absolute certainty

construction of contractual clauses

Absolute doctrine of state immunity, See also State immunity

abandoning of

called into question ,

central banks and sovereign wealth funds , –

foundation for

granting of

as ‘law of nations’

judicial criticism of

limiting the scope of

personal –

Abuse of rights

Belgian Civil Code

French Civil Code

and good faith, concept of

Spanish Civil Code

Trans-Lex Principles

ACA Standard Form of Contract for Project Partnering

PPC 2000

Achmea Agreement

Energy Charter Treaty –

European Convention for the Protection on Human Rights –

intra-EU BITs –

‘structured dialogue’

Achmea ruling

future difficulties –

judgement, aftermath –

judgement, overview –

termination of intra-EU BITS –,

acta iure imperii

as distinct from acta iure gestionis ,

state immunity

acta iure gestionis . See also acta iure imperii

Acts of sovereign nature

vs acts of a commercial nature –, , ,

LV Avionics

Adjudication, See also Statutory Adjudication

determined to be in error

fraud, invalidation due to –

preparing claim for –

review –

smash and grab –

true value

Adjudication schemes

Australia –

low value –

Low Value Disputes Adjudication Service (‘LVD AS’) –

Low Value Disputes Model Adjudication Procedure (‘LVD MAP’) –

Adjudicator

choosing –

determination by –

determination, applications to set aside –

determinations set aside on jurisdictional grounds

enforcement of determinations

minimum qualifications of –

Adjudicator bias

in case law –

Administration of Justice Act 1920

sectionÂ 9

ADR. See Alternative dispute resolution (ADR)

Algorithms . See Artificial Intelligence

Page 380

Alternative dispute resolution (ADR)
- formal dispute resolution
- med-arb as
- Request for ADR
- traditional methods of
- two forms of –

American Arbitration Association (AAA)

Dispute Resolution Board

Amiable compositeurs. See Artificial intelligence

Amicable dispute resolution. See Alternative dispute resolution (ADR)

Anti-suit injunctions. See Injunctions

Arbitral awards

challenges to –

enforcement , –

execution of –

foreign ,

setting aside , –

state immunity and –

Arbitral tribunals

arbitration agreements subject to distinct legal regime

arbitral clauses, metaphysical questions of

artificial intelligence , ,

B2B disputes

equitable issues

moot due to use of

choice of seat, impact on –

‘curial law’

‘due consultation’ obligation, findings on

emergency arbitration , ,

emergency arbitrator and regular tribunal , –, –,

good faith ,

ICC Cases involving , , ,

FIDIC 2017

interim orders made by

ISCID Convention provision

jurisdiction, challenge to (via Achmea) –, –, –, –

lex mercatoria

merits decided by

powers of

validation principle , 2.76

Arbitration Act 1991 (Canada)

arbitrator’s award under

section 13.18 (5)

Arbitration

algorithms and

international awards

investment treaty ,

‘proceedings which relate to’ –

state immunity and –

state’s agreement to –,

state’s refusal to

Arbitration Act 1996 (England, Wales and Northern Ireland) (AA96)

challenges to arbitral awards, pursuant to

coming into force of

law of the seat, greater emphasis placed on

NSW Act compared to

‘procedural’ applications

Arbitration agreement, See also Arbitration clause

establishing the agreement to arbitrate –

executed by third parties without state’s knowledge –

extension to non-party state –

immunity excluded by –

in international treaties –

states held to be bound by –

Arbitration clause

autonomy of

Brazilian law

English law

law governing ,

need for separate inquiry into –

Indian law

main contract, applicability of

‘main contract’ approach –, 2.71–2.72

party autonomy 2.77

‘seat’ approach –

separability

Russian law

transnational approach –

estoppel principle –, 2.74

national rules, convergence with –

non-discrimination principle –, 2.73

problems surrounding

validation principle –, 2.75

Arbitration Rules

ICSID

SCC

Arbitrator, See also Arbitral tribunals

Chartered Institute of Arbitrators (CIArb)

AI- and AI (assisted)-arbitrator –, , ,

AI used in arbitrator selection

Page 381

authority ceasing after death

IBA Guidelines on Conflict of Interest –

intuitu personae –

iura novit arbiter –

iura novit curia

law of the seat and number of

legal capacity

legal capacity of signature

non-human (i.e. AI)

selection of (AI-based) ,

ArbitratorIntelligence

AI and arbitrator selection

Arb-med (or Med-arb)

Australia

China

clauses , ,

use of

ARIAS rules

London

Artificial intelligence (AI)

AI hype

algorithms ,

arbitration, used in ,

bias in ,

predictive justice

self-learning

training of

amiable compositeurs –

arbitral decision-making by –

arbitration, impact on –

as ‘assistant’

‘black box’ problem , ,

CARA AI

COMPAS

data mining

as decision-maker –

definition and use inside legal context –

Distributed Ledger Technology (blockchain)

in construction disputes –

within construction industry –

arbitration procedures, implications for –

Building Information Modeling Solutions (BIM) , –,

Integrated Engineering or Construction ERP –, –,

Software as a Service (SaaS)

hidden biases of , –

High-Level Expert Group on Artificial Intelligence

human intelligence, mimicking of

intuitu personae character of the arbitrator’s work –

inventor of term

iura novit arbiter –

irua novit curia

legal and non-legal barriers to the use of –

LegalTec –

lex arbitri

liability for use or non-use of

outcome prediction , , –

predictive justice algorithm

‘reasoning’, capacity for –

replication problem , ,

ROSS Intelligence

smart solutions

vending argument

Audit

of contractors

by MDBs

by World Bank

Augmented intelligence

artificial intelligence as acronym for

Australia . See also Statutory adjudication: Australia

Australian Capital Territory

statutory adjudication regime

Australian East Cost model

adjudication timelines ,

Australian West Coast model

adjudication timelines ,

claim and response process

B2B disputes

AI used to decide

arbitral tribunals, cases submitted to

BEIS. See Business, Energy & Industrial Strategy (‘BEIS’)

Belgium Civil Code

applicability and scope of ‘good faith’ –

theory of hardship, rejection of ,

Bilateral investment treaties (BITs) (EU)

in force between Member States (intra-EU BITs) , , , , –

termination via Achmea agreement –

‘Black box’ problem. See Artificial intelligence

Blockchain ,

Bolivia

international disputes ,

British Columbia. See Canada: British Columbia

Building Information Modeling Solutions (BIM)

Page 382

artificial intelligence (AI) , –,

good faith and

Business, Energy & Industrial Strategy (‘BEIS’)

adjudication, affordability of

Consultation (post-implementation review) ,

Building and Construction Industry Security of Payment Act (ChapterÂ 30B) 2004/ 2005. See Security of Payment Act (the ‘SOP Act’ or ‘SOPA’) (Singapore)

Building and Construction Industry Security of Payment (Amendment) Act in 2018/ 2019 (Singapore)

passing of

Building and Construction Industry Security of Payment Regulations 2019 (‘SOP Regulations’) (Singapore)

passing and updating of

Bulgaria

dispute board decisions, enforcement of

Caltran

use of dispute boards (DB) –,

Canada

British Columbia

‘dispute’, definition of

federal jurisdiction

Manitoba ,See also Statutory adjudication: Manitoba

Manitoba Law Reform Commission ,

New Brunswick ,See also Statutory adjudication: Manitoba

Nova Scotia ,See also Statutory adjudication: Nova Scotia

Ontario –,See also Statutory adjudication: Canada

Saskatchewan See Statutory adjudication: Saskatchewan

Supreme Court ,

Centre for Transnational Law (CENTRAL)

lex mercatoria

CERN. See European Organisation for Nuclear Research (CERN)

Channel Tunnel

dispute boards used in

Chartered Institute of Arbitrators (CIArb)

Conflict Avoidance Pledge

Dispute Board Rules (CIArb Rules) ,

Guide to Conflict Avoidance & Dispute Resolution for the Construction and Engineering Industry

Chad, Republic of

international disputes

Singapore Convention

China International Economic and Trade Arbitration Commission (CIETAC)

disputes referred to

Civil law

Australia and good faith

Belgium and good faith , , , –

and common law, contrasting approaches of –

and common law, convergence with –

Canivet’s views on

evidence of –

Hacker’s views on

international arbitration as conduit for –,

PejoviÄ ‡

France and good faith , , , –

good faith, approaches to (France, England, Germany, Spain) –

good faith, practical implications of , ,

jurisdictions

law of contract, general principle of ,

law of obligations and good faith

Swiss Supreme Court and good faith

Civil Procedure Code (Italy)

sectionÂ 812(1), on the legal capacity of the arbitrator

Civil Procedure Code (Austria)

SectionÂ 606(1), on the legal capacity of the arbitrator’s signature

Civil Procedures Law (UAE)

arbitral and final awards, recognition of

‘Classical contracts’

and neo-classical contracts

Collaborative dispute resolution

good faith and –

formal dispute resolution –

managing disputes –

Pre-Action Protocol

relational contracts See Relational contracts

resolution methods –

traditional resolution methods

Woolf civil procedure reforms

Collusion

fraud and/or

Page 383

Columbia
- international disputes , , ,

Combined Dispute Boards (CDBs)

definition and use of –

ICC rules for

Commercial arbitration. See International commercial arbitration

Commercial Arbitration Acts

Australia

Commercial contracts

good faith ,

relational contracts, as distinct from

Commercial disputes

international construction disputes

lex mercatoria

mediation to resolve

mercantile customary law to resolve

Commercial law

good faith and , –

jurisdictions without

TransLex Principles

US Federal Law

Commercial settlement agreements

enforcement of

Commercial use

seeking to demonstrate

vs sovereign use

Common law, See also Civil law

data, for AI

good faith, obstacles to recognition of

jurisdictions

orthodox English position on –

rules (English)

Como Agreement

use of –

Conflict Avoidance Panel (CAP)

process

Conflict Avoidance Coalition Steering Group

Conflict Avoidance Pledge

Conflict of law rules

convergence and

by domestic legislatures

Enka v Chubb approach 2.72

jurisdiction, identification of forum with

national

New York Convention, Article V(1)(a) ,

Singapore

transnational approach ,

UNCITRAL

Construction Industry Council (‘CIC’)

Low Value Disputes Model Adjudication Procedure (‘LVD MAP’)

Contract law

Australian

Contract, law of

France’s reform of

general principle of ,

good faith and

Contractual adjudication. See Dispute Boards

Contractual interpretation

rules of (English)

Convention on Contracts for the International Sales of Goods (CISG)

Article

Convention on the Settlement of Investment Disputes between States and Nationals of other States (ICSID Convention)

AA96 and

Achmea Agreement and ,

Arbitration (International Investment Disputes) Act 1966 Article 25

Article 42(2)

Article 54

BIT between Turkey and Singapore

international disputes involving , ,

investment treaty arbitrations governed by

obligations to seek to resolve disputes by negotiation

Corporate Insolvency and Governance Act 2020

adjudication and insolvency, impact on

COVID-19

artificial intelligence (AI) and

dispute resolution practice and , , ,

economic impacts of

Cross-claims

and claims, balancing of

cases involving , , –,

debt recovery proceedings (NSW) and

debt set aside, proceedings regarding (Australia)

payment claims (Singapore) and

Curial law

arbitration and

courts, jurisdiction of ,

‘main contract’ approach to arbitration and

DAAB. See Dispute avoidance/adjudication board (DAAB)

DAB. See Dispute adjudication board (DAB)

Page 384

DB. See Dispute board (DB)
Determination (Canada)
- interim binding nature of

Determination (Singapore). See Security of Payment Act (the ‘SOP Act’ or ‘SOPA’) (Singapore)

Dispute

crystallization of –

definition in case law and adjudication legislation

definition of

Dispute adjudication board (DAB)

FIDIC subcontracts and –

types of –

Dispute avoidance/adjudication board (DAAB)

‘all inclusive’ dispute mechanism –

evolution of

FIDIC

amicable settlement –

arbitration –

decisions referred to arbitration –

disputes referred to

enforcement of DAB/DAAB decisions under –, –

failure to comply , , –

interim relief

introduction of –

payment of money

procedures and issues in practice –

appointing the DAAB –

avoidance of disputes –

bypassing the DAAB –

making a claim –

obtaining DAAB’s decision –

setting up the DAAB –

obtaining engineer’s determination –

failure to comply

Singapore

FIDIC 2019

good faith

multilateral development banks (MDBs), endorsement of , –

World Bank, incorporation of ,See also World Bank

Dispute board (DB), See also FIDIC

Caltran’s use of –,

CERN’s use of –

COVID-19 and ,

definition –

determining applicable law –

‘Dispute Avoidance Board’, standing

‘dispute avoidance’, emphasis on –

enforcement of decisions by –

goodwill, saving of

Institution of Civil Engineers (ICE) rules

legal basis –

mechanism

multilateral development banks (MDBs) and

origins, developments, and trends –

rules –,

types of –

use of –

World Bank Standard Bidding Documents

Dispute resolution (DR)

artificial intelligence, use of ,

collaborative

dispute boards and

good faith and

internationalization of

Dispute review board (DRB)

American Arbitration Association (AAA) DRB

American construction industry

Document disclosure

American style

Domestic legislation and arbitration agreement

DRB. See Dispute review board (DRB)

‘Duty to speak’

legal

payment claim –

ECJ. See European Court of Justice (ECJ)

ECT. See Energy Charter Treaty (ECT)

Emergency arbitration (EA)

applicability and effectiveness of –

case law and

vs. expedited arbitration procedures

development of –

ICC report

legal nature and effects of –

other forms of pre-arbitral relief –

provisions and procedures, overview of –

‘Sauber case’

Energy Charter Treaty (ECT)

Achmea Agreement –

Enterprise Resource Planning (ERP)

Integrated Engineering or Construction –, –

ERP. See Enterprise Resource Planning (ERP)

Page 385

Estoppel principle
- common law, addressed by
- transnational approach to –, 2.74
- and waiver (contra factum proprium venire non potest)

European Commission

Achmea, attitude towards –

anti-intra-EU BITS analysis

High-Level Expert Group on Artificial Intelligence

Singapore Convention

European Convention on State Immunity 1972 (‘ECSI’)

signing by the United Kingdom

European Court of Justice (ECJ)

Achmea –, –, , , ,

European Organisation for Nuclear Research (CERN)

HiLumi Project , ,

Large Hadron Collider (LHC) –

European Union (EU), See also European Court of Justice (ECJ)

common values of

intra-EU BITS , , , , –

termination via Achmea agreement –

intra-EU investment arbitral tribunals, eradicating jurisdiction of –

intra-EU investment arbitration ,

law –

Achmea under , –

arbitral tribunals under –,

essential characteristics of

legal system, autonomy of , –

Member States and Achmea

Achmea Agreement, signing of –

enforcement proceedings brought before

host and home, arbitration

Member state vs Member state ,

Singapore Convention ,

Treaties ,

Expedited arbitration procedures

ICC’s incorporation of

SCC’s use of –

UNICITRAL’s development of

‘Fairness’

basic notions of –

procedural , , ,

standards of

Federal Arbitration Act (FAA) (United States)

estoppel principle

preempting parochial interests of the states

Scherk v Alberto-Culver Co

FIDIC. See International Federation of Consulting Engineers (FIDIC)

Fiocco, John

Fiocco Report 2018

Framework Alliancing Contract (FAC-1)

collaborative dispute method of ,

Fraud

adjudicator’s determination set aside due to , ,

defence of –

Gosvenor London v Aygun Aluminium

vs good faith ,

private law vitiating factor

French Civil Code (pertaining to ‘good faith’)

good faith, disputed concept of –

‘hardship theory’ , ,

German Civil Code (BGB)

‘treuundglauben’(sincerity and faith)

undefined legal terms (‘unbestimmte Rechtsbegriffe’)

Good faith

Australian law

Belgian law –

Canadian law –

case law and ,

civil codes and

collaborative dispute resolution and –

formal dispute resolution –

methods –

themes to look for

common law and civil law, convergence on the idea of –

civil law approach to –,

evidence of –,

international arbitration as conduit for –,

continental systems, recognition of

disputes, managing –

English law , –, –, –

traditional view –

estoppel principle and

French law –, –, –

German law –

hardship, theory of

International Centre for the Settlement of Investment Disputes

Page 386

International Court of Justice (ICJ) position on –

International general principle, existence of –

lex mercatoria –

‘relational contracts’ , , –

Singapore law

Spanish law –

Swiss law ,

TransLex Principles –

transnational construction contracts and –

alternative approaches to –

effects of –

sources of –

United States law

vagueness of the idea of

‘Group of companies doctrine’

French tribunal ,

German tribunal

Hague Convention of 30 JuneÂ 2005 on Choice of Court Agreements (‘HCCCA’)

foreign court judgement (iMSAs) enforced under ,

Hardship

interpretation of term

stays granted on the basis of

theory of , ,

HCCCA. See Hague Convention of 30 JuneÂ 2005 on Choice of Court Agreements (‘HCCCA’)

High-Level Expert Group on Artificial Intelligence. See Artificial Intelligence

Hong Kong International Airport

dispute boards used for

Housing Grants, Construction and Regeneration Act 1996 (HGCRA) (UK)

adjudication provided under ,

DAB as an option under

ICE DB Rules, Procedure Two

insolvency law and

statutory adjudication scheme

IBA Guidelines on Conflicts of Interest

regarding AI-arbitrator

ICC. See International Chamber of Commerce (ICC)

ICE. See Institution of Civil Engineers (ICE)

ICSID Convention. See Convention on the Settlement of Investment Disputes between States and Nationals of other States (ICSID Convention)

Immunity. See State immunity

Indian Arbitration and Conciliation Act of 1996

arbitration clause, regarding seeking relief from the court

Indonesia

international disputes

Injunctions

anti-suit , , , –

freezing (adjudicative vs enforcement jurisdiction)

freezing, cases involving ,

freezing, fines and imprisonment as means to persuade –

interim ,

preventing adjudication –,

SIA sectionÂ 13(2)(a)

Insolvency

adjudication and –,

claimant ,

mandatory set-off –, –,

statutory, definition of

stays of execution and

Insolvency Act 1986

adjudication and insolvency, impact on

Insolvency (England and Wales) Rules 2016

mandatory insolvency set-off, conditions regarding ,

Institution of Civil Engineers (ICE)

DB rules (ICE Rules) ,

NEC

International arbitration awards

confidential terms of

International Centre for the Settlement of Investment Dispute

good faith and arbitral tribunals constituted under

International Chamber of Commerce (ICC)

arbitration

Deutsche Schachtbau-und Tiefbohrgesellschaft v Ras al Khaimal National Oil Co

Dow Chemical Company v ISOVER Saint Gobain , Habas Sinai Ve v VSC Steel Company Ltd

notes to parties and arbitral tribunals on the conduct of arbitration

request for arbitration

rules

adaptability of

‘Informal Advice’ provisions

International commercial arbitration, See also UNCITRAL Model Law on

Page 387

International Commercial Arbitration 2006 (‘Model Law’)
- common law and civil law coming together –
- complexity of laws governing
- contract law of specific jurisdictions
- contracts
- convergence of civil and common law, evidence of
- French law regarding –
- investment
- ‘seat’, definition of
- separability –
- transnational construction disputes submitted to

International commercial transactions

good faith, shaped by

International construction disputes. See also International mediated settlement agreements (‘iMSAs’); Singapore Convention on Mediation

definition of

good faith and , –

lex mercatoria –

resolution of –

International Convention on Civil Liability for Oil Pollution Damage (‘CLC’)

international dispute involving

International Convention on Salvage

rules regarding ,

International conventions and treaties

interpretation of

International Court of Justice

Article 38(1)(c)

good faith, position regarding

International Federation of Consulting Engineers (FIDIC)

1992 Red Book

1999 Conditions of Contract (‘1999 FIDIC Contracts’) , ,

1999 Pink Book –, –

1999 Rainbow Suite ,

1999 Red Book –, –, –,

1999 Silver Book , , ,

1999 Yellow Book , ,

Sub-clause 20.3

Sub-clause 20.6

2008 Gold Book , –,

2010 Red Book , –

2016 Blue-Green Book

2017 Condition of Contracts (‘2017 FIDIC Contracts’) , , –,

DAABs under –

2017 Red Book , –

Clause 21

2017 Silver Book

2017 Yellow Book ,

2019 Emerald Book

2019 Yellow Book –

Article

‘gap, the’ –

Golden Principles ,

International Tunnelling and Underground Space Association (ITA-AITES), collaboration with

Notice of Dissatisfaction See Notice of Dissatisfaction (NOD)

Orange Book

International Law Commission 1991

commentary on draft UNCSI

International mediated settlement agreements (‘iMSAs’)

English common law, enforcement under –

Singapore Convention ,

‘construction of work’, resolution of

enforcement –,

expediting of

grounds for refusal to enforce –,

contract-related –

mediator conduct-related –

public policy

subject matter

judicial review

as ‘mediation’

as outcome of mediation

States as parties to

International Tunnelling and Underground Space Association (ITA-AITES)

collaboration with FIDIC

intra-EU BITs. See Bilateral investment treaties

Iraq

Development Fund for Iraq

international disputes involving –, ,

Investment treaty arbitration

good faith as stand-alone basis of claim

obligations

published outcomes of

Joint Contracts Tribunal (JCT)

1980 form of contract

2011 Partnering Charter

Constructing Excellence contract

Dispute Adjudication Board agreement

Page 388

Jurisdictional error (Australia)
- examples of
- limits to –

Jurisdiction rationae personae

disputes occurring between parties

state immunity plea

Jus Mundi

AI and arbitrator selection

Kazakhstan

international disputes involving

National Bank ,

National Fund

sovereign authority

Large Hadron Collider (LHC)

dispute board, use of , –

Latham, Michael

Latham Report UK

Law of main contract

arbitration clause of international commercial contracts , –

New York

separability, doctrine of

substantive

Law of matrix contract

international cases involving , , ,

Law of the forum

England ,

Law of the seat

application of

arbitration agreement, applied to –

cases involving –, , , –, ,

English ,

Singapore

LCIA Arbitration

emergency arbitrator, right to seek

LCIA Rules
- on nationality of arbitrators

Legal realism

artificial intelligence and

Lex arbitri

arbitrators’ authority derived from

artificial intelligence

definition

Lex causae

definition

Lex mercatoria

academic controversies regarding

artificial intelligence (AI) arbitrators, as source for

good faith and

international construction disputes –

as interpretive tool

transnational principles flowing from

Lithuania

Civil Code

international disputes involving ––, ,

Local Democracy, Economic Development and Construction Act 2009 (the ‘2009 Act’)

creation and amendment of

Low dollar value disputes

mediation, effectiveness of

ODACC predetermined processes

Loyalty, duty of

Belgian law and good faith

and execution of contracts

French Civil Law and good faith ,

good faith

Loyalty, spirit of

Canadian and Spanish tribunals, opinions regarding

Spanish Civil Code and good faith

Low value adjudication schemes

Low Value Disputes Adjudication Service (the ‘LVD AS’) –

Low Value Disputes Model Adjudication Procedure (‘LVD MAP’) –

Machine learning

artificial intelligence and , , ,

legal decisions and

‘Main contract’ approach, See also Law of main contract

arbitration clause –, 2.71

‘Manifest disregard for the law’

legal doctrine of (United States)

Manitoba. See Canada: Manitoba

Matrix contract. See Law of matrix contract

Med-arb. See Arb-med (or Med-arb)

Mediation. See International mediated settlement agreements (‘iMSAs’); Singapore Convention on Mediation

Milan Chamber of Arbitration, Rules of

Article 14(5), on nationality of arbitrators

Model Law. See UNCITRAL Model Law on International Commercial Arbitration 2006 (‘Model Law’)

Murray, John

Murray Review –

Namibia

dispute board decisions enforced by –

Supreme Court

Page 389

Natural justice
- adjudicator bias and –
- breaching of , , , , ,
- denial or deprivation of , , , ,
- issues of
- principles of , , ,
- rules of ,

Network Rail (NR)

Conflict Avoidance Pledge (CAP) ,

Industry Guidance Note on Dispute Avoidance Panels (DAP)

New Brunswick. See Canada: New Brunswick

New Engineering Contract 3rd edition (NEC3)

clause

Engineering and Construction Short Contract (JuneÂ 2005), Z clause amendments

Main Option B 2013

New Engineering Contract 4th edition (NEC4)

‘dispute avoidance board’ , ,

Notices of claim

New South Wales. See Australia; Statutory adjudication: Australia

New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (‘New York Convention’) Article II

New York

jurisdiction of

New Zealand

adjudicator, choice of

statutory adjudication , , ,

Nigeria

Central Bank

Federal High Court

law

state

state immunity

‘no blame culture’

avoiding disputes via

Non-discrimination principle

applied to arbitration –

Notice of Dissatisfaction (NOD)

1999 FIDIC Contracts , , ,

2017 FIDIC Contracts , , –, , , , ,

arbitration

dispute boards

enforcement of DB decisions

Nova Scotia. See Canada: Nova Scotia NR. See Network Rail (NR) null

definition of

‘Null and void’

defects in iMSA ,

in arbitration agreements

Ontario. See Canada: Ontario Ontario Dispute Adjudication for Construction (‘ODACC’). See Statutory adjudication: Canada: Ontario

Panel of Adjudicators (POA)

CERN DOB –

Patent errors. See Security of Payment Act (the ‘SOP Act’ or ‘SOPA’) (Singapore) Pemex

arbitration agreement

Predictive justice

algorithm

analytics

model

Privity of contract

principle of

‘Progress payment’ claims

six stages of –

Stage 1 –

Stage 2 –

Stage 3 –

Stage 4 –

Stage 5 –

Stage 6 –

Project Partnering Contract (PPC2000)

ACA Standard Form of contracting

collaborative contract

‘Proper invoice’ (Canada)

delivery of ,

Property, ownership of

liabilities related to

‘Property of the state’

assets

ascertainment of –

Proportionality

in low dollar value disputes

need for

Queensland. See Australia: Queensland

Page 390

Ravel Law or Premonition
- predictive justice and Artificial Intelligence

Reasonableness

as interpreted by English courts ,

proportionality and

standard of

Referral

to adjudication

Adjudication Society Report no. 18

to arbitration, premature

as claim, via statutory adjudication

to Dispute Avoidance Board ,

to dispute board

Dispute Resolution Advisors

ICC, issued by

Referral notice (UK)

contents of

hearing and cross-examination

Relational contracts

Collins on

good faith and , , , –,

Leggatt and good faith , , , ,

MacNeil on

Mosey on ,

Replication problem

artificial intelligence , ,

Request for ADR. See International Chamber of Commerce (ICC) Emergency Arbitration Rules

Request for Arbitration. See International Chamber of Commerce (ICC) Emergency Arbitration Rules

RICS. See Royal Institution of Chartered Surveyors (RICS)

Romania

dispute board decisions, enforcement of

Rome IÂ Regulation

vs English common law rules

‘Rough justice’

challenges to adjudication and ,

denial of procedural fairness in relationship to

Royal Institution of Chartered Surveyors (RICS)

Conflict Avoidance Panel (CAP) process –

Guide to Conflict Avoidance & Dispute Resolution for the Construction and Engineering Industry

Saskatchewan. See Canada: Saskatchewan

‘Sauber’ case . See Emergency arbitration (EA)

SCC. See Stockholm Chamber of Commerce (SCC)

‘Seat’ See also Law of the Seat

of arbitration vs mediation ,

Seat approach

to arbitration clause –

Security of Payment Act (the ‘SOP Act’ or ‘SOPA’) (Singapore), See also Progress payment claims

2019 amendments ,

adjudication determinations, ceasing to bind

adjudication determinations, right to challenge , ,

adjudication review –

adjudication review, setting aside by courts –

anti-avoidance –

confidentiality –

‘construction’ and ‘supply’ contracts –,

‘construction work,’ definition of ,

contracts in writing, stipulation regarding –

determinations binding but not final –

enforcement of determinations –

direct payment from principal –

as judgement debt –

lien on unpaid and unfixed goods

suspension –

exclusions from –

general scope and applicability –

passing and amendment of

patent errors –, , ,

‘pay when paid’ provisions, invalidation of –

‘progress payment’ claims, six stages of –

purpose of –

Regulation 10(2)

response to

setting aside by the courts –

‘services’ performed in relationship to construction, definition of

supplementation

supply contract, definition of –

Security of Payment Regulations (SOP Regulations) (Singapore)

creation of and updates to

Page 391

Senior Courts Act 1981 (‘SCA’)
- application of

Separability

doctrine of –,

SIA. See State Immunity Act (SIA)

SIAC. See Singapore International Arbitration Center (SIAC)

Singapore

dispute board (DB) conventions, enforcement of

statutory adjudication in –

Singapore Convention on Mediation

application –

background –

construction disputes –

cross-border alternative dispute resolution, impact on

EU and UK signing on to

iMSAs See International mediated settlement agreements (‘iMSAs’)

international construction disputes, impact on , –

mediation, desirability of

mediation, doubts about –

key provisions –

mediation, definition of –

mediation, doubts about –

‘recognition’, in the sense of private international law

settlement agreements excluded from

Singapore International Arbitration Center (SIAC)

emergency arbitration rules ,

emergency arbitrator, timeline to render decision

‘Soft law’

emergency arbitration and

iura novit arbiter

Software, See also Building Information Modelling Solutions (BIM)

definition

image-analysis

liability issues

platforms

providers

South Africa

dispute board decisions, enforcement of

Sovereign nature, acts of. See Acts of sovereign nature

Sovereign wealth funds (SWF)

central banks and –

as vehicles for states to invest their own reserves and assets

Spanish Civil Code ,

Spanish Penal Code

international disputes involving

‘State’, the

classical concepts of

SIA definition of

State immunity, See also State Immunity Act 1978 (SIA)

arbitral awards, execution of –

arbitration and –

doctrine of , ,

absolute doctrine of –, , , ,

restrictive doctrine of –, , , –, ,

European Convention on State Immunity 1972 (‘ECSI’)

exemptions from –

foreign state’s ability to assert

restrictions

risks posed by asserting

underlying concepts –

United Kingdom (UK) –

State Immunity Act 1978 (SIA)

adjudicative and enforcement jurisdiction of courts, distinction between

agreement to arbitrate in international treaties –

agreement in writing to arbitrate disputes 7.105

arbitral awards, challenges to

arbitration anticipated by

blanket immunity to central banks

committal order, exclusion of –

freezing injunctions

injunctive relief against the state, prohibition of –

proceedings which relate to arbitration –,

recognition and enforcement of foreign court judgement

service of process against the state, rules for

sovereign vs commercial acts, enforcement of distinction between

state immunity and arbitration –

state’s consent on its immunity from jurisdiction –,

states bound to arbitration agreements

structure of –

UNCSI, differences from/similarities to ,

United Kingdom

State Immunity Bill 1978

State-owned entity (SOE)

as employer

Page 392

Statute of the International Court of Justice
- Article 38(1)(c)

Statutory adjudication, See also Housing Grants, Construction and Regeneration Act 1996 (the ’1996 Act’)

Australia

adjudication and case law

adjudication, overview of –

Australian Acts

adjudicator, confusion with

adjudicator error

adjudicator nomination ,

adjudication schemes –

‘ambush claims’

amendments –

diverging content of –

enforcement processes –,

‘motley’ patchwork and tinkering with –,

Murray Review –

security of payment legislation , , , ,

statutory enforcement mechanisms , ,

temporal constraints –

vs UK Act , , –, , –,

Australian Capital Territory

statutory adjudication regime

Australian East Cost model

adjudication timelines ,

Australian West Coast model

adjudication timelines ,

claim and response process

Building Ministers’ Forum

High Court –

New South Wales (NSW)

Act , –, –, , , , –

Authorized Nominating Authority (ANA) adjudication certificate requested of

adjudication review application filed to

critique of

Murray reforms –

operating for profit

potential or perceived bias of –,

Court of Appeals

Minister

Regulations

statutory adjudication regime

Supreme Court

‘pay now, argue later’ approach –

Queensland

Act , , , ,

Adjudication Registry

adjudicator nomination

adjudicators as ‘anomalous tribunals’

Building and Construction Commission

Murray Review –

statutory adjudication regime

Wallace Review ,

South Australia (SA)

‘East Coast’ model ,

statutory adjudication regime

Tasmania

‘East Coast’ model ,

statutory adjudication regime

Victoria

‘East Coast’ model ,

‘excluded amounts’ regime –

statutory adjudication regime

Victorian Act See Victorian Act (Australia)

Western Australia (WA)

2020 SOP Bill , , ,

Act , ,

statutory adjudication regime

Canada

British Columbia

Bill M223 (Prompt Payment (Builder’s Lien) Act 2019)

Manitoba

Bill 218 (Prompt Payments in the Construction Industry Act)

Manitoba Law Reform Commission ,

New Brunswick

Nova Scotia

Bill 119 (re prompt payment)

Ontario (Canada)

adjudicator, choosing of –

adjudicators’ determinations –, –

application to set aside –

compliance with determination –

fees and costs –

form and timing –

interim binding nature of –

adjudication, preparing a claim for

Page 393

detailed submissions

documents relied on –

in-person hearings as exception –

notice of adjudication

rebuttals to the claim

responding to the claim

serving the claim

adjudication referral

adjudication timelines –

ODACC predetermined processes –

statutory timelines –

Arbitration Act 1991

section (5)

Authorized Nominating Authority –

basic concepts

adjudicator’s determination, enforcement of

binding until and unless overturned

proper invoice

statutory minimums –

targeted adjudication –

Bill C-97 (Budget Implementation Act, 2019 no.1)

Bill S-224 (re prompt payment)

collection period, construction industry

Construction Act ,

Divisional Court

insurance and bonds

lien and trust remedies, traditional

prompt payment obligations, statutory

Prompt Payment Ontario ,

‘proper invoice’ ,

statutory adjudication, remedial aim of –

Ontario Act

section

section

section (5)

Ontario Dispute Adjudication for Construction (‘ODACC’)

adjudicator, choosing and qualifications of –

Adjudicator’s Code of Conduct

adjudication process, central role in

claims, service of

Construction Adjudication

fees and costs

ODACC Orientation Program

predetermined processes –

statutory adjudication managed via

timelines

Ontario Report

other Canadian jurisdictions –

Saskatchewan (Canada)

Bill 152 (Builders Lien (Prompt Payment) Amendment Act 2018)

Singapore –

general scope and applicability –

New South Wales model as basis of ,

Singapore Statutes Online

SOP Act See Security of Payment Act (the ‘SOP Act’or ‘SOPA’)

United Kingdom –, ,

2009 Act, consultation on (the Consultation) –

adjudication, access to

adjudication process

costs

payment –

in writing

adjudication, smash and grab –

adjudication and insolvency –

construction contracts and exclusions –

dispute, crystallization of –

fraud –

jurisdiction, failing to exhaust –

low value adjudication schemes, introduction of –

reserving the position –

stay of execution –

Stay of execution (UK)

cases involving –

insolvency or hardship –

statutory adjudication (UK) and –

Stockholm Chamber of Commerce (SCC)

Arbitration Institute

emergency arbitration award ,

emergency arbitration rules ,

expedited rules ,

Express

Rules , ,

‘Subject matter’

defence

Page 394

Swiss Federal Private International Law Act

Switzerland, See also European Organisation for Nuclear Research (CERN)

Achmea

DAB process

Supreme Court –

Tasmania. See Australia: Tasmania

TFEU (Achmea)

and BIT, relationship to

TfL. See Transport for London (TfL)

Three-stage test

law of arbitration agreement , –,

TransLex Principles

database

good faith principles, definition of –

Transnational approach

to arbitration clause –

Transnational construction contracts

good faith, relevance of –

good faith, effects of –

international construction arbitration, sources of –

Transport for London (TfL)

Conflict Avoidance Pledge –,

Turkey

bilateral investment treaty with Singapore

international disputes involving , ,

Ukraine

international disputes involving –, –, ,

UNCITRAL Model Law on International Commercial Arbitration 2006 (‘Model Law’)

2006 amendments ,

arbitral interim measures, developing of

‘commercial’, definition of

conflict of law rules

lex mercatoria

Singapore Convention adoption of

UN Convention on Contracts for the International Sales of Goods (CISG)

Article

UN Convention on Jurisdictional Immunities of States and their Property 2004 (UNCSI)

International Law Commission’s 1991 commentary on

SIA, differences from and similarities to , , ,

United Kingdom, signed by but not yet ratified –

Unfair delay

Spanish law, good faith

Unfairness

perception of ,

problems of

unconscionable

Unidroit Principles of International Commercial Contracts (UPICC)

Uniform Commercial Code (United States)

United Arab Emirates (UAE)

dispute boards

United Kingdom (UK), See also Statutory adjudication: United Kingdom

2011 Scheme for Construction Contracts (UK) ,

common law system and good faith

English Arbitration Act 1996 See Arbitration Act 1996

Insolvency (England and Wales) Rules 2016

transnational law governing arbitration –

State Immunity Act (SIA) ,

State Immunity Bill 1978 (cl. 14)

state immunity, legislative –

Supreme Court

cases heard by , , , , , , , , –,

Leggatt’s appointment to ,

United States

‘manifest disregard of the law’, legal doctrine of

Restatement (Second) of Contracts

Singapore Convention

Supreme Court, decisions predicted by AI , –

Uniform Commercial Code

Validation principle

applied to arbitration –

Victorian Act (Australia)

adjudicable dispute under ,

adjudicators, function of

adjudicators, nomination of

cash flow remedy

‘excluded amounts’ regime –, ,

statutory right of review

Vienna Convention on the Law of Treatise (VCLT)

Page 395

Wallace, Andrew
- Wallace Report ,

WA SOP Bill. See Australia: Western Australia

Western Australia. See Australia

Witness

expert , ,

of fact

Witness statements and testimony

AA96 provisions regarding –

cases

ODACC predetermined processes

World Bank

dispute adjudication boards (DABs), use of –

dispute avoidance/adjudication board (DAAB), incorporation of

dispute boards (DBs), use of

Standard Bidding Documents

Standard Procurement Documents ,

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Construction Arbitration and Alternative Dispute Resolution

Page 379

Index

Index

Page 380

Page 381

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