Diese Präsentation wurde erfolgreich gemeldet.
Wir verwenden Ihre LinkedIn Profilangaben und Informationen zu Ihren Aktivitäten, um Anzeigen zu personalisieren und Ihnen relevantere Inhalte anzuzeigen. Sie können Ihre Anzeigeneinstellungen jederzeit ändern.
Nächste SlideShare
What to Upload to SlideShare
Weiter
Herunterladen, um offline zu lesen und im Vollbildmodus anzuzeigen.

0

Teilen

Herunterladen, um offline zu lesen

Architecture practice- arbitration and conciliation

Herunterladen, um offline zu lesen

MEANING OF ARBITRATION
DEFINED AS A METHOD OF RESOLVING DISPUTES
BETWEEN TWO PARTIES BY A THIRD PARTY
NEED FOR ARBITRATION
DISPUTES ARISING BETWEEN

OWNER & ARCHITECT
QUALITY OF SERVICE, LACK OF SUPERVISION, PAYMENT OF FEES ETC

OWNER & CONTRACTOR
PAYMENTS,EXTENSION OF TIME, RECTIFICATION OF DEFECTS
ADVANTAGES OF ARBITRATION

RESOLVING DISPUTES IN COURTS IS EXPENSIVE,
TIME CONSUMING AND STAINS RELATIONSHIP

ARBTRATION IS QUICKER LESS EXPENSIVE
AND RELATIONS REMAIN CORDIAL
Role of Project Architect in Arbitration

Project architect has a dual role
As per clause 55 of IIA, he acts as a “Quasi-Arbitrator” to give his decision on “excepted matters” between the client and the contractor where his decision is final and binding.

He is required to supply whatever information( copies of correspondence, drawings, site supervision memos etc.) the Arbitrators require in connection with any reference
The Arbitration & Conciliation Act 1996

Arbitration Act 1940 has become outdated.
General Assembly of the UNO recommends that UNCITRAL adopted in 1985 be the basis of new law to bring about uniformity of law of arbitral procedures and the specific needs of the international commercial arbitration practice
Though UNCITRAL deals with international disputes, with certain modification they could serve domestic arbitration and conciliation.
New act seeks to consolidate and amend the laws relating to domestic arbitration, international commercial arbitration, enforce foreign arbitral award and define laws relating to conciliation
Lessons for Architects from Arbitration cases

One of the main reasons why disputes arise between owners and contractor as far as construction projects are concerned is that quite a few architects do not perform their roles as Project Architect and Quasi-Arbitrators early on in the project.

Some of the steps that he can do to prevent such disputes are
Production drawings.- Complete and freeze design and drawings prior to tender.
Notification formalities- Issue all notifications on time
Certification of bill- Approve/certify all bills on time and ensure payments
Time as “Essence of Contract”.- Avoid Holds that can lead to extension of time.
Final Accord and satisfaction-Ensure full and final payment is done.
Minutes of site meetings- Weekly meeting and minutes recorded and approved by all
Consultant fees: Payment for sub consultants is one on time
Predesign Investigation: Owner required to furnish information about site
Accepting assignments: Proper documentation and fee structure as recommended by COA
Premature termination of Architects services: Owner right on full payment of fees upto that stage.

Ähnliche Bücher

Kostenlos mit einer 30-tägigen Testversion von Scribd

Alle anzeigen

Ähnliche Hörbücher

Kostenlos mit einer 30-tägigen Testversion von Scribd

Alle anzeigen
  • Gehören Sie zu den Ersten, denen das gefällt!

Architecture practice- arbitration and conciliation

  1. 1. ARC 404 : PROFESSIONAL PRACTICE B.ARCH VI SEMESTER : FEBRUARY 2015 INTRODUCTION CHAPTER TOPIC 01 Understanding the basic concepts and terminology in architectural practice 02 The differences between architectural profession and other professional disciplines 03 A clear knowledge of code of conducts and ethics in profession 04 The knowledge of apex monitoring body to protect the interest of the profession 05 Role of an architect in conceptualizing, design proposal until the execution procedures 06 The relationship between the architect and other executive agencies 07 The legal dimension of professional practice, architect’s role as an arbitrator 08 A comprehensive understanding of office set up, office administration, selection procedure for various posts, man power management within the office and resource leveling
  2. 2. ARC 404 : PROFESSIONAL PRACTICE B.ARCH VI SEMESTER : FEBRUARY 2015 ARBITRATION & CONCILIATION MEANING OF ARBITRATION DEFINED AS A METHOD OF RESOLVING DISPUTES BETWEEN TWO PARTIES BY A THIR PARTY
  3. 3. ARC 404 : PROFESSIONAL PRACTICE B.ARCH VI SEMESTER : FEBRUARY 2015 ARBITRATION & CONCILIATION NEED FOR ARBITRATION DISPUTES ARISING BETWEEN OWNER & ARCHITECT QUALITY OF SERVICE, LACK OF SUPERVISION, PAYMENT OF FEES ETC OWNER & CONTRACTOR PAYMENTS,EXTENSION OF TIME, RECTIFICATION OF DEFECTS
  4. 4. ARC 404 : PROFESSIONAL PRACTICE B.ARCH VI SEMESTER : FEBRUARY 2015 ARBITRATION & CONCILIATION ADVANTAGES OF ARBITRATION RESOLVING DISPUTES IN COURTS IS EXPENSIVE, TIME CONSUMING AND STAINS RELATIONSHIP ARBTRATION IS QUICKER LESS EXPENSIVE AND RELATIONS REMAIN CORDIAL
  5. 5. ARC 404 : PROFESSIONAL PRACTICE B.ARCH VI SEMESTER : FEBRUARY 2015 ARBITRATION & CONCILIATION CONCILIATION Conciliation and mediation by a third party Is quicker and still less expensive as An “alternative method of dispute resolutions” Mediator known to both parties Arbitration act 1940 replaced by Arbitration & conciliation act 1996 -16th august 1996
  6. 6. ARC 404 : PROFESSIONAL PRACTICE B.ARCH VI SEMESTER : FEBRUARY 2015 ARBITRATION & CONCILIATION Need for an arbitration agreement Both parties have to agree in writing Inserting a clause in “letter of appointment” In the case o a building contract, between the owner and the contractor, IIA form of Conditions of Contract has a clause ( Clause 56). Unless there is an arbitration agreement, Arbitrators have no jurisdiction to enter upon any reference. If there is no prior agreement, the same can be formally done on a stamp paper to make it legally valid.
  7. 7. ARC 404 : PROFESSIONAL PRACTICE B.ARCH VI SEMESTER : FEBRUARY 2015 ARBITRATION & CONCILIATION Role of Project Architect in Arbitration Project architect has a dual role 1. As per clause 55 of IIA, he acts as a “Quasi- Arbitrator” to give his decision on “excepted matters” between the client and the contractor where his decision is final and binding. 2. He is required to supply whatever information( copies of correspondence, drawings, site supervision memos etc.) the Arbitrators require in connection with any reference.
  8. 8. ARC 404 : PROFESSIONAL PRACTICE B.ARCH VI SEMESTER : FEBRUARY 2015 ARBITRATION & CONCILIATION Project Architect as a “Quasi-Arbitrator” Project architect is required to give his decision on the following “excepted matters”. 1. Clause 5 of IIA Form of Contract: Interpretation of drawings in case of any error or inconsistency 2. Clause 9 of IIA Form of Contract: Issue instructions to contractor (normally in writing) from time to time. 3. Clause 19 of IIA Form of Contract: Contractors field organization, code of good practice 4. Clause 25 of IIA Form of Contract: Permission to assign or sublet a part of contract work. 5. Clause 26 of IIA Form of Contract: Responsibility of coordination and payments of subcontractors 6. Clause 36 of IIA Form of Contract: Material & workmanship including levels, colors shades, defective works etc.
  9. 9. ARC 404 : PROFESSIONAL PRACTICE B.ARCH VI SEMESTER : FEBRUARY 2015 ARBITRATION & CONCILIATION Project Architect as a “Quasi-Arbitrator” Project architect is required to give his decision on the following “excepted matters”. 7. Clause 40 of IIA Form of Contract: Extension of time. There are 10 grounds for claim of extension, however on the below 5 , projects architects decision is final and binding 1. Force Majeure 2. Exceptionally inclement weather 3. Civil commotions, strikes etc. 4. Delay o part of Nominator contractors 5. Delay on account of artists tradesmen appointed by Owner. In the above 5 cases, the architects decision is final and the contractor cannot initiate arbitration proceeding.
  10. 10. ARC 404 : PROFESSIONAL PRACTICE B.ARCH VI SEMESTER : FEBRUARY 2015 ARBITRATION & CONCILIATION Appointment of Arbitrators by parties Parties to a dispute can appoint an Arbitrator or Arbitrators in the following manner: 1. Named in the arbitration clause of the contract document 2. Each party appoints its own nominee and these joint arbitrators appoint the presiding arbitrator 3. A person may be empowered in the arbitration clause to appoint an arbitrator if the need arises 4. A sole arbitrator selected from a panels of names suggested by COA or president IIA or by the Indian council of Arbitration If one of the parties refuse to name its nominee, the other party can approach the court.
  11. 11. ARC 404 : PROFESSIONAL PRACTICE B.ARCH VI SEMESTER : FEBRUARY 2015 ARBITRATION & CONCILIATION Doctrine of Estoppel Estoppel is a rule of evidence. The definition of the word Estoppel is “ a bar or an impediment preventing a party from asserting a fact to a claim inconsistent with a position he previously took”. When a party knowing fully well that he could take objection to arbitration proceeding, takes part in the arbitration proceedings, taking his chance of the decision being favorable to him cannot object to an award if it goes against him. However if a party objects to the arbitration proceeding and then take part in it under protest, it can object to the award if it unfavorable to him.
  12. 12. ARC 404 : PROFESSIONAL PRACTICE B.ARCH VI SEMESTER : FEBRUARY 2015 ARBITRATION & CONCILIATION Removal of Arbitrators An arbitrator once appointed can only be removed by a court of law or can be asked by other two. A court can remove an arbitrators under the following: 1. Arbitrator exceeds his jurisdiction or goes beyond the term of the contract. 2. Arbitrator misconducts himself or does not apply his mind to the disputes 3. Disqualification of the Arbitrator in terms of the Arbitration clause 4. Charges of fraud or favoritism against the arbitrator
  13. 13. ARC 404 : PROFESSIONAL PRACTICE B.ARCH VI SEMESTER : FEBRUARY 2015 ARBITRATION & CONCILIATION Need for conciliation as an alternate dispute resolution method. Shortcoming of old arbitration proceeding: • Disputes never resolved in 4 months as stipulated in the old act • Prolongation from both parties • Issues are more delayed when more than one arbitrators are present • Finding dates suitable to all parties • Delay in compilation of documents and oral arguments • One of the parties may take the matter to court during the progress of arbitration on techno-legal issues • With all these complication cost of hiring techno legal consultants getting higher- beyond the reach of a small contractors • Under such circumstances it has become necessary to find a better alternative- the concept of “CONCILIATION” as an alternative dispute resolute method.
  14. 14. ARC 404 : PROFESSIONAL PRACTICE B.ARCH VI SEMESTER : FEBRUARY 2015 ARBITRATION & CONCILIATION Concept of Conciliation Old system like in panchayats readapted in the light of changing socio-economic conditions. A CONCILIATOR is a person who brings about conciliation between the parties to a dispute. • Both parties must have trust and confidence in him • Suitable qualified if the mater is technical • His power is only that of persuasion • Required to maintain confidentiality of all cases referred too him He works in three stages: • Stage-1: Exploring to establish facts and discover respective attitudes of parties • Stage-2: Exploring possibilities of finding equitable common ground. • Stage-3: Bringing about conciliation between the parties
  15. 15. ARC 404 : PROFESSIONAL PRACTICE B.ARCH VI SEMESTER : FEBRUARY 2015 ARBITRATION & CONCILIATION The Arbitration & Conciliation Act 1996 • Arbitration Act 1940 has become outdated. • General Assembly of the UNO recommends that UNCITRAL adopted in 1985 be the basis of new law to bring about uniformity of law of arbitral procedures and the specific needs of the international commercial arbitration practice • Though UNCITRAL deals with international disputes, with certain modification they could serve domestic arbitration and conciliation. • New act seeks to consolidate and amend the laws relating to domestic arbitration, international commercial arbitration, enforce foreign arbitral award and define laws relating to conciliation
  16. 16. ARC 404 : PROFESSIONAL PRACTICE B.ARCH VI SEMESTER : FEBRUARY 2015 ARBITRATION & CONCILIATION Lessons for Architects from Arbitration cases One of the main reasons why disputes arise between owners and contractor as far as construction projects are concerned is that quite a few architects do not perform their roles as Project Architect and Quasi-Arbitrators early on in the project. Some of the steps that he can do to prevent such disputes are 1. Production drawings.- Complete and freeze design and drawings prior to tender. 2. Notification formalities- Issue all notifications on time 3. Certification of bill- Approve/certify all bills on time and ensure payments 4. Time as “Essence of Contract”.- Avoid Holds that can lead to extension of time. 5. Final Accord and satisfaction-Ensure full and final payment is done. 6. Minutes of site meetings- Weekly meeting and minutes recorded and approved by all 7. Consultant fees: Payment for sub consultants is one on time 8. Predesign Investigation: Owner required to furnish information about site 9. Accepting assignments: Proper documentation and fee structure as recommended by COA 10. Premature termination of Architects services: Owner right on full payment of fees upto that stage.
  17. 17. ARC 404 : PROFESSIONAL PRACTICE B.ARCH VI SEMESTER : FEBRUARY 2015 References 1. http://www.coa.gov.in/home/home.htm 2. Architectural Practice in India: Prof. Madhav Deobhakta & Ar. Meera Deobhakta

MEANING OF ARBITRATION DEFINED AS A METHOD OF RESOLVING DISPUTES BETWEEN TWO PARTIES BY A THIRD PARTY NEED FOR ARBITRATION DISPUTES ARISING BETWEEN OWNER & ARCHITECT QUALITY OF SERVICE, LACK OF SUPERVISION, PAYMENT OF FEES ETC OWNER & CONTRACTOR PAYMENTS,EXTENSION OF TIME, RECTIFICATION OF DEFECTS ADVANTAGES OF ARBITRATION RESOLVING DISPUTES IN COURTS IS EXPENSIVE, TIME CONSUMING AND STAINS RELATIONSHIP ARBTRATION IS QUICKER LESS EXPENSIVE AND RELATIONS REMAIN CORDIAL Role of Project Architect in Arbitration Project architect has a dual role As per clause 55 of IIA, he acts as a “Quasi-Arbitrator” to give his decision on “excepted matters” between the client and the contractor where his decision is final and binding. He is required to supply whatever information( copies of correspondence, drawings, site supervision memos etc.) the Arbitrators require in connection with any reference The Arbitration & Conciliation Act 1996 Arbitration Act 1940 has become outdated. General Assembly of the UNO recommends that UNCITRAL adopted in 1985 be the basis of new law to bring about uniformity of law of arbitral procedures and the specific needs of the international commercial arbitration practice Though UNCITRAL deals with international disputes, with certain modification they could serve domestic arbitration and conciliation. New act seeks to consolidate and amend the laws relating to domestic arbitration, international commercial arbitration, enforce foreign arbitral award and define laws relating to conciliation Lessons for Architects from Arbitration cases One of the main reasons why disputes arise between owners and contractor as far as construction projects are concerned is that quite a few architects do not perform their roles as Project Architect and Quasi-Arbitrators early on in the project. Some of the steps that he can do to prevent such disputes are Production drawings.- Complete and freeze design and drawings prior to tender. Notification formalities- Issue all notifications on time Certification of bill- Approve/certify all bills on time and ensure payments Time as “Essence of Contract”.- Avoid Holds that can lead to extension of time. Final Accord and satisfaction-Ensure full and final payment is done. Minutes of site meetings- Weekly meeting and minutes recorded and approved by all Consultant fees: Payment for sub consultants is one on time Predesign Investigation: Owner required to furnish information about site Accepting assignments: Proper documentation and fee structure as recommended by COA Premature termination of Architects services: Owner right on full payment of fees upto that stage.

Aufrufe

Aufrufe insgesamt

30

Auf Slideshare

0

Aus Einbettungen

0

Anzahl der Einbettungen

0

Befehle

Downloads

1

Geteilt

0

Kommentare

0

Likes

0

×