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4 Romanian Constr. L. Rev. 5 (2019)

handle is hein.journals/rncnlwre4 and id is 1 raw text is: RESOLVING CONSTRUCTION DISPUTES IN THE COURTS: A CONSIDERATION OF THE FUTURE OF CONSTRUCTION LAW IN THE AGE OF PRIVATE DISPUTE RESOLUTION Rami Marginean Melbourne Law School, Australia Abstract The prevalence of disputes in construction projects has made dispute management and resolution a major preoccupation of industry participants and their advisors. This preoccupation currently involves, in addition to a focus on dispute avoidance processes, a reliance on arbitration as the principal dispenser of justice. Arbitration provides construction disputants with important advantages that were previously unavailable in the law courts: flexibility, finality, enforceability advantages and procedural advantages, to name but a few. However, two implications of the status quo give rise to concerns. First, there is the consideration of the future of construction law in the age of private dispute resolution and the threat posed to the rule of law by such processes. Secondly, when considering the costs of dispute resolution through private processes, particularly arbitration, there appears to be noticeable and growing disenchantment with the arbitration model. This paper argues that these implications highlight the need for an alternative to arbitration in the resolution of international construction disputes. Over the last few decades, courts have shown a remarkable ability to innovate and respond to the needs of the dispute resolution community and can provide this alternative. Keywords: construction disputes, arbitration, private disputes resolution JEL Codes: K12, K15, K41, K49 1. Introduction The paper is structured as follows: * Section 2 identifies the status of construction law among legal disciplines and its contribution to the general law. * Section 3 identifies the dispute resolution landscape. It shows the factors that have led to the proliferation of private dispute resolution processes and identifies a trend of increased reliance on arbitration in the resolution of construction disputes. * Section 4 discusses the likely long-term implications of this trend. Private dispute resolution mechanisms pose a challenge to the development of construction law as a discipline and the maintenance of the rule of law. Importantly, arbitration has failed to maintain the cost-efficiencies that made it an appealing dispute resolution method initially. ROMANIAN CONSTRUCTION LAW REVIEW

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