International Construction Law Review
INTRODUCTION
HUMPHREY LLOYD
DOUGLAS S JONES
The first article in this issue is a discussion by Jesse B Grove III (a retired partner of Thelen Reid Brown Raysman & Steiner LLP) of costs and delay in construction arbitration (page 136). Having identified this as a major issue for construction arbitration, in the US and elsewhere, Mr Grove looks at what he describes as a draconian response to the problem in England, before going on to examine the Rules for Expedited Arbitration of Construction Disputes published by the International Institute for Conflict Prevention and Resolution (CPR) Construction Advisory Committee (note that Grove was the Chairman of the drafting subcommittee that produced these rules). He identifies these as having been inspired by the “Arbitration in 100 Days” programme in the UK published in 2004 by the Society of Construction Arbitrators. He describes the basic principles and the details of the CPR Rules, including the assumptions and biases underlying the creation of the rules, details regarding the basic scheme of arbitration, procedures surrounding the preliminary conference and details on discovery and other evidentiary issues. He notes that the jury is still out on whether the construction industry, which has not taken advantage of many improvements in dispute resolution to date, will embrace the new CPR Rules but congratulates the CPR on responding to the problem of delay and cost in a meaningful manner.
There then follows a detailed and thoughtful article by Paul Tobin of Clayton Utz, Sydney, on the thorny issue of Concurrent and Sequential Causes of Delay (page 142). In this article Mr Tobin looks at the position in Australia in the light of standard forms of contract in use in that country, drawing upon the authorities on the subject in other common law jurisdictions including the US. This is a particularly topical subject given the Society of Construction Law Delay and Disruption Protocol to which the author refers in his article, which is also referred to in a book review by Rupert Sydenham later in this edition (page 245). Noting that common law principles for the assessment of extensions of time in circumstances of true currency have not been fully developed in Australia, Mr Tobin discusses the position in both the UK and the USA and suggests that, in circumstances of sequential causes of delay with concurrent effect, the sequential causes should be analysed to determine if they occur on the critical path and have an actual impact on the date for completion. Then the total delay should be apportioned in accordance with the causes for which each party is responsible. In circumstances of true currency of causes of delay, he suggests the contractor should be entitled to an extension of time for the entire period. So far as a contractor’s entitlement to damages for delay is concerned, he reaches the conclusion that the contractor should first attempt to separate its damages and prove entitlement based on the effect of each owner-caused event, but if unable to separate its losses it may be
[2007
The International Construction Law Review
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