International Construction Law Review
CAN ADJUDICATION BE TRANSPLANTED TO GERMANY, OR WILL IT COLLIDE WITH FUNDAMENTAL PRINCIPLES?
PATRICK HEHENBERGER
Dipl-Ing, CEng MICE, MSc ConstrLaw, FCIArb Construction Disputes Consultant
*
Le grand malheur est que la justice des hommes intervienne toujours trop tard.
(Our great misfortune is that human justice always intervenes too late.)
GEORGES BERNANOS (French novelist)
Zu späte Gerechtigkeit ist keine Gerechtigkeit.
(Justice delayed is justice denied.)
ANDREAS VOSSKUHLE (President of the German Constitutional Court)
Abstract 1
German construction law professionals call for some mandatory, pre-litigation adjudication. Concerns, however, are voiced that such out-of-court proceedings might run counter to constitutional principles. This work reviews these positions. It explores Germany’s Constitution and codified laws relevant to construction with regard to the organisation of the judiciary and the right to a fair trial. It also examines whether “doing nothing” is an option.
It finds that adjudication can comply with the Constitution, given the legislator’s wide discretion when designing pre-litigation dispute resolution procedures. Furthermore, the legislator has, if not an obligation, at least a number of incitements to act.
1. Germany is considering adjudication
Since the middle of 2008, German construction law professionals have attempted to introduce a new mechanism to resolve construction disputes, as an alternative to litigation, arbitration, expert determination and mediation.
In two essential aspects, the proposed procedure is inspired by and comes close to adjudication, which is now well known as it has been in use in Britain for over four decades, with a sharply increased use, understandably,
* www.phcds.com, Geneva.
1 This paper is a revised version of a dissertation submitted in part ful?lment of a MSc degree in Construction Law & Dispute Resolution, King’s College London. In 2012, the dissertation was awarded the inaugural First Prize of the European Construction Law Society.
Pt 3] Can Adjudication be Transplanted to Germany?
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