Dispute resolution under the general conditions of contract 2010
De Oliveira, Michélle Branco
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In the light of the nature of the construction industry and the fact that it is often burdened with disputes arising from the contract, appropriate and unique alternative dispute resolution procedures are indispensable for disputes to be resolved quickly, efficiently and effectively. Section 34 of the Constitution of the Republic of South Africa, 1996 provides for the right to have disputes resolved by means of a public hearing before a court, alternatively, where appropriate, by means of an independent, impartial forum. Arbitration, mediation, conciliation and adjudication, to name but a few, are alternative methods used in resolving South African construction disputes. Some of these alternative dispute resolution (ADR) methods are provided for in the Construction Industry Development Board recommended standard contracts. This study entails an analysis of the ADR methods in construction agreements with specific reference to the General Conditions of Contract for Construction Works 2010 (GCC 2010) and a comparison thereof with the English position. The application of the recommended ADR methods in the South African construction industry, especially adjudication, faces many challenges. There is no certainty as to the definition nor the procedure to be followed in the use thereof. The study concluded that there is a definite need for the contract to be reviewed, in particular the dispute resolution clause. The introduction of on- line dispute resolution was also recommended. This will contribute towards efficient, effective and expedient dispute resolution that is required due to the nature and role of the construction industry in a country‟s economy. There is also a definite need for legislation to be implemented which will assist in clarifying as well as regulating the adjudication procedure as used in the South African construction industry.
- Law