Review 2019

Author

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

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Authors

Bazil OGLINDĂ, 

Associate professor, Romanian-American University, Bucharest, Romania

Eugen SÂRBU

Lawyer, Oglindă&Partners, Bucharest, Romania

Abstract

The planning documents play an essential role in the field of construction law. Maybe the most important documents are the building permit, the urban planning certificate and the Regional Urban Plan. This study analyses the link between these documents, as well as the common practical issues that they produce. We observe the necessity to define the steps that one has to follow in order to modify the Regional Urban Plan, given the existent legislative confusion. Another relevant aspect is the person responsible of developing and handing in the documents, as well as the order in which these have to be prepared. At last, we analyse the effects of the delays in obtaining the documents regarding EU financed projects and we identify who bears the risk of such delays, in relation with the current legal provisions and the case-law.

Keywords: building permit, urban planning certificate, regional urban plan, delay risk

JEL Codes: K12, K23

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Author

Bazil Oglindă

Faculty of Law, Romanian-American University

Andrada Tarmigan

Oglinda&Associates

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, K22,  K24

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