Assignment Task: Alternative Dispute Resolution (ADR)
You have 2,750 words to provide advice on the following questions. You should remember to back your answers up with reference to legal authority. The questions must be in detailed and supported by relevant cases/evidence.
Assignment Background: You are a legal advisor with a specialist practice in construction law.
Assignment Questions:
Question 1: In your role as stated above, you have been asked to provide a written note to a local group of Northern Irish builders to explain how The Construction Contracts (Northern Ireland) Order 1997 (as amended) [the "1997 Order"] has developed and provide an overview of how it impacts the flow of money by way of the availability or otherwise of adjudication in respect of their various construction operations including:-
a. Work both internationally and domestically.
b. Work onshore and off-shore.
c. Power stations.
d. Prisons.
e. Hospitals.
f. Commercial/retail premises.
g. Residential dwelling house projects.
In respect of the statutory provisions of the 1997 Order (as amended) set out your written advice to the group of contractors in respect of the development of the law in the chosen construction operations by reference to reported cases.
Question 2: As a result of your note at question 1, above, you have been approached by a contractor who has a dispute with his employer under a construction contract. He is considering his ability to adjudicate but has never been involved in adjudication before. He has concerns about the employer willingness to engage in the adjudication process and he is concerned about the overall procedure. Prepare a written advice to the client to include all relevant matters for consideration including:-
a. How an adjudicator is appointed.
b. The obligations placed on the adjudicator and parties to the dispute.
c. The procedure and timing that may be followed.
d. The general powers of the adjudicator.
e. How the adjudicator may control matters if the employer does not engage and/or respond.
Question 3: Your client commenced adjudication on your advice. At day 24 from the referral notice (4 days to Decision), it becomes apparent that there is still much to debate, and it would be difficult to complete the adjudication in a fair manner in 28 days. With reference to relevant case law, advise your contractor client about the possible outcomes and scenarios going forward?
Question 4: The responding party refuses to pay on foot of the adjudicator's decision and seeks to defend an application for enforcement of same in the Court. With reference to the relevant case law discuss the possible defenses available to the party seeking to resist enforcement and the likelihood of success.
Question 5: The losing party is disgruntled with the adjudicator's decision and seeks to have the matter finally determined by the tribunal which is either the Court or Arbitration. With reference to the NEC procedure, draft an advice note to your client setting out:-
a. How the decision may be referred for final determination and any time limits that may apply.
b. The binding nature or otherwise of the adjudication decision pending final determination.
c. The advantages and disadvantages of arbitration versus the advantages and disadvantages of court litigation.
d. The position in respect of inter-partes costs in adjudication, arbitration and court proceedings.
Note - Total 11 Pages (2750 words) and References - Harvard.
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