Session 3

This session addresses the newly emerging contemporary issues and challenges for ADR in the field of construction and explore the possibility of developing rules and practices in the Asian context. The moderators/speakers will be experienced counsel and arbitrators in those sectors as well as construction company executives and experts. They will identify and provide perspectives and opinions on the newly rising issues, challenges and outlook for the resolution of construction and energy disputes.

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The speakers will discuss how the current issues in the construction and energy industry, such as (i) managing worldwide geopolitical risk including supply chain risk; (ii) sustainable risk allocation arising from heightened ESG standards; (iii) long term project risk management in the midst of unstable currency markets; and (iv) the ever-rising cost of construction disputes affect the contracting trends and the dispute resolution mechanisms thereunder, including whether the increased use of the Cost Reimbursement Model and/or the Collaborative Contract Model could be a useful tool for avoiding disputes?

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It also remains to be seen whether dispute boards or dispute avoidance boards are effective in large- scale construction disputes in Asia although their usage appears to be slightly increasing. Also, the introduction of GIGA projects, mostly in MENA, have raised the question as to whether early involvement of claims experts can facilitate claim negotiation between owners and contractors as a way to avoid unwieldy formal dispute resolution procedures at a later stage.

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In considering these new trends, the co-moderators will ask the speakers to discuss dispute settlement mechanisms on how to handle these issues and whether the new style of contracting is desirable and sustainable, at least from the perspective of ADR. The speakers will address the possible impact of these trends on future disputes, namely (i) what are the actual dispute-related issues that they foresee arising; (ii) how counsel and arbitrators should prepare themselves to effectively guide their clients and properly dispose of such issues, respectively; and (iii) whether and to what extent it would be desirable to explore any Asian model (or best) ADR services to resolve construction disputes that may fit the Asian context in particular. For example, consider the adoption of adjudicatory method in construction disputes. Can such method be appropriately incorporated into an Asian ADR model, in particular, for construction disputes involving large-scale and long-term projects?