Академический Документы
Профессиональный Документы
Культура Документы
Edmond Hettigoda
2014
Contents
Dedication
From page to
Page
ii
Abstract
iii
Abbreviations
iv
1-1
2-4
5-4
5-5
6-6
7-8
9-11
12-13
14-16
17-23
23-23
24-25
25-27
28
28-31
32
33-60
61-69
70-71
71-72
1
References
72-74
Annexures
75-81
This
work
is
dedicated to my
Boss, Dr Surath
Wickramasinghe
firstly for giving
me
the
opportunity
to
enter
the
construction
field,
secondly
for
the
trust
placed over the
past 36 years by
pushing me up
on the ladder
and lastly for
compelling
me
and
fully
sponsoring
me
to undertake this
study.
ABSTRACT
The objective of this study to review Dispute Resolution
Methods in Sri Lankan Construction Industry with Emphasis on
the Adoptability of Permanent Dispute resolution Boards
(PDRB) for Major Works. With the increasing of the construction
projects, the construction industry of Sri Lanka needs a fast
and cost effective dispute resolution method. Drawbacks of
litigation have opened up the Alternative Dispute Resolution
(ADR) methods to settle construction disputes.
Dispute Avoidance Procedures which include Dispute Review
Board (DRB) and Dispute Adjudication Board (DAB) are widely
used in the dispute resolution of the construction industry since
those procedures are encourage to resolve construction
disputes at site level. After 30 years civil war in the north and
east provinces in Sri Lanka, the foreign donor agencies have
funded for the economic infrastructure development projects.
DAB is used in Sri Lanka under the FIDIC 1999 (Red Book)
specially for the foreign funded development projects.
Five point likert scale type questionnaire was sent to 50
respondents identified by Judgment Sampling method from the
identified population comprising Employers, Consultants,
Contractors and Arbitrators including lawyers and claim
consultants. Data was analysed on the basis of Mean Weighted
Average.
A questionnaire survey was carried out among contractors,
consultants employers and construction related persons with
legal backgrounds organizations. The research findings
revealed a dis-satisfaction with current Arbitration Practice and
showed trust on PDRBs. Setting up Regulatory Institute for DRB
found highly desirable.
ABBREVIATIONS
ADR
DAB
DRB
DRBF
FIDIC
Engineers
ICC
ICLP
ICTAD
- The Institute for Construction Training and
Development
MDB
NCASL
PDAB
SDB
SLNAC
CHAPTER ONE
1.0 Problem Statement and Objectives of the Study
Due to the lengthy process and associated high costs, litigation
has earned the perception of inefficiency in the minds of the Sri
Lankan Construction Industrys stakeholders be it Contractors,
Consultants or Employers. In the early days the disputes were
settled informally at site or at senior management level by the
Contractor and the Employer with the good offices of the
Consultant (Engineer) acting as the expert of the subject.
However due to the complexity of modern construction
contracts this practice is found inadequate for a solution
acceptable to the parties to a dispute. Therefore, varieties of
Alternate Dispute Resolution (ADR) methods have been
adopted in the Sri Lankan Construction Industry while the most
common method being Arbitration. Introduction of the
Arbitration Act in 1995 facilitated the promotion of arbitration
immensely. There is a provision in the act to the effect that no
court proceedings can commence if there is an arbitration
clause in the Agreement. This made Arbitration virtually
compulsory for Sri Lankan Construction Contracts as almost all
standard contract documents adopted by Sri Lankan
Construction Industry contain an Arbitration Clause. Regulatory
functions of the Arbitration including Training of Arbitrators
were established in post 1995 period with the establishment of
institutions such as the Institute for Development of
Commercial Law (ICLP), Sri Lanka, and the National Arbitration
Center (SLNAC)
However, Arbitration in Sri Lankan Construction Industry had
drawbacks in the recent past as opined by Wijeratne (2006)
that the one of the main concerns comprised the transportation
(applying) of court procedure to arbitration, resulting in
inordinate delay and defeating the main objective of
Arbitration. He also noted that there are trends and practices
which are not compatible with modern arbitration practices in
1
1.1 Background
In the post independent era the Sri Lanka Construction Industry
has evolved from its primary stage to be abreast with the
Construction Industry in the Asia-Pacific region. Subsequent to
2
CHAPTER TWO
Review of the Focal Literature
Advantages/Dis-advantages of ADR
The literature review shows that the use of ADR has been
discussed at length. The discussions and researches conclude
that the advantages of ADR are much higher than the
disadvantages.
Gould
(2004)
identified
the following
advantages and disadvantages of ADR for which many other
writers agree with slight variations of opinion. The advantages
identified by Gould are;
Maintains a Business Relationship:
Speed
Lower Cost
Confidentially
Flexibility
Greater Satisfaction
9
linked
to
specific
date
(Permanent
or
13
16
17
Neelakandan
and
Neelakandan(2012)
observed
that
Commercial Law of Sri Lanka is almost wholly based on the
principles of English Commercial Law. Adjudication which is
much similar to DABs are widely accepted in U.K with the
18
19
20
CHAPTER THREE
Research Methodology
As previously mentioned, the Aim of this research is to
investigate the adoptability of PDABs for the major construction
work in Sri Lanka. There are two (one Nationally and one
Internationally) accepted Standard Bidding Documents
currently mandated for use in Sri Lanka by the Government of
Sri
Lanka
and
Multilateral
Development
Banks(MDB)
respectively. Therefore, researching the perceptions of the
construction industry players to adopt same became
appropriate. Furthermore the attributes influencing the dissatisfaction of the Arbitration Practice were explored and
discussed. As the perceptions of the Stakeholders of the
Sri
Lankan Construction Industry are to be identified in the study,
its most suitable approach under normal circumstances is to
have a Qualitative Approach. However due to the
comparatively small number in the related populations the
Quantitative Approach was considered to be more appropriate.
Accordingly a questionnaire survey on research questions
based on a five point Likert scale was adopted. Data have been
analyzed on Mean Rated rating method.
3.1 Review of selected literature
Learning materials provided by the University of Salford for the
dissertation indicates two different types of research. One being
the Qualitative method and the other being
Quantitative
Method.
3.1.1 Qualitative Method
Qualitative Method enforces a difficulty on a study as it is
not possible to create the control required to quantify the
result. The result of Qualitative method only represents
complex data which cannot isolate singular result or
provide generalization. The findings reflect the qualities of
phenomena rather than the quantification of findings. The
qualitative approach is inductive by its nature. Accordingly
the technique is suitable for theory building rather than
21
Judgment sample
Theoretical sample
Marshall(1996) described that Convenience Sample being
the least rigorous in terms of selection, cost and the time
but lacks quality of data and intellectual credibility. He
went on to describe that Judgment Sampling which is also
known as purposeful sample, is a common sampling
technique.
Theoretical Sample, according to Marshall is an iterative
process of qualitative study design. In this, samples are
usually theory driven to a greater or lesser extent.
Theoretical sampling necessitates building interpretative
theories from the emerging data and selecting a new
sample to examine and elaborate on this theory. It is the
principal strategy for the grounded theoretical approach
but will be used in some form in most qualitative
investigations necessitating interpretation.
There should be a definition to the unit of analysis in a
research. Unlike quantitative research which normally
requires the sample to be randomly selected, in
qualitative research samples are more often non-random,
purposeful and small in numbers. However, Marshall
(1996) found that Quantitative researchers often fail to
understand the usefulness of studying small samples. This
is related to the misapprehension that generalizability is
the ultimate goal of all good research. According to Lund
Research Ltd (2012) non-probability sampling represents a
valuable group of sampling techniques that can be used in
research that follows qualitative, mixed methods, and
even quantitative research designs. Rather than using
probabilistic methods (i.e., random selection) to generate
a sample, non-probability sampling requires researchers to
use their subjective judgments, drawing on theory (i.e.,
the academic literature) and practice (i.e., the experience
of the researcher and the evolutionary nature of the
research process). Unlike probability sampling, the goal is
24
25
26
Strong
ly
Disagr
ee
Arbitratio
n is the
best form
of
Alternativ
e Dispute
Resolutio
n.
20.45
%
9
Disagr
ee
Neither
Agree
nor
Disagr
ee
Agree
Strong
ly
Agree
Tota
l
Averag
e
Rating
27.27%
12
20.45%
9
11.36
%
5
20.45
%
9
44
2.84
44
125/44 = 2.84
Ranking
Ranking questions calculate the ranking average for each
answer choice to determine which answer choice was
most preferred overall. The answer choice with the largest
ranking average is the most preferred choice.
The ranking average is calculated as follows, where:
w =weight of ranked position
x = response count for answer choice
27
29
31
32
Code A
Code B
Code C
Code D
Code E
Demographic data
Findings
Concluding Remarks
37
CHAPTER FOUR
Data Analysis and Findings
The ordinal data collected as described in Chapter four will
be analyzed to obtain results to ascertain the perceptions
/opinions of the respondents to each of the questions The
research questions in this connection are;
38
No of
questionnair
e sent
No of
responses
received
Code A
Code B
Code C
Code D
10
10
10
10
6
8
5
8
Percentag
e
Responde
d
60%
80%
50%
80%
39
Code E
10
60%
Research Question
Research Question
Not
satisfie
d at all
Not
satisfie
d
Cannot
say
Satisfie
d
Fully
satisfie
d
Not
satisfie
d at all
Not
satisfie
d
Cannot
say
Satisfie
d
Fully
satisfie
d
Total
Averag
e
Rating
1.83
Total
Averag
e
Rating
6
2.33
40
the
current
alternative
Dispute Resolution Method of
Arbitration practiced in Sri
Lanka Construction Industry
in respect of Procedure?
Research Question
Not
satisfie
d at all
Not
satisfie
d
Cannot
say
Satisfie
d
Fully
satisfie
d
Total
Averag
e
Rating
3.17
41
Research Question
Research Question
Not
satisfie
d at all
Not
satisfie
d
Cannot
say
Satisfie
d
Fully
satisfie
d
Not
satisfie
d at all
Not
satisfie
d
Cannot
say
Satisfie
d
Fully
satisfie
d
Research Question
Not
satisfie
d at all
Not
satisfie
d
Cannot
say
Research Question
Satisfie
d
Not
satisfie
d
Cannot
say
Satisfie
d
Fully
satisfie
d
Total
Averag
e
Rating
4.00
Total
Fully
satisfie
d
Averag
e
Rating
2.33
Not
satisfie
d at all
Total
Averag
e
Rating
4.00
Total
42
Averag
e
Rating
Research Question
2). d. What
perceptions of
Resolution Board
Acceptability of
parties?
Not
satisfie
d at all
Not
satisfie
d
Cannot
say
Satisfie
d
Fully
satisfie
d
were your
a Dispute
in respect of
Decision to
Research Question
Do
not
Agree
at all
Do
not
Agree
Cann
ot say
Agre
e
Fully
Agree
3.50
Total
Averag
e
Rating
4.50
Tota
l
Averag
e
Rating
3.83
43
Research Question
3).
b.
If
a
Dispute
Adjudication
Board
is
appointed
at
the
commencement of contract
would you consider that it will
be a waste of money to
maintain such a panel?
Research Question
Research Question
Do
not
Agree
at all
Do
not
Agree
Do
not
Agree
at all
Do
not
Agree
Cann
ot say
Do
not
Agree
at all
Do
not
Agree
Cann
ot say
Cann
ot say
Agre
e
Fully
Agree
Agre
e
Tota
l
Fully
Agree
1.83
Tota
l
Agre
e
Fully
Agree
Averag
e
Rating
Averag
e
Rating
1.67
Tota
l
44
Averag
e
Rating
3).
d.
If
a
Dispute
Adjudication
Board
is
appointed
at
the
commencement of contract
would you consider that it will
be conducive hat Dispute
Resolution Board is fully
informed about the conditions
of site that gives rise to the
dispute from outset?
Research Question
Do
not
Agree
at all
Research Question
Do
not
Agree
at all
Do
not
Agree
Cann
ot say
Do
not
Agree
Cann
ot say
Agre
e
Fully
Agree
Agre
e
4.00
Tota
l
Fully
Agree
Averag
e
Rating
3.50
Tota
l
45
Averag
e
Rating
Research Question
Research Question
Do
not
Agree
at all
Do
not
Agree
Do
not
Agree
at all
Cann
ot say
Do
not
Agree
Cann
ot say
Agre
e
Fully
Agree
Agre
e
2.67
Tota
l
Fully
Agree
Averag
e
Rating
3.17
Tota
l
Averag
e
Rating
4.17
46
Research Question
Do
not
Agree
at all
Do
not
Agree
Research Question
Cann
ot say
Do
not
Agree
at all
Do
not
Agree
Cann
ot say
Agre
e
Agre
e
Fully
Agree
Fully
Agree
Tota
l
3.83
Tota
l
Question No 1
Question No 2
Averag
e
Rating
4.50
The above indicate the following findings concerning the perceptions of Code A - General
Contractors with C1 grading from ICTAD to the research questions Summary of same is
set out below
Averag
e
Rating
47
Question No 3
Question No 4
Agreement level about the enforceability of DRB decisions, in the light of DRB
decisions can be challenged in Arbitration. It will be easy as DRBS have made
their decisions being fully conversant with site conditions represents an average
rating of 3.50 and considered to neither high nor low.
Agreement level about the enforceability of DRB decisions, in the light of DRB
decisions can be challenged in Arbitration. It will be a waste of Time and Money
that Arbitration will re-open and have new proceedings that will take more time
and incur more cost. Site conditions, represents an average rating of 2.67 and
considered to be low.
Agreement level about the enforceability of DRB decisions, in the light of DRB
decisions can be challenged in Arbitration. DRB process can replace the
arbitration if necessary legislative provisions are made in law, represent an
average rating of 3.17 and considered to be neither high nor low.
Question No 5
48
Research Question
Not
satisfi
ed at
all
Not
satisfi
ed
Canno
t say
Satisfi
ed
Fully
satisfi
ed
Total
Research Question
Not
satisfi
ed at
all
Not
satisfi
ed
Canno
t say
Satisfi
ed
Fully
satisfi
ed
Total
Avera
ge
Rating
2.00
Avera
ge
Rating
1.88
49
Research Question
Not
satisfi
ed at
all
Not
satisfi
ed
Canno
t say
Satisfi
ed
Fully
satisfi
ed
Total
Research Question
Not
satisfi
ed at
all
Not
satisfi
ed
Canno
t say
Satisfi
ed
Fully
satisfi
ed
Total
Research Question
Not
satisfi
ed at
all
Not
satisfi
ed
Canno
t say
Satisfi
ed
Fully
satisfi
ed
Total
Avera
ge
Rating
2.13
Avera
ge
Rating
2.88
50
Avera
ge
Rating
Research Question
Not
satisfi
ed at
all
Not
satisfi
ed
Canno
t say
Satisfi
ed
Fully
satisfi
ed
Total
Research Question
Not
satisfi
ed at
all
Not
satisfi
ed
Canno
t say
Satisfi
ed
Fully
satisfi
ed
Total
Research Question
Not
satisfi
ed at
all
Not
satisfi
ed
Canno
t say
Satisfi
ed
Fully
satisfi
ed
Total
4.00
Avera
ge
Rating
3.63
Avera
ge
Rating
3.50
Avera
ge
Rating
3.88
51
to parties?
Research Question
Do not
Agree
at all
Do not
Agree
Canno
t say
Agree
Fully
Agree
Total
3).
a.
If
a
Dispute
Adjudication
Board
is
appointed
at
the
commencement of contract
would you consider that it
will help to avoid dispute at
a grass root level?
Research Question
Do not
Agree
at all
Do not
Agree
Canno
t say
Agree
Fully
Agree
Total
Avera
ge
Rating
4.00
52
Avera
ge
Rating
3).
b.
If
a
Dispute
Adjudication
Board
is
appointed
at
the
commencement of contract
would you consider that it
will be a waste of money to
maintain such a panel?
Research Question
Do not
Agree
at all
Do not
Agree
Canno
t say
Agree
Fully
Agree
Total
3).
c.
If
a
Dispute
Adjudication
Board
is
appointed
at
the
commencement of contract
would you consider that it
will promote more claims by
the contractor?
Research Question
Do not
Agree
at all
Do not
Agree
Canno
t say
Agree
Fully
Agree
Total
3).
d.
If
a
Dispute
Adjudication
Board
is
appointed
at
the
commencement of contract
would you consider that it
will
be
conducive
hat
Dispute Resolution Board is
fully informed about the
conditions of site that gives
rise to the dispute from
outset?
1.75
Avera
ge
Rating
1.88
Avera
ge
Rating
4.13
53
Research Question
Do not
Agree
at all
Do not
Agree
Canno
t say
Agree
Fully
Agree
Total
Research Question
Do not
Agree
at all
Do not
Agree
Canno
t say
Agree
Fully
Agree
Total
Avera
ge
Rating
3.75
Avera
ge
Rating
2.00
54
Research Question
Do not
Agree
at all
Do not
Agree
Canno
t say
Agree
Fully
Agree
Total
Research Question
Do not
Agree
at all
Do not
Agree
Canno
t say
Agree
Fully
Agree
Total
Research Question
Do not
Agree
at all
Do not
Agree
Canno
t say
Agree
Fully
Agree
Total
Avera
ge
Rating
3.75
Avera
ge
Rating
4.13
Avera
ge
Rating
4.00
55
Research Question
Do not
Agree
at all
Do not
Agree
Canno
t say
Agree
Fully
Agree
Total
4.50
The above indicate the following findings concerning the perceptions of Code B Architects, Engineers and other consultants undertaking projects over Rs 500 Million to
the research questions Summary of same is set out below
Question No 1
Avera
ge
Rating
Question No 2
Satisfaction
concerning Dispute Resolution Board in respect of procedure
represents an average rate of 3.63 and considered neither high nor low .
56
Question No 3
Question No 4
Agreement level about the enforceability of DRB decisions, in the light of DRB
decisions can be challenged in Arbitration. It will be easy as DRBS have made
their decisions being fully conversant with site conditions represents an average
rating of 3.75 and considered neither high nor low.
Agreement level about the enforceability of DRB decisions, in the light of DRB
decisions can be challenged in Arbitration. It will be a waste of Time and Money
that Arbitration will re-open and have new proceedings that will take more time
and incur more cost. Site conditions, represents an average rating of 2.00 and
considered to be low.
Agreement level about the enforceability of DRB decisions, in the light of DRB
decisions can be challenged in Arbitration. DRB process can replace the
arbitration if necessary legislative provisions are made in law, represents an
average rating of 3.75 and considered to be on high side.
Question No 5
57
Research Question
Not
satisfi
ed at
all
Not
satisfi
ed
Canno
t say
Satisfi
ed
Fully
satisfi
ed
Total
Research Question
Not
satisfi
ed at
all
Not
satisfi
ed
Canno
t say
Satisfi
ed
Fully
satisfi
ed
Total
Research Question
Not
Not
Canno
Satisfi
Fully
Total
Avera
ge
Rating
2.00
Avera
ge
Rating
2.00
58
Avera
satisfi
ed at
all
satisfi
ed
t say
ed
satisfi
ed
Research Question
Not
satisfi
ed at
all
Not
satisfi
ed
Canno
t say
Satisfi
ed
Fully
satisfi
ed
Total
Research Question
Not
satisfi
ed at
all
Not
satisfi
ed
Canno
t say
Satisfi
ed
Fully
satisfi
ed
Total
ge
Rating
2.40
Avera
ge
Rating
2.60
Avera
ge
Rating
3.80
59
Research Question
Not
satisfi
ed at
all
Not
satisfi
ed
Satisfi
ed
Not
satisfi
ed
Canno
t say
Satisfi
ed
Not
satisfi
ed
Canno
t say
Satisfi
ed
Fully
satisfi
ed
Total
Research Question
Not
satisfi
ed at
all
Research Question
Not
satisfi
ed at
all
Fully
satisfi
ed
Canno
t say
Total
Fully
satisfi
ed
Avera
ge
Rating
3.80
Total
Avera
ge
Rating
3.00
Avera
ge
Rating
3.60
60
Research Question
Do not
Agree
at all
3).
a.
If
a
Dispute
Adjudication
Board
is
appointed
at
the
commencement of contract
would you consider that it
will help to avoid dispute at
a grass root level?
Do not
Agree
Canno
t say
Agree
Fully
Agree
Total
Fully
Agree
Total
Research Question
Do not
Agree
at all
Do not
Agree
Canno
t say
Agree
3).
b.
If
a
Dispute
Adjudication
Board
is
appointed
at
the
commencement of contract
would you consider that it
will be a waste of money to
maintain such a panel?
Research Question
Do not
Agree
at all
Do not
Agree
Canno
t say
Agree
3.80
Fully
Agree
Avera
ge
Rating
Avera
ge
Rating
2.60
Total
61
Avera
ge
Rating
3).
c.
If
a
Dispute
Adjudication
Board
is
appointed
at
the
commencement of contract
would you consider that it
will promote more claims by
the contractor?
Research Question
Do not
Agree
at all
Do not
Agree
Canno
t say
Agree
Fully
Agree
Total
Canno
t say
Agree
Fully
Agree
Total
3).
d.
If
a
Dispute
Adjudication
Board
is
appointed
at
the
commencement of contract
would you consider that it
will
be
conducive
hat
Dispute Resolution Board is
fully informed about the
conditions of site that gives
rise to the dispute from
outset?
Research Question
Do not
Agree
at all
Do not
Agree
2.80
Avera
ge
Rating
4.00
62
Avera
ge
Rating
3.60
Research Question
Do not
Agree
at all
Do not
Agree
Canno
t say
Agree
Fully
Agree
Total
Research Question
Do not
Agree
at all
Do not
Agree
Canno
t say
Agree
Fully
Agree
Total
Avera
ge
Rating
2.80
Avera
ge
Rating
3.17
63
Research Question
Do not
Agree
at all
Do not
Agree
Canno
t say
Agree
Fully
Agree
Total
Canno
t say
Agree
Fully
Agree
Total
Canno
t say
Agree
Fully
Agree
Total
Research Question
Do not
Agree
at all
Do not
Agree
Research Question
Do not
Agree
at all
Do not
Agree
Avera
ge
Rating
4.20
Avera
ge
Rating
4.20
Avera
ge
Rating
4.20
64
The above indicate the following findings concerning the perceptions of Code C Employers or Developers investing in projects over the value of Rs 500 Million on a
regular basis to the research questions Summary of same is set out below
Question No 1
Question No 2
Satisfaction
concerning Dispute Resolution Board in respect of procedure
represents an average rate of 3.80 and considered to be on the high side
Question No 3
Question No 4
Agreement level about the enforceability of DRB decisions, in the light of DRB
decisions can be challenged in Arbitration. It will be easy as DRBS have made
their decisions being fully conversant with site conditions represents an average
rating of 3.60 and considered to be on the high side.
65
Agreement level about the enforceability of DRB decisions, in the light of DRB
decisions can be challenged in Arbitration. It will be a waste of Time and Money
that Arbitration will re-open and have new proceedings that will take more time
and incur more cost. Site conditions, represents an average rating of 2.80 and
considered to be low.
Agreement level about the enforceability of DRB decisions, in the light of DRB
decisions can be challenged in Arbitration. DRB process can replace the
arbitration if necessary legislative provisions are made in law, represents an
average rating of 4.17 and considered to be high.
Question No 5
Research Question
Not
satisfi
ed at
all
Not
satisfi
ed
Canno
t say
Satisfi
ed
Fully
satisfi
ed
Total
Avera
ge
Rating
2.00
66
Research Question
Not
satisfi
ed at
all
Not
satisfi
ed
Canno
t say
Satisfi
ed
Fully
satisfi
ed
Total
Research Question
Not
satisfi
ed at
all
Not
satisfi
ed
Canno
t say
Satisfi
ed
Fully
satisfi
ed
Total
Research Question
Not
satisfi
ed at
all
Not
satisfi
ed
Canno
t say
Satisfi
ed
Fully
satisfi
ed
Total
Avera
ge
Rating
1.63
Avera
ge
Rating
2.25
Avera
ge
Rating
4.00
67
Lanka
Construction
Industry in respect of
Acceptability of decision
to parties?
Research Question
Not
satisfi
ed at
all
Not
satisfi
ed
Canno
t say
Satisfi
ed
Fully
satisfi
ed
Total
Research Question
Not
satisfi
ed at
all
Not
satisfi
ed
Canno
t say
Satisfi
ed
Fully
satisfi
ed
Total
Avera
ge
Rating
4.00
Avera
ge
Rating
3.75
68
Research Question
Not
satisfi
ed at
all
Not
satisfi
ed
Canno
t say
Satisfi
ed
Fully
satisfi
ed
Total
Research Question
Not
satisfi
ed at
all
Not
satisfi
ed
Canno
t say
Satisfi
ed
Fully
satisfi
ed
Total
Research Question
Do not
Agree
at all
Do not
Agree
Canno
t say
Agree
Fully
Agree
Total
3).
a.
If
a Dispute
Adjudication
Board
is
appointed
at
the
commencement
of
contract
would
you
consider that it will help to
avoid dispute at a grass
root level?
Avera
ge
Rating
3.63
Avera
ge
Rating
3.75
Avera
ge
Rating
4.25
69
Research Question
Do not
Agree
at all
Do not
Agree
Canno
t say
Agree
Fully
Agree
Total
3).
b.
If a Dispute
Adjudication
Board
is
appointed
at
the
commencement
of
contract
would
you
consider that it will be a
waste
of
money
to
maintain such a panel?
Research Question
Do not
Agree
at all
Do not
Agree
Canno
t say
Agree
Fully
Agree
Total
3).
c.
If
a
Dispute
Adjudication
Board
is
appointed
at
the
commencement
of
contract
would
you
consider
that
it
will
promote more claims by
the contractor?
Research Question
Do not
Agree
at all
Do not
Agree
Canno
t say
Agree
Fully
Agree
Total
Avera
ge
Rating
1.63
Avera
ge
Rating
2.00
Avera
ge
Rating
70
3).
d.
If a Dispute
Adjudication
Board
is
appointed
at
the
commencement
of
contract
would
you
consider that it will be
conducive hat Dispute
Resolution Board is fully
informed
about
the
conditions of site that
gives rise to the dispute
from outset?
Research Question
Do not
Agree
at all
Do not
Agree
Canno
t say
Agree
Fully
Agree
Total
Research Question
Do not
Agree
at all
Do not
Agree
Canno
t say
Agree
Fully
Agree
Total
4.13
Avera
ge
Rating
4.13
Avera
ge
Rating
71
Research Question
Do not
Agree
at all
Do not
Agree
Canno
t say
Agree
Fully
Agree
Total
Research Question
Do not
Agree
at all
Do not
Agree
Canno
t say
Agree
Fully
Agree
Total
2.13
Avera
ge
Rating
4.00
Avera
ge
Rating
4.63
72
Research Question
Do not
Agree
at all
Do not
Agree
Canno
t say
Agree
Fully
Agree
Total
Research Question
Do not
Agree
at all
Do not
Agree
Canno
t say
Agree
Fully
Agree
Total
Avera
ge
Rating
4.25
Avera
ge
Rating
5.00
The above indicate the following findings concerning the perceptions of Code D - State
Agencies implementing projects over Rs 500 Million in value on a regular basis to the
research questions Summary of same is set out below
Question No 1
73
Question No 2
Satisfaction
concerning Dispute Resolution Board in respect of procedure
represents an average rate of 3.75 and considered to be on the high side.
Question No 3
Question No 4
Agreement level about the enforceability of DRB decisions, in the light of DRB
decisions can be challenged in Arbitration. It will be easy as DRBS have made
their decisions being fully conversant with site conditions represents an average
rating of 4.13 and considered to be high.
Agreement level about the enforceability of DRB decisions, in the light of DRB
decisions can be challenged in Arbitration. It will be a waste of Time and Money
that Arbitration will re-open and have new proceedings that will take more time
and incur more cost. Site conditions, represents an average rating of 2.13 and
considered to be very low.
74
Agreement level about the enforceability of DRB decisions, in the light of DRB
decisions can be challenged in Arbitration. DRB process can replace the
arbitration if necessary legislative provisions are made in law, represent an
average rating of 4.00 and considered to be high.
Question No 5
Research Question
Not
satisfi
ed at
all
Not
satisfi
ed
Canno
t say
Satisfi
ed
Fully
satisfi
ed
Total
Avera
ge
Rating
3.17
75
Research Question
Not
satisfi
ed at
all
Not
satisfi
ed
Canno
t say
Satisfi
ed
Fully
satisfi
ed
Total
Research Question
Not
satisfi
ed at
all
Not
satisfi
ed
Canno
t say
Satisfi
ed
Fully
satisfi
ed
Total
Research Question
Not
satisfi
ed at
all
Not
satisfi
ed
Canno
t say
Satisfi
ed
Fully
satisfi
ed
Total
Avera
ge
Rating
3.60
Avera
ge
Rating
3.67
Avera
ge
Rating
3.67
76
Research Question
Not
satisfi
ed at
all
Not
satisfi
ed
Canno
t say
Satisfi
ed
Fully
satisfi
ed
Total
Research Question
Not
satisfi
ed at
all
Not
satisfi
ed
Canno
t say
Satisfi
ed
Fully
satisfi
ed
Total
Research Question
Not
satisfi
ed at
all
Not
satisfi
ed
Canno
t say
Satisfi
ed
Fully
satisfi
ed
Total
Avera
ge
Rating
4.00
Avera
ge
Rating
3.33
Avera
ge
Rating
3.33
77
Research Question
Not
satisfi
ed at
all
Not
satisfi
ed
Canno
t say
Satisfi
ed
Research Question
Do not
Agree
at all
Do not
Agree
Canno
t say
Agree
Fully
Agree
Total
3).
a.
If
a
Dispute
Adjudication
Board
is
appointed
at
the
commencement of contract
would you consider that it
will help to avoid dispute at
a grass root level?
Research Question
Do not
Agree
at all
Do not
Agree
Canno
t say
Agree
Fully
Agree
Total
3).
b.
If
a
Dispute
Adjudication
Board
is
appointed
at
the
commencement of contract
would you consider that it
Fully
satisfi
ed
Total
Avera
ge
Rating
3.83
Avera
ge
Rating
3.67
Avera
ge
Rating
2.00
78
Research Question
Do not
Agree
at all
Do not
Agree
Canno
t say
Agree
Fully
Agree
Total
3).
c.
If
a
Dispute
Adjudication
Board
is
appointed
at
the
commencement of contract
would you consider that it
will promote more claims by
the contractor?
Research Question
Do not
Agree
at all
Do not
Agree
Canno
t say
Agree
Fully
Agree
Total
3).
d.
If
a
Dispute
Adjudication
Board
is
appointed
at
the
commencement of contract
would you consider that it
will
be
conducive
hat
Dispute Resolution Board is
fully informed about the
conditions of site that gives
rise to the dispute from
outset?
Avera
ge
Rating
2.00
Avera
ge
Rating
4.00
79
Research Question
Do not
Agree
at all
Do not
Agree
Canno
t say
Agree
Fully
Agree
Total
Research Question
Do not
Agree
at all
Do not
Agree
Canno
t say
Agree
Fully
Agree
Total
Research Question
Avera
ge
Rating
2.83
Avera
ge
Rating
3.33
Do not
Agree
at all
Do not
Agree
Canno
t say
Agree
Fully
Agree
Total
Avera
ge
Rating
1.67
80
legislative provisions
made in law.
are
Research Question
Do not
Agree
at all
Do not
Agree
Canno
t say
Agree
Fully
Agree
Total
Research Question
Do not
Agree
at all
Do not
Agree
Canno
t say
Agree
Fully
Agree
Total
Research Question
Do not
Agree
at all
Do not
Agree
Canno
t say
Agree
Fully
Agree
Total
Avera
ge
Rating
4.33
Avera
ge
Rating
3.83
81
Avera
ge
Rating
4.33
The above indicate the following findings concerning the perceptions of Code E Arbitrators, Construction Lawyers and Claim consultants involved in Construction Claims
for Major Works to the research questions Summary of same is set out below
Question No 1
Question No 2
Question No 3
82
Board is fully informed about the conditions of site that gives rise to the dispute
from outset represents an average rate of 4.00 and considered to be high.=
Question No 4
Agreement level about the enforceability of DRB decisions, in the light of DRB
decisions can be challenged in Arbitration. It will be easy as DRBS have made
their decisions being fully conversant with site conditions represents an average
rating of 2.83 and considered to be low.
Agreement level about the enforceability of DRB decisions, in the light of DRB
decisions can be challenged in Arbitration. It will be a waste of Time and Money
that Arbitration will re-open and have new proceedings that will take more time
and incur more cost. Site conditions, represents an average rating of 3.33 and
considered neither high nor low.
Agreement level about the enforceability of DRB decisions, in the light of DRB
decisions can be challenged in Arbitration. DRB process can replace the
arbitration if necessary legislative provisions are made in law, represents an
average rating of 1.67 and considered very low.
Question No 5
83
CHAPTER FIVE
Conclusions, Discussion and
Recommendations
Based on the findings upon analysis of data in the CHAPTER
FOUR, the Chapter five discusses the conclusions that can be
derived on same. This was done with a view to deriving
conclusions in line with the identified five attributes for
successful and well received ADR method as discussed in the
Chapter One. Discussion was focused on identifying the
reasons for varying perceptions by sub-groups and to
ascertain if there are common perceptions.
5.1 Conclusions
The Findings in the chapter four have been summarized to
identify the levels of agreement to each of the question by
different sub-groups of the population as set out below. Mean
Average Rating has been used as the criteria.
Question 1a.- Are you satisfied with the current
alternative Dispute Resolution Method of Arbitration
practiced in Sri Lanka Construction Industry in respect
of Time
Sub-group Code
Code A
Code B
Code C
Code D
Code E
Mean
average
Rating
1.83
2.00
2.00
2.00
3.17
Conclusion
very low
low
low
low
neither high nor
low
Assessment
84
It appears from the above that all sub-groups are not satisfied
with the time taken for arbitration except for sub group of legal
background; however they are also unable to express a firm
view.
Sub-group Code
Code A
Code B
Code C
Code D
Code E
Mean
average
Rating
2.33
1.88
2.00
1.63
3.60
Conclusion
low
Very low
low
Very low
On the High side
Assessment
Other than the sub-group E constituting persons with legal back
grounds the sub-groups are not satisfied with cost in connection
with Arbitration.
Sub-group Code
Mean
average
Rating
Conclusion
85
Code A
3.17
Code B
Code C
Code D
Code E
2.13
2.40
2.25
1.67
Assessment
No sub-group except the contractors, were satisfied with cost in
connection with Arbitration. Group A, the contractors too were
unable to decide.
Question 1d. Are you satisfied with the current
alternative Dispute Resolution Method of Arbitration
practiced in Sri Lanka Construction Industry in respect
of Acceptability of decision to parties?
Sub-group Code
Code A
Code B
Code C
Code D
Code E
Mean
average
Rating
2.33
2.88
2.60
4.00
3.67
Conclusion
low
low
low
high
On the high side
Assessment
As appear from the above sub-groups A, B and C are not
satisfied with the acceptability of Arbitration decisions while
sob-groups D and E are harboring a different view.
Mean
average
Conclusion
86
Code A
Code B
Code C
Code D
Code E
Rating
4.00
4.00
3.80
4.00
4.00
high
high
high
high
high
Assessment
There is a unanimous agreement among the sub-groups that
DRBs are fast in dispute resolution.
Sub-group Code
Code A
Code B
Code C
Code D
Code E
Mean
average
Rating
4.00
3.63
3.80
3.75
3.33
Conclusion
high
On the high side
On the high side
On the high side
Neither high nor low
Assessment
It is generally accepted by all sub-groups that procedure for
DRB being satisfactory.
Conclusion
87
Code A
Code B
Code C
Code D
Code E
3.50
3.50
3.00
3.63
3.33
Assessment
It appears from the above that all sub groups are neither happy
nor unhappy about the cost of DRBs.
Sub-group
Code
Code A
Code B
Code C
Code D
Code E
Mean
average
Rating
4.50
3.88
3.60
3.75
3.83
Conclusion
On
On
On
On
high
the high
the high
the high
the high
side
side
side
side
Assessment
There is a satisfaction in all sub groups regarding the
acceptability of decisions by DRBs in their contracts.
88
Sub-group
Code
Code A
Code B
Code C
Code D
Code E
Mean
average
Rating
3.83
4.00
3.80
4.25
3.67
Conclusion
Assessment
It can be derived from the above that all sub-groups consider
that appointment of a DRB at the commencement of contract
can avoid dispute at the grassroots level.
Sub-group
Code
Code A
Code B
Code C
Code D
Code E
Mean
average
Rating
1.83
1.75
2.60
1.63
2.00
Conclusion
Very low
Very low
low
Very low
low
Assessment
89
Question3.c
If a Dispute Adjudication Board is
appointed at the commencement of contract would you
consider that it will promote more claims by the
contractor?
Sub-group
Code
Code A
Code B
Code C
Code D
Code E
Mean
average
Rating
1.67
1.88
2.00
2.00
2.00
Conclusion
Very low
Very low
low
low
low
Assessment
None of the sub-group considers that appointment of a DRB at
the commencement would promote more claims by the
contractors.
Mean
average
Rating
4.00
4.13
4.00
4.13
4.00
Conclusion
High
high
high
high
high
90
Assessment
All sub groups are of the view that appointment of a DRB at the
outset is conducive as the DRB will be well informed to resolve
a dispute.
Question 4.a
What are your views about the
enforceability of DRB decisions, in the light of DRB
decisions can be challenged in an Arbitration. It will be
easy as DRBS have made their decisions being fully
conversant with site conditions?
Sub-group
Code
Code A
Code B
Code C
Code D
Code E
Mean
average
Rating
3.50
3.75
3.60
4.13
2.83
Conclusion
Assessment
While sub-groups B, C and D seems to agree, sub-group E is not
convinced that DRB decisions based on knowledge at site level
matter in an Arbitration.
Mean
average
Rating
Conclusion
91
Code A
Code B
Code C
Code D
Code E
2.67
2.00
2.80
2.13
3.33
low
low
low
low
low
Assessment
The perception of the entire population that it is not a waste of
money to have a DRB despite that the Arbitration can set aside
DRB decisions is apparent from the above
Question 4.c. What are your views about the
enforceability of DRB decisions, in the light of DRB
decisions can be challenged in an Arbitration. DRB
process can replace the arbitration if necessary
legislative provisions are made in law.
Sub-group
Code
Code A
Code B
Code C
Code D
Code E
Mean
average
Rating
3.17
3.85
4.17
4.0
1.67
Conclusion
Assessment
The mixed response indicates that the aspersions of sub-groups
vary. Legal persons view is quite different to that of other subgroups. However the majority appears to be of the view that
DRBs can replace Arbitration.
Sub-group
Code
Code A
Code B
Code C
Code D
Code E
Mean
average
Rating
4.17
4.13
4.20
4.00
4.33
Conclusion
high
high
high
high
high
Assessment
The data appearing above indicates that all-sub-groups of the
population are in unanimous agreement that there should be a
Regulatory body to improve the performance of DRBs.
Mean
average
Rating
3.83
4.00
4.20
4.25
Conclusion
On high side
high
high
high
Code E
3.83
On high side
Assessment
As seen from the above there is a general copiousness that
DRBs should be recognized as an alternative to Arbitration.
However, some doubts appear to have in the minds of
contractors and legal persons concerning full implementation of
replacing Arbitration with DRBs but they do not reject the idea.
93
Mean
average
Rating
4.50
4.50
4.20
5.00
4.33
Conclusion
high
high
high
Very high
high
Assessment
It is clearly evident from the above, that all sub-groups of
population are in agreement to train panel members of DRBs by
ICTD or similar Government agency.
5.2 Discussion
The assessments contained in the section 5.1 of this chapter
indicate that:
It is the general perception of all sub-groups that
Arbitration process is not being satisfactory in terms with
time, procedure, cost and the acceptability of decisions.
Notable exception is that sub group D feels otherwise
supported by subgroup E to a certain extent. Interesting
to note that the two groups constitute the Public sector
Employers and sub-group E are quite alien to the routine
works of a project.
The general feeling of all sub-groups that DRB system is
satisfactory in all respects mentioned above. However a
doubt about the cost of DRB was noticed and most subgroups were unable to express a firm opinion
Perception of all sub-groups to a DRB constututed at the
commencement was unanimous and in the affirmative.
94
96
References
Abeynayake, M Weddikkara C(2013)- Special Features and
Experiences of the Full terms Dispute Adjudication Board'. As
Alternative Dispute Resolution Methods in the Construction
Industry of Sri Lanka International Conference on Building
resilience 17-19 Sep 2013 paper 375.
As
viewed
at:
http://fidic.org/bookshop/additional-resources on 20th Sep
2014.
98
as viewed at
ICRA LANKA(2013) Industry Report on Sri LankaConstruction ICRA Lanka Limited,#10-02, East Tower, World
Trade Center, Colombo 01,
Sri Lanka.
Lund Research Ltd (2014) Quantitative dissertations as
viewed at dissertation.laerd.com on 10th Dec 2014.
Mackie.C et al (2011)- Alternative Dispute Resolution Guide
lines P.13 Investment Climate Advisory Services of the World
Bank The world Bank Group 1818 H Street N.W Washington D.C
20433.
Marshall M.N.
(1996) Sampling for qualitative research
Family Practice Vol. 13, No. 6 Oxford University Press 1996.
Mendis M. (2013)- Lankan construction industry needs
standing dispute boards ACESL Ceylon Today July 29, 2013.
Neelakandan & Neelakandan (2014) Legal Systems in Sri
Lanka, www. Neelakandan & Neelakandan. compendium Law
as view at 15th Sep 2014.
100
101
Annex 1
Research Instrument
CODE
Section 1
Organization Wave
Name of Respondent
Position at the Firm
Middle Level
Senior Level
Owner/Director
Years of Experience
5 to 10 years
More than 10
years
Qualification
Bachelor Degree
Master Degree
Tear off
CODE
Section 2
1) Are you satisfied with the current alternate Dispute Resolution Method of
Arbitration practiced in Sri Lanka Construction Industry in respect of the
followings
Description
Not
satisfied
at all
Not
satisfied
Cannot
say
satisfied
Fully
satisfied
satisfied
Fully
satisfie
d
a. Time
b. Procedure
c.
Cost
d. Acceptability of decision to
parties
2) What are your perceptions of a Dispute Resolution Board in respect of
Description
Not
satisfied
at all
Not
satisfied
Cannot
say
a. Time
b. Procedure
c.
Cost
102
d. Acceptability of decision to
parties
Do not
Agree
at all
Do not
Agree
Cannot
say
Agree
Fully
Agree
Description
Do not
Agree
at all
Do not
Agree
Cannot
say
Agree
Fully
Agree
Do not
Agree
at all
Do not
Agree
Cannot
say
Agree
Fully
Agree
103
Annex 2
institution to set out procedures
and rules.
b. Dispute
Boards
should
be
recognized by law as an alternative
to the Arbitration Panel.
c.
Tear off
Section 3
Feedback Information
If you want to have a feedback on the findings of this study please indicate your e-mail address below.
Respondents e- mail address
..
Ref No:@00371724
Yes
No
Yes
No
Yes
No
Yes
No
Name of
participant:
Signature
105
Date:
Edmond Hettigoda
Annex 2
Study of Dispute resolution methods in Sri Lankan
Construction Industry with emphasis on the adoptability of
permanent Dispute Resolution Boards (PDRB) for Major
works
106
You have been invited to take part in this study as I have identified you as key player of the industry
and are belonging to one of the following categories.
1.
2.
3.
4.
b). Disagree
and I estimate that a time period of 2 days will be sufficient to fill the questionnaires. I foresee no risks
in your participating the data provided by you will be coded and no names of persons or organisations
will be disclosed.
The study attempts to make recommendations for a more efficient. Alternate Dispute resolution and if
successful it will be to the benefit of all stake holders including you.
If you have a concern or complaint to make in connection with this study or its question please contact
Edmond Hettigoda
Tel 0777554319
Or gm@swa.lk
It you still not satisfied with my answers please contract my supervisor to this .
Dr Udayangani Kulatunge
e- mail : U.Kulatunga@salford.ac.uk
If you still remain unhappy you can make a formal complaint to the Head of ant school Professor
Charles Egbu at University of Salford M54WT.
If you need feedback of this study please fill section C of the question and I will provide you with an
outcome of this study.
The data provided by you will be stored in a password protected fills accessed only by me.
Data will be retained for a period of 3 years and disposed safely thereafter.
Study is solely undertaken by and no-sponsors will be available for the study.
107
108
Annex 3
Edmond Hettigoda
Student ID:
@00371724
Dr Udayangani
Ethics
Marcus Ormerod
Kulatunge
Reviewer:
Dispute resolution methods in Sri Lankan Construction
Industry with emphasis on the adoptability of permanent
Dispute Resolution Boards (PDRB) for Major works.
Description
Decisio
n
Type 2 Approved
This is a Type 2 project. Provided that you address feedback set out above
(if any) to your Supervisors satisfaction, and that you carry out your data
collection substantially in accordance with the procedure you have
described, and using the explanatory and confirmatory documentation
supplied, then you have ethical approval for your research.
APPROVE
D
109