Assignment Questions on Disputes Resolution Legal Studies
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Words: 2000
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Question 1
Contractor C is building a bridge from Hong Kong Island to Lantau Island for developer D. The construction contract between C and D provides that any dispute arising from the contract should first be referred to adjudication which is subject to review after completion of the project by arbitration in Hong Kong if any one party so requested. Professor P, a well-known professor in structural design, is named as the adjudicator in the contract. Recently, C and D had a dispute related to the quantity of paint used in the bridge. The dispute has been referred to Professor P. As specified in the contract he will give a decision within 55 days after C and D submits their documentary evidence to him.
(a) (i) C is not satisfied with the adjudicator’s qualification as he is an expert in structural design and not in quantity surveying. Can C nominate another person to act as the adjudicator?
(ii) After adjudication, if C does not want to wait after completion of the project for arbitration to review the adjudicator’s decision, can C and/or D resolve this dispute by other alternative dispute resolution method(s) which is/are not specified in the contract?
(iii) If so, what is the basis of the jurisdiction for adopting other dispute resolution method(s)?(24 marks)
(b) What is your comment about suitability of appointing Professor P as the adjudicator to resolve the current dispute?
(c) It has been said only “rough justice” would be obtained under adjudication. Please discuss the enforceability of an adjudication decision and the court’s attitude regarding enforceability of such decision. Please provide authorities to support your answer.
Question 2
“The Development Bureau has just issued a draft Technical Circular and a draft booklet of SOP Provisions in subcontracts to stakeholders for consultation. According to the draft documents, Government will introduce SOP Provisions in all new public works contracts for tenders issued from July or August 2021 by revising the Additional Conditions of Contract or Special Conditions of Contract clauses.” Alert: Stakeholders Consultation – Implementation of the Spirit of Security of Payment Legislation (SOPL) in Public Works Contracts, Ian Cocking, Partner, Cocking & Co LLP, 18 March 2021 Based on the June 2015 SOPL Consultation Document, please discuss the pros and cons for resolving disputes by adjudication.
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