Settlement of disputes
(Правовое руководство по составлению строительных контрактов)
Disputes that arise under works contracts frequently present problems that do not often exist in disputes arising under other types of contracts (paragraphs 1 to 3). The mechanisms provided in the contract for the settlement of disputes might include negotiation (section B), conciliation (section C), arbitration (section E) or judicial proceedings (section F). A referee may also be authorized to settle disputes (section D).
It may be desirable for the contract to provide some means to facilitate the settlement of two OT more related claims in the same proceedings (paragraph 4).
The most satisfactory method of settling disputes is usually by negotiation between the parties (paragraphs 10 and 11). If the parties fail to settle their dispute through negotiation, they may wish to attempt to do so through conciliation before resorting to arbitral or judicial proceedings. The parties may wish to provide for conciliation under the UNCITRAL Conciliation Rules (paragraphs 12 to 15).
The parties may wish to provide for disputes that cannot legally or conveniently be settled in arbitral or judicial proceedings to be referred to a referee. The procedure followed by the referee may be quite informal and expeditious. However, there may exist only limited legal safequards to ensure that the proceedings are conducted impartially and with due care. In addition, in contrast to an arbitral award or judicial decisions, it may not be possible to enforce a decision by a referee (paragraphs 16 to 21).
Disputes arising from works contracts are frequently settled through arbitration. Arbitration may be conducted only on the basis of an agreement by the parties to arbitrate. Such an agreement may take the form of an arbitration clause included in the contract (paragraph 24). The parties may wish to compare the advantages and disadvantages of arbitral proceedings with those of judicial proceedings (paragraphs 22 and 23).
It would be advisable for the contract to indicate what disputes are to be settled by arbitration. It might also authorize the arbitral tribunal to order interim measures. It is desirable for the arbitration agreement to obligate the parties to implement arbitral decisions (paragraphs 25 to 27).
The parties may select the type of arbitration that best suits their needs. They may establish by agreement the procedural rules to govern their arbitral proceedings, such as the UNCITRAL Arbitration Rules (paragraphs 30 to 36). In addition, they may wish to settle various practical matters relating to the arbitral proceedings, including the number and appointment of arbitrators, the place of arbitration and the language of the proceedings (paragraphs 37 to 49).
Where the parties wish their disputes to be settled in judicial proceedings, it may be advisable for the contract to contain an exclusive jurisdiction clause to reduce the uncertainties connected with judicial settlement. The validity and effect of the exclusive jurisdiction clause should be considered in the light of the law of the country of the selected court, as well as the law of the countries of the two parties (paragraphs 50 to 53).