Addis Ababa University Addis Ababa Institute of Technology School of Civil & Environmental Engineering Construction Law &

Contract Course Construction Claims & Disputes Profile

No
I.

Description Claims Management

Cause
Right Based

Base
Contract

Remedial Rights
Time or financial or both or others

Remarks
The remedies may apply to the contractors & the employers claims; Applicable law being based on contract law; extra-contractual law; unjust enrichment law; and other laws

Illustration: Variation claims; measurement claims; acceleration related claims; termination for employers convenience related claims; Default Based

Applicable Law

Contract

Time or financial or both or others

Other remedial rights may include: termination of contract; suspension of execution of the project works; reduction of the progress of the works; substitutionary performance of contract;

Illustration:

Delay caused by the contractor or the

Organized by: Zewdu Tefera Worke, Environmental & Engineering Contracts Lawyer

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delay claims; disruption claims; payment related claims; defect claims; Applicable Law specific or compulsory performance of contract; cancellation of contract; general damages; compensation; restitution; and others;

employer; payment claims as related to non-payment or delayed payment; defect related claims related to construction or workmanship; The first three remedial rights are legal remedies for breach of contractual obligation; see Article 1771 ff of the Civil Code; compensation being a remedial right as related to extra-contractual claims; see Article 2027 ff of the Civil Code; restitution being a remedial right as related to unjust enrichment (quantum mereuit claims); see Article 2162 ff of the Civil Code

Event/Risk Related

Contract

Time or financial or both or others

Illustration: Force majeure related claims; adverse weather related claims; adverse ground conditions related claims; change in legislation claims; market driven cost related claims;

Applicable Law

specific or compulsory performance of contract; cancellation of contract; general damages; compensation; restitution; and others;

The first three remedial rights are legal remedies for breach of contractual obligation; compensation being a remedial right as related to extracontractual claims; restitution being a remedial right as related to unjust enrichment (quantum mereuit claims);

Organized by: Zewdu Tefera Worke, Environmental & Engineering Contracts Lawyer

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II.

Disputes Resolution Methods

Settlement Subsystem Methods Role Player(s) Forum Common Features process design & enforcement; outcome control; interest based; win-win-scenario; room for emotion management; relationship preservation; Negotiation The disputing parties themselves Private justice system Regulated under Article 3307-3317 of the Civil Code (Compromise) Specific Features: process fully designed & enforced by the disputing parties; outcome of the dispute fully controlled by the disputing parties; interest based; promotes win-win scenario; concerns for relationship preservation between the disputing parties; Mediation The disputing parties themselves & the mediator Role of the mediator: facilitative; thus passive Private justice system No legal regulation yet but contractual; Specific Features: assisted negotiation; process jointly designed & but enforced by the mediator; outcome of the dispute fully controlled by the disputing parties; interest based; promotes win-win scenario; concerns for preservation of future relationship between the disputing parties; high room for emotion management; Conciliation The disputing parties themselves & the conciliator: role of the conciliator: Private justice system Regulated under Article 3318-3324 cum Article 3307Specific Feature: assisted negotiation; process jointly designed & but enforced by the conciliator; outcome of the dispute fully controlled by the disputing parties;

Organized by: Zewdu Tefera Worke, Environmental & Engineering Contracts Lawyer

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facilitative; evaluative; persuasive; predictive; suggestive; thus active

3317 of the Civil Code;

interest based; promotes win-win scenario; concerns for preservation of future relationship between the disputing parties; some room for emotion management;

Judgmental Sub-system

Common Features: partial or no process design; no process enforcement; no outcome control; right based process; win-lose scenario; no relationship preservation; no space for emotion; Specific Features: consensual; real time dispute resolution subsystem; less formal; less complex; process jointly designed & but enforced by the adjudicator; outcome of disputes fully controlled by the adjudicator(per his/her decision or recommendation); right-based solution to the disputes; win-lose scenario; no preservation of future relationship between the disputing parties; no room for emotion management; Arbitration The Arbitrator Private justice system Regulated under Article 3325-3346 of the Civil Code & the Civil Procedure Code; Specific Features: consensual; less formal; complex compared to adjudication; non-real time dispute resolution subsystem; process jointly designed & but enforced by the adjudicator; outcome of disputes fully controlled by the arbitrator(per his/her award);

Adjudication

The Adjudicator

Private justice system No legal regulation yet but contractual;

Organized by: Zewdu Tefera Worke, Environmental & Engineering Contracts Lawyer

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right-based solution to the disputes; win-lose scenario; no preservation of relationship; no room for emotion management; Litigation The Judge Public justice system (the judiciary or the Court); regulated by & provided under the federal constitution & the regional constitutions & other applicable federal or regional or local statutory laws; Specific Features: compulsory; highly formal; complex; non-real time dispute resolution sub-system; process regulated by civil procedure code & enforced by the court/judge; outcome of disputes fully controlled by the judge(per his/her judgment); right-based process & solution to the dispute; promotes win-lose scenario; no concern for preservation of future relationship between the disputing parties; no room for emotion management;

Organized by: Zewdu Tefera Worke, Environmental & Engineering Contracts Lawyer

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