Dispute Dissertation

ContentsFrom page to Page

Dedication

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Abstract

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Abbreviations

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CHAPTER ONE Introduction Problem Statement and Objectives of the Study

1.0 Problem Statement and Objectives of the Study1.1 Background1.2 Conceptual Framework1.3 Organization of the Study

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CHAPTER TWO - Review of the Focal Literature2.1 History of Alternate Dispute Resolution2.2 Types of ADRs 2.3 Dispute Review Boards (DRBs)2.4 Dispute Resolution Board Foundation.2.5 Use of DRBs in Sri Lankan Construction Industry2.6 Unique Features of Permanent DRB

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CHAPTER THREE - Research Methodology3.1 Review of selected literature3.2 Identification of Populations3.3 Selection of Samples3.4 Formulation of the Survey Instrument 3.5 Data collection3.6 Data Analysis

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CHAPTER FOUR - Data Analysis and Findings4.1 Response Rate4.2 Data Analysis

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CHAPTER FIVE - Conclusions, Discussion and Recommendations5.1 Conclusions5.2 Discussion5.3 Recommendations

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References

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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.

ABSTRACTThe 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 - Alternate Dispute Resolution DAB- Dispute Adjudication Boards DRB- Dispute Resolution Boards DRBF - Dispute Resolution Board Foundation FIDIC- The International Federation of Consulting Engineers ICC - International Chamber of Commerce ICLP- Institute for Development of Commercial LawICTAD- TheInstitute for Construction Training and DevelopmentMDB - Multilateral Development BanksNCASL- National Construction Association of Sri Lanka PDAB- Permanent Dispute Adjudication Board SDB- Standard Bidding Documents SLNAC- Sri Lanka National Arbitration Center

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CHAPTER ONE

1.0 Problem Statement and Objectives of the StudyDue 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 the developed countries. Abeynayake & Weddikkara (2013) observed that dissatisfaction being due to the perceived complexity, slowness and expense of the Arbitration Process.Pre-Arbitral status of the Engineers decision has been removed from the Contract documents published recently by the Institute of Construction Training and Development (ICTAD) in their SBD/02 2007, and in the MDB (Multilateral Development Banks) harmonized version of FIDIC Red Book (Pink Book) by the multilateral donor and lending agencies. The above constituted the vast majority of large scale contracts in Sri Lanka. Introduction of the above named contract documents required the establishment of Dispute Adjudication Boards (DAB) at the commencement of a Construction Contract.However as the concept of the Dispute Boards is new to the Sri Lankan Construction Industry, the aim of this Study is to investigate the adoptability of Permanent Dispute Adjudication Board (PDAB) in the Industry. In this context it is necessary to have the following objectives in the Study. To review the alternate dispute resolution (ADR) methods applied in large scale contract in Sri Lanka and in the other parts of the world. To examine the advantages/dis-advantages of ADR with particular emphasis on PDAB. To investigate and review the obstacles that may be encountered in adopting PDAB. To make recommendations to further improve the adoptability of PDABs in Sri Lankan Construction Industry.

1.1 BackgroundIn 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 the establishment of the Institute for Construction Training and Development (ICTAD), the National Construction Association of Sri Lanka (NCASL) was established in 1981. The establishment of both Institutions was made consequent to a World Bank funded project to establish regulatory functions as well as development of the Construction Industry in Sri Lanka. The country experienced a Construction boom with the overall policy shift to liberalize the economy, after a closed economy that prevailed up to 1977, and the need for a Regulatory Body in it was as a result of sameCurrently, Sri Lanka is evolving into a status; similar to what Asia-Pacific countries experienced in 1990 .This is as a result of the end of a 3-decade civil war, in 2009. ICRA Lanka (2011) noted that a large number of both public sector and private sector investments over 150 billion rupees (USD one billion Approx.) was estimated in the construction industry. The scales of the projects required the involvement from International Contractors and Consultants, as per the choice of the Investors. In the year 1995, Sri Lanka enacted the Arbitration Legislation No Act 11 of 1995, being the first such legislation in South-Asia Region. (Wijeratne, 2006)The Arbitration Act (No 11 of 1995) was readily embraced by the Construction Industry as an Alternate dispute Resolution (ADR) method. The Act had influenced the Alternate Dispute Resolution Methods dramatically in the Sri Lankan Construction Industry. It made Arbitration a popular means of dispute resolution in the Sri Lanka Construction Industry. Abeynayake andWeddikkara (2013).As noted previously, the Sri Lankan Construction Industry is in the process of evolving to be abreast with that of the developed countries with International Contractors and Consultants playing a substantial role. It is therefore prudent to seek speedy and inexpensive methods to resolve Construction Disputes. The Sri Lankan Construction Industry mainly uses the Standard Bidding Documents (SDB/ 02) published by the Institute of Construction Training and Development (ICTAD) and the RED Book of the International Federation of Consulting Engineers (FIDIC Red Book) for Major Construction works. Significant development in the area of dispute resolution is the introduction of the MDB (Multilateral Development Banks) harmonized version of FIDIC Red Book (Pink Book) by the multilateral donor and lending agencies. By making use of same being mandatory in their projects Multilateral Development Banks spearheaded the introduction of Dispute Resolution Boards (DRB) in the Sri Lankan Construction Industry. However, Decisions of DAB are not binding and a dis-satisfied party may refer the dispute to Arbitration as per the aforesaid Conditions of Contracts.Abeynayake. and Weddikkara (2011), have noticed significant advantages of DAB practice but have identified certain obstacles in reaping the full benefits from it. In addition, Ekanayake K. (2013) opines that it is the expectation of Sri Lankan Contractors that the DAB member appointed by the Contractor should only look after the interests of the Contractor. The dearth of competent members who fully understand the process of DRB, lack of a Legal support system, and the absence of governing procedural rules, comprised the areas of lacuna highlighted in both aforementioned publications.Since PDABs are mandatory in large scale Multilateral Bank /Donor funded projects, Sri Lankan Construction Industry is not unaware of the Advantages/Disadvantages of same. ICTAD SBD/02 was revised in 2007 to include the provision of PDAB to be in line with FIDIC Pink Book However it is not fully embraced by the Sri Lankan Construction Industry in other locally and internationally funded projects. Thus the advantages of the PDRBs remain untapped. It is therefore prudent that research be carried out to:1. Identify why the PDABs are not widely accepted as an Alternate Dispute Resolution method.2. Determine what action to be taken to eliminate obstacles that is identified under 1 above.3. Ascertain, if legislative and/or Institutional changes are required. Danuri et al (2012) identified five attributes for successful and well received ADR method as a) Faster, less procedural, cost effective & enforceableb) Regulation & governments support c) Professionalism & ethicsd) Traininge) Facility(regulatory Body) Research needs to be focused on the aforementioned attributes.

1.2 Conceptual Framework 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 in all projects became appropriate its Survey results thus constituted attitudes, opinions and behaviors and were useful in uncovering patterns and trends. In order to quantify the study problem by way of generating numerical data or to transform the attitudes, opinions and other variables to useful statistics and to generalize the results from sample populations Quantitative research method has been adopted. While the Judgment sampling has been be made to select the respondents. Questionnaire survey consisting Structured Questions has been formulated. Responses were called for in a Likert Scale (five point). Data Analysis was made on the basis of Mean Weighted Rating. As the survey studied the known variables such as years of experience in the industry; level at the management structure variation sampling method was applied.

1.3 Organization of the StudyThe study has been presented in five Chapters. Chapter one has enumerated the introduction, problem statement, and organization of the study. Chapter two dealt with review of literature related to Alternate Dispute Resolution (ADR) methods with emphasis of PADBs. The Methodology and procedure for selecting sample populations and data gathering are presented in the Chapter three. Chapter four shows the results of data analysis and the outcome form the study. Chapter five contains a summary of the study and its findings, conclusions, a discussion and recommendations.

CHAPTER TWOReview of the Focal Literature

2.1 History of Alternate Dispute ResolutionDanuri et al(2012) identified that the oldest dispute resolution method being litigation. They also opined, after a literature review of the subject, that litigation, despite being capable of meting out justice, contractors resist same due to several reasons. These are not only confined to excessive costs and time delays but also to other business considerations such as fear of losing relationships and potential customers staying away. They also noted that it has been always the contractual requirements that both contracting parties to achieve settlement of dispute without going to the final and binding resolution method, such as arbitration or litigation, by firstly referring to a multi-tier dispute resolution mechanism either voluntarily or involuntarily.Mackie. et al (2011) states that the origins of Alternate Dispute Resolution goes back to 400 BC where Athens Instituted the position of a public arbitrator to relieve the workload of courtsThe history of Alternative Dispute Resolution forum at international level can be traced back from the period of Renaissance, when Catholic Popes acted as arbitrators in conflicts between European countries. Many international initiatives are taken towards alternative dispute resolution. The growth of international trade is bound to give rise to international disputes which transcend national frontiers and geographical boundaries. ADR has given fruitful results not only in international political arena but also in international business world in settling commercial disputes among many co-operative houses. ADR is now a growing and accepted tool of reform in dispute management in American and European commercial communities. ADR can be considered as a co-operative problem-solving system. Schapiro (1981), as quoted by Gould (2004) identified that there are two ends to the dispute resolution spectrum. One being litigation (Courts) and the other being Settlement. He goes on to assert that the former fits almost none of the societies. Alternative Dispute Resolution means parties attempting to resolve disputes by not resorting to litigation. Gould (2004) provided an overview of dispute resolution techniques. Tucker (2005) in his overview of Alternative Dispute Resolution Methods in the Construction Industry opined that ADR methods are powerful and effective tools. He further reasoned that most companies usually have extremely solid reasons to prefer litigation over ADR.It is therefore prudent to conclude that the practice to resort to Alternate Dispute Resolution Methods for Construction disputes is a time tested procedure by the Industry stakeholders in Construction, as they are not satisfied with the litigation process. Furthermore, Internationally accepted Contract Documents by the Federation of Consulting Engineers (FIDIC) New Engineering Contracts (NEC), Joint Contracts Tribunals (JCT) includes Arbitration as an alternative dispute resolution method.

2.2 Types of ADRs Study of literature revealed that several types of ADRs are used in the Construction Industry. Harmon (2003), Agarwal (2001). Studies by these authors have discussed at length about the alternative methods and the following have been identified as commonly practiced methods of ADRS Arbitration - one of the oldest methods of ADR and the binding nature of its award identified in most of the countries. Conciliation A method of ADR based on agreements by mutual consent. Mini-Arb- Where the neutral adviser informs the parties about the respective strengths and weaknesses of their claims. This method is normally a time bound process. Expert Assessment - System of appointing experts wherein the experts are not governed by any rules of procedures and do not give awards or judgments, but give only opinions. Dispute Review Boards (DRB) Common in long term contracts, considered as fast, inexpensive and avoids disruption of the construction work..The most popular form of ADR practiced in Sri Lanka is Arbitration, and construction disputes are generally settled through Arbitration Talgodapiliya. (2010). Whilst the Contractors and Employers adopt several other methods of ADR ,Talgodapitiya was of the view that resolving a dispute after a project has been completed, with the involvement of lawyers, Judges, Arbitrators and others who are far removed from the actual project, cause excessive costs and delays. The Association of Consulting Engineers of Sri Lanka is strongly lobbying for Permanent Dispute Boards for major contracts (value exceeding Rs 600 Million Sri Lanka. Mendis (2013)

Advantages/Dis-advantages of ADRThe 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:SpeedLower CostConfidentiallyFlexibilityGreater Satisfaction

Disadvantages identified are:I will disclose my handThere is pressure to settleImpression of weakness or liability

2.3 Dispute Review Boards (DRBs)Origin of dispute review boards goes back to the year 1975 on a tunnel project in USA. The process was reported to have received well since then and used in a number of other projects in its first decade in operation. Hydro project in Honduras, was the first International project to use DRB.Agarwal(2001) identified few interesting features in DRB which are not found in other ADR methods. First, the Dispute Review Board generally consists of three members. Second, the Employer and the Contractor, both have a right to select one member each on the Dispute Review Board. Third, the third member of the Dispute Review Board is selected by the two selected Members. Fourth, most of the actions like selection of a Member, appointment of a Member, etc., have to be taken within the prescribed time frame, but he should be approved by the parties. Fifth, the Members of the Dispute Review Board, before they can assume office, have to sign a Declaration of Acceptance. Sixth, the Dispute Review Board has power only to make Recommendations to the parties. Seventh, it is not bound by the rules of procedure or evidence. Eighth, if either party does not express its disagreement with the recommendations of the Board within 14 days of its receipt, the recommendations become final and binding on the parties to the agreement Ninth, the recommendations of the Dispute Review Board are not considered secret or confidential. The clause specifically provides that the recommendations of the Board shall be admissible as evidence in any subsequent legal or judicial proceedings between the parties like arbitration, litigation, etc. Last, if the parties so agree, a Dispute Review Board can also act as an arbitral tribunal.Abeyesinghe and Weddikkara (2013) also shared the same sentiments about DRBs when describing advantages and disadvantages of Dispute Review Board (DRB) process. Bunni(2005) identified additional advantages of DRB in detail and mentioned that DRB achieved much success in comparatively short time due to significant advantages of DRB against that of traditional methods.Mackie. et al (2011) states that the spread of DRB systems were noticed, firstly in the common law countries such as United Kingdom, Canada, Australia and New Zealand and then in emerging countries such as Sri Lanka, India and China. Sri Lanka introduced Arbitration Act No 11 of 1995. Abeyenayake and Weddikkara( 2013) found that this Act together with other established institutions such as Institute for Development of Commercial Law(ICLP), Sri Lanka Arbitration Center (SLNAC) and International Chamber of Commerce (ICC) facilitate the Alternative Dispute Resolution (ADR) in Sri Lanka. Use of other methods of ADR is informal in nature and very little reliable data is available. However, direct negotiations between the top management of the parties do happen privately to resolve disputes. The process involved in DRBs is to have an independent board of three people to evaluate the disputes as they occur in the Construction process Gould. (2004).There are three different types of Dispute Boards identified by Gould. They are:Dispute Review Boards (DRB)Dispute Adjudication Boards (DAB)Combined Dispute Boards Bunni (2005) identified that the nature of Dispute Review Board (DRB) is more consensual or amicable than other methods. The nature of DAB is of a decision making role as that of an Engineer vested in the FIDIC Red Book. The combined Dispute Boards concept was developed by International Chamber of Commerce (ICC) and it intends giving a choice of flexibility in selecting between recommendation of DRB and non-binding decision of a DAB.Bunni (2005) and several other writers identified the following varieties of dispute Boards:1.Single member Dispute Boards2.Two member Dispute Boards3.Three member Dispute Boards4.Appointment linked to specific date (Permanent or standing DB)5.Appointment linked to a dispute arisen (Ad-hoc DB)Hunt (2002) described the operation of the DRB in the following manner. A DRB is a purely contractual institution. The clause providing for the DRB in a contract needs to specify precisely how it is constituted and how it operates, including all necessary administrative arrangements. Planning and forethought will lead to smoother implementation.A DRB has two primary functions. The first is to become familiar with the project during its construction (on the assumption that the contract involves construction). The second is to resolve, efficiently and cost-effectively, any disputes referred to it during that phase. The DRB is usually set up at the commencement of the project. However, some DRBs have been constituted at other stages of a project. For example, was a member of a DRB on a major infrastructure project in Australia, which was constituted to deal with disputes arising during the operation phase after construction works were completed. The usual sort of 'model' for a DRB involves the following:1. The process commences with a call for a nomination from each party of an independent person experienced in the work being undertaken.2. The nominees must usually be acceptable to both parties. The nominees, once appointed, choose a third person to be the chairman or chairwoman3. Once appointed, members of the DRB do not act as advocates or representatives of the parties who nominated them. They participate as independent, impartial members.4. How the DRB is to operate is specified in the contract documents, or any procedural rules incorporated by reference (eg. the DRBF guidelines). The matters which should be specified include:

a)Duration and timetable for visits of the DRB to the project (eg. two days per visit, at least one visit per quarter); b)The procedure for visits; c) Information to be provided to DRB members (usually the project documents, all site meeting minutes and progress reports as they come to hand);(d) the procedure for dealing with disputes, including when and how they are to be presented and considered, in what circumstances the DRB's decision become binding, and in what circumstances reasons are or are not required;(e) administrative matters, including remuneration of the DRB members.He went on to describe advantages of DRBs indicating that The DRB process can effectively avoid risks or minimize same. The advantages can be summed up in the old adage that 'prevention is better than cure'.

2.4 Dispute Resolution Board Foundation.Dispute Resolution Board Foundation (DRBF) is an institution formed in 1996 in America dedicated to promoting the avoidance and resolution of disputes worldwide using the unique and proven Dispute Resolution Board (DRB) method. Objectives of this non-profit making entity is to provide training, set rules and procedures concerning the DRBs worldwide.They keep a track of the disputes referred to DRB method of ADR and hold conferences to promote DRBs in Construction dispute resolution.The rules of DBRF are somewhat similar to ICC, UNICTRAL in composition but yet to be recognized by International Conventions for its adoptability.

2.5 Use of DRBs in Sri Lankan Construction IndustryAs mentioned earlier, the standard conditions used in Sri Lanka using DRBs are the ICTAD SBD/02 and the FIDIC Pink Book. Both these documents mandate the use of DRBs. However the difference is that while FIDIC Pink Book stipulates the permanent DRB, the ICTAD SBD/02 calls for a single member, Ad-Hoc, DRB for the projects not exceeding the value of Rs 500 Million (USD 4 M Approx).However, for the purpose of projects over Rs 500 Million, ICTAD SBD/02 (2nd edition 2007) also stipulate three member DRB and follows the FIDIC Pink Book procedure in respect of appointment, composition etc. Features of FIDIC forms of contract(Pink Book) are Mandatory compliance with the DB provisions Generally, DB is permanently installed at project initiation and disagreements or disputes are given early attention and addressed contemporaneously without the need for the historical reconstruction of events as in arbitration. The claims and responses are more carefully and realistically prepared than in arbitration leading to a higher degree of credibility as spurious matters are eliminated. The parties could mutually agree to initially select panel members with expertise from a range of disciplines, and in the event of disputes the actual DB members could be appointed from the technical specialists or experts with appropriate skills in their fields. Not only do DBs work well, but they indeed work faster, cheaper, and in a much less contentious manner than arbitration tribunals. The decision of a DB decision is binding on the Parties upon its receipt and the parties shall comply with it without delay, notwithstanding any expression of dissatisfaction28; it is admissible as evidence as per agreement of the parties or to the extent permitted by law in subsequent arbitration or litigation.SBD/02 published by ICTAD closely resembles the FIDIC Pink Book in this respect for projects over Rs 500 M.Important point to make is that DRBs under the aforementioned Conditions of Contracts used in Sri Lanka are Dispute Adjudication Boards and their decisions are final and binding unless a party to the contract expressed its dissatisfaction within the stipulated period by the contract.Abeynayake & Weddikkara(2013) noted that In Sri Lankan construction industry, Adjudication practically proceeds mostly according to FIDIC and ICTAD conditions of contracts. At the commencement of the contract, parties agree to the appointment of an adjudicator known as the Dispute Adjudication Board (DAB) or as sole adjudicator. The adjudicator or the DAB is required to act as impartial experts and not as arbitrators. It is therefore essential that the adjudicator must only be a person suitably qualified to interpret technical and contractual matters. According to the current practice of adjudication in Sri Lanka, there are seven functions and powers of the adjudicator. The latter can be indicated as follows;1. Establish the procedure to be applied in deciding a dispute, within the procedural rule laid down.2. Decide upon the adjudicators own jurisdiction, and the scope of any dispute referred to it.3. Take the initiative and ascertaining the facts and matters required for a decision.4. Make use of their own specialist knowledge.5. Decide upon the payment of interest in accordance with the Contract.6. Decide to grant provisional relief such as interim or conservatory measures.7. Open up, review and revise any opinion, instruction, determination, certificate or valuation of the engineer related to the dispute.

2.6 Unique Features of Permanent DRB

Permanent or Standing DRB contains a unique feature that it promotes Dispute Avoidance. This can be considered as a pro-active approach whilst the Ad-Hoc DRB embraces re-active approach. Gotz (2012) has identified the dual purposes of PDRB as helping to avoid of disputes and to decide on unavoidable disputes. He went on to say that this dualistic concept has a wide acceptance throughout the world and has to some extent become the international standard in the Construction Industry.

Chapman (2006) observed that decisions of FIDIC Pink Book being coercive and binding in the interim. Chapman further noted that 98% of the decisions of PDABs did not go to Arbitration or Litigation and of the 2% that went over, 50%of same upheld the decisions of PDABs.

One of the concerns expressed by the writers that affect the use and the adoptability of PDRBs is the enforcement of PDBR/PADBs decisions.

Hunt(2002) described one such situation as follows;

DRBs are not a guaranteed recipe for a trouble-free, litigation-free project. An example of what can go wrong was the project for the construction of a portion of a subway for the Los Angeles County Metropolitan Transportation Authority, which has embroiled the process in unwelcome litigation. For two years, the Authority and its contractor litigated the status and authority of the DRB following the purported termination of the contract by the Authority.

The parties had had numerous disagreements prior to the termination. The contractor requested a DRB hearing following the notice of termination. The Authority did not participate in the hearing and argued that the DRB no longer existed by virtue of the termination of the contract. The DRB conducted a hearing without the Authority at which the DRB found that the Authority's purported termination was in breach of the contract. For a variety of reasons, including the behavior of one member of the DRB, the California Court of Appeals upheld the decision of a lower Court to remove the DRB. The behavior which was criticized by the Court in that case provides a useful checklist for appropriate conduct of DRB members, namely:

1. Private communications: communications with DRB members must be made in the presence of both parties.2. Perceived bias or lack of objectivity: DRBs have been successful primarily because of the integrity, knowledge and experience of the members and the faith of the principal and contractor in the objectivity and integrity of the members of the DRB, whose members must therefore avoid any appearance of partiality or subjectivity.3. Appearance of prejudgment of issues: Members of DRBs must decide disputes or differences which come before them based on the facts and circumstances of each particular dispute or difference.4. Advice beyond the scope of the referred dispute or difference: Members of DRBs should limit their advice or recommendations to the particular dispute or difference formally referred to the DRB. Members of DRBs are not consultants, peer reviewers or construction managers. Furnishing technical or legal advice is not the function of a DRB.

In addition many Lawyers with construction background such as Glover (2012), Charrett (2009),Gould (2004) had written about the subject of enforceability of DRB decisions. Gould is of the view that England, New Zealand, Australia and Singapore may feel more confident to enforce decisions immediately, following the approach of the domestic courts in those countries.

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 introduction of Housing Grants, Construction and Regeneration Act 1996. Hence enforcing decisions by a PDRB may not cause a serious Legal issue in Sri Lankan legal context.

However the following dis-advantages have been identified by Odigie(2009).

Dispute Boards are not arbitral tribunals and their determinations are not enforceable like arbitral awards. Under the laws of most countries, the award of an arbitral tribunal would, almost by definition, not be subject to review on the merits, whereas a decision of a Board is subject to such review While the Determination of the Dispute Boards may become contractually binding on the parties they are not enforceable at law, as such. The DB has not gained international acclaim. Dispute resolution must be properly tailored, otherwise due to uncertainty of dispute types and the required expertise, a large panel of experts in related fields must be maintained during construction. The DBs mission is limited to the contracts life, thus a DB clause does not survive the nullity of the contract. An arbitral tribunal (appointed to hear the dispute de novo) is totally free to consider or disregard the recommendation of the DB.

Interestingly it is reported in DBRF forum that JICA conducted DB promotion seminars and surveys with Japanese ODA loan recipient agencies in Phnom Penh, Hanoi, Jakarta, Dhaka, and Colombo in years 2009/2010. However, the outcome of same is little known.

Literature review shows that having a team of experts readily available to address any issue that may arise in a construction contract will help same not to be grown to a proportion of a fully-fledged dispute thus it can minimize dis-agreements that may otherwise affect the stakeholders of a project.

CHAPTER THREEResearch MethodologyAs 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 dis-satisfaction 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 literatureLearning 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 theory testing. One of the criticisms of the qualitative approach is that the views of the researcher influences the findings produced by qualitative techniques thus, the findings are not considered to have objectivity. Action research introduced to counter this omission. However action research is considered to be an invasive technique since the researcher deliberately creates a change and learns from the involvement in the real world scenario being observed. The researcher does not remain disinterested or independent, but acknowledges his role and tries to understand qualitatively the nature of his contribution to the phenomenon being observed. The main issue with the action research is to produce findings which can be generalized and the result may be challenged under scientific scrutiny. 3.1.2 Quantitative MethodThe quantitative approach, also known as the scientific method, is based on the assertion that there is a single reality which is the objective. In a quantitative approach it is possible to maintain a distance from the subject. This is highlighted by the fact that the researcher portrays an image of a dis-interested party and makes the study a positivistic ideal. Quantitative approaches are considered to be repeatable, and capable of isolation from reality without compromising the cause and effect being researched. Concepts are derived from deduction of the evidence. It is therefore evident that results can be quantified. This makes the approach being suitable to testing of a theory.3.1.3 Surveys and QuestionnairesSurveys or questionnaires are popular methods to collecting data for theory testing. The researcher uses a prescribed conceptual frame of reference, and the collection of the data is designed to populate the conceptual framework. There are a number of approaches including questionnaires, interviews, the examination of documentary evidence, observational studies, the review of diaries, and schedules. Questionnaires and Interviews are commonly used by the researchers in their studies.3.1.4 SamplingSample size and the representativeness of the sample play a vital role in a successful data collection. In order that the researcher analyze the data confidently it is vital that sufficient respondents to be selected to maintain the representativeness. IThere are several methods to select the sample size and to determine its representativeness. Marshall(1996) observed that Choosing a study sample is an important step in any research project since it is rarely practical, efficient or ethical to study whole populations. The aim of all quantitative sampling approaches is to draw a representative sample from the population, so that the results of studying the sample can then be generalized back to the population. The selection of an appropriate method depends upon the aim of the study. Sometimes less rigorous methods may be acceptable, such as incidental or quota samples, but these methods do not guarantee a representative sample. The most common approach is to use random, or probability samples. In a random sample the nature of the population is defined and all members have an equal chance of selection. Stratified random sampling and area sampling are variants of random sampling, which allow subgroups to be studied in greater detail.There are three main types of sampling used by the researchers, they are: Convenience sample Judgment sample Theoretical sampleMarshall(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 not to achieve objectivity in the selection of samples. When following a qualitative research design, non-probability sampling techniques, such as purposive sampling, can provide researchers with strong theoretical reasons for their choice of units (or cases) to be included in their sample. Purposive sampling, also known as judgmental, selective or subjective sampling, reflects a group of sampling techniques that rely on the judgment of the researcher when it comes to selecting the units (e.g., people, cases/organizations, events, pieces of data) that are to be studied. These purposive sampling techniques include maximum variation sampling, homogeneous sampling, typical case sampling, extreme (or deviant) case sampling, total population sampling and expert sampling. Each of these purposive sampling techniques has a specific goal, focusing on certain types of units, all for different reasons. The different purposive sampling techniques can either be used on their own or in combination with other purposive sampling techniques.

3.1.5 Data analysisSurvey monkey (2013) explains the Mean weighted rating as appear below.Rating ScaleRating Scale questions calculate a weighted average based on the weight assigned to each answer choice. If needed, weight of each answer can be changed, even after the survey has collected responses. The rating average is calculated as follows, where:w = weight of answer choicex = response count for answer choicex1w1+x2w2+x3w3...xnwn

TotalIf an N/A column is on Rating Scale question, any N/A responses will not factor into the rating average. If a 5-point rating scale question has been used. The weights assigned to each answer choices are shown in parenthesesStrongly Disagree (1)Disagree (2)Neither Agree nor Disagree (3)Agree (4)Strongly Agree (5)If the research question is What is your view to the statement Arbitration is the best form of Alternative Dispute Resolution

Strongly DisagreeDisagreeNeither Agree nor DisagreeAgreeStrongly AgreeTotalAverage Rating

Arbitration is the best form of Alternative Dispute Resolution.20.45%927.27%1220.45%911.36%520.45%9442.84

After collecting responses to the survey, the results will look something like this.

The average rating of 2.84 indicates that the average sentiment among respondents is that Arbitration is not the best form of Alternative Dispute. The average rating was calculated as follows:(9*1)+(12*2)+(9*3)+(5*4)+(9*5)

44

125/44 =2.84

RankingRanking 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 positionx= response count for answerchoicex1w1+x2w2+x3w3...xnwn

TotalWeights are applied in reverse. In other words, the respondent's most preferred choice (which they rank as #1) has the largest weight, and their least preferred choice (which they rank in the last position) has a weight of 1. The default weights cannot be changed.For example, if a Ranking question has 5 answer choices, weights are assigned as follows: The #1 choice has a weight of 5 The #2 choice has a weight of 4 The #3 choice has a weight of 3 The #4 choice has a weight of 2 The #5 choice has a weight of 1Weights are applied in this way to ensure that when the data is presented on a chart, it's clear which answer choice is most preferred.If N/A option is on the Ranking question, any N/A responses will not factor into the ranking average.3.2 Identification of populationsThe unit of analysis for this research is the construction industry players or the social reality contingent therefrom. This forms the paradigm to be studied with regard to the perceptions of the Players towards fully embracing the use of PDRBs in major construction contracts in Sri Lanka.The study is mainly focused on the adoptability of Permanent Dispute Resolution Boards for Major works in the Sri Lankan Construction Industry. it is observed that the populations falling into the study preview is comparatively small. They belong to the following five sub-groups General Contractors with C1 grading from ICTAD permitted to undertake Project over the value of Rs 500 Million (USD 4 Million approx.) Architects, Engineers and other consultants undertaking projects over Rs 500 Million. There is no national grading system available but relevant Professional Bodies regulate their practices. Employers or Developers investing in projects over the value of Rs 500 Million on a regular basis State Agencies implementing projects over Rs 500 Million in value on a regular basis. This sub-group mainly handles Donor funded projects which are mostly Infrastructure oriented. Arbitrators, Construction Lawyers and Claim consultants involved in Construction Claims for Major Works. The estimated populations of the afore mentioned sub-groups are as follows General Contractors with C1 grading from ICTAD has a population of fifty two as per the ICTAD database. However there are only about ten actively handling or have handled contracts over Rs 500 Million in the recent past. It is generally known that Architects, Engineers and other consultants undertaking projects over Rs 500 Million has a population of about twenty. There is no reliable database available for this sub-group. Employers or Developers investing in projects over the value of Rs 500 Million on a regular basis is also limited to about twenty. Here too no reliable database is available State Agencies implementing projects over Rs 500 Million in value on a regular basis has a population of about twenty five. Ceylon Electricity Board, National Water Supply and Drainage Board, Sri Lanka Ports Authority, Road Development Authority, and the Airport and Aviation Authority are some of them. Department of Education, Ministry of Health, Ministry of Economic development, Irrigation Department are the other line ministries that implement major works. It is generally known that the population of the sub-category of Arbitrators, Construction Lawyers and Claim consultants involved in Construction Claims for Major Works is not more than thirty. There is no reliable database to verify accuracy.3.3 Selection of SamplesDespite commonly being used for qualitative research, Judgment Sampling has been opted to select the samples from populations. Marshall(1996) opined that , if the subjects are known to the researcher, they may be stratified according to known public attitudes or beliefs, and during interpretation of the data it is important to consider subjects who support emerging explanations and, more importantly, subjects who disagree (confirming and disconfirming samples). The main objective of selecting judgment sampling is to focus on particular characteristics of an identified population of interest that can best answer research questions. This described method represents Maximum Variation sampling. Accordingly selecting the samples were done on the following basis.As all populations identified had not more than thirty in number, ten from each sub-category was selected as probable respondents. Judgment sampling method was employed to select the ten respondents from each sub-category. The respondents must have a minimum of five (5) years experience in the construction industry. This criterion has been adopted in a similar research conducted by Abeynayake and Weddikkara (2013).The respondents ideally are professionals from the industry who are routinely involved in the business of administration and working with construction contracts. The Managing Director or Project Manager of a Construction company, or other persons such as the Contract Manager falls into this category. Cheung and Suen (2002) considered that these respondents, having the experience, knowledge, good skills and senior managerial positions in the industry were essential, so that their views provided a good reflection in the field of research However, due to time and cost constraint, it would be difficult for this study to use the entire population in the quest of gaining knowledge about something Sekaran (2006). This is to limit the scope of the study within a manageable amount of data. Respondents will be selected from organizations handling construction contracts over Rs 500million (USD 4.0 Million) each. This is following the ICTAD threshold for Major contracts in Sri Lanka.

3.4 Formulation of the Survey Instrument SNAP Surveys (2014) describe the objectives of a quantitative research as:In a quantitative research the objective is to quantify the problem by way of generating numerical data or data that can be transformed into useable statistics. It is used to quantify attitudes, opinions, behaviors, and other defined variables and generalize results from a larger sample population. Quantitative Research uses measurable data to formulate facts and uncover patterns in research. Quantitative data collection methods are much more structured than Qualitative data collection methods. Quantitative data collection methods include various forms of surveys online surveys, paper surveys, mobile surveys and kiosk surveys, face-to-face interviews, telephone interviews, longitudinal studies, website interceptors, online polls, and systematic observations. A structured Questionnaire has been prepared to include questions that will reveal perceptions of the respondents on a several aspects related to adoptability of PDRB or PDAB in the Sri Lankan Construction Industry. Responses were called for on a five point Likert scale. There were five main questions covering the areas such as;1. Satisfaction level of the respondents with regard to Arbitration process currently practiced in Sri Lanka with regard to: Speed of resolution of a dispute Procedure of the Arbitration Cost of Arbitration Acceptability of the decision of Arbitration

2. Perceptions of Respondents concerning Speed of resolution of a dispute by a DRB Procedure of the DRB Cost of DRB Acceptability of the decision of DRB

3. If permanent DRB provisions are made in the Contract what will be the opinions of the respondents in respect of: Helping to avoid disputes at grassroots level It will be a waste of money to maintain such a high level panel It will promote more disputes It will be conducive that Dispute Resolution Board is fully informed about the conditions of site that gives rise to the dispute from outset.

4. What are the respondents views about the enforceability of DRB decisions, in the light of DRB decisions can be challenged in an Arbitration

Enforceability will be easy as DRBS have made their decisions being fully conversant with site conditions in a more informed manner 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. DRB process can replace the arbitration if necessary legislative provisions are made in law

5. To improve DRBs respondents ideas were called for concerning: Dispute Boards should have an institution to set out procedures and rules. Dispute Boards should be recognized by law as an alternative to the Arbitration Panel Train more Professionals to be panel members of DRBs by Government authorities such as ICTAD.Copy of the research instrument is appearing in annex 1The survey Instrument has been coded to reflect the identity of the respondents sub-group. The coding thus applied is as follows:

General Contractors with C1 grading from ICTAD.Code A

Architects, Engineers and other consultants undertaking projects over Rs 500 Million.

Code B

Employers or Developers investing in projects over the value of Rs 500 Million on a regular basis. Code C

State Agencies implementing projects over Rs 500 Million in value on a regular basis. Code D

Arbitrators, Construction Lawyers and Claim consultants involved in Construction Claims for Major Works. Code E

3.5 Data collectionHaving identified the respondents to the study by the Judgment Sampling method, an information sheet was prepared to include the objectives of the study, anonymous nature of the respondents, data being kept securely etc.The information sheet also provided the contact details of the researcher, contact details of the supervisor and the contact details of the University Head of Department to enable the respondent to obtain further details and/or to verify the authenticity of the research if found necessary. Moreover a consent form was also sent to the respondents to confirm their willingness to take part in the survey. (see copies in Annex 2) Upon obtaining the Informed Consent in the aforesaid manner, the Questionnaire was hand delivered to each respondent. Copy of the Ethical approval received from the university is in annex 3. The respondents were requested to complete the Questionnaire within a week of receipt of same. Respondents were also contacted via telephone and via e-mail to ascertain if they fully understood the Questionnaire. A number of respondents requested the researcher to clarify Question no 3 of the Questionnaire particularly as they were not comprehensively knowledgeable about full time DRBs. Clarification was provided citing the ICTAD SBD/02 and FIDIC Red Book by reading out relevant clauses and explaining the contents there in. The completed Questionnaires were hand-picked to avoid postal delays, upon expiry of the one week period.

3.6 Data AnalysisAs explained in the section 3.1.5 the collected data was analyzed mainly using the Mean Weighted Average Scale. The objective to adopt this method was to translate concepts into measurable factors.

In the data analysis the following aspects were considered Response rate Demographic data Findings

Data has been analyzed with a view to obtain answers to the research problems as identified in Section 1.0 of Chapter One. Emphasis was also made to analyze data to be in line with the five attributes of success for a ADR method as described in the Section 1.1 of Chapter One.

The responses to each Question were analyzed to realize the Mean rating using the following formula, as previously discussed.

x1w1+x2w2+x3w3...xnwn

Total

Where x= w = weight of answer choicex = response count for answer choice

5-point rating scale question was used with the weights assigned to each answer choices as follows shown in parenthesesStrongly Disagree (1)Disagree (2)Neither Agree nor Disagree (3)Agree (4)Strongly Agree (5)

Concluding Remarks

This chapter has discussed the selection of the survey method (qualitative or quantitative). As explained, the Quantitative method was preferred due to its ability to transform data to measureable units.Review of literature related to Quantitative research method has also been done herein in order to ascertain the needs of a quantitative method in respect of sampling and data analysis. Thereby, Judgment sampling was selected to obtain reliable and quality data from a fairly small population consisting five sub categories.

Preparation of the research Instrument was done on a basis of five point Likert scale. Questions were formulated to obtain perceptions of the respondents to the research problems identified. There were five main questions each having several sub-sections to achieve the above. To keep the data anonymous the Questionnaire was prepared in three sections. The first section contained the personal information in a tear-off manner; The second section being the questionnaire proper contained no personal information. In the third section (rear-off) respondents were provided with the opportunity to have a feedback if they wish so.

No sooner the receipt of filled questionnaires, these were coded and the parts containing personal information were removed from the questionnaire and stored securely.

Prior to sending the questionnaire informed consent of the respondents has been obtained by means of an Information Sheet / Informed consent form as required in the Ethical Approval process of the University.

Data analysis has been made on the basis of Mean Weighted Average scale to obtain Mean Rating and The Ranking Average. In addition, response rate were analyzed.

Chapter four provides details of the findings from the data analysis.

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;

1. Satisfaction level of the respondents with regard to Arbitration process currently practiced in Sri Lanka with regard to: Speed of resolution of a dispute Procedure of the Arbitration Cost of Arbitration Acceptability of the decision of Arbitration

2. Perceptions of Respondents concerning Speed of resolution of a dispute by a DRB Procedure of the DRB Cost of DRB Acceptability of the decision of DRB

3. If permanent DRB provisions are made in the Contract what will be the opinions of the respondents in respect of: Helping to avoid disputes at grassroots level It will be a waste of money to maintain such a high level panel It will promote more disputes It will be conducive that Dispute Resolution Board is fully informed about the conditions of site that gives rise to the dispute from outset.

4. What are the respondents views about the enforceability of DRB decisions, in the light of DRB decisions can be challenged in an Arbitration

Enforceability will be easy as DRBS have made their decisions being fully conversant with site conditions in a more informed manner 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. DRB process can replace the arbitration if necessary legislative provisions are made in law

5. To improve DRBs respondents ideas were called for concerning: Dispute Boards should have an institution to set out procedures and rules. Dispute Boards should be recognized by law as an alternative to the Arbitration Panel Train more Professionals to be panel members of DRBs by Government authorities such as ICTAD

4.1 Response Rate The questionnaire was sent to fifty prospective respondents who have confirmed their consent. Respondents belong to five categories. Ten respondents from each category were supplied with questionnaire.The responses received from each category are as follows:CategoryNo of questionnaire sentNo of responses receivedPercentageResponded

Code A10660%

Code B10880%

Code C10550%

Code D10880%

Code E10660%

The above reflects an average response rate of 66 percent from the total sample.4.2 Data AnalysisEach research question was analyzed, for the five categories of population discussed earlier separately. Data was analyzed using the Mean Weighted Average method using the formula discussed earlier and the results are as follows. Code A - General Contractors with C1 grading from ICTAD

Research QuestionNot satisfied at allNot satisfiedCannot saySatisfiedFully satisfiedTotalAverage Rating

1). a. Are you satisfied with the current alternative Dispute Resolution Method of Arbitration practiced in Sri Lanka Construction Industry in respect of Time?

150006 1.83


1). b. Are you satisfied with the current alternative Dispute Resolution Method of Arbitration practiced in Sri Lanka Construction Industry in respect of Procedure?

050106 2.33


1). c. Are you satisfied with the current alternative Dispute Resolution Method of Arbitration practiced in Sri Lanka Construction Industry in respect of Cost?

021306 3.17


1). d. 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?131106 2.33


2). a. What were your perceptions of a Dispute Resolution Board in respect of Time?66 4.00


2). b. What were your perceptions of a Dispute Resolution Board in respect of Procedure?66 4.00


2). c. What were your perceptions of a Dispute Resolution Board in respect of Cost?336 3.50


2). d. What were your perceptions of a Dispute Resolution Board in respect of Acceptability of Decision to parties?336 4.50

Research QuestionDo not Agree at allDo not AgreeCannot sayAgreeFully AgreeTotalAverage Rating

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?11226 3.83


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?3216 1.83


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?3216 1.67


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?1416 4.00


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.1146 3.50


4). b. What are your views 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.13116 2.67


4). c. What are your views 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.1236 3.17


5). a. To improve DRB's Please indicate that Dispute Resolution Boards should have an institution to set out procedures and rules.516 4.17


5). b. To improve DRB's Please indicate that Dispute Resolution Boards should be recognized by law as an alternative to the Arbitration Panel.2316 3.83


5). c. To improve DRB's Please indicate that train more Professional to be Panel members of DRB's by Government Authorities such as ICTAD.336 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 belowQuestion No 1 Satisfaction level concerning the time required in Arbitration represents an average rate of 1.83 and considered very low

Satisfaction level concerning the procedure required in Arbitration is represents an average rate of 2.33 and considered low

Satisfaction level concerning the cost required in Arbitration is represents an average rate of 3.17 and considered neither high nor low

Satisfaction level concerning acceptably of decisions in Arbitration is represents an average rate of 2.33 and considered lowQuestion No 2 Satisfaction concerning Dispute Resolution Board in respect of Time represents an average rate of 4.00 and considered to be high.

Satisfaction concerning Dispute Resolution Board in respect of procedure represents an average rate of 4.00 and considered to be high.

Satisfaction concerning Dispute Resolution Board in respect of cost represents an average rate of 3.50 and considered to be neither high nor low.

Satisfaction concerning Dispute Resolution Board in respect of acceptability of decisions represent an average rate of 4.50 and considered to be high.

Question No 3 If a Dispute Adjudication Board is appointed at the commencement of contract, agreement level to the statement, that it will help to avoid dispute at a grass root level represents an average rate of 3.83 and considered to be on the high side.

If a Dispute Adjudication Board is appointed at the commencement of contract, agreement level to the statement, that it will be a waste of money to maintain such a panel represents an average rate of 1.83 and considered to be very low.

If a Dispute Adjudication Board is appointed at the commencement of contract, agreement level to the statement, that it will promote more claims by the contractor represents an average rate of 1.67 and considered to be very low.

If a Dispute Adjudication Board is appointed at the commencement of contract, agreement level to the statement ,that it will conducive that Dispute Resolution 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 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 Agreement to the statement that to improve DRB's there should be an institution to set out procedures and rules represents an average rating of 4.17 and considered to be high.

Agreement to the statement that to improve DRB's those should be recognized by law as an alternative to the Arbitration Panel represents an average rating of 3.83 and considered on the high side.

Agreement to the statement that to improve DRB's there should be a mechanism to train more Professional to be Panel members of DRB's by Government Authorities such as ICTAD, represents an average rating of 4.50 and considered to be high.

Code B - Architects, Engineers and other consultants undertaking projects over Rs 500 Million


1). a. Are you satisfied with the current alternative Dispute Resolution Method of Arbitration practiced in Sri Lanka Construction Industry in respect of Time?080008 2.00


1). b. Are you satisfied with the current alternative Dispute Resolution Method of Arbitration practiced in Sri Lanka Construction Industry in respect of Procedure?170008 1.88


1). c. Are you satisfied with the current alternative Dispute Resolution Method of Arbitration practiced in Sri Lanka Construction Industry in respect of Cost?071008 2.13






















4). b. 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 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.161008 2.00


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.002608 3.75







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 belowQuestion No 1 Satisfaction level concerning the time required in Arbitration represents an average rate of 2.00 and considered very low

Satisfaction level concerning the procedure required in Arbitration is represents an average rate of 1.88 and considered very low

Satisfaction level concerning the cost required in Arbitration is represents an average rate of 2.13 and considered to be low.

Satisfaction level concerning acceptably of decisions in Arbitration is represents an average rate of 2.88 and considered lowQuestion No 2 Satisfaction concerning Dispute Resolution Board in respect of Time represents an average rate of 4.00 and considered to be high.

Satisfaction concerning Dispute Resolution Board in respect of procedure represents an average rate of 3.63 and considered neither high nor low .

Satisfaction concerning Dispute Resolution Board in respect of cost represents an average rate of 3.50 and considered neither high nor low.

Satisfaction concerning Dispute Resolution Board in respect of acceptability of decisions represents an average rate of 3.88 and considered to be on the high side.Question No 3 If a Dispute Adjudication Board is appointed at the commencement of contract, agreement level to the statement ,that it will help to avoid dispute at a grass root level represents an average rate of 4.00 and considered to be high.

If a Dispute Adjudication Board is appointed at the commencement of contract, agreement level to the statement, that it will be a waste of money to maintain such a panel represents an average rate of 1.75 and considered low.

If a Dispute Adjudication Board is appointed at the commencement of contract, agreement level to the statement ,that it will promote more claims by the contractor represents an average rate of 1.88 and considered to be very low.

If a Dispute Adjudication Board is appointed at the commencement of contract, agreement level to the statement, that it will conducive that Dispute Resolution Board is fully informed about the conditions of site that gives rise to the dispute from outset represents an average rate of 4.13 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 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. 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 Agreement to the statement that to improve DRB's there should be an institution to set out procedures and rules represents an average rating of 4.13 and considered to be high.

Agreement to the statement that to improve DRB's those should be recognized by law as an alternative to the Arbitration Panel represents an average rating of 4.00 and considered to be high.

Agreement to the statement that to improve DRB's there should be a mechanism to train more Professional to be Panel members of DRB's by Government Authorities such as ICTAD, represents an average rating of 4.50 and considered to be very high.

Code C - Employers or Developers investing in projects over the value of Rs 500 Million on a regular basisResearch QuestionNot satisfied at allNot satisfiedCannot saySatisfiedFully satisfiedTotalAverage Rating

1). a. Are you satisfied with the current alternative Dispute Resolution Method of Arbitration practiced in Sri Lanka Construction Industry in respect of Time?050005 2.00


1). b. Are you satisfied with the current alternative Dispute Resolution Method of Arbitration practiced in Sri Lanka Construction Industry in respect of Procedure?050005 2.00


1). c. Are you satisfied with the current alternative Dispute Resolution Method of Arbitration practiced in Sri Lanka Construction Industry in respect of Cost?121105 2.40






















4). b. 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 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.022105 2.80


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.1236 3.17







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 belowQuestion No 1 Satisfaction level concerning the time required in Arbitration represents an average rate of 2.00 and considered low

Satisfaction level concerning the procedure required in Arbitration is represents an average rate of 2.00 and considered low

Satisfaction level concerning the cost required in Arbitration is represents an average rate of 2.40 and considered low

Satisfaction level concerning acceptably of decisions in Arbitration is represents an average rate of 2.60 and considered lowQuestion No 2 Satisfaction concerning Dispute Resolution Board in respect of Time represents an average rate of 3.80 and considered to be on the high side

Satisfaction concerning Dispute Resolution Board in respect of procedure represents an average rate of 3.80 and considered to be on the high side

Satisfaction concerning Dispute Resolution Board in respect of cost represents an average rate of 3.00 and considered to be on the low side

Satisfaction concerning Dispute Resolution Board in respect of acceptability of decisions represents an average rate of 3.60 and considered to be on the high sideQuestion No 3 If a Dispute Adjudication Board is appointed at the commencement of contract, agreement level to the statement ,that it will help to avoid dispute at a grass root level represents an average rate of 3.80 and considered to be on the high side

If a Dispute Adjudication Board is appointed at the commencement of contract, agreement level to the statement ,that it will be a waste of money to maintain such a panel represents an average rate of 2.60 and considered to be low

If a Dispute Adjudication Board is appointed at the commencement of contract, agreement level to the statement ,that it will promote more claims by the contractor represents an average rate of 2.80 and considered to be low

If a Dispute Adjudication Board is appointed at the commencement of contract, agreement level to the statement ,that it will conducive that Dispute Resolution 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 highQuestion 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.


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 Agreement to the statement that to improve DRB's there should be an institution to set out procedures and rules represents an average rating of 4.20 and considered to be high.

Agreement to the statement that to improve DRB's those should be recognized by law as an alternative to the Arbitration Panel represents an average rating of 4.20 and considered to be high.

Agreement to the statement that to improve DRB's there should be a mechanism to train more Professional to be Panel members of DRB's by Government Authorities such as ICTAD, represents an average rating of 4.20 and considered to be high.

Code D - St