Journal of Legal Affairs and Dispute Resolution in Engineering and Construction

On March 14, 2006, the Ka Loko Dam broke on the North Shore of Kauai, Hawaii, sending millions of gallons of water downstream. Seven people were killed and dozens of homes and properties were damaged. Multiple parties faced liabilities for the disaster, including the owner of the dam, the State of Hawaii, and the County of Kauai. This paper aims to provide information regarding the history of the dam and a discussion of the case issues. The owner faces charges for the disaster because he allegedly filled an emergency spillway, although no direct observations of him doing so exist. The State of Hawaii came under scrutiny for the break because they failed to follow their own regulations regarding dam inspections. The state was also vulnerable because water originating on state lands was being diverted to the Ka Loko Reservoir at the time of the break. The County of Kauai was accountable because it did not properly manage illegal construction activities by the owner that probably led to the filling of the spillway. In November 2008, the owner was indicted on seven counts of manslaughter and one count of reckless endangerment. The owner, the State of Hawaii, and the County of Kauai faced two civil lawsuits leveled by families of the seven victims and by homeowners whose properties were damaged. The criminal trial against the owner was scheduled in April 2010, while the civil trials were settled on October 2009.

The main premise of this paper is that construction blasting is no longer an abnormally dangerous activity using the six factors presented in Section 520 of the Second Restatement of the Law of Torts. Though blasting is considered to be the paradigm strict liability activity, it appears to be more appropriate to regulate it using the general negligence framework for tort liability because of advances in blasting technology over the past 40 years. This paper examines the current application of strict tort liability for nontrespassory effects of construction blasting, presents advances in construction blasting technology that allow control of nontrespassory blasting effects on adjacent structures, and analyzes the six factors presented in Section 520 of the Second Restatement of the Law of Torts used to determine whether or not an activity is abnormally dangerous.

Construction companies have to challenge difficulties in undertaking private or public projects in domestic and international venues. This study focused on contractual issues encountered by Turkish companies as a case study. The main aim of the research was to investigate particular difficulties encountered by Turkish companies and remedies to overcome or prevent the adverse effects. This research focused on the problem areas, their causes, and executed contracts. In order to meet these aims, research methods included literature survey, analysis of courts of cessation decisions, interviews with 37 contractual staff in 30 companies which are members of Turkish Contractors’ Association, and analysis of 41 contracts to understand their types and conditions. Throughout this investigation, the findings revealed classification of contractual issues as finance, time, compliance, technical documentation, and clauses related difficulties. Practitioners can benefit from this paper by obtaining information through experiences of other companies. By reading this paper the readers can better prepare themselves to avoid and cope with claims and issues. Furthermore, companies intending to establish joint venture or consortium with Turkish construction companies will be able to foresee and prevent/overcome possible difficulties.

In Singapore, one of the most important steps in the overall information technology strategy for the construction and real estate sector is the development of an integrated network for the sector to cover the entire life cycle of any development. It is the first of its kind in the world. The productivity and competitiveness of the construction and real estate sector have been greatly enhanced through the introduction and implementation of the adopted integrated network since 2002. Some of the legal issues related to the integrated network are global trading, contract enforceability, liability risks, security breaches, and intellectual properties protection, a lack of alignment in jurisdictions, confidentiality, legal liability, and service dependency risks. The paper addresses online security and legal issues related to the integrated network for the sector to establish trust and confidence among the end users of the system. Some of the legal issues encountered during the implementation and lessons learnt will also be briefly discussed.

Texas Department of Transportation (TxDOT) currently uses general alternative dispute resolution and dispute management tactics to resolve construction claims. The successful application by TxDOT of project partnering methods, critical path management, and the Contract Claims Committee has resulted in a relatively low number of claims filed. However, one weakness in TxDOT’s current methodology is the lack of specific protocol for project-level personnel and administrators. The following survey of TxDOT dispute resolution methods emphasizes the importance of developing a personnel training catalog for Area Engineers in order to avoid costly claim dispute escalation. As the individual primarily responsible for resolving project and district-level disputes, the Area Engineer should be equipped with dispute resolution training if TxDOT wishes to improve the efficiency of its alternative dispute resolution protocol.

An innovative negotiation methodology for resolving disputes in brownfield reconstruction is presented for handling negotiation in the presence of multiple decision makers (more than two). A unique feature of the proposed negotiation methodology is that it takes into account the attitudes of the decision makers, which is an important psychological factor in construction negotiations. The methodology is developed at the strategic level of decision making in which the graph model for conflict resolution is employed to help participants determine the most beneficial strategic agreement, given the competing interests and attitudes of the decision makers. A real-life case study of a brownfield reconstruction negotiation is used to illustrate how the proposed methodology can be conveniently applied in practice and to demonstrate the importance and the benefits of incorporating the attitudes of multiple decision makers into the negotiation process in order to better identify the most feasible resolutions. The proposed negotiation methodology is implemented in a negotiation decision support system that assists managers in tackling real-world controversies, particularly complex construction disputes.

This paper presents a case study through which a multinational contracting firm aimed to introduce integrated project delivery through strategic partnering into its industry operations. The study reports on a research carried out by the author on behalf of the firm to set out series of principles and guidelines to consider when drafting a standard partnering contract whereby the owner, contractor, suppliers, and manufacturers collaboratively work together under the same terms and conditions. A partnering contract would never, on its own, change the culture and environment of the construction process and thus, strategic partnering should be promoted not only at project specific activities but at all organizational activities. Based on this project, the paper presents a list of ten managerial and contractual issues to promote strategic partnering. The author hopes that the results of this case study would foster legal professionals toward drafting a modern partnering contract, which should help in developing a more effective and efficient contracting environment.