合同管理方面的英文文献

1、International Journal of Project ManagementVolume 26, Issue 2, February 2008, Pages 174-184doi:10.1016/j.ijproman.2007.05.002|How to Cite or Link Using DOICopyright 2007 Elsevier Ltd and IPMA All rights reserved.Permissions & ReprintsUnderstanding time delay disputes inconstruction contractsK.C. Iye

2、ra, N.B. Chaphalkarb,and G.A. Joshic,aDepartment ofManagementStudies, Indian Institute of Technology Delhi, New Delhi 110 016, IndiabDepartment of CivilEngineering,Indian Institute of Technology Delhi, New Delhi 110 016, IndiacPunj Lloyd Limited, Punj Lloyd House, 17-18 Nehru Place, New Delhi 110 01

3、9, IndiaReceived 6 September 2006;revised 18 February 2007;accepted 1 May 2007.Available online 27 July 2007.AbstractMost of theconstructionprojects are executed throughcontractswhich are generally not easy to comprehend even by professionals. With advancement in technology and mammoth requirement o

4、f infrastructure in developing countries like India, there has been increase in size and complexities in the nature of projects. This gives rise to further ambiguities in the prevailingcontractforms eventually makingcontractforms more complex and difficult and causing adversarial impacts such as inc

5、rease in number and frequency of claims and disputes besides time and cost overruns. To overcome the worsening scenario, it is essential to develop a system that can assist thecontractadministrators to understand and evaluate worth of their claims prior to taking it to litigation. An attempt has bee

6、n made to devise a rule-based expert system to achieve this objective with a limited scope of disputes arising out of Time Delay and Extension in IndianConstruction Contracts.Keywords:Construction contracts; Constructionclaims; Dispute resolution; Expert system;ContractadministrationArticle Outline1

7、.Introduction2.Literature survey3.Expert system4.Expert system for settlement of disputes in indianconstruction5.Development of rule-based system for time delay and extension clause5.1.Cause and effect relationship of disputes5.1.1.Types of delay5.1.2.Types of claims due to delay5.2.Formulation of d

8、omains for expert system5.3.Development of rule base for delay domains5.3.1.Delay due to Handing over of site5.3.2.Delay due to Release of mobilisation advance5.3.3.Delay due to Late receipt/checking of drawings5.3.4.Delay due to Accidents5.3.5.Delay due to Temporary stoppage5.3.6.Delay due to Rewor

9、k5.3.7.Delay due to Extra work5.4.Software development6.ConclusionsReferences1. IntroductionTheconstructionindustry is the second largest industry in the India, being next to agriculture. As per tenth five year plan of India roughly 44% of the countrys plan outlay falls within the purview ofconstruc

10、tionactivity during year 20022007.Majority ofconstructionworks are carried out throughcontracts.In India the most public projects used to follow the standardcontractconditions formulated by the two government organisations namely Central Public Works Department (CPWD), and MilitaryEngineeringService

11、s (MES) till recently. FIDIC conditions were introduced in 1980s for some public works on the insistence of the funding agencies like World Bank and Asian Development Bank as it was felt that the prevailingcontractconditions were not equitable and the projects were likely to be delayed.As a developi

12、ng nation, India is also going through a phase of infrastructure expansion due to globalisation. These infrastructures are of different types and magnitude and most of them are multidisciplinary in nature. With the increasing size and complexity in nature of projects the conditions of thecontractsal

13、so tend to become more complicated, which in turn add to number of disputes to the already existing ones and further delay the settlement of disputes. The delay in dispute settlement has manifold effects as given below. It hampers the project progress if dispute arises during execution stage. It is

14、detrimental to the relationship between owner and contractor. It contributes to the cost and time overruns. It sends bad signals to foreign investors thereby slowing down the national progress.It is generally said that thecontractlanguage is considered difficult to comprehend and they are therefore

15、a major source of disputes. With the increase in complexities in the nature of work as stated in the preceding paragraph, thecontractsare also likely to be more complex. As such, a recent study indicates that the average time taken by the Indian Courts for deciding disputes is normally between 5 and

16、 15 years after it has passed through the arbitration trial. Parties feel frustrated because of the delay in settlement of disputes. This delay contributes to continuous rise in the number of cases pending in various courts. It is reported that there are over two million cases pending in 18 High Cou

17、rts (apex courts of various states of India) alone and more than 200,000 cases are pending in the Supreme Court (apex court of the nation) for admission, interim relief or final hearing34. With the increasing complexity incontractsthe situation is expected to further worsen.To change this scenario i

18、t is essential to develop a scientific methodology to help judiciary to check the number of disputes. Also such scientific tool should give guidelines to owners and contractors to evaluate the strength of their claims before they are pursued. An expert system is considered to be one such tool. In th

19、is paper an attempt to develop a rule-based expert system for resolution of disputes has been discussed. However since there are a number of sources for a dispute including dispute-pronecontractclauses, the present paper discusses development of rule-based expert system for resolution of disputes ar

20、ising out of only the time delay and extension clause.2. Literature surveyIn Indian context, Iyer7has identified the following critical clauses that lead to disputes inconstruction contractsthrough case research study. These clauses, in the decreasing order of their criticality with regard to propen

21、sities of disputes, are given below. Final and binding power Time, delay and extension Termination ofcontract Pricing of deviation and extra items by owner representatives Deviation limit/scope of work Price escalationThe author observes that the literature and case laws are difficult to reconcile a

22、nd can easily lead engineers and non-legal professionals to believe that courts are arbitrary and that the outcome of a court cannot be predicted. Incidentally, a similar observation was made by Thompson and Portis30and Rubin20when they discussedconstructionlaw of United States of America. However,

23、Thomas et al.28showed that the consistency of the law could be shown through careful case law research. They also demonstrated consistency of the law in several cases e.g. disputes on notice requirements29, disputes on oral change orders28, disputes on misrepresentations26, disputes on differing sit

24、e conditions clause27, disputes on interpretation of clauses25, disputes on specifications22, disputes regarding certifying completion23and disputes on enforcement of liquidated damages24. In each of these studies authors have shown a systematic way of resolving disputes arising out of several reaso

25、ns stated above besides establishing the consistency in court decisions in the USconstruction contracts.In India too, a few researchers, through case research studies, have developed decision support systems for resolution of disputes arising out of decisions under final and binding power vested wit

26、h some authority in thecontract9and time delay and extension clause8.These decision support systems can be further synthesized to form an expert system so that all sources of the given dispute can be analysed simultaneously and appropriate decision can be given.Allwood1has mentioned some expert syst

27、ems developed for CivilEngineeringin the following areas. To diagnose the causes of dampness in buildings. To select the most suitable paint treatment to protect structural steelwork from corrosion. To select appropriate type of tower crane for use in multi-storeyconstruction. To offer advice oncons

28、tructionplanning. To examine the cross section of a window frame and consider all possible routes by which the water might penetrate the frame. To check a room layout. To design the layout of temporary facilities on aconstructionsite.Mohan14has listed 37 expert systems in the field ofConstruction Ma

29、nagement and Engineeringout of which 3 were related tocontract managementdealing with selection ofcontracttype and differing site condition claims. Kraiem et al.11have developed an artificial intelligent system called DISCON, which is designed to give legal advice to design andconstructionengineers

30、as well as contractors and owners concerning Different Site Conditions claims. DEViCE (Dynamic Expert system for Valuing Variations in CivilEngineering)was developed by Sutrisna21. This system deals with quotations related to excavation. Cheung et al.6have developed a fuzzyConstructionDispute Evalua

31、tion (CDE) model based on the knowledge extracted from practitioners in Hong Kong. They suggest dispute control mechanism through four stages: dispute identification, dispute analysis, dispute evaluation & dispute control.A number of expert systems have also been developed in various fields by resea

32、rchers form India, but no expert system is reported in the area ofconstructiondisputes. Thus as a modest beginning an expert system is developed for resolution of disputes arising out of one of most dispute-prone clauses, the time delay and extension clause.3. Expert systemRecent developments in com

33、puter technology, especially in the field of Artificial Intelligence, make it possible to simulate human-like reasoning in computer systems. Such systems are popularly known as Expert Systems.The expert system comprises of knowledge base, inference engine, working memory, user interface, explanation

34、 facility and a knowledge acquisition facility.The heart of the expert system is the knowledge base where domain specific knowledge acquired from the expert is stored. The user of the expert system interacts with it through the user interface and the experts knowledge is collected and compiled throu

35、gh knowledge acquisition facility. The knowledge acquired from the expert is stored in the knowledge base using various formal knowledge representation techniques. The hypotheses and facts are generated during the reasoning process and they are stored in the working memory. Expert system does infere

36、ntial computing using inference engine which carries out the search through the knowledge base either to prove hypotheses or to arrive at a conclusion. Explanation facility tells the user why particular information is required and how the system has arrived at a particular conclusion13.Thus the expe

37、rt system acts like a store house of experts knowledge to give solution to users query in a particular manner. There are three major categories of expert systems namelyrule-based systems;case-based systems; andhybrid systems.Rule-based system comprises of a set of rules formulated using knowledge of

38、 several experts and rule interpreter. When a new problem is posed to the system, the rule interpreter decides which rules to apply and determines the result from the facts given to the system by the user16. Some of the pioneering rule-based expert systems are MYCIN, TAXMAN and JUDITH. MYCIN is desi

39、gned to provide expert advice on the diagnosis and treatment of blood infections to a physician who is not an expert in the field of antibiotics. The other systems, JUDITH and TAXMAN were designed for use by lawyers and for taxation of corporate restructuring respectively17and15.In the case-based sy

40、stem a database is created using past cases. When a new case is fed, for which the user is seeking the solution, the system compares this (instantaneous case) with the cases in the data base. It then identifies and displays the information of the most matching case(s) from the data base that facilit

41、ates the user to arrive at the decision. FINDER and SHYSTER are the examples of this type of system developed using legal reasoning31and18.Hybrid system is one which combines above two methods of reasoning in order to attempt to answer the problem. Some typical examples of hybrid system are CABARET,

42、 GREBE, PROLEXS and IKBALS. CABARET is an expert system that deals with US income tax law relating to the deduction for expenses relating to a home office developed by Rissiland and Skalak19. Branting5designed GREBE for the domain of Texas workers compensation law. PROLEXS developed by Van Opdrop et

43、 al.32is a Dutch expert legal system, focused on the domain of landlordtenant law. The IKBALS by Vossos et al.33operates in the area of credit law.4. Expert system for settlement of disputes in indianconstructionIn the Indian context, database in the form of settled cases ofconstructiondisputes are

44、available in the Arbitration Law Reporter (Arb LR) and All India Reporter (AIR). Besides, some primary guidelines such as decision support systems developed for resolution of disputes arising out of different clauses by some researchers are also available9,8,3and2. These researchers have concluded t

45、hat such decision support systems can be synthesised to convert them in the form of an Expert System which will help in reduction of time required in giving decisions. Since the expert system would contain a huge database, it will serve as a checklist for thecontractadministrators to predict the str

46、ength of their cases before going for litigation. The data available can be matched with the current situation and it could be predicted that, which party may be at fault. Once this is known arbitration procedure can be either avoided or at least can be expedited. In turn it will reduce the filing o

47、f disputes as the concerned party already has the idea of likelihood of decision. Also it will be helpful to the arbitrator and to the judges, since they will be having huge database of similar type of cases readily available for reference.Many times it so happens that the claim can neither be compl

48、etely accepted nor rejected, but there is partial acceptance of the claim. This is assessed based on the extent of defaults of parties in the disputes and it is also known as apportionment of the claim. Details of the apportionment if stored in the knowledge base, it can serve to detect the extent o

49、f defaults of parties and arrive at the weightage of the claim admissible in favour of any party. Thus an expert system would prove extremely useful in cases requiring apportionment of claims.The area/domain ofconstructiondisputes being very large, an attempt has been made to develop a rule-based sy

50、stem module for time delay and extension clause inconstruction contract12. While designing a system, questions are formulated using available cases from All India Reporter (AIR), Arbitration Law Reporter (Arb LR) and arbitration awards. The arbitration awards are not published and hence collected th

51、rough personal contacts.5. Development of rule-based system for time delay and extension clauseIt has been seen in most of the case studies that the frequency of disputes over Time delay and extension has greater implications in terms of the cost and time of the project. Every delay, be it regarding

52、 payment, or site handing over, or temporary stoppage of work leads to time loss which eventually prompts invoking of Time delay and extension clause. Therefore it becomes necessary to understand all aspects of disputes arising out of time delay and extension clause; which is explained below in a ru

53、le-based expert system form.The development of rule-based system follows a three step approach. The first step is to understand the cause and effect relationship of the dispute. The second step involves formulation of broad domains in which all the causes fit in. The last step is to develop the rule

54、 base to predict the plausible effects for these identified domains.5.1. Cause and effect relationship of disputesThe disputes arising out of time delay and extension are of varied nature. These disputes can be studied in two stages for their better comprehension and analysis. They are identificatio

55、n of different delays i.e., cause and its effect i.e., claims arising out of these delays.When we consider cause and effect relationship, one must bear in mind that one effect may prove to be cause for the subsequent effect, e.g. when we consider pair of situations causing delay and type and quantum

56、 of delay as cause and effect respectively, in the next level type and quantum of delay becomes the cause and the claim on account of delay becomes the effect. Thus it becomes a chain as schematically shown inFig. 1.Full-size image(6K)Fig. 1.Cause and effect relationship of disputes.Types of delays

57、as cause and claims as effect are discussed below.5.1.1. Types of delayThe delay occurring in a project can be classified into number of types depending upon the stages at which it occurs as well as on the nature of outcome, i.e., claims. This defines the criticality of the delay in the overall proj

58、ect completion and its impact thereafter. The delays are accordingly classified as critical delays and non-critical delays.Contractdefines obligations of parties to meet the project performance including schedule and also the recourse in the event of failing to meet such obligations. The recourse is generally asking for compensation for the