Category: Construction

Introduction

Labor rights are the hard-fought achievement of many generations of thinkers and activists, who struggled for improvements in safety standards, conditions, wages, and respect for fellow humans throughout the 18-20th centuries.¹ Some of the greatest achievements of the labor rights movement include the abolition of child labor, the introduction of the 8-hour workday, as well as medical insurance, paid vacation, maternity leave, and safety regulations serving to protect the workers. Despite these contributions that have shaped our lives into what they are today, labor rights in the 21st century have been eclipsed compared to other human rights topics.

The construction industry was historically one of the most dangerous occupations available. It combines hard manual labor, high exposure to the elements, and high levels of personal risk. At the same time, the construction industry is a very capital-intensive industry, as building houses, roads, and other objects of infrastructure require significant investments. The use of migrant labor in the construction industry is a well-known issue, as migrants lack protection and labor rights, leaving plenty of room for exploitation, swindling, and exposure to harm. Many countries justify such events by claiming that illegal migrants do not deserve protection from the law. To stop exploitation, improve the standards of labor and quality, and protect the lives of individuals forced to work in horrible conditions in foreign countries, the international standards of labor and the local legislation in regards to construction labor should be equally applied to residents, legal migrants, and illegal migrants at the same time.

Background

It is estimated that illegal migrants make up roughly 5% of the entire workforce in the US.² The construction industry is one of the largest profiteers from these illegal workers, as 14-25% of the entire workforce in that area is comprised of illegal, half-legal, or undocumented individuals.³ With the total number of employees in the construction industry being around 10,500,000, the number of illegals fluctuates between 1,470,000 – 2,625,000 individuals.⁴

Historically, the construction industry was always utilizing foreign labor in order to fill in the gaps. Construction is one of the hardest and dangerous forms of occupation, with around 25.6 cases of work-related deaths for every 100,000 workers per year.⁵ For comparison, the mortality rate for the army service members actively engaged in foreign conflicts is 27.7 cases per 100,000 individuals. As it stands, the American construction industry is in need of 150,000 additional workers, meaning that even with the migrants filling up spaces, the industry remains in a large deficit of skilled laborers.⁶

The situation around the world is not much different. Individuals from poor countries seek construction work in industrial nations due to the relative ease of acceptance and low skill cap level. Western-European countries benefit from illegal workers from Eastern Europe and the poorer parts of central and western Europe, such as Spain and Greece. The Russian construction market is populated by migrants from Uzbekistan, Kazakhstan, and Tajikistan as well as from ex-soviet republics such as Ukraine and Moldavia. Migrants from Mexico and Latin America populate the US labor market.

Who are Illegal Migrants?

Illegal migrants are individuals who cross the border of the country without undergoing the standard procedures required for being allowed inside, such as acquiring a visa, a refugee status, and other necessary formalities.⁷ These individuals typically do not report to the supervisory bodies of their locality and do not have a certified ID of their host country. They avoid all contact with public services and law enforcement. Typically, these individuals work in low-skilled sectors of the economy in order to provide for themselves and their families back home.

Undocumented workers constitute a different legal term. An undocumented worker is an individual employed in the service of a company without being listed in their official roster or charter.⁸ They do not receive pensions, medical security, social security, and so forth. The company does not pay taxes for their labor either. Employing undocumented workers is considered illegal. The main difference between undocumented workers and illegal migrants is that the former can be the country’s own citizens, while the latter are invariably citizens from other countries. Outside of the legal practice, these terms are used interchangeably due to the fact illegal migrants also constitute the vast majority of undocumented workers.

Irregular migrants are a special group that borders between undocumented and illegal employees.⁹ This type of migrants is present in the countries of the Gulf Cooperation Council (GCC), such as Qatar, Kuwait, the UAE, and Saudi Arabia. Due to having a highly sophisticated border control system and a relatively small border length, it is very hard to cross into the country undetected. Irregular migrants gain access into the country through dubious means, such as buying worker visas, claiming corporate visas, and obtaining sponsorship from third companies.

Contradictions in Definitions

The primary source of ambiguity in the definitions lies between illegal migrants and undocumented workers. In most countries, companies are obligated to report a worker’s illegal status to the authorities as soon as they learn of it. However, the majority of the companies that use their labor in the field, when discovered, claim ignorance of their illegal status, instead preferring to receive the penalty for lack of documentation, as the rules and laws surrounding the use of undocumented workers are much more benign. The penalty for it in the US usually includes a fine of 110$ or more, whereas holding illegal migrants in employment results in charges, criminal fines, and even license revocations.¹⁰ The latter is especially dangerous for construction companies, which require licenses in order to continue their work.

Reasons for the Use of Migrants in the Construction Industry

There are numerous reasons for construction industries across the world to utilize illegal migrant labor. The primary reasons are as follows:¹¹

• Illegal migrant labor is cheaper. Although on paper undocumented workers are entitled to the same rights and protections as other workers, in reality, they are held hostage by their illegal status. In order to file a wage claim or a complaint, an illegal worker needs to be exposed to the authorities, which can result in expulsion from the country. Thus, many employees in the construction industry save on the necessities that documented workers are entitled to, such as medical insurances, fair wages, payments for overtime labor, compensations for injury, and other expenses.
• Illegal migrant labor is plentiful. As it was already mentioned, the majority of expansive construction markets are undermanned. There are many explanations for such a situation. Working in construction is hard, messy, and dangerous. The employment lacks the prestige and is on par with agriculture. As a result, not many locals would be willing to enter the construction field. Illegal migrants, on the other hand, are desperate and willing to work for wages lower than those available to the locals, making them more attractive for greedy employees.
• Illegal migrants can provide skillful labor. This situation is common among the ex-soviet republics. The USSR produced a good amount of skilled workers and engineers, which were left out of work after the fall of the government in 1991. Developing countries with a strong educational base often produce individuals who are willing to work for a lower wage in order to escape the poverty of their homes.
• – Large construction projects. The construction of projects for big national and international events of some kind (FIFA championships, Olympics games, forums, etc.) often depletes the workers in a city or area, leaving many vacancies to be filled out. The inability to use the local workforce and the tight budget constraints often force the contractors to employ illegal labor in low-skilled positions. This issue arose during the 2014 Sochi Winter Olympics, the 2016 Rio Olympics, and the upcoming Soccer World Cup 2022 in Qatar.¹²

As it is possible to see, the primary reasons for hiring illegal migrant labor include reducing costs and making up for the lack of labor in the domestic market.

Ethical Issues with Hiring Illegal Workers

There are numerous issues associated with illegal workers in the construction industry. The first issue is the issue of breaking the law. In the majority of the countries, it is illegal to hire undocumented workers as a method of reducing the incentive for illegal migration.¹³ From the perspective of Kantian ethics, it is the duty of both the immigrant and the employer to uphold the law, making it immoral to implement illegal labor. From the point of utilitarian ethics, however, both the illegal migrant and the employer benefit from this mutual arrangement, as the migrant gets the job and the payment he or she covets, while the employer gets to save costs and fill the vacancy. According to rights ethics, neither the employer nor the employee has the right to engage in economic relations unlawfully.

Another side of the ethical argument involves the protection of illegal migrants by the law.¹⁴ Kantian ethics does not offer a conclusive solution to that dilemma, as according to it, the migrant had already broken the law by illegally entering the country. However, Kantian ethics stand against the exploitation of one individual by another, thus involuntarily offering a moral basis for the protection of illegal migrants. From a utilitarian perspective, exploitation leads to great amounts of suffering among the employees, which also gives an ethical basis for support. Rights ethics strongly suggests that all employees are to be protected by labor laws.

Finally, there is the ethical issue of illegal labor being harmful to society. Undocumented workers are often unskilled and poorly motivated, meaning that the results of their labor can be dangerously subpar and endanger human life. In addition, there are some concerns about illegal labor affecting documented workers in the industry.¹⁵ Lastly, illegal migrants often result in increased crime rates in the local area. A utilitarian approach must calculate these variables when estimating the balance of good versus bad. Kantian ethics states that it is the duty of an employee to uphold the law and provide a high quality of labor. Rights ethics sustain the plight of the local population for safety and security.

Illegal Migrants and Labor Laws

The rights of illegal migrants are covered by the international labor standards, with the two major conventions being the Migration for Employment Convention of 1949 (No. 97) and the Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143). The majority of the countries of the world, however, have not ratified these conventions.¹⁶ The first convention ratified by 49 countries out of 195, and the second – by 23 sovereign states. In both cases, the majority of the countries that ratified the convention are located in Africa and Latin America. All large European countries, such as France, Germany, Spain, Portugal, Serbia, and the UK have ratified one of the two conventions. The migration for employment convention obligates all countries to provide extensive and comprehensive instruction on all legal aspects of migration as well as the legal and social protection on a number of matters, including social security and conditions of employment.

The second convention is much more radical in that it seeks to equalize the protections and opportunities for migrant workers and national workers, including minimum wages, social security, labor rights, association rights, and various other matters. Some of the specific international conventions regarding the construction industry include the Safety and Health in Construction convention of 1988, which sets up the basic standards for protection, handling of injuries, occupational reimbursements, and other related factors.

In the US, the labor rights of illegal workers are protected by federal and state laws, which differ from one state to another. In California, for example, all of the labor laws applied to national workers, and legal migrants also apply to undocumented workers. These include all corresponding safety regulations, pensions, social security investments, insurances, and compensations. However, since employers are obligated by law to terminate any contracts with undocumented workers and report them to the authorities, employers can use it as a bargaining chip in any disputes with their undocumented employees, making their position in the country vulnerable.

In countries like Qatar, Saudi Arabia, and the UAE, the issue of irregular migrants is more prevalent when compared to illegal migration in the US. The majority of migrants come from India, constituting over 1 million in the population of each of the mentioned countries.¹⁷ They typically have the legal documents to work and be employed in the country legally, but suffer from various limitations and institutionalized racism towards migrants.

During the preparation of Qatar for the World Championship, the country opened its gates for many semi-legal workers from India and other countries.¹⁸ The conditions of labor, levels of exploitation, low wages, and standards of living during this project were comparable to those of illegal migrants in the US and other countries. The reason for that was a high competition. India is a country with over two billion citizens, most of whom live below the poverty line. Although workers in Qatar were hired legally, they could be easily replaced. Fearful of losing their position, many are willing to concede to the lower standards of labor and living, in order to keep the job.

Legislative and Ethics Solutions

If we compare the situation in the US with the situation in the GCC countries, there are significant differences. In the US, illegal migrants in construction are hostages of their illegal status. The government does not seek to keep these individuals within their borders, which gives the employers the advantage they need in order to exploit these people and introduce the lower quality of labor, lower payments, worse working conditions, and other limitations. In GCC countries, it is different. The government takes a direct role in the exploitation of irregular migrants by closing its eyes to various violations of the international laws regarding migrants as well as its own labor codes. There is evidence of such a practice being done on purpose, as Qatar is behind schedule in preparing the country for the major sporting event. In order to save time and money, the use and exploitation of the irregular migrants are being sponsored at the highest levels.

Potential legislative solutions in these two situations differ. In order to make illegal migrants in the US more protected and competitive against the local workforce, the very reason why people chose to enter the country illegally must be abolished. As it stands, it is very hard for migrants from Mexico and Latin America to get a working visa into the US.¹⁹ Current administration policies do not provide any incentives for illegal migrants to come out of the shadow either. Therefore, if the registration process and border control were significantly simplified, then the exploitation and poor working conditions would inevitably cease to exist.

At the same time, there are no legislative instruments that could help the situation in Qatar. The purpose of the government is to ensure that migrant and labor laws put in place are being followed. If the government is interested in breaking these laws to achieve certain geo-economic objectives, then legislation does not matter, as it would simply not be applied.²⁰ The main incentive behind Qatar’s violations of migrant worker rights is the need to complete the construction of stadiums and other facilities in time. If the World Soccer Federation demands Qatar to adhere to its own laws and threaten to withdraw from the tournament otherwise, it would be possible to make the country fall in line.²¹ Only the elimination of institutionalized racism and the adoption of ethical frameworks would help improve the situation for migrant workers otherwise.

Conclusion

The situation with illegal migrants in the construction sector is dire. Due to a lack of any social safety nets, legal protection, and the relative inefficiency of labor laws, they are exploited by employers, which leads to high mortality rates, injuries, poor payment, and other domestic issues. Although there are numerous statutes in place, such as the Migration for Employment Convention and Migrant Worker Convention, as well as numerous domestic policies for protecting migrants, it is impossible to seek protection without revealing one’s illegal status, which would get an illegal migrant deported from the country. On the other hand, governments often overlook the violation of domestic regulations and encourage illegal or irregular migrant influx because of their own interests and reasons. As a result, illegal migrants suffer due to the fact that the very entity created to supervise the laws being upheld is against them.

In a globalized economy, ideas of borders and nationalities are starting to blur. Many illegal migrants seek to escape the poverty and misery of impoverished, failed, or tyrannical states. It is immoral to prevent people from trying to provide for themselves and their families. The concept of illegal migration should be abolished, and the procedures for crossing borders should be greatly simplified. That way, a migrant worker would have all the rights and opportunities when compared to a local, meaning that the employers would not be able to discriminate and purposefully choose migrants over locals. This would result in a gradual increase in wages and fair competition for jobs, leading to long-term growth and stability in the sector.

Endnotes

1. Nadine N. Abu-Shaban. Reflection on Labor Law – Construction Industry Between Text and Application. Global Journal of Politics and Law Research 3, 2, (2015), 55-70.
2. Jill E. Family. Immigration Law Allies and Administrative Law Adversaries. Georgetown Review 32, 1 (2017), 99-126.
3. Rene D. Flores and Ariela Schachter. Who are the “Illegals”? The Social Construction of Illegality in the United States. American Sociological Review 83, 5 (2018), 839-868.
4. Cuman R. Abrar, et al. Emic Perspectives on Brokering International Migration for Construction from Bangladesh to Qatar. Migrating Out of Poverty 49 (2015), pp. 1-22.
5. Ib.
6. Ib.
7. Phillipe Fargues and Nasra M. Shah. Skillful Survivals: Irregular Migration to the Gulf. (Gulf Research Centre Cambridge, 2017).
8. Prakash, C. Jain and Ginu Z. Oommen. South Asian Migration to the Gulf Countries: History, Policies, Development. (Routledge India, 2015).
9. Muhhamad W. Khan., et al. On The Labor Rights the Effects of Corruption in
10. Construction. 14th International Conference on Statistical Sciences 29 (2016), 355-362.
11. Jasmine Kerrissey and Jeff Schuhrke. Life Chances: Labor Rights, International Institutions, and Worker Fatalities in the Global South. Social Forces 95, 1 (2016), 191-216.
12. Donya Mehran. Exploring the Adoption of BIM in the UAE Construction Industry for AEC Firms. Procedia Engineering 145 (2016), 1110-1118.
13. Ib.
14. Ib.
15. Lori A. Nessel. Instilling Fear and Regulating Behavior: Immigration Law as Social Control. Georgetown Law 31, 3 (2017), 525-559.
16. Natalie V. Schwatka, et al. Defining and Measuring Safety Climate: A Review of the Construction Industry Literature. Annals of Occupational Hygiene 60, 5 (2016), 537-550.
17. Noah Smith. Against Walls: How President Trump’s Walling Initiatives Undermine American Exceptionalism. Georgetown Law 31, 3 (2017), 623-650.
18. Nik Theodore. Rebuilding the House of Labor: Unions and Worker Centers in the
19. Residential Construction Industry. WorkingUSA 18, 1 (2015), 59-76.
20. Ib.
21. Conor Trombetta. The Undocumented Workers’ Dilemma: Improving Workplace Rights for Undocumented Workers Through Labor Arbitration and Collective Bargaining. Georgetown Law 32, 1 (2017), 127-150.
22. Yu Y. Wang. The Labor Dispute in Private Enterprises. 2017 International Conference on Manufacturing Construction and Energy Engineering (2017), 669-673.
23. Hafiz, A. K. Zahoor, et al. An Analytical Review of Occupational Safety Research in Pakistan Construction Industry. International Journal of Construction Project Management 8, 2 (2016), 125-140.

Works Cited

Abu-Shaaban, Nadine N. “Reflection on Labor Law – Construction Industry Between Text and Application.” Global Journal of Politics and Law Research, vol. 3, no. 2, 2015. pp. 55-70.

Abrar, Cuman R., et al. “Emic Perspectives on Brokering International Migration for Construction from Bangladesh to Qatar.” Migrating Out of Poverty, vol. 49, 2015, pp. 1-22.

Family, Jill E. “Immigration Law Allies and Administrative Law Adversaries.” Georgetown Law, vol. 32, no. 1, 2017, pp. 99-126.

Fargues, Phillipe, and Nasra M. Shah. Skilful Survivals: Irregular Migration to the Gulf. Gulf Research Centre Cambridge, 2017.

Flores, Rene D., and Ariela Schachter. “Who are the “Illegals”? The Social Construction of Illegality in the United States.” American Sociological Review, vol. 83, no. 5, 2018, pp. 839-868.

Jain, Prakash C., and Oommen, Ginu Z. South Asian Migration to the Gulf Countries: History, Policies, Development. Routledge India, 2015.

Khan, Muhhamad W., et al. “On the Labor Rights the Effects of Corruption in Construction.” 14th International Conference on Statistical Sciences, vol. 29, 2016, pp. 355-362.

Kerrissey, Jasmine, & Jeff Schuhrke. “Life Chances: Labor Rights, International Institutions, and Worker Fatalities in the Global South.” Social Forces, vol. 95, no. 1, 2016, pp. 191-216.

Mehran, Donya. “Exploring the Adoption of BIM in the UAE Construction Industry for AEC Firms.” Procedia Engineering, vol. 145, no. 2016, pp. 1110-1118.

Nessel, Lori A. “Instilling Fear and Regulating Behavior: Immigration Law As Social Control.” Georgetown Law, vol. 31, no. 3, 2017, pp. 525-559.

Schwatka, Natalie V., et al. “Defining and Measuring Safety Climate: A Review of the Construction Industry Literature.” Annals of occupational Hygiene, vol. 60, no. 5, 2016, pp. 537-550.

Smith, Noah. “Against Walls: How President Trump’s Walling Initiatives Undermine American Exceptionalism.” Georgetown Law, vol. 31, no. 3, 2017, pp. 623-650.

Theodore, Nik. “Rebuilding the House of Labor: Unions and Worker Centers in the Residential Construction Industry.” WorkingUSA, vol. 18, no. 1, 2015, pp. 59-76.

Trombetta, Conor. “The Undocumented Workers’ Dilemma: Improving Workplace Rights for Undocumented Workers Through Labor Arbitration and Collective Bargaining.” Georgetown Law, vol. 32, no. 1, 2017, pp. 127-150.

Wang, Yu Y. “The Labor Dispute in Private Enterprises.” 2017 International Conference on Manufacturing Construction and Energy Engineering, 2017, pp. 669-673.

Zahoor, Hafiz, A. K, et al. “An Analytical Review of Occupational Safety Research in Pakistan Construction Industry.” International Journal of Construction Project Management, vol. 8, no. 2, 2016, pp. 125-140.

Introduction

As buildings continue to expand upward the level of danger they pose on construction workers increases as a direct result of the inherent dangers of working several hundred feet from the ground.

In fact current data from the construction industry shows that falls are actually the leading cause of death for various workers involved in construction projects with a majority of fatalities actually occurring when employees fall through open-sided floors or through floor openings. While certain precautions are taken the fact remains that to this day nearly 150 to 200 workers within the U.S. alone are killed as a result of falls with up to 100,000 injuries attributable to similar accidents.

It is due to instances such as this that industry standards have required fall protection to be implemented in cases were employees face the risk of experiencing falls of 6 feet or greater. In order to help you understand the inherent risks involved I will present a rather brief presentation on the various types of fall protection currently utilized and how such methods are used to save lives.

Fall Protection

Fall protection can be defined as a method utilized in order to prevent a construction worker from experiencing significant injury or worse through the implementation of various safety precautions, procedures and devices in the average construction site (Stromme, 50).

This takes the form of two specific types namely passive types of protection systems that do not involve the actions of employees and active systems that require manipulation by employees to actually make them effective. Passive systems most often seen in construction sites range from guardrails and safety nets to barricades and covers while active systems on the other hand take the form of life lines, body harnesses, anchorage points and lanyards.

What must be understood is that when constructing upwards companies are in effect working against the force of gravity yet since gravity is ubiquitous in our natural environment this in effect causes objects to have the tendency to propagate in a downward direction when insufficient means of harnessing are not utilized.

Body harnesses, life lines and anchorage points act as contingency devices supporting workers by preventing them from falling to their deaths since they act as anchoring points and which allows workers to remain connected to the superstructure of the building after a fall (Firl, 33). It must be noted though that such devices, as mentioned earlier, require a conscious effort on the part of a work to actually be utilized effectively.

If such devices are considered to effective deterrents of falls why then are there 150 to 200 fall related deaths in the construction industry in the U.S.? This can actually be answered by the simple fact that the inherent carelessness or even foolhardiness of workers needs to be taken into consideration during construction projects since at times workers either neglect to or assume that they don’t need to utilize such cumbersome types of equipment.

It is in situations such as these that passive fall protection systems come into effect. Guardrails, safety nets, barricades and covers have saved thousands of lives over the years due to the rather careless behavior of construction workers yet it must also be noted that there are limits to their effective placement since areas within the superstructure of the building itself often do not have passive systems of protection due to space restrictions which results in the 150 to 200 deaths are year statistic.

Conclusion

Based on what I’ve presented so far it can be seen that fall protection is an indispensable tool in any construction project since it helps to save the lives of workers yet it must be noted that it does have limitations. Not all areas of a construction site can be covered with passive systems of fall protection and as such in instances such as these active systems must be utilized, if not, workers do so at the cost of their own safety and lives.

Works Cited

Firl, Craig. “Anchors and Body Support and Connectors, Oh My!.” EHS Today 3.3 (2010): 33. MasterFILE Premier. EBSCO. Web.

Stromme, Mark H. “Clearing Up the Confusion Surrounding Fall Protection.” EHS Today 3.5 (2010): 50. MasterFILE Premier. EBSCO. Web.

The private of contract doctrine was recognized in the cases of Dunlop Pneumatic Tyre Co. Ltd. v. Selfridge & Co. Ltd. (1915) and the case of Beswick v Beswick (1966)¹ under the English common law .Under these cases the third parties were not recognized as party to the contract and therefore, they had no right to enforce it. The effect of the doctrine was to limit the legal rights to any other person who might be affected by the terms of the contract but not directly mentioned in the contract. The law of contract on the doctrine of privity of contract asserts that you cannot have rights under the contract nor can the contract charge you with any responsibility if you are not party to it².

However, only those people who are party to the contract according to the English common law can be able to enforce the terms of the contract. The parties to the contract have the right to enforce the contract in the event of infringement of its terms by any one of them. The UK Act with regard to the private of contract³ has recognized the third parties who have been mentioned in the contract either expressly or impliedly. The commission has been charged with responsibility of amending the doctrine of private of contract to recognize the rights of third parties who have been mentioned in the contract. They can be able to enforce the contract before the court of law in the event of breach of the contract as provided under the UK Act. However, the parties to the contract must have intended the third parties to derive some benefits when they were including them in the contract⁴.

The UAE Civil Code limited the powers of the sub-contractors from suing the main contractors’ employer if there was a breach of the contract. The employer cannot bear any responsibility or obligation with regard to other sub-contractors. This therefore, limits the rights of the third parties from enforcing the contract against employer⁵. The UAE Civil Law therefore, recognizes only the party to the contract. According to Article 254 of the UAE Civil Code the party to the construction contract can enter a clause stipulating that the third parties will have a right to enforce the contract if their rights are infringed⁶.

Article 254 of the UAE Civil Code states that

1. It shall be permissible for a person to contract in his own name imposing a condition that rights are to inure to the benefit of a third party if he has a personal interest, whether material or moral, in the performance thereof.
2. Such a condition shall confer upon the third party a direct right against the undertaker for the performance of that condition in the contract enabling him to demand the performance thereof unless there is a contrary agreement and such undertaker may rely as against the beneficiary on any defenses arising out of the contract.
3. Individual making this condition may also demand the performance of the condition in favor of the beneficiary, unless it appears from the contract that the beneficiary alone has such a right.

Consequently, the construction industry laws did not recognize third parties who were not privy to the contract⁷. The construction laws recognized only those who were party to the contract directly. If a father wanted to construct a house for his son and the builder who has been awarded that contract of completing that job fails the son cannot sue the builder. It is important to note that the son is the beneficiary to this contract but according to the privity of contract he is considered to be a third party to the contract. This limits his power to sue the builder since he cannot enforce the contract against the builder. This limits his power to sue the builder since he cannot enforce the contract against the builder⁸. This changed after the Rights of Third Parties Act was passed in 1999⁹.

The case has been totally different when it comes to complex construction contracts. In the complex construction contracts the privity of contract clauses has quite different effects. This is due to the complexity of the situation owing to the fact that these constructions involve a lot of people carrying different construction job within the same building. These may be electricians, plumbers, and those who are involved in carrying out construction of the building. The result is that there are so many engineers who are involved and therefore, one engineer cannot be able to enforce the contract against another who is carrying on a different project or just a part of the project. This has been made possible due to the fact that many of these building projects get funds from the government or from a central place¹⁰.

Privity of contract doctrine in the construction rule has limited the beneficiary to the contract from initiating court proceedings. The beneficiary could not invoke the action of court with regard to the breach of the contract by either failing to perform or doing a substandard job¹¹. However, the UK Act allows the beneficiaries from making a decision whether to remain outside the terms of the contract or to be included. Many people in most cases opt to be included in the terms of the contract in order to have powers of enforcing the contract if any person fails to perform according to the agreement.

The rights of the party Act 1999 brought in collateral warranties. The Rights of Party Act (1999) had the effect of changing the private of contract with regard to the construction by bringing in collateral warranties. The third parties to the contract were able to be part of the contractual relationship. This Act has made building and contracts involving civil engineers quite easy to enforce¹².

The UK Act recognized the rights of third parties. The UK Act allows third parties to invoke courts action where there has been infringement of the contract; however, there are exceptions to the private of contract doctrine¹³. The parties to the construction contract can include a clause whether to be covered by the English law statutory exceptions. This will enable them to follow the earlier terms of the private of the contract when third parties cannot enforce the contract or enable the third parties named in the contract power to enforce it¹⁴.

The UAE Civil Code once enacted could enable the third parties and beneficiaries to enforce the contract. The UAE Civil Code was very important to be enacted since in the building industry most people who are direct beneficiaries cannot be able to enforce the contract¹⁵.The construction industry unlike other field has a very high likelihood of poor performance of the contract and therefore, the third party must have power to sue when there is under performance of the contract. This may be as a result of taking more time than agreed when it comes to the completion of the project. Some contractors delay in order to get more money from the specific construction project¹⁶. The third parties to the construction agreement must therefore, be empowered to enforce the contract.

Consequently, the third parties were relieved when the private of contract laws were relaxed and allowed them to sue for defective work done by the contractors. The third parties could now provoke the courts action for any injustice which amounted to breach of the contract. When it came to the construction contract any person who was named in the contract either directly or impliedly would be able to enforce the contract¹⁷.

The beneficiaries were not empowered to sue the trustees in the event of breaching the contract¹⁸. The trustee could misuse the property trusted on him as the beneficiaries were not recognized as party to the contract. However, when the rights of third parties to the contract were recognized the beneficiaries could enforce the contract against any trustee who failed to carry out his obligation with regard to the trust property¹⁹.

Conclusion

The private of contract especially with regard to the construction contract has evolved for quite a long time. Since the time when the rights of third parties were not recognized to the current time when third parties can invoke courts action with regard to the performance of the contract. This has made things move quite swiftly as everybody can enforce the contract when his rights have been infringed²⁰.

Any party mentioned in the contract can hold the contractors, engineers, and builders responsible for any defective work done. The UK Act and the UAE Civil Code have the effect of recognizing the rights of everyone who might be affected by the contract. It is no longer a relationship to the parties to the contract only but anybody else who stands to benefit or to be affected by that contract. Therefore, the English common law and the UAE Civil Code have finally recognized the rights of third parties with regard to contractual obligations and rights²¹.

Bibliography

Beatson, J, Anson’s Law of Contract, Oxford University Press, New York, 2002.

Guenter, TN, An Outline of the Law of Contract, 6th Ed, Oxford University Press, New York, 2003.

Reuters, T, Construction Law: Construction and Engineering, Al Tamimi & Company, London, 2012.

Whelan, J, & H, Marjorie, The Civil Code of the United Arabs Emirates: The Law of Civil Transactions of the State of the United Arabs Emirates, Graham & Trotman Ltd, London, 1987.

Footnotes

• 1 J Whelan & M Hall, The Civil Code of the United Arabs Emirates: The Law of Civil Transactions of the State of the United Arabs Emirates, Graham & Trotman Ltd, London, 1987.
• 2 T Reuters, Construction Law: Construction and Engineering, Al Tamimi & Company, London, 2012, p. 2.
• 3 T Guenter, An Outline of the Law of Contract, Oxford University Press, New York, 2003, p. 44
• 4 J Beatson, Anson’s Law of Contract, Oxford University Press, New York, 2002, p. 71
• 5 T Guenter, An Outline of the Law of Contract, Oxford University Press, New York, 2003, p. 44
• 6 Whelan & Hall, p. 19.
• 7 Beatson, p. 69
• 8 Guenter, p. 49
• 9 Reuters, p. 2.
• 10 Whelan and Hall, p. 10.
• 11 Reuters, p. 1.
• 12 Beatson, p. 79
• 13 Beatson, p. 73
• 14 Whelan & Hall, p. 16.
• 15 Reuters, p. 2.
• 16 Guenter, p. 61
• 17 Guenter, p. 37
• 18 Beatson, p. 83
• 19 Whelan & Hall, p. 32.
• 20 Reuters, p. 2.
• 21 Whelan & Hall, p. 12.

The establishment of a new prison in New York necessitates structured guidelines that will lead to appropriate practices and policies. The policies will describe when the need to apply force is suitable in the new facility. It is crucial to take into consideration the need for human rights in the facility. Once the facility has been established, the resulting impact on the victim’s family and the community shall be accounted for. The use of force in prisons only applies if the staff has exhausted all the efforts to communicate with the prisoner (Watson et al., 2017). Therefore, the same shall be limited to the threshold minimum reasonable and essential to provide a resolution promptly and safely. For example, self-defense in the case of a prisoner’s escape to protect property and defiance of a valid order. The methods need to be internationally recognized to be safe and quick regarding humane conditions.

It is important to use appropriate methods carefully reviewed and approved to bring an offender in control. The control and restraint techniques are applied during the following situations if the prisoner is likely to cause injury to themselves or other individuals. It is also used to counter a disturbance that is likely to spark incitement in the facility. The least harmful technique in such instances includes the application of pepper spray to the victim. It makes the prisoner temporarily incapacitated and provides an easy and safe way to restrain and relocate the prisoner. Once the prisoner has been successfully controlled, a health professional will assess the anticipated adverse reactions. However, it will require approval of authorization from the prison manager before the force is applied. After the force has been used, the victim is confined in an isolated cell and is regularly monitored until its safety has been reviewed.

The facility shall constitute an effective civilian oversight to review all aspects to ensure best practices. There shall be an established correctional oversight model to review each activity undertaken in the facility (Gaes, 2019). Correctional facilities (prisons) need to be safe in terms of human conditions. The model is to be designed based on hierarchy. For instance, there shall be a New York office of ombudsman meant to investigate complaints arising from the inmates in the facility. The facility intends to allow the inmates to communicate to the office either by phone or in writing. The venture shall be privileged and will not be monitored by the concerned department. Furthermore, the project will have its committee tasked with reviewing complaints from the inmates and human conditions. The committee will take appropriate measures once they have examined the complaints. It will be assigned to investigate matters related to sexual assaults among the inmates.

The facility shall also have an independent oversight to ensure safety and a healthy facility system. The protection of human rights’ inmates necessitates transparency as well as a regular monitor of its condition (Van der Valk & Rogan, 2021). The independent body comprises individuals within the community and is voted for to oversee on behalf of society. The body shall be responsible for undertaking inspection on the whole detention and report to the public. Therefore, it shall be tasked to normalize discussions between policymakers, officials, and corrections individuals regarding upholding dignity and human rights. The facility should not be an opaque institution to society. Prisons’ data concerning the safety and health conditions of the inmates should be updated regularly. Therefore, the data will help improve the services and conditions of the facility.

References

Gaes, G. G. (2019). Current status of prison privatization research on American prisons and jails. Criminology & Public Policy, 18(2), 269-293.

Van der Valk, S., & Rogan, M. (2021). Experiencing human rights protections in prisons: The case of prison monitoring in Ireland. European Journal of Criminology, 18(1), 101-119.

Watson, A. C., Compton, M. T., & Draine, J. N. (2017). The crisis intervention team (CIT) model: An evidence-based policing practice.Behavioral Sciences & the Law, 35(5-6), 431-441.

Introduction

Arbitration is a model of alternative dispute resolution (ADR), which is officially authorized for practice, in pursuing the resolution of disputes, from a less formal approach. The model offers such resolution outside the legal coverage of a court, where the parties to the contract under dispute, refer the case to one or more arbitrators or arbitrator tribunals, whose decision regarding the conflict will become binding upon them (Redfern & Jennifer 48).

In the case of an arbitration case, a nonbiased third party (the arbitrator) reviews the evidence related to the dispute case and arrives at a decision, which they present to the conflicting parties, which becomes legally binding upon them, thus enforceable. Besides arbitration, alternative models of alternative dispute resolution (ADR) include mediation, which is another form of settlement negotiation enforced by a non-biased third party, though this resolution model is not binding (Buhring-Uhle & Gabriele 24; Schreuer 137).

Discussion

Arbitration can either be mandatory or voluntary, where voluntary arbitration comes in, in case it is defined so by a statute or from a contractual agreement, which is voluntarily agreed upon. In this case, the parties mutually agree to present all existing or future contractual disagreements to arbitration, without precisely knowing when and the types of disputes they are likely to face.

However, voluntary arbitration, as explained above, can either be binding or not, where non-binding arbitration is comparable to the ADR model of mediation, in the aspect that the decision made by the arbitrator cannot be imposed on the parties. Further, there is a principal distinction, in as much as a mediator may try to aid the parties to the dispute, in arriving at a common agreement.

The arbitrator in a non-binding dispute resolution keeps away from any involvement, by not engaging in any settlement attempts, and will only offer a declaration of liability and responsibilities among the parties. The arbitrator further, may offer an indication or direction on the number of damages to be offered. The decision by the impartial adjudicator is usually agreed upon or directed by legislation, as binding and final (Tibor, John, & Arthur 174; Buhring-Uhle & Gabriele 24).

According to the “practical guide for drafting international arbitration clauses,” arbitration processes should be consensual between the parties in question, and such parties to the international contract may influence how the arbitral guidelines are conducted. The first phase where the parties to the arbitration agreement may take control of the arbitration process is during the drawing of the arbitration clause to guide them.

At the time of fashioning the clause, the parties hold substantial and considerably unlimited freedom to contribute to the engineering of the structure of the desired arbitration approach. In the area of treaty requirements, the convention on the institution and execution of overseas arbitral guidelines (New York conference) as well as the Inter-American conference on global commercial arbitration (Panama conference), direct that the arbitration declaration should be expressed in written form, where the writing may be part of the contractual document or a separate arbitral declaration (United Nations 3-5; United Nations 4-5).

In this light, the arbitration clause has met these requirements, as it is in writing, as a part of the contractual document. The second condition is that the written arbitration declaration must be signed by the parties or expressed through the exchange of communication, through models like telegrams or letters. As per this second condition, the clause has been signed against, by the parties to the contract, thus has met the standard.

This aspect was completed after the Dubai-based company entered into the contractual agreement with the Yemen-based company, in the capital construction contract. From agreeing to the contractual provisions, the assumption is that the Dubai-based company consented to all the provisions of the contract, including the arbitration clause (DIFC Arb Law. Part 3, Chap 2, sec 12, c. 1).

As per the provisions of (DIFC Arb Law. Part 3, Chap 1, sec 9) on waiver of the rights to object arbitration clauses, any contracting party who is aware that any of the provisions of arbitration law or other requirements are not met or complied with, yet proceeds with the process of the arbitration without stating express objection, is bound by such clauses.

To avoid the assumed compliance, they should state their objection to any noncompliance to the provisions to be checked, without delay, or within the time limit expressed thereof. In the case that they do not express such disagreement, they are assumed to have waived any such rights or noncompliance with the provisions offered through the arbitration clauses. From this waiver of the rights clause, it is evident that the Dubai-based company waived any rights to object to the clauses of the arbitration agreement before signing it.

This is expressly the case, as the act of going through the clauses and signing to them showed a degree of consensual agreement on their part, thus compliance to the provisions expressed through the clause. However, the company may pursue a revision of the provisions contained in the arbitration clause, which must involve the other party to the contract, as they must arrive at an agreement regarding the revisions to be affected (Yves & Garth 89).

As per the provisions of DIFC on the appointment of arbitration agents, the parties are free to decide the number of arbitrators to be engaged in the process, as long as it is an odd number. As per section 18, clause 1 and 2, the arbitration declaration goes against the conditions to be met, before a decision is reached on whether a third party should be taken in as an arbitration agent or not (DIFC Arb Law. Part 3, Chap 3, sec 16, c. 1).

The arbitration agreement presented to the company is flawed in this area, as it states declaratively that, “both parties agree that, at least, one arbitrator should be DR Karim Akram.” As per the DIFC-LCIA Mediation rules, article 5.4, a sole arbitrator is appointed, in case that the contracting parties arrive at an agreement in writing or otherwise, defining the number of arbitrators to be engaged in case they need arbitration.

In this case, the clause implies that the preferred arbitrator is the only one to preside over disputes, in case the parties do not arrive at an agreement. As a result, the dispute resolution may not be carried out in a transparent, unbiased manner, as the preferred arbitrator may be affiliated to one of the parties. Further, the LCIA court, from a consideration of all the circumstances surrounding the dispute, may declare that the case should be resolved by a three-member tribunal, to preside over the resolution (Lew, Loukas, & Stefan 134).

The declaration of a single arbitrator is grossly questionable, as to whether the preferred party, may be viewed as one not having ties or bias towards any of the contracting parties. This is especially the case, as the single arbitrator may have been proposed by one of the parties to the contract and not the different parties (Arb Act, 1996, C 1(a) & 24(1), a).

This is the case, as an arbitrator should disclose any information and circumstances likely to cause justifiable doubts as to his impartiality or independence (LCIA Art. 5.2; UNCITRAL art. 10, 1). As a result, on the basis of such considerations, it is clear that the preferred party may not have declared full information to both parties, regarding their neutrality, which may render them unfit for the position.

Based on such grounds, according to (DIFC Arb Law. Part 3, Chap 3, sec 16, clause 2), the arbitration agreement may be challenged, requiring changes to be implemented, exempting any preferred party as an arbitration agent, as they may hold biases or receive considerable influence from one of the parties at a time of crisis or in anticipation of one, which may render injustice to the other party (Dugan, Don, & Noah134).

As per DIFC Arbitration provisions, section 29, clause 1, the arbitration clause should also reflect the language to be used during arbitral proceedings or processes. In cases where there is a disagreement between the parties with regards to language, the arbitral tribunal takes the mandate to determine the language to be used. As per the arbitration clause binding the two parties, it is clear that during the contractual agreement, there is no language named as the one to be used during an arbitration resolution.

As a result, the clause may need revision, to accommodate such a consideration, which is of great significance towards the arbitration of any conflict that may face the partners in the future. However, the said change cannot be affected by the CEO, the company or the contract manager, but through an expressly consensual agreement between the contracting parties (Craig, William, & Jan 65).

The change should be effected in written form, amongst the two parties, and the failure to do so may render the change invalid, as such an agreement should be subject to reference and revision. Further, in case the two contracting parties will not arrive at a consensual agreement regarding the language, the arbitration party will choose the language, at the time of need for arbitration.

The clause on the language to be used at resolution is extremely important, as the contracting parties are from different nations, thus likely to be users of different languages. Considering the current case, where multiple language usage may be necessary, the arbitrating agents may order for documentary evidence for the case, which is to act as translated support for the issues under discussion, in the different languages agreed upon by the two parties or declared by the arbitration agents (DIFC Arb Law. Part 3, Chap 3, sec 29, clause1, 2).

The number of arbitrators to appear at the arbitration proceedings should also be incorporated into the arbitration clause, as this may form an area of further dispute, in case the number is not decided, for instance, where the different parties will prefer to have a different number of arbitrating agents. The arbitration clause incorporated into the contractual agreement of the two parties falls short of some of the conditions to be met, before the clause can be enforceable.

According to the (Carbonneau 76), there are four basic necessities before the clause can be enforced, including that the clause should be in writing, that it should be limited to existing or anticipated disputes; that it should define the legal relationship existing between the contracting parties, and that the subject matter in question is one that can be subjected to arbitration (arbitrability). For example, in the coverage of matters related to the contract, all issues are arbitrable, except those that fall under matters of public interest or public order, as per the AAA Commercial Arbitration Rules, art. 47(c).

Further, arbitration is a private matter, which may present potential public consequences, which explains why certain matters of dispute resolution may be reserved to the national courts (Boskey 123). As a result, the arbitration clause should be revised, to ensure that the coverage of disputes is limited to those that do not present potential public consequences (Buhring-Uhle & Gabriele 24; Carbonneau 76).

With reference to the UAE civil code, which is a defining guide in legal practice at Dubai, arbitration is not permissible for matters that can be resolved through reconciliation between the contracting parties. Therefore, this should be incorporated into the coverage of the arbitration clause (UAE Civil Code in its Article 203, 4).

From the current arbitration clause, the definition meets the standard requirement that it should be expressed in writing, as it is incorporated into the contractual document. Second is the wide coverage of the operational clause, regarding existing or anticipated disputes as it declares that, “any dispute of whatever nature arising out of, or in any way relating to the agreement or to its construction or fulfillments.” From the definition of the clause, the coverage of the existing or anticipated disputes it is too wide, thus will need revision.

The wide nature of the definition implies that the issues of dispute covered under the definition, may include tort-based claims, conspiracy, or breach of contract, which are beyond the boundaries of the contractual agreement. Based on such understanding, the wording of the arbitration claim should be revised to reflect the scope of the arbitration case in a specific manner. This is the case, as it may raise questions on the issues that can be submitted to the arbitration claim and those that cannot (UNCITRAL art. 17; Buhring-Uhle & Gabriele 24).

The other area of flaw that may be identified with the arbitration clause in question is that it covers a wide range of conflicts, thus grossly vague and incapable of offering guidelines on dispute resolution. A more effective revision of the clause would state, “any dispute arising from or associated to this contractual agreement, including questions on its existence, termination or validity, shall be submitted and consequently solved by arbitration, as per UNCITRAL rules, which are deemed as incorporated by reference into the arbitration clause.”

From this clause, it is clear that the coverage of the disputes that can be resolved through arbitration is clearly defined, as opposed to the definition expressed through the original arbitration clause, which is binding on the Dubai and the Yemen-based company (DIFC-LCIA Art. 16.2). Further, the clause should incorporate a duration consideration, where it defines the time period within which the dispute should be considered, as one that should be taken to arbitration.

For example, the clause can include a definition that the two parties should be offered a duration of 14 days, during which they can arrive at a resolution through the aid of a single arbitrator. In the case they are not able to arrive at a resolution, the issue of dispute may then be pushed to a higher level of arbitration, to involve more arbitrators (Boskey 123; Blackaby, David, & Alessandro 45; Buhring-Uhle & Gabriele 24).

Conclusion

Arbitration is a model of alternative dispute resolution (ADR), which is carried out at the agreement of the two contracting parties, outside the court, through the facilitation of a neutral third party called the arbitrator or mediator. There are two types of arbitrations, enforceable and non-enforceable. Arbitration is often used for commercial business deals as well as in consumer and employment related disputes.

Under non-binding resolution, the arbitrator is not allowed to influence the decisions of the parties attempting to resolve the dispute. Under binding arbitration, the arbitrator is allowed to influence the decisions of the parties towards dispute resolution. Arbitration as a mode of dispute resolution, should be consensual between the conflicting parties, and should be expressed and noted in written form, if only it is to be considered enforceable.

The clause may be a binding document on its own, or a part of the contractual agreement. In the case of the arbitration clause binding the Dubai and the Yemen-based contracting parties, in a capital construction contract, it is faulty in a number of ways, though the two parties consented to the provisions, after signing against the agreement document.

As per the provisions of DIFC part 3, chap 1, section 9, the Dubai-based company waved its rights in contesting the provisions of the arbitration clause, though it can engage the other party for a review of the clause. The move to edit the clause must involve the second party, as the clause is legally binding, thus cannot be altered without express consent from the two parties.

The areas that may need revision in the current clause include the choice of arbitrators, as the mode of selection must exhibit total transparency and non-bias from the parties selected as mediators. The declaration of a single arbitrator through the clause should also be revised, as it implies that in the case that the two parties are not in agreement regarding the choice of arbitrators, the one in the clause will take charge.

However, that may be improper, as it is likely that the single arbitrator who is pre-chosen may be affiliated to one of the parties, thus offering biased mediation. The arbitration clause should also reflect the language to be used during an arbitration exercise, the desired number of arbitrators to facilitate conflict resolution, as well as extend its boundaries to only the areas that don’t engage public interest. The coverage of the arbitration clause should also be revised, to reflect a clear distinction of the conflicts it covers, as on open one may imply covering parts it does not.

Works Cited

AAA Commercial Arbitration Rules, art. 47 (c).

Arbitration Act 1996, Chapters 1(a) & 24(1), a.

Blackaby, Nigel, David, Lindsey, & Alessandro Spinillo. International Arbitration in Latin America. New York: Kluwer, 2003. Print.

Boskey, James. The American Arbitration Association Insurance ADR Manual. New York: West Pub. Co, 1993. Print.

Buhring-Uhle, Christian, & Gabriele Kirchhof. Arbitration and Mediation in International Business. New York: Kluwer, 2006. Print.

Carbonneau, Thomas. Cases and materials on the law and practice of arbitration. Kluwer: New York. Print.

Craig, Laurence, William, Park, & Jan Paulsson. International Chamber of Commerce Arbitration. New York: Oxford University Press, 2001. Print.

DIFC ARBITRATION LAW. Part 3, Chap 1, sec 9.

DIFC ARBITRATION LAW. Part 3, Chap 2, sec 12, clause 1.

DIFC ARBITRATION LAW. Part 3, Chap 3, sec 16, clause 1.

DIFC Arbitration Law. Part 3, Chap 3, sec 16, clause 2.

DIFC ARBITRATION LAW. Part 3, Chap 3, sec 29, clause1, 2.

DIFC Arbitration provisions, section 29, clause 1.

DIFC-LCIA Arbitration Rules, Article 16.2.

DIFC-LCIA Mediation Rules, Article 5.4.

Dugan, Christopher, Don, Wallace, & Noah Rubins. Investor-State Arbitration. New York: Oxford University Press, 2005. Print.

LCIA Rules art. 5.2; UNCITRAL Rules art. 10, 1.

Lew, Julian, Loukas, Mistelis, & Stefan Kroell. Comparative International Commercial Arbitration. New York: Oxford University Press, 2003. Print.

Redfern, Allan, & Jennifer Hunter. Law and Practice of International Commercial Arbitration. London: Sweet Maxwell Press, 2004. Print.

Schreuer, Christoph. The ICSID Convention: A Commentary. Cambridge: Cambridge University Press, 2001. Print.

Tibor, Varady, John, Barcelo, & Arthur Mehren. International Commercial Arbitration. London: Sweet Maxwell Press, 2006. Print.

UAE Civil Code in its Article, 203, 4.

UNCITRAL Arbitration Rules, Art. 17.

United Nations. “Inter-American convention on international commercial arbitration.” Inter-American specialized conference on private international (1975): 3-5. Print.

United Nations. “United Nations Conference on International Commercial Arbitration.” United Nations (1988): 4-5. Print.

Yves, Dezalay, & Garth Bryant. Dealing in Virtue: International Commercial Arbitration and the Construction of a Transnational Legal Order. London: Sweet Maxwell Press, 1998. Print.

The Scope of the Work

The refurbishment work will consist of a total repair of the whole house. The first step will involve removing the old roof and disposing it carefully before replacing it with a new one. The quality of the current roof has deteriorated as a result of being attacked by rust. The second task will be to replace some of the doors and windows that have grown extremely old and painting those that can be reused.

This task will also involve replacing the old and faulty locks. The third task will involve removing the existing tiles on the floor and replacing them with new ones. The contractor will also be required to replace the existing ceilings, which are also in a bad state. The fifth task the contractor will undertake is repairing the bathroom and kitchen. The last job will involve re-painting the walls, ceilings, roof, doors, windows, and other parts of the house, both from inside and outside.

The Risks Involved

There are a number of risks involved the refurbishment of the house especially when it is left in the hands of a contractor. The risks in this case include: the cost of the refurbishment, the quality of the work, the project’s duration, the delays that could occur, the claims that could arise, and any other potential disputes that may crop up.

In most cases, the potential disputes are propagated by misallocation of risk during the refurbishment process. The contract risks have to be identified in time to avoid legal issues and any other misunderstandings between the owner of the house and the contractor.

The cost risks involved in the refurbishment involve the expenses that will be incurred in the purchase of new materials, which are supposed to be used in replacing the old ones. The risks relating to the quality of the job will be determined by the outcome of the refurbishment.

The risks concerning time, delays and any claims that may arise out of breaching the contract will be determined at the end of the whole refurbishment. If the contractor fails to allocate the risks well, any other disputes that may crop up later will be considered to have been caused by negligence on his part.

Allocating Risks in the Construction Contract

The risks in the construction contract will be allocated based on four principles: the ability of the contractor to carry out the refurbishment, the alignment of the objectives of the refurbishment, the allocation the risks according to the preferred goals of the owner, and the provision of risks based on the promotion of the relationship between the owner and the contractor.

According to the first principle, the contractor will be responsible for the evaluation, control, costs and benefits that will result from his assumptions. This type of allocation will reduce the overall price of the contract since the contractor will not have to include the possibility of financial losses within the contract.

The second principle will be used to maximize the success of the contract; this will require the contractor to understand every objective that the refurbishment is intended for. Other risks will be allocated according to the third principle, which will ensure that the refurbishment considers the specific operations that the contractor will use to accomplish the refurbishment task.

Lastly, the risks will be allocated between the owner and the contractor based on owner-oriented performance goals. This principle of allocation will ensure that the contractor aligns his refurbishment team with the performance goals or preferences of the owner.

Introduction

Mediation refers to a structured negotiation process managed by an independent third party who is neutral so that the outcome becomes legally binding. Legal provisions governing mediation are usually found in civil procedures codes or in national mediation laws. Mediation is anchored on six major principles: voluntariness of the parties in determining the procedure, selecting the mediators, and final decision-making; confidentiality of the procedure and its outcomes; equality in the mediator’s relation towards the parties; neutrality in the mediator’s relation towards the subject matter of a dispute and the mediator’s recommendations; and enforceability of settlement agreements.

Mediation is not compulsory in The UAE but it is included in many government contracts. It is governed by The UAE Civil Procedure Code, Federal Law No. (11) Of 1992. (Chapter Three) and the UNCITRAL CODE. Mediation in The UAE and most of The Gulf states can be traced to traditional religious and cultural practices that advocated for peace and harmony. The mission of a mediator was to offer a solution that both parties would honor. The use of mediation is on the rise. The CEDR found that the number of mediations disputes it handled rose from 100 cases in 1997 to 700 cases in 2004. Mediation has recorded substantial success rates, as over 80% of the disputes that are voluntarily submitted to mediation are satisfactorily resolved.

There are many legal disputes in the construction industry. Construction projects involve contracts between investors, contractors, and laborers. Legal documents are required to be prepared for regulating the subject matter of the contract, setting the price, the time framework and limit; and other modalities related to the complex construction industry. Parties find themselves entangled in massive legal wrangles involving sub-contracting, delays, and scope of work, costs, and deviations from the project framework, damages, shortfalls, and non-execution.

Disputing parties used to submit their disputes to arbitration but they realized that arbitration is adversarial in nature. Mediation was proposed as a viable alternative and is currently being embraced in the construction industry. This paper seeks to explore the difficulties that may be encountered in enforcing local and international mediation in The UAE and other countries. The paper also recommends specific measures that may be put in place to overcome the challenges.

Effectiveness of Mediation in the Construction Industry

The advantages of using mediation in the construction industry over other dispute resolution mechanisms are that; the mediator is neutral; it’s speedy as the maximum time limit is 30 days; it’s less expensive as compared to court procedures or arbitration. In the UAE’s construction industry, mediation is preferred because it only takes a few days as compared with the arbitration, which can take up to 2 years. Contractors are also keen to be cooperative and to maintain stable relationships with the employer.

Dubai has established a mediation centre for property and construction disputes to deal with the piling caseload in the property court. The centre was established to resolve hundreds of disputes between developers and investors that ensued after the global economic crisis. More than 500 cases were pending in the property court. Within the month of March 2009, the centre had solved 95 cases.

Mediation is only effective in disputes in the construction industry where parties have been involved in projects together and have established cooperation. This is where there are prospects for working on a project together in the future and parties want to protect their reputation by avoiding publicity. This is where the subject matter of the dispute is more technical than legal. For instance, disputes over quality and quantity where the project is not yet completed and parties would wish the construction to continue. In addition, where parties have failed in negotiating an agreement and where there is no intense hostility between the parties.

Difficulties of Enforcing a Mediation Outcome

The most glaring disadvantage of the mediation process is that the decision is not compelling and binding as is the case with arbitration and litigation. However, this does not wash out its benefits since it still saves on time and money. The mediation outcome is the fruit of a voluntary process and it is expected that parties will fulfill their obligations out of goodwill.

Parties sometimes refrain from enforcing an agreement. This could be due to a shift in position once the mediation is through; change of leadership or ownership of the company; differences in interpretation of a term; currency fluctuations; Impossibility of performance due to natural events and government action; and negative public reaction.

Failure to enforce a settled agreement means that enforcement action must be taken. This defeats the primary goals of mediation such as avoiding delays and preservation of relationships. The degree to which these goals are undermined can be impacted by the enforcement mechanisms available.

Lack of a proper Enforcement Mechanism

UNCITRAL prepared a model law on conciliation to support its increased usage. The UNCITRAL model sough to legislate crucial issues such as the admissibility of certain evidence in subsequent judicial or arbitral proceedings as well as the role of the conciliator in subsequent proceedings and facilitating enforcement of settlement agreements resulting from conciliation.

Article 14 of The UNCITRAL Model law on international commercial Conciliation states that “If the parties conclude an agreement settling a dispute, the settlement agreement is binding, and enforceable, (the enacting state may insert a description of the method of enforcing the settlement agreement or refer to provisions governing such enforcement)”.

The model failed to address the lack of a proper enforcement mechanism. Those who were developing the model had proposed a uniform enforcement mechanism to create a mediation outcome with similar force to an arbitral award but their proposal was rejected.

Harmonization by way of uniform legislation was not viable because of differences in domestic procedural laws of various states The UNICATRL mechanism left the issue of settling on the appropriate mechanism in the hands of local jurisdictions. This has been criticized by legal scholars as the major weakness of the model law.

Argument That the Settlement Agreement is not binding

Defense counsels of parties have usually argued that the mediation agreement is not binding on the parties. They posit their argument on the point that mutual consent is not sufficient to give rise to all material terms necessary to form an enforceable contract. They further argue that abbreviated agreements or memoranda of understanding prepared at the mediation session as a shorthand recording of the terms agreed are not binding agreements.

Courts have recognized the difficulty of formulating a complete and final document in complex mediation cases. Due to this difficulty, courts have a policy of enforcing settlement agreements where all material terms have been agreed upon through mutual settlement. Where the governing law or the court exercising jurisdiction rules that the mediation settlement agreement must be in writing, parties cannot purport to enforce an oral agreement.

Duress and Coercion

As a general principle of the law of contracts, an agreement obtained through the use of force, duress or coercion is not enforceable. Use of duress or coercion is quite common in the construction industry especially in cases of unconscionable bargains where one party has an advantage over the other. The duress or coercion should not be trivial and the court uses its discretion to determine whether the act complained of really amounts to duress.

Courts have enforced settlement agreements despite claims of fraud or coercion in several circumstances. For instance, in a situation where the party claimed that by being denied permission to leave the room, he had been sapped of his free will, and in another case where a party claimed that he had been threatened with prosecution in a bankruptcy court.

Generally, facts said to constitute undue influence in settlement agreements pertaining to the construction industry have been listed down as:

1. Discussion of the transaction at an unusual or inappropriate time; the consummation of the transaction in an unusual place
2. insistent demand that the business be finished at once; extreme emphasis on the untoward consequences of delay
3. use of multiple persuaders by the dominant side against a servient party; absence of third-party advisors to the servant party
4. Statements that there is no time to consult financial advisers or attorneys

In Desert Line Projects v. Yemen24, The ICSID set aside a settlement agreement in2008 on the basis that it had been reached on grounds of coercion and duress. Desert Line had contracted with Yemen to execute a major road-working project and had been lulled into continuing work by continuous assurances of payment. After a failure by Yemen to pay for a year and a half, Desert Line filed an arbitration demand and an award in its favor was rendered.

Following the award, settlement discussions commenced and Desert Line agreed to accept half the amount awarded. Desert Line commenced a second arbitration in which the tribunal set aside the settlement agreement and reinstated the original award, finding economic duress, based on actions during the negotiation period, which included armed interference and preemptory advice that “you better take this deal”. The tribunal noted, “Economic duress is present in many settlements and cannot be a basis for setting aside an agreement”.

Fraud

Fraud is commonly raised by defaulting parties to mediation in the construction industry as a ground for setting aside a settlement. his ends up frustrating the outcome of the mediation process and causes parties to resort to arbitration and litigation. Courts are keen to apply contract rules strictly in deciding the actions that amount to fraud. A material misrepresentation is often cited as sufficient ground to set a settlement agreement aside.

Confidentiality and Party Autonomy

The issues of party autonomy and confidentiality in mediation are a grey area when it comes to enforcement of the settlement agreement. In a jurisdiction where strict confidentiality is applied in mediation, courts refuse to accept evidence relating to fraud in the proceedings on the ground that such disclosure is prevented by the operation of the principle of confidentiality¹⁰. This raises the issue of to what extent the principle of confidentiality should be allowed to operate in the enforcement of a settled agreement.

Enforcement of Foreign Settlement Agreements

Globalization has led to a significant increase in bi-lateral and multi-lateral trade. The construction industry has not been spared. In the United Arab Emirates, for instance, multinationals and international conglomerates play a significant fact in the construction industry. It is very difficult to enforce settlements agreements that are given outside the country’s boundaries. In the United Arab Emirates Articles 36 of Law No. 6 of 1997 states, “No contract where Dubai Government or any of its departments is a party shall contain a provision for arbitration outside Dubai courts or any dispute regarding arbitration or its procedures shall be the subject to any laws or rules other than the laws, rules and regulations prevailing in the Dubai Emirates”.

The law governing enforcement of mediation at the international level is the 1958 New York Convention on the Enforcement of Foreign Arbitral Awards which provided that arbitration agreements are to prevail over actions in the Court and that they are to be enforced in over one hundred countries throughout the world, including the major trading nations. The UAE Civil Procedure Code, Federal Law No. (11) Of 1992 specifically provides that the rules governing the arbitration are to include Agreements and Conventions relating to Arbitration to which UAE is a party.

The New York convention is outdated in relation to enforcement of mediation agreements because by the time it was formulated only arbitration was envisioned as an enforceable alternative dispute resolution mechanism in international trade. The convention also contains various ambiguities and lawyers from different jurisdictions do not agree on the interpretation of the clauses within the convention. UNCITRAL recommendations as to interpretations of the New York Convention are used as mechanisms for clarifying the meaning of the language of the convention but scholars argue that the recommendations alone are not sufficient.

Recommendations

Sufficient measures need to be put in place to ensure the enforcement of settled mediation agreements. A study in 2009 indicated that Dubai was rapidly losing the best sub-contractors and suppliers to other jurisdictions that are more reliable in delivering payments.

Security of payment (SOP) legislation should be entrenched in mediation settlement agreements. The Housing and Construction Regeneration Act 1996 that governs adjudication proceedings in construction disputes introduced the concept of SOP in the UK. The Act eliminated all delays related to payment and was adopted in other commonwealth jurisdictions such as Ireland, New Zealand and Australia. The Act establishes a quasi-judicial body charged with the task of resolving construction disputes quickly and keeping money flowing in the construction industry.

All the players in the construction industry can claim under the SOP. The more complex a claim is, the higher the cost. Irrespective of any legal proceedings that may ensue afterward, payment must be made to the contractor immediately after the adjudication ensuring a steady cash flow in the construction project.

The non-compulsory and non-binding nature of mediation outcomes reduces the credibility and effectiveness of mediation in the construction industry. Legislation should be enacted to compel enforceability of mediation outcomes similar to that of arbitral awards. The UNCITRAL should be amended to set a uniform enforcement mechanism for all states. In The EU, for instance, Article 6 of The EU Mediation Directive calls upon all members to ensure that it is possible to enforce a written agreement arising from mediation.

The enforcement mechanism of a mediation agreement in the construction industry should not be in the form of a contract as it leaves the enforcement mechanism in the hands of the party leading to highly unsatisfactory results. Instead, the enforcement mechanism of a mediation agreement should be in the form of a judgment. In Colorado, The Colorado International Dispute Resolution Act provides that if a settlement agreement is reduced to writing, the parties or their attorneys may present it to the court and it shall be enforceable as an order of the court.

The mediation agreement can also be enforced in the same manner as an arbitral award. In South Korea, Article 18(3) of the Arbitration rules provides that upon successful mediation, the mediator shall be regarded as an arbitrator and the result o the conciliation shall have the same effect as an arbitral award.

States with enforceable oral settlement agreements should phase out the mechanism since the new trend is towards written agreements. This is the case in all US jurisdictions and in The EU under The EU mediation directive.

The New York Convention should be amended to give effect to mediation as an effective dispute resolution mechanism in international trade. Comprehensive UNCITRAL recommendations on the interpretation of the convention also need to be enacted to clarify the extent of application of the convention in international mediation settlement agreements.

Conclusion

Currently, the rate of increase in mediations in the construction industry is correspondent to an equivalent increase in court litigation proceedings arising out of the mediation. This is watering down the positive effects of the application of mediation. In a review conducted by Professor Coben on cases involving mediation in The United

States in 2006, he came across over 1200 cases concerning enforcement of a settled mediation agreement where issues had been subjected to further litigation.

Mediation is growing at a very high rate and the trend of subsequent litigation needs to be eliminated. Today in The United Arab Emirates, mediation and arbitration centers have grown phenomenally. With the establishment of a mediation centre for the property industry in 2009, disputes subjected to mediation are set to increase. It would be unfortunate if the disputes are then handed over to the property courts, as it would defeat the very purpose of the establishment of a mediation centre. To harmonize The UNICTRAL and achieve a high degree of certainty, states should make as few changes as possible when adopting the model into their domestic legal systems.

References

Khatchadourian, M. (2008). Arbitration and Mediation between Europe and the Gulf.Shiac.2008.PDF File. pp. 1-18.

Shehadeh, N. (n.d). Mediation: An International Review. PDF File. pp. 1-43.

Shehadeh, N. (n.d). The Law Governing ADR. PDF File. pp. 1-32.

Sussman, E. (2002). The Final Step: Issues in Enforcing the Mediation Settlement Agreement. PDF File. pp. 1-24.

Introduction

Construction industry is amongst the largest industries in the world. It involves rebuilding of devastated areas either by natural or man-made catastrophes (E-facts 1). The industry incorporates man power, services and communications to meet the needs and expectations of people in the world.

Even with the recent technological advancement, construction industry still remains number one hirers of human labor. Statistics shows that it covers about 9% to 12% of the worlds’ working nation. It is expected to rise to 20% by 2015. According to study done by construction Industry (NACE sector F), the construction contributed approximately EUR 470 billion to the eu-15 economy.

This represents about 5.2% of the GDP of the EU-15. Additionally, survey by Labor Force Survey in 2002 showed that construction sector employed about 12.7 Million workers which represented about 7.9% of the EU-15. The construction industry has grown continuously at a steady pace of 9% (European Agency for Safety and Health Work 3).

However, this continuous growth and activity in the industry comes with a price to pay. There so many accidents recorded in the industry. It is difficult to give a statistical number of accidents in the industry as quite large number of the accidents goes undetected and unreported. Nevertheless, it is confirmed that most countries, fatal accidents in the construction accidents exceed those in other manufacturing industries.

Factors that contribute to the accidents include the nature of the working environment such as exposure to weather and are often of over short life constructions. Additionally, there are high proportion of uninsured firms and self-employed workers. Actually, the industry has a large number of seasonal and migrants workers. Often these workers are unfamiliar with the construction principles and processes (ILO 1).

Falls at the construction

Falls from constructions are very dangerous. Depending on the height through which a person is likely to fall and the kind of surface on which the falling person is likely to fall. This calls for a tough requirement for the construction companies to implement so as to ensure that employees are well protected.

Visiting most construction site one would notice one common factor- negligence on protective measures by the workers. Interview them and you would realize that they hardly know anything regarding fall protection.

For instance, on a certain Friday of the year, an estimator visited construction site A to look at a cedar shake roof to estimate the cost of the construction. Speaking to a supervisor of the site, he climbed to the roof through open skylight by climbing a metal extension ladder. He was unaware that the contractor actually had used a sheet of thin insulating roof material to cover three 2 by 6 foot skylight openings in the roof.

He stepped onto the insulating material and pooof! He landed on his back 15 feet below. As the supervisor and the employees heard the estimator fall, they hurried to the scene of accident. The estimator was rushed to the hospital five minutes later with serious spinal injuries. In this scenario, who should be held responsible of the incident? What should be learnt from this scenario to ensure safety at the construction site? (Geigle 7).

From this case study and many others not mentioned here, it is clear that falls constitute the major injuries at the construction sites. These accidents are generally facilitated by a large number of factors.

This calls for the establishment of standard for fall protection. Safety standards have been established and been revised to prevent employees from falling off at the construction sites: “The rule covers most construction workers except those inspecting, investigating, or assessing workplace conditions prior to the actual start of work or after all work has been completed” (OSHA 1).

These standards are used to find out the areas where workers require reinforcement against falls. These could include but not limited to excavations, walkways. Runways unprotected sides and edges, roofing work, wall openings amongst others (OSHA 1).

Importance of establishing safety in the construction site

According to the European Survey of Working Conditions in 2000, the average rate of absenteeism in the construction industry is said to be 30 million days annually. This implies that an average of 7.3 days of illness absence from place of work is reported.

Out of this, 32% of the absentees are due to accidents related illnesses, 28% are non accident but work related complications and a 40% non work, no-accident related health issues. European Statistics on Accidents at work (ESAW) in 2000 revealed that there are about 822 thousands accidents cases of which 1200 of them are fatal accidents in the EU-15.

This implies that about 18% of nonfatal accidents and 24% fatal accidents at work place are reported annually. This figure is not exhaustive as most of sectors do not report the accidents such as public sector and self employed sectors. Generally, it can be concluded that there are many other accidents in the construction sites and that the incidence rate of non fatal accidents at work is a twofold compared to the fatal.

Of these accidents described above in the construction industry, about 200 workers die from falls at the construction sites. About 100 000 suffer from severe injuries. These fatal accidents and injuries have led to the establishment of standards to manage the safety such as OSHA standard for fall protection (European Agency for Safety and Health Work 3).

The protection is required because the employees at the construction sites can lose grip and slip or can trip and misstep at anytime. Thinking that the workers reflexes should guide and protect him is unrealistic as people fall inadvertently and may suffer serious damage or even die. Most of falls reported at the construction sites results from ladders, roofs and scaffolds. They are often caused by loss of balance due to tripping, miscalculated steps and slipping.

The most common types of falls the construction sites includes falls from ladders, roofs, stationery vehicles, falls down stairs, from scaffolds and from girders and structural steels amongst others. This calls for a fall protection standards to be emphasized at the construction sites to alleviate the emotional, physical and economical suffering experienced by the affected individual, his relations the contractor and the government at large (Geigle 18).

Improvement of safety and healthy working conditions is very essential to all stake holders in the industry and the government. Safety measures are all efforts planned and implemented with the intention of preventing accidents and ill- health. Time and again, the construction managers have been dealing with factors to minimize injuries to the workers.

They forget that improving the working conditions of the employee enhances to a greater extent the safety of the employee. This is because in any construction industry there are more dangerous incidents than injuries themselves. Therefore, safety management refers to all activities carried out with the objectives of ensuring the environment is safe, the job itself is and in ensuring the workers themselves are safety conscious.

Efficient safety management system should focus at

• training the employees at all levels on the key operations such as crane operations, scaffolders amongst others;
• establish a safe procedure to follow in case of hazardous operations;
• identify the duties and responsibilities of the supervisors and key workers;
• establish the methods that will be used to campaign for safety and health (ILO 3).

For that reason, it is everybody’s role to prevent falls at the construction industry. For instance, the employers should familiarize themselves with all potential hazards at the site and eliminate them immediately to ensure there are no incidences of falls; and in case they occur, it will leave no one injured.

Employers should also emphasize the importance of safe practices such as proper equipment usage and provide refresher trainings on the safety management techniques. Employees on the other hand should follow work safe practices; use the machines and equipments appropriately.

They should actively participate in the safety management training and adopt what learnt into their daily operations. The employees should also be in a position to know what safe and unsafe practice is and identify the activities that increase fall risks in order to control exposure to fall hazards. Other professionals associating with the individuals at the work place should also educate on safety management trainings.

These include architects, engineers, inspectors, assessors and others. Architects and engineers should train the other workers on the hazards that expose them to falls during every phase of the project. Additionally, as they design the constructions, they should consider fall protection amongst other safety requirements required during the entire project (Excavation 1).

The owners and the managers should ensure that the inspectors of the project are acquainted adequately on measures and falls protection skills. They should insist on installation of anchorage. The manufacturers of the equipment should ensure that the equipments meets all the measures and standards set by the OSHA and ANSI safety requirements to protect the workers adequately.

The machines should be accompanied by manuals with detailed operational procedures and troubleshooting techniques. Any potential danger of the equipment should be explained elaborately especially those which involves improper use of the equipment. The last parties to be discussed are the lawyers.

It is their role and responsibility to ensure that the clients’ construction binds and comply with all OSHA requirements. Before signing of the documents, the client should be explained in an elaborative manner and clearly on his responsibilities in workers protection from falls and other forms injuries to ensure that client understands the repercussions that come with the negligence of such matters. If everyone takes his responsibility seriously, then the incidences of falls and other hazardous injuries will decline significantly (OSHA 1).

OSHA Principles and concepts on falling issues

The US department of labor has established an occupational safety & health administration (OSHA) has set up standards with the aim of reducing the number of deaths and injuries arising from the construction sites. According to OSHA, falls is the leading fatalities in the construction industry. There are approximated 200 deaths reported cases annually with more than 100, 000 an injury arising from falls at the construction sites.

The measures against falling is observed to ensure that workers as well as tools do not fall as this will be risky those who pass by and fellow workers. The standards emphasizes on the establishment of protection systems in every situation. Safety systems have to be put in place by experts to ensure that safety levels are boosted. The employees should be supervised properly and be trained on the proper selection, use and maintenance of the equipments. OSHA carried out a revision on its measures:

According to OSHA, the work area should be clearly marked and designated (controlled access zones). This is to ensure that the workers and intruders are kept out and that only the authorized persons are allowed to access. These zones should be strongly so that they a reliable support.

The working zones should be of some good stability: the surface must be rigid and tough to support heavy loads and thus avoid unnecessary collapsing. The strength of the zones should be tough. For employees dealing with excavations, the employee at the edge that is more than 6 feet deep must be protected from falling using a guardrail systems, barricades or covers.

For employees moving vertically or horizontally using a rebar requires no fall protection as OSHA considers that the rebar provides similar protection. Additionally, no protection is required by an employee moving to heights below 24 feet. However, fall protection must be offered to those climbing or moving to heights more than 24 feet. Employees in a hoist area must be protected from falling 6feet or more according to OSHA fall protection standards.

If the protection is to be removed for any reason, the worker must remain leaning on the access opening in order to be protected. In addition, the employee must be protected by a personal arrest system. When dealing with holes deeper than 6 feet, the employee must be protected by erected personal systems around the holes such as guardrail.

When working near edges of a construction higher and or lower than 6 feet, the employee must be protected using fall protection system. This also applies when working on overhand bricklaying and related work and precast concrete erection and other residential constructions that have heights higher or lower than that 6 feet (OSHA 1).

The fall protection systems and criteria approved by OSHA include the guardrail systems. If the employer chooses the guardrail to protect the workers than the top rails and midrails must be at least one quarter inch nominal diameter to prevent incidences of cuts and lacerations.

Where are “wire and ropes are used for top rails, it should be flagged at about 6 feet intervals with high visibility material” (Geigle 23). Some the materials that must not be used as top rails and midrails include manila plastic or synthetic rope. The top sedge height toprails guardrails must be 42 inches with an allowance of 8 centimeters. Additionally, the guardrail should withstand a force of at least 200 pounds. It has been noted that “at holes the guardrail systems should be set up on all unprotected sides or edges” (Geigle 23).

The next protection system advocated by OSHA is the personal fall arrest systems. The fall protection system consists of connectors, belts, an anchorage or body harness. The following criterion has been established a limit maximum arresting force on an employee to 900pounds should be used with a body belt. For employee weighing about 1800 or more a body harness should be used.

The personal arrest systems must be rigged to ensure that the worker cannot fall. It is also important to bring the worker to a complete maximum deceleration distance in order to have sufficient strength that can with stand the potential of an employee falling.

OSHA also emphasizes on the importance of monitoring safety systems. This ensures that the all fall hazards are recognized. This way the workers can be trained on the dangers of the detected unsafe work practices. Regarding warning line systems, they should not be flagged at intervals more than 6 feet. The flagging should be done with highly visible material (Excavation 12).

Lastly, OSHA emphasizes on the importance of training. The training teacher should be well acquainted in ways to identify hazards and how to minimize them.

The trainer should offer training in the following areas recommended by OSHA

• the nature of common hazards at the sites of the construction area;
• the appropriate procedure to erect, maintain, inspect and dissemble fall protection systems;
• the proper use of controlled access zones and guardrail, personal fall arrest, warning line and the safety monitoring;
• the role of each party in ensuring that safety is maintained when the all protection systems are in use;
• the limitation on the improper use of machines and equipments;
• the appropriate way to handle the equipment and materials handling and their storage and the importance of erection of overhead protection and lastly;
• the role and benefits of employees fall protection plans.

OSHA demands that all the workers have to be trained on handling emergence. The document must be signed by employer, the trainer and the trainees (Geiglen 45).

Conclusion

In summation, the safety managers should ensure that the working environment is favorable. This includes enough working space to allow employees work safely. The roofs, floors and other surfaces should be constructed and maintained to minimize the possibility of falls and to ensure movement at the work place is not hindered. Additionally, the lighting at the place should be adequate to allow easier flow of activities at the work place.

There should be no excessive glare of reflection but the lighting should be enough for safe operations. Another crucial thing is that the working environment should be well ventilated with adequate air movement to avoid too hot or too cold circulation of air in the place of work.

There should also be adequate personal protective equipment to the employees. Giving the employees enough rest regimes helps in maintaining the physical fitness of their general health. Noise should be minimized if possible or alternatively the individuals should be disallowed to be at place with excessive noise exceeding eight hours.

Lastly, other regulations should be maintained such as fire prevention, well fitted electricity cables to minimize electrocution, working heights and appropriate manual handling of machines and proper ventilations. The OSHA principles and concepts should be followed to the latter to significantly minimize the number of falls and other injuries in the construction industry.

Works Cited

E-facts. “Hazards and risks associated with manual handling in the work place.” European Agency for Safety and Health at Work, 2012. Web.

European Agency for Safety and Health Work. “Actions to improve safety and health in construction.” Magazine of the European Agency for safety and Health at work, 2004. Web.

Excavation. “Excavation, Trenching and shoring safety and OSHA’s Excavation Standard.” AFSCE Training and Education Institute Manual. Web.

Geigle, Steven. “OSHAcademy Course 714study guide: Fall protection.” Geigle Safety Group Inc., 2012. Web.

ILO. “Safety, health and welfare on construction sites. A training manual.” International Labor Organization, 2000. Web.

OSHA. “US Department of Labor website.” OSHA, 2012. Web.

A negligence lawsuit is a civil claim filed against a party or an individual who did not use reasonable care and caused harm to a victim while offering services or care. Litigations can be complicated and confusing, and when it comes to construction site negligence, accessing justice is not always guaranteed. This is why it was unexpected when the Law Office of Sean C. Burke and Romanucci & Blandin, LLC, a personal injury law firm, announced a $2.5–million construction lawsuit settlement on September 9, 2016, whose defendant was DJW Ridgeway Building Consultants, Inc. This was done on behalf of Brian delaTorre, a client of the two firms who sustained a serious life-threatening knee injury in 2008 as he was working on a construction site.

As stated above, it is not easy to find justice in a negligence lawsuit because of its complications, but this was the second lawsuit of this nature that the firm successfully prosecuted. DelaTorre, a professional elevator mechanic, was compensated almost eight years later after the trial court initially gave a summary judgment in favor of the defense (Romanucci & Blandin LLC, 2016). It had previously ruled that the project’s contractor could not be held liable for the ground ruts, which led to the injury of delaTorre.

However, with Michael Rathsack, the appellate attorney, the Second District Appellate Court overturned the initial orders of the summary judgment, and the involved parties reached the final settlement even before the trial. DJW Ridgeway Building Consultants, Inc., the general contractor, agreed to pay $2.32 million, while delaTorre’s employer, the third-party defendant, agreed to pay $225,000 (Romanucci & Blandin LLC, 2016). The settlement value came to a total of more than $4 million for construction negligence and the plaintiff’s medical treatment.

DJW Ridgeway Building Consultants, Inc. would have avoided this legal liability by implementing quality control programs and reviewing the terms of the contract and policy coverage for its workers. From this incident, it is clear that a construction negligence lawsuit would need a documented breach of duty to the contractor’s side. One of the best countermeasures of winning a construction negligence lawsuit is to work with the best legal entities. Nevertheless, it is fair that Brian delaTorre was compensated and can afford to pay for medical expenses all his life.

Reference

Romanucci & Blandin LLC. (2016). $2.5 million dollar settlement reached in construction negligence lawsuit. RB Law. Web.

It goes without saying that the main goal of any contract in the construction industry is to conduct the project accurately, cost-effective, and in a time-sensitive manner. However, in a considerable number of civil engineering projects, disputes between parties (e.g., consultant, contractor, or owner) occur, and adjudication becomes inevitable. In general, adjudication in relation to the construction process may be defined as a process of dispute resolution that “allows disputants to present their arguments to an independent adjudicator, who then makes a decision that can be filed with the court” (Ontario Society of Professional Engineers). As in Ontario, Canada, the Construction Lien Act was renamed the Construction Act in 2018, the majority of its amendments concerning adjudication along with other processes are currently in force (Ontario Society of Professional Engineers). According to new legislation, adjudication may be applied to particular disputes that include the validation of materials or services, notices of non-payment, payments under contracts, holdbacks, and any other issue agreed to by parties. As of October 2019, the adjudication process becomes mandatory in Ontario. It is enforceable, quick, relatively inexpensive, and available as any party’s right.

According to the Construction Act, adjudications should be started through the Ontario Dispute Adjudication for Construction Contracts (ODACC), the body that is responsible for their administration and qualifying and training adjudicators (Ontario Society of Professional Engineers). The Claimant initially provides the Respondent and ODACC with a Notice of Adjudication, and the Respondent may subsequently provide the Claimant and ODACC with a Response to Notice of Adjudication (ODACC). After this, parties have four days to choose and agree on an Adjudicator and receive his or her consent to adjudicate (ODACC).

The process of choosing an Adjudicator is immeasurably essential, and both the Claimant and the Respondent should be familiar with the candidates’ profile and resume. In general, a competent adjudicator should have excellent experience and profound knowledge of alternative dispute resolution in relation to construction contracts.

As the adjudicator has a crucial role in investigating evidence and facts presented by parties and applying the appropriate and relevant law in order to issue a determination, contract law background is regarded as obligatory. At the same time, the Claimant and the Respondent frequently search for a person who has not only the required core skills in the sphere of legislation but certain experience in the sphere of construction as well to understand its complexities. That is why, a substantial number of construction contract adjudicators have engineering background in addition to legal knowledge. Therefore, the participation of a certified adjudicator who has not only deep law knowledge but professional licensed Civil Engineering background is beneficial for any adjudication case.

According to their experience, a civil engineer adjudicator is able to review a construction project in order to ensure the process meets all the contract and code requirements. He is familiar with all elements of project management, including quality control, cost control, work supervision, claim negotiation, dispute settlement, and contract administration. At the same time, the civil engineer adjudicator knows how to apply his knowledge and experience to decide the responsible party for the defect and problem in the construction dispute. In other words, an adjudicator with profound law knowledge and civil engineering background will understand the peculiarities of the case, construction defects, expert witness reports, and a construction contract better in comparison with an individual who has pure law background and may apply law on the basis of a general standard without thorough professional examination.

In general, adjudication is regarded as a highly essential and mandatory process in the construction industry that has multiple benefits. In the case of an adjudication, both parties should thoroughly choose an adjudicator as his or her professionalism and experience will determine the outcome of the dispute. Despite the fact that deep construction contract law knowledge is obligatory for this position, additional civil engineering background is preferable as a civil engineering adjudicator has knowledge necessary for the understanding of the construction process. The understanding of the details of the construction process by an adjudicator contributes to his or her just determination.

References

ODACC. “Adjudication Process.”ODACC. n.d. Web.

Ontario Society of Professional Engineers. “Adjudication under Ontario’s Construction Act.”Ontario Society of Professional Engineers, 2020. Web.