Public Policy and Projects: Impact of Intranational Jurisdictional Concurrency on Construction Disputes

Abstract

Without conclusive settlement of disputes, uses of public sector infrastructure projects as public policy instruments might risk impeachment. With this in mind, we set out in this study to explore how public policy impacts upon the finality of dispute resolutions conducted within public sector infrastructure project spaces. We use empirical data obtained from opinion coding of 220 decided Public policy and projects: impact of intranational jurisdictional concurrency on construction disputes 2 disputes conducted in the United Arab Emirates between 1992 and 2018. Findings suggest differences in attitude among the courts in the United Arab Emirates in the interpretation and application of public policy as a basis for nullifying arbitral awards. This finding suggests that the existence of a series of parallel courts, a mixed legal jurisdiction and multiple and concurrent intranational laws, combined with the intractable nature of public policy, can significantly impact upon the conclusive settlement of public sector infrastructure project disputes.

The Finality Principle in Arbitration: A Historical Exploration

“…Thus, cognisant of the constitutional mandate of South African appellant courts to develop the common law and interpret legislation in line with international law, this paper recommends amending/improving Section 33 of The Arbitration Act 42 of 1965 on the basis of the six judicially construed grounds for arbitration vacatur identified in international law (Ojiako, 2023b). These grounds are (i) 'Violation of essence' (Gentry, 2018;Tompkins, 2018), (ii) 'Manifest disregard of the law' (Yates, 2018), (iii) 'Illegality' (Stalker et al, 2016;Polkinghorne and Volkmer, 2017), (iv) 'Arbitrary and capriciousness (Hayford, 1996), (v) 'Complete irrationality' (Hayford, 1996;1998a;1998b), and (vi) 'When the award or procedure is contrary to public policy or public order' (Becker and Kleyn, 1989;Arfazadeh, 2002;Drummonds, 2012;Badah, 2016;AlRaeesi and Ojiako, 2021;Ojiako et al, 2021). This will involve modifying the text of Section 33 through a process that entails one or a combination of (i) textual deletion (ii) insertion of new or alternative text, and/or (iii) inserting new or alternative text within Section 33 of The Arbitration Act 42 of 1965.…”

“…Furthermore, there are questions about whether the Act is able to accommodate constitutional provisions which mandate South African courts to develop the common law and interpret legislation in a manner consistent with international law. This point is particularly pertinent when it is taken into consideration that foreign law does acknowledge a range of non-statutory grounds as viable grounds for impeaching the finality principle (AlRaeesi and Ojiako et al, 2021;Ojiako, 2023aOjiako, , 2023bOjiako, , 2023c). These grounds include (i) 'Violation of essence', (ii) 'Manifest disregard of the law', (iii) 'Illegality', (iv) 'Arbitrary and capriciousness', (v) 'Complete irrationality', and (vi) 'When the award or procedure is contrary to public policy or public order'.…”

The Finality Principle in Arbitration: A Theoretical Exploration

“…There are further considerations for the 'Law and society' school of thought as applied to arbitration. For example, arbitration can serve as a foundation of societal control and governance in that as an institution (see Ojiako, 2019;AlRaeesi and Ojiako, 2021;Ojiako et al 2021). In addition, despite supposedly being a creature of contract, it is a procedure regulated by national legislative provisions.…”

“…Critics of the autonomous theory of arbitration highlight that arbitration cannot in reality be autonomous or pluralistic (see Michaels, 2013;Mance, 2016). This is so because with reference to the Constitutional Court's observation in Lufuno Mphaphuli v Bopanang 39 See Ojiako (2019); Ojiako et al (2021); Some countries such as the United Arab Emirates operate under mixed and concurrent internal laws. Under such circumstances, disputants may be allowed choice of law in terms of which particular Emirate their dispute is resolved (different Emirates have different laws).…”

A complexity perspective of dynamic capabilities in enterprise project organizations

“…This means that often than not, the output from construction generally appears radically different from how they were originally conceptualised. Complexity has led to the construction industry to be susceptible to low productivity (Hasan et al 2018), time and cost overruns (Haaskjold et al 2021), poor quality of products (Haaskjold et al 2021), under-achievement in terms of learning (Venkatachalam et al 2019) and disputes (AlRaeesi and Ojiako 2021; Ojiako et al 2018Ojiako et al , 2021.…”