Principles of natural justice in arbitration

Abstract

The construction industry process is a challenge to all participants of the industry. In the event of constructing a building, the architect takes up the challenge in conceptualizing the design to satisfy the needs of the employer, the structural engineer designs it in a safe manner using suitable materials by optimizing the cost, the quantity surveyor prepares an accurate estimate for a unique structure matching suitable specifications, the contractor takes the risk of bidding for the job and building to all other constraints in order to obtain a profit. Therefore in every process of construction a professional is involved with a certain responsibility sharing risks, agreeing on a set time, achieving a quality product to cost constrains. In this environment conflicting motives, intricate relationships, emotions, interactions, various reasoning etc. stay at the backdrop of actions, reactions and decisions taken by the parties. Inevitably differences occur resulting in conflicts leading to disputes and the parties invoke relief under dispute resolution clauses particularly arbitration according to the Arbitration Act No 1 1 of 1995. The researcher is of the view that the existence of natural justice in arbitration process would deliver satisfactory dispute resolution. The issue for the researcher is to gain an understanding of natural justice variables affecting the delivery of a satisfactory dispute resolution procedure. The most condensed definition of Natural Justice is "On just means to reach just ends" as defined by an eminent justice, VR Krishna Iyer. Therefore the research is aimed at investigating construction disputes to the satisfaction of the parties in terms of time expenditure, procedure and components of natural justice viz., various forms of bias, such as right for representation, right to be heard, right to receive adequate notice etc and thereby to derive a new knowledge. A survey was carried out on a sample of stakeholders in Sri Lanka and the survey data was analyzed using statistical principles. Statistical data was supported by a semi structured questionnaire and case analysis wherever appropriate and feasible using the triangulation method. It was found that arbitrations is the favored dispute resolution method conforming to the requirements of natural justice yet was not favored by disputants in terms of time and expenditure It has also been concluded in the research that arbitration is a better way of resolving construction disputes and the procedure adopted conforms to the requirements of natural justice and that natural justice has a better application in arbitration than in litigation. This type of research is still a new phenomenon within the Sri Lanka dispute resolution arena. The contribution of this work is to fill the gap in furthering construction dispute procedure for speedy and cost effective delivery of resolution much needed for dispute resolution in the construction industry.