Page 12 - Macau Building Development 2015 No 1

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10 changes should be introduced to, on the one in administrative law, which expressly allows
hand, minimize the potential for dispute, by usage of arbitration for settlement of disputes in
clarifying what are exactly the owner's powers in a administrative contracts, and even in procurement
public works contract and improving the contract laws such as the one in effect for procurement
documents (steps that have already been taken of services. As such, and to a large extent, this
in several other jurisdictions), and, on the other change can be obtained by having the current
hand, to create more commercial-oriented dispute law expressly provide for arbitration as a non-
resolution mechanisms, that are more expedient, exclusive means of settlement of disputes, so that
more industry-specific and provide faster decisions it can be something that can at least be discussed
to contract disputes. In this context, the general at contract stage. However, for consistency with
feeling among the industry is that options such as the existing legislation as a whole, a series of
arbitration, mediation and other alternative dispute reviews would have to be effected, namely by
resolution procedures should be considered as removing outdated concepts such as reservations
possible alternatives to Court proceedings. of rights and removing or at least expanding time
limitations for claims, which would allow for
What are the benefits of alternative dispute interim compromises between the parties in the
resolution methods when compared with interest of execution of the project at hand and to
conventional litigation? refer some of the disputes to final account stage. In
Our view is that methods such as arbitration could this respect, we are working with stakeholders in
represent a viable alternative to conventional proposing legislative amendments to the existing
litigation proceedings in open Court. Indeed, provisions with a view to introducing arbitration as
construction arbitration presents several benefits a viable dispute resolution mechanism for public
such as the more reduced timelines (parties can set works contracts.
a definitive timeline for issuance of a decision, as
opposed to Court decisions, which are not subject What are the challenges for construction
to mandatory issuance dates) and the possibility arbitration in Macau? How can they be
of appointment of arbitrators and experts with overcome?
specific knowledge of construction issues and The main challenges are that arbitration in general
even of the issues under dispute. The result is a is not an established means of dispute resolution in
dispute resolution system that allows for faster Macau, and construction arbitration in particular
settlement of disputes, for more project-oriented has virtually no track record. As such, and to
decisions and that creates greater overall certainty accompany the potential changes in the law, we
and reliability in the Macau public works system, feel it is particularly important to work towards
while relieving the case load of local Courts. the creation of arbitration bodies integrating
This trend is not new, with several jurisdictions construction experts in their panel and creating a
worldwide, with particular focus on common set of arbitration rules that cater to the specificities
law jurisdictions, having implemented alternative of construction contracts and, in particular,
dispute resolution methods in construction public contracts. Only by creating a credible and
disputes with considerable success. independent construction arbitration body in Macau
can these changes be implemented with success.
How can these changes be pursued? In this respect, industry professionals have shown
The possibility for usage of dispute resolution themselves eager to participate in this challenge and
means such as arbitration in public contracts is to create a real alternative in dispute resolution that
not an innovation in Macau law, whereas said will help public construction contracts in Macau
possibility already exists as a general principle adapt to the new realities of the trade.