Destination Australia and Cambodia: Construction and ADR

Elizabeth Tippin

Siem Reap

Siem Reap

During August I had a wonderful adventure in Australia and Cambodia lecturing at Melbourne University and researching construction and dispute resolution.

As guest lecturer for a “Risk in Construction” class for Melbourne University’s Architecture Department, I conveyed my experience representing architectural firms in domestic and international projects and resolving construction disputes.

International projects bring many challenges including language barriers, differences in design and construction practices, pricing and payment challenges, different laws and legal standards, and differences in negotiation styles and methodologies of conflict resolution. As extended time and cost overruns are the two biggest causes of disputes in construction, dispute prevention and resolution starts in defining the contract terms.

The first Dispute Board (DB, or Dispute Resolution Board (DRB) in the US) in Australia was in 1987, and today many contracts mandate the use of DB’s prior to arbitration. A DB/DRB provides a 3-member team that meets regularly with the primary parties at the project site to resolve disputes as they arise, rather than waiting till the end of construction. Australia has a sophisticated process of utilizing DB’s to prevent disputes, as well as mediation and arbitration to resolve disputes, very similar to the United States.

Next on the agenda was visiting Cambodia, where construction is booming. The country demonstrates a dichotomy of simple one-room stilt homes and multi-story commercial buildings, typically under construction. Siem Reap is surrounded by over 100 temples built from AD 802 to 1432 utilizing waterways, elephants and manpower. The civil engineering and construction methodologies of the temples of Angkor are astonishing.  August is the beginning of the monsoon season in Cambodia, so a trip to Tonle Sap Lake to see the floating villages was essential. The road from Siem Reap to Phnom Penh is part of the infrastructure that is under construction for seemingly the entire six-hour fast drive. One cannot go to Phnom Penh without touring the Killing Fields of Choeung Ek and Security Prison 21 utilized by the Khmer Rouge in 1975-­78 as part of the execution of one to three million Cambodians. A chilling experience!

Phnom Penh currently has a lot of construction projects both for infrastructure and private projects. The Cambodia Daily included numerous Invitations for Bids for projects utilizing the Design Build construction delivery method, which allows the client/owner to contract with one entity which in concept reduces litigation between the numerous design and construction entities. Conflict resolution in construction projects is dictated by the contract terms, usually arbitration. However, mediation is currently being taught in Cambodian law schools and is expected to see an increase in use the near future.

Elizabeth A. Tippin, Esq. LEED AP, provides legal and ADR services, including Dispute Resolution Board services. She is a member of the American Arbitration Association Commercial and Construction Panels; teaches Professional Practices in the Architecture Department for the Academy of Art University; and is a BASF Mediation Services panelist. Learn more at www.sfbar.org/mediation