合同管理方面的英文文献2

1、International Journal of Project ManagementVolume 26, Issue 2, February 2008, Pages 174-184 doi:10.1016/j.ijproman.2007.05.002 | How to Cite or Link Using DOICopyright © 2007 Elsevier Ltd and IPMA All rights reserved.  Permissions & ReprintsUnderstanding time delay

2、disputes in construction contractsK.C. Iyera, , , N.B. Chaphalkarb,  and G.A. Joshic, aDepartment of Management Studies, Indian Institute of Technology Delhi, New Delhi 110 016, IndiabDepartment of Civil Engineering, Indian Institute of Technology De

3、lhi, New Delhi 110 016, IndiacPunj Lloyd Limited, Punj Lloyd House, 17-18 Nehru Place, New Delhi 110 019, IndiaReceived 6 September 2006;  revised 18 February 2007;  accepted 1 May 2007.  Available online 27 July 2007. AbstractMost of the construction pro

4、jects are executed through contracts which are generally not easy to comprehend even by professionals. With advancement in technology and mammoth requirement of infrastructure in developing countries like India, there has been increase in size and complexities in the nature of projects. Th

5、is gives rise to further ambiguities in the prevailing contract forms eventually making contract forms more complex and difficult and causing adversarial impacts such as increase in number and frequency of claims and disputes besides time and cost overruns. To overcome the worsen

6、ing scenario, it is essential to develop a system that can assist the contract administrators to understand and evaluate worth of their claims prior to taking it to litigation. An attempt has been made to devise a rule-based expert system to achieve this objective with a limited scope of d

7、isputes arising out of Time Delay and Extension in Indian Construction Contracts.Keywords: Construction contracts; Construction claims; Dispute resolution; Expert system; ContractadministrationArticle Outline1. Introduction2. Literature survey3. Expert system4.

8、0;Expert system for settlement of disputes in indian construction5. Development of rule-based system for time delay and extension clause5.1. Cause and effect relationship of disputes5.1.1. Types of delay5.1.2. Types of claims due to delay5.2. Formulation of domains for

9、expert system5.3. Development of rule base for delay domains5.3.1. Delay due to Handing over of site5.3.2. Delay due to Release of mobilisation advance5.3.3. Delay due to Late receipt/checking of drawings5.3.4. Delay due to Accidents5.3.5. Delay due to Temporary stoppag

10、e5.3.6. Delay due to Rework5.3.7. Delay due to Extra work5.4.Software development6. ConclusionsReferences1. IntroductionThe construction industry is the second largest industry in the India, being next to agriculture. As per tenth five year plan of India roughly 44% of the c

11、ountrys plan outlay falls within the purview of constructionactivity during year 20022007.Majority of construction works are carried out through contracts. In India the most public projects used to follow the standard contract conditions formulated by the two gover

12、nment organisations namely Central Public Works Department (CPWD), and Military Engineering Services (MES) till recently. FIDIC conditions were introduced in 1980s for some public works on the insistence of the funding agencies like World Bank and Asian Development Bank as it was felt that

13、 the prevailing contract conditions were not equitable and the projects were likely to be delayed.As a developing nation, India is also going through a phase of infrastructure expansion due to globalisation. These infrastructures are of different types and magnitude and most of them are mu

14、ltidisciplinary in nature. With the increasing size and complexity in nature of projects the conditions of the contracts also tend to become more complicated, which in turn add to number of disputes to the already existing ones and further delay the settlement of disputes. The delay in dis

15、pute settlement has manifold effects as given below. It hampers the project progress if dispute arises during execution stage. It is detrimental to the relationship between owner and contractor. It contributes to the cost and time overruns. It sends bad signals to foreign investors thereby slowing d

16、own the national progress.It is generally said that the contract language is considered difficult to comprehend and they are therefore a major source of disputes. With the increase in complexities in the nature of work as stated in the preceding paragraph, the contracts are also

17、likely to be more complex. As such, a recent study indicates that the average time taken by the Indian Courts for deciding disputes is normally between 5 and 15 years after it has passed through the arbitration trial. Parties feel frustrated because of the delay in settlement of disputes. This delay

18、 contributes to continuous rise in the number of cases pending in various courts. It is reported that there are over two million cases pending in 18 High Courts (apex courts of various states of India) alone and more than 200,000 cases are pending in the Supreme Court (apex court of the nation) for

19、admission, interim relief or final hearing 34. With the increasing complexity in contracts the situation is expected to further worsen.To change this scenario it is essential to develop a scientific methodology to help judiciary to check the number of disputes. Also such scientific to

20、ol should give guidelines to owners and contractors to evaluate the strength of their claims before they are pursued. An expert system is considered to be one such tool. In this paper an attempt to develop a rule-based expert system for resolution of disputes has been discussed. However since there

21、are a number of sources for a dispute including dispute-prone contractclauses, the present paper discusses development of rule-based expert system for resolution of disputes arising out of only the time delay and extension clause.2. Literature surveyIn Indian context, Iyer 7 has ident

22、ified the following critical clauses that lead to disputes in construction contracts through case research study. These clauses, in the decreasing order of their criticality with regard to propensities of disputes, are given below. Final and binding power Time, delay and extension Terminat

23、ion of contract Pricing of deviation and extra items by owner representatives Deviation limit/scope of work Price escalationThe author observes that the literature and case laws are difficult to reconcile and can easily lead engineers and non-legal professionals to believe that courts are arbit

24、rary and that the outcome of a court cannot be predicted. Incidentally, a similar observation was made by Thompson and Portis 30 and Rubin20 when they discussed construction law of United States of America. However, Thomas et al. 28showed that the consistency of the law

25、 could be shown through careful case law research. They also demonstrated consistency of the law in several cases e.g. disputes on notice requirements 29, disputes on oral change orders 28, disputes on misrepresentations 26, disputes on differing site conditions clause 27, disput

26、es on interpretation of clauses 25, disputes on specifications 22, disputes regarding certifying completion 23 and disputes on enforcement of liquidated damages 24. In each of these studies authors have shown a systematic way of resolving disputes arising out of several reas

27、ons stated above besides establishing the consistency in court decisions in the US construction contracts. In India too, a few researchers, through case research studies, have developed decision support systems for resolution of disputes arising out of decisions under final and binding pow

28、er vested with some authority in the contract 9 and time delay and extension clause 8.These decision support systems can be further synthesized to form an expert system so that all sources of the given dispute can be analysed simultaneously and appropriate decision can be given.A

29、llwood 1 has mentioned some expert systems developed for Civil Engineering in the following areas. To diagnose the causes of dampness in buildings. To select the most suitable paint treatment to protect structural steelwork from corrosion. To select appropriate type of tower cran

30、e for use in multi-storey construction. To offer advice on construction planning. To examine the cross section of a window frame and consider all possible routes by which the water might penetrate the frame. To check a room layout. To design the layout of temporary facilities on a

31、0;construction site.Mohan 14 has listed 37 expert systems in the field of Construction Management and Engineering out of which 3 were related to contract management dealing with selection of contract type and differing site condition claims. Kraiem et al.

32、 11 have developed an artificial intelligent system called DISCON, which is designed to give legal advice to design and construction engineers as well as contractors and owners concerning Different Site Conditions claims. DEViCE (Dynamic Expert system for Valuing Variations in Ci

33、vil Engineering) was developed by Sutrisna 21. This system deals with quotations related to excavation. Cheung et al. 6 have developed a fuzzy Construction Dispute Evaluation (CDE) model based on the knowledge extracted from practitioners in Hong Kong. They suggest

34、 dispute control mechanism through four stages: dispute identification, dispute analysis, dispute evaluation & dispute control.A number of expert systems have also been developed in various fields by researchers form India, but no expert system is reported in the area of construction d

35、isputes. Thus as a modest beginning an expert system is developed for resolution of disputes arising out of one of most dispute-prone clauses, the time delay and extension clause.3. Expert systemRecent developments in computer technology, especially in the field of Artificial Intelligence, make it p

36、ossible to simulate human-like reasoning in computer systems. Such systems are popularly known as Expert Systems.The expert system comprises of knowledge base, inference engine, working memory, user interface, explanation facility and a knowledge acquisition facility.The heart of the expert system i

37、s the knowledge base where domain specific knowledge acquired from the expert is stored. The user of the expert system interacts with it through the user interface and the experts knowledge is collected and compiled through knowledge acquisition facility. The knowledge acquired from the expert is st

38、ored in the knowledge base using various formal knowledge representation techniques. The hypotheses and facts are generated during the reasoning process and they are stored in the working memory. Expert system does inferential computing using inference engine which carries out the search through the

39、 knowledge base either to prove hypotheses or to arrive at a conclusion. Explanation facility tells the user why particular information is required and how the system has arrived at a particular conclusion 13.Thus the expert system acts like a store house of experts knowledge to give solution t

40、o users query in a particular manner. There are three major categories of expert systems namely rule-based systems; case-based systems; and hybrid systems.Rule-based system comprises of a set of rules formulated using knowledge of several experts and rule interpreter. When a new probl

41、em is posed to the system, the rule interpreter decides which rules to apply and determines the result from the facts given to the system by the user 16. Some of the pioneering rule-based expert systems are MYCIN, TAXMAN and JUDITH. MYCIN is designed to provide expert advice on the diagnosis an

42、d treatment of blood infections to a physician who is not an expert in the field of antibiotics. The other systems, JUDITH and TAXMAN were designed for use by lawyers and for taxation of corporate restructuring respectively 17 and 15.In the case-based system a database is created usin

43、g past cases. When a new case is fed, for which the user is seeking the solution, the system compares this (instantaneous case) with the cases in the data base. It then identifies and displays the information of the most matching case(s) from the data base that facilitates the user to arrive at the

44、decision. FINDER and SHYSTER are the examples of this type of system developed using legal reasoning 31 and 18.Hybrid system is one which combines above two methods of reasoning in order to attempt to answer the problem. Some typical examples of hybrid system are CABARET, GREBE, PROLE

45、XS and IKBALS. CABARET is an expert system that deals with US income tax law relating to the deduction for expenses relating to a home office developed by Rissiland and Skalak 19. Branting 5 designed GREBE for the domain of Texas workers compensation law. PROLEXS developed by Van Opdr

46、op et al. 32 is a Dutch expert legal system, focused on the domain of landlordtenant law. The IKBALS by Vossos et al. 33operates in the area of credit law.4. Expert system for settlement of disputes in indian constructionIn the Indian context, database in the form of settled case

47、s of construction disputes are available in the Arbitration Law Reporter (Arb LR) and All India Reporter (AIR). Besides, some primary guidelines such as decision support systems developed for resolution of disputes arising out of different clauses by some researchers are also available

48、0;9, 8, 3 and 2. These researchers have concluded that such decision support systems can be synthesised to convert them in the form of an Expert System which will help in reduction of time required in giving decisions. Since the expert system would contain a huge database, it wil

49、l serve as a checklist for the contract administrators to predict the strength of their cases before going for litigation. The data available can be matched with the current situation and it could be predicted that, which party may be at fault. Once this is known arbitration procedure can

50、be either avoided or at least can be expedited. In turn it will reduce the filing of disputes as the concerned party already has the idea of likelihood of decision. Also it will be helpful to the arbitrator and to the judges, since they will be having huge database of similar type of cases readily a

51、vailable for reference.Many times it so happens that the claim can neither be completely accepted nor rejected, but there is partial acceptance of the claim. This is assessed based on the extent of defaults of parties in the disputes and it is also known as apportionment of the claim. Details of the

52、 apportionment if stored in the knowledge base, it can serve to detect the extent of defaults of parties and arrive at the weightage of the claim admissible in favour of any party. Thus an expert system would prove extremely useful in cases requiring apportionment of claims.The area/domain of c

53、onstruction disputes being very large, an attempt has been made to develop a rule-based system module for time delay and extension clause in construction contract 12. While designing a system, questions are formulated using available cases from All India Reporter (AIR), Arbitration La

54、w Reporter (Arb LR) and arbitration awards. The arbitration awards are not published and hence collected through personal contacts.5. Development of rule-based system for time delay and extension clauseIt has been seen in most of the case studies that the frequency of disputes over Time delay and ex

55、tension has greater implications in terms of the cost and time of the project. Every delay, be it regarding payment, or site handing over, or temporary stoppage of work leads to time loss which eventually prompts invoking of Time delay and extension clause. Therefore it becomes necessary to understa

56、nd all aspects of disputes arising out of time delay and extension clause; which is explained below in a rule-based expert system form.The development of rule-based system follows a three step approach. The first step is to understand the cause and effect relationship of the dispute. The second step

57、 involves formulation of broad domains in which all the causes fit in. The last step is to develop the rule base to predict the plausible effects for these identified domains.5.1. Cause and effect relationship of disputesThe disputes arising out of time delay and extension are of varied nature. Thes

58、e disputes can be studied in two stages for their better comprehension and analysis. They are identification of different delays i.e., cause and its effect i.e., claims arising out of these delays.When we consider cause and effect relationship, one must bear in mind that one effect may prove to be c

59、ause for the subsequent effect, e.g. when we consider pair of situations causing delay and type and quantum of delay as cause and effect respectively, in the next level type and quantum of delay becomes the cause and the claim on account of delay becomes the effect. Thus it becomes a chain as schema

60、tically shown in Fig. 1.Full-size image (6K)Fig. 1. Cause and effect relationship of disputes.Types of delays as cause and claims as effect are discussed below.5.1.1. Types of delayThe delay occurring in a project can be classified into number of types depending upon the stages at whi

61、ch it occurs as well as on the nature of outcome, i.e., claims. This defines the criticality of the delay in the overall project completion and its impact thereafter. The delays are accordingly classified as critical delays and non-critical delays. Contract defines obligations of parties to meet the project performance including schedule and also the recourse in the event of failing to meet such obl