Role of Case Laws in Claim Management and Contracts

Jagannathan, Murali; Nawle, Vivek; Malla, Vijayeta; Delhi, Venkata Santosh Kumar

doi:10.1061/(asce)la.1943-4170.0000558

Cited by 3 publications

(3 citation statements)

References 47 publications

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“…Engineering and construction dispute resolution studies are often framed within a historical context as exemplified in Adibfar et al (2020), Sarhadi et al (2021 and, more recently, Jagannathan et al (2022). The present study shows that the finality principle has a broadreaching impact on the domestic engineering and construction community.…”

Section: Relevance To the Engineering And Construction Communitysupporting

confidence: 53%

“…Thus, this raises the need -at the very least -for valuable and comprehensive insights into the history and future of the finality principle. Furthermore, on the basis of recent findings by Jagannathan et al (2022) which suggest a low level of legal knowledge among engineering and construction practitioners, this study serves as an avenue to addressing legislative and case law-based knowledge shortfalls that exist within the sector.…”

Section: Relevance To the Engineering And Construction Communitymentioning

confidence: 99%

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The Finality Principle in Arbitration: A Historical Exploration

Ojiako

2023

J. Leg. Aff. Dispute Resolut. Eng. Constr.

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South Africa maintains a robust pro-arbitration policy which emphasizes the principle of finality.Despite the fact that this principle is well advocated in construction, engineering, and other aligned sector arbitration case law, insight into the broader historical discourse on arbitration in South Africa is more limited. Subsequently, in order to develop valuable and comprehensive insight into not only the theoretical foundations surrounding the finality principle in South African arbitration but also its future, this paper undertakes a historical account of the development of the principle of finality in South African domestic arbitration law. The paper suggests that proarbitration attitudes towards the finality principle espoused by the judiciary represent a hallmark of early formalization of English legal traditions through legislative frameworks which pre-date modern-day South Africa. The value of this study comes from the valuable insight it provides into past and existing theoretical and judicial debates surrounding the robustness of domestic arbitration frameworks in South Africa and the potential opportunities for their further improvement.

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Section: Relevance To the Engineering And Construction Communitysupporting

confidence: 53%

Section: Relevance To the Engineering And Construction Communitymentioning

confidence: 99%

The Finality Principle in Arbitration: A Historical Exploration

Ojiako

2023

J. Leg. Aff. Dispute Resolut. Eng. Constr.

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“…Notwithstanding the relevance, TTL studies have received lesser attention when compared with the studies on claims and disputes, blurring the differences between a dispute and a litigated dispute (Jagannathan and Delhi, 2020). The growing legal expenses of Indian construction organisations testify that the parties involved in construction disputes are increasingly adopting litigation to resolve their disputes (Jagannathan et al. , 2022).…”

Section: Theoretical Background and Literature Reviewmentioning

confidence: 99%

Decoding a construction organisation's tendency to litigate: an understanding through financial statements

Jagannathan¹,

Delhi

2023

BEPAM

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PurposeDespite the availability of amicable means to resolve construction disputes, litigation remains a mainstream dispute resolution process in some countries. This tendency to litigate (TTL) calls for research to develop appropriate precautions to encourage stakeholders to resolve most commercial disputes through alternate dispute resolution (ADR) techniques. While a claimant's TTL arise from the individual, project and organisation preferences, this study, which can benefit both potential claimants and employers by saving time and money on litigation, identifies a bidder's financial parameters that may increase its litigation propensities, as a first step towards aiding employers to incorporate precautions to discourage such tendencies.Design/methodology/approachAfter the literature review, the theoretical construct proposed by Rachlinski's “framing theory of litigation” (based on Kahneman and Tversky's Prospects Theory) is used to explain organisation-level litigation decision-making. The study sources data from the financial statements of Indian construction/real estate firms, followed by panel regression analysis to test the theoretical construct's validity.FindingsThe results show that the TTL (risk-seeking behaviour) generally increases with a lower value of sales, higher assets and profitability. Interestingly, organisation-level cash flow shows an insignificant influence on litigation tendencies.Practical implicationsKnowing which financial parameters may increase litigation tendencies could help employers evaluate a bidder's propensity to litigate project disputes.Originality/valueResearchers use financial statements to explore correlations among financial variables. However, in the construction context, there are no empirical studies with data from construction firms to understand potential litigation expenses compared to specific financial ratios.

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