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Beynon, K S (2005) Dispute resolution and access to justice, with particular reference to the construction industry in the United Kingdom, Unpublished PhD Thesis, Department of Law, Swansea University.
- Type: Thesis
- Keywords: adjudication; arbitration; dispute resolution; law
- URL: https://cronfa.swan.ac.uk/Record/cronfa42315
This work examines dispute resolution in the construction industry, namely arbitration under the Arbitration Act 1996 and adjudication under the Housing Grants Construction and Regeneration Act 1996, in the light of The Right Honourable the Lord Woolfs definition of access to justice. 1 Both a theoretical and an empirical approach have been adopted by this study so as to provide a robust analytical methodology. The theoretical analysis of arbitration and adjudication conducted by this work highlights both the potential successes and failures of the reforms with regard to the promotion of access to justice. Broadly speaking, whilst both statutes were compliant with Woolfs criteria for affording access to justice, three main areas of concern were highlighted, calling into question the compliance of the mechanisms with the civil procedure reforms. These areas of concern were identified as relating to: procedure; cost; and juridification. Turning to consider the procedural concerns, loopholes were uncovered in both Acts that demonstrated a potential avenue for exploitation by disputing parties who were seeking to gain a tactical advantage over their opponent. For example, the speed with which proceedings must be conducted once notice to arbitrate or adjudicate has been given provides parties with the ability to prepare their case in advance and then ambush their opponent with dispute resolution proceedings. In a complex dispute, such ambushing tactics may confer a procedural advantage that may be exploited so as to confer a unilateral benefit. With regard to issues of cost, the financial structure of arbitration and adjudication was seen to raise issues as to the equal access of parties to proceedings. That is, without state aid, can it be said that all parties to a dispute have an equal opportunity to pursue the method of dispute resolution of their choice?