COTM Claims

8/14/2019 COTM Claims

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Organized by: Zewdu Tefera Worke, Environmental & Engineering Contracts Lawyer Page 1

Addis Ababa University

Addis Ababa Institute of Technology

School of Civil & Environmental Engineering

Construction Law & Contract Course

Construction Claims & Disputes Profile

No Description Cause Base Remedial Rights RemarksI. Claims

Management

Right Based Contract Time or financial or both

or others

The remedies may apply to the

contractors & the employers claims;

Illustration:

Variation claims;

measurement claims;

acceleration related claims;

termination for employers

convenience related claims;

Applicable

Law

Applicable law being based on contract

law; extra-contractual law; unjust

enrichment law; and other laws

Default Based Contract Time or financial or both

or others

Other remedial rights may include:

termination of contract; suspension of

execution of the project works; reduction

of the progress of the works;

substitutionary performance of contract;

Illustration: Delay caused by the contractor or the


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delay claims; disruption

claims; payment related

claims; defect claims;

employer; payment claims as related to

non-payment or delayed payment; defect

related claims related to construction or

workmanship;Applicable

Law

specific or compulsory

performance of contract;

cancellation of contract;

general damages;

compensation; restitution;

and others;

The first three remedial rights are legal

remedies for breach of contractual

obligation; see Article 1771 ff of the Civil

Code; compensation being a remedial

right as related to extra-contractual

claims; see Article 2027 ff of the Civil

Code; restitution being a remedial right

as related to unjust enrichment (quantum

mereuit claims); see Article 2162 ff of the

Civil Code

Event/Risk Related Contract Time or financial or both

or others

Illustration:

Force majeure related claims;

adverse weather related

claims; adverse ground

conditions related claims;

change in legislation claims;

market driven cost related

claims;

Applicable

Law

specific or compulsory

performance of contract;

cancellation of contract;

general damages;

compensation; restitution;

and others;

The first three remedial rights are legal

remedies for breach of contractual

obligation; compensation being a

remedial right as related to extra-

contractual claims; restitution being a

remedial right as related to unjust

enrichment (quantum mereuit claims);


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II. Disputes Resolution MethodsSettlement Sub-

system

Methods Role Player(s) Forum Common Features

process design & enforcement; outcome control;

interest based; win-win-scenario; room for

emotion management; relationship preservation;

Negotiation The disputing parties

themselves

Private justice system

Regulated under

Article 3307-3317 of

the Civil Code

(Compromise)

Specific Features:

process fully designed & enforced by the disputing

parties; outcome of the dispute fully controlled by

the disputing parties; interest based; promotes

win-win scenario; concerns for relationship

preservation between the disputing parties;

Mediation The disputing parties

themselves & the

mediator

Role of the mediator:

facilitative; thus passive


No legal regulation

yet but contractual;

Specific Features:

assisted negotiation; process jointly designed &

but enforced by the mediator; outcome of the

dispute fully controlled by the disputing parties;

interest based; promotes win-win scenario;

concerns for preservation of future relationship

between the disputing parties; high room for

emotion management;

Conciliation The disputing parties

themselves & the

conciliator:

role of the conciliator:


Regulated under

Article 3318-3324

cum Article 3307-

Specific Feature:

assisted negotiation; process jointly designed &

but enforced by the conciliator; outcome of the

dispute fully controlled by the disputing parties;


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facilitative; evaluative;

persuasive; predictive;

suggestive; thus active

3317 of the Civil

Code;

interest based; promotes win-win scenario;

concerns for preservation of future relationship

between the disputing parties; some room for

emotion management;Judgmental

Sub-system

Common Features:

partial or no process design; no process

enforcement; no outcome control; right based

process; win-lose scenario; no relationship

preservation; no space for emotion;

Adjudication The Adjudicator Private justice system

No legal regulation

yet but contractual;

Specific Features:

consensual; real time dispute resolution sub-

system; less formal; less complex; process jointly

designed & but enforced by the adjudicator;

outcome of disputes fully controlled by the

adjudicator(per his/her decision or

recommendation); right-based solution to the

disputes; win-lose scenario; no preservation of

future relationship between the disputing parties;

no room for emotion management;

Arbitration The Arbitrator Private justice system

Regulated under

Article 3325-3346 of

the Civil Code & the

Civil Procedure Code;

Specific Features:

consensual; less formal; complex compared to

adjudication; non-real time dispute resolution sub-

system; process jointly designed & but enforced by

the adjudicator; outcome of disputes fully

controlled by the arbitrator(per his/her award);


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right-based solution to the disputes; win-lose

scenario; no preservation of relationship; no room

for emotion management;

Litigation The Judge Public justice system(the judiciary or the

Court);

regulated by &

provided under the

federal constitution &

the regional

constitutions & other

applicable federal or

regional or local

statutory laws;

Specific Features:compulsory; highly formal; complex; non-real

time dispute resolution sub-system; process

regulated by civil procedure code & enforced by

the court/judge; outcome of disputes fully

controlled by the judge(per his/her judgment);

right-based process & solution to the dispute;

promotes win-lose scenario; no concern for

preservation of future relationship between the

disputing parties; no room for emotion

management;

Documents

COTM Claims