IEK ANNUAL CONFERENCE

MAY 2013

Paper from IEK

Disciplinary and Dispute Resolution Committee

By: Eng. A. Okelo RogoDate: 8th May, 2013

1. Introduction/Background IEK: a professional institutionCore Functions Training and accreditation of

engineers, Standards, Ethics/discipline in

engineering practice, Dispute resolution.

Since its founding over 50 years ago, changes have been witnessed in:

Engineering technologies,Rules of practice, andMethods of design and works implementation.

Increased engineering investment and construction over the last 10 years:

has occurred at a rapid rate never seen before,

Large scale infrastructure projects on:

roads, harbours, airports, dams, power generation/distribution, railways and bridges.

Involvement of international players in:

Financing,Designs’Consultation, andOperations

Challenges to IEK and Kenya engineers resulting from increased investment:

Acquiring professional requirements related to:

Financing,Procurement,Projects managementDesign and construction practices.

Urgent need to adopt Conditions and Procedures conforming to internationally accepted requirements, ie

FIDIC, Adjudication, Arbitration and need to Avoid Courts (Litigation).

Hence, vital need to update procedures on:

Engineering training/practice/ethics,Dispute resolution.

Vital Responsibilities of IEK:Awareness on Procedures for Dispute Resolution,

Updating existing Procedures and Rules,

Collaboration with other Professional Institutions e.g.: LSK, CIArb.

Seeking opinion of members on above issues,

2. Rules of Procedures for Disciplinary Systems

Require:Internationally recognised engineering practice/rules,

Construction industry practice/rules

Based on:Kenya lawHistory/culture

Draft Rules of Procedures on Methods of Discipline Paper:

Being presented here for:Perusal andUrgent comments toIEK Secretariat

Emphasis:Rules must conform to: Engineer’s Board Act andProvisions of all the laws of Kenya

Wherever conflict arises against Engineers Act or other laws of Kenya:

Provisions of the Act and laws of Kenya shall take preference.

3. Dispute Resolution (Arbitration/Adjudication) Rules

Construction industryHas many disputesDisputes can be costly to:Clients andOther stakeholders in a contract/project

International participation in construction industry in Kenya:

Chinese,Japanese,German Consultants and contractors

Hence dispute resolution procedures must be:

Internationally recognised/acceptable,

Avoid detailed local court procedures unfamiliar to international practitioners,

Cost effective/timely to avoid delays in Projects Commissioning.

FIDIC Procedures:Institution on Engineering Practice/Industry Contract Conditions,

Internationally recognised/accepted,

Regularly issues guidelines on dispute resolution procedures.

FIDIC Conditions:Provide clear procedures for dispute resolutions on:

Amicable settlements,Adjudication andArbitration.These are Alternative Dispute Resolution (ADR) Procedures.

FIDICGive litigation (High Court) action in Dispute Resolution a last resort status.

Within FIDIC contracts, Adjudication precedes Arbitration.

NOTE:Adjudication in Construction Industry is now taking key role in Dispute Resolution.

Adjudication Rules for Construction Industry in Kenya:

Prepared by the Chartered Institute of Arbitrators, Kenya Branch in consultation with Local Institutions,

Adopted by IEK,Commissioned during October, 2003,By the then Minister for Public Works

Rules key to Adjudication procedures in Kenya.

Draft Adjudication Bill:Prepared by the CIArb, Kenya Branch, in consultation with Stakeholder Institutions.

To be presented to Parliament for enactment soon after full deliberation/comments by Stakeholders.

Copies of the Draft Bill are available.Comments on the Bill are invited to CIArb before tabling in Parliament.

IEK Arbitration Rules:Based on Arbitration Act in Kenya.

NOTE:Arbitration in all disputes including Construction Industry has a longer history internationally than Construction Adjudication.

4. Role of IEK as an Appointer of Dispute Resolvers in Dispute Related to Construction Industry

IEK- key to appointment of:ArbitratorsAdjudicators,MediatorsExpert determinationTo handle disputes arising in Engineering/Construction Industry.

Documentation/Specification in Contracts for IEK as an Appointer of Dispute Resolvers

Engineering/Construction Industry players need access to an institution which is:

ReputableProfessionalKnowledgeableTo oversee their issues of dispute resolution

IEK has all the necessary requirements

in guiding those in Engineering/Construction industry in appointment of individuals/tribunals to effectively deal with their disputes.

IEK in consultation with CIArb (Kenya Branch),Architects/Quantity Surveyors Association,LSK etc – has compiled data of qualified/experienced Disputes Resolvers

All Stakeholders to specify in their contracts the Chairman- IEK, as an Appointer of Dispute Resolver; whether in Arbitration, Adjudication, Mediation, Expert Determination etc as regards all Engineering/Construction Industry Contracts.

This is within Kenya Law and FIDIC.

5. Catering for the Devolved Government System in the New Constitutional Dispensation in Kenya

Counties must comply with Internationally Acceptable Engineering Standards/Practice

Counties must employ competent Engineering Staff capable of the desired output.

Experienced Engineering staff in Kenya, now, inadequate to serve all Counties,

Counties should share the available experienced Engineering Staff at the onset of devolution.

Arrangement should be made to urgently train Engineers to serve in the Devolved Government

IEK – to support the Counties in training of key Staff to run Infrastructure Projects

IEK- should establish County Branches.

Conference to come up with proposals on the contribution of IEK on Devolved Government.

IEK to collaborate with other Stakeholder Institutions in Addressing County Government needs.

APPENDICES1) IEK- Arbitration Rules2) The Chartered Institute of

Arbitrators (Kenya Branch)- Adjudication Rules for Construction Industry,

3) IEK- Rules of Procedure on Matters of Discipline (Draft),

4) IEK- Appointment Procedure (Dispute Resolution)

5) Adjudication Bill- to be enacted by Parliament