Journal of Legal Affairs and Dispute Resolution in Engineering and Construction

The protection of labor rights in various industries has always been a subject of active conversation among international organizations, trade unions, and employers. This issue remains relevant for Ukraine due to insufficient regulation of labor relations in the field of the processing industry. The object of this study was to analyze international and Ukrainian regulatory legal acts and the experience of other countries concerning the protection of workers’ rights. This legal study examined issues related to the protection of labor rights. The study concluded that there is no need for a comprehensive settlement for protecting workers’ rights in the processing industry at the international level. The lack of proper regulation mechanisms at the national level has contributed to the insufficient interest of employers in creating decent working conditions, as well as the inefficiency of trade unions that are not able to protect the labor rights adequately.

This study undertakes an in-depth exploration of the legal perspective of public policy implementation as it relates to construction projects. In particular, we examine how enabling frameworks such as arbitration serve as a suitable project governance mechanism for public policy–driven projects. Using oath taking as an authoritative context for exploring public policy implementation, our study reveals important controversies associated with the intractable nature of public policy by drawing upon data obtained from the case review of a seminal arbitration dispute heard in the United Arab Emirates. The originality of the paper is threefold. First, we espouse an alternative legal as against administrative sciences perspective on public policy. Second, our study opens a new area of debate in relation to the legal perspective of public policy implementation within construction projects. Third, the study raises questions about the appropriate use of projects and project management practice to implement public policy.

The complex and complicated dispute over Urmia Lake is systematically studied in this research using an innovative methodology that incorporates the graph model for conflict resolution (GMCR) and the system dynamics (SD) approach in order to take into account the dynamic nature of the dispute. This intensified environmental dispute among key stakeholders took place between the mid-1990s and early 2010s and evolved in two courses of time. Within the first time frame, governmental decision makers began development projects related to the lake without seriously taking into account the warnings of environmentalists and somehow, ignoring the steps needed to completely protect the environment, causing a sharp drop in the lake’s water level. Within the second time frame and under the pressure of social protests due to environmental degradation of the basin and the drop in the lake’s water level, key decision makers changed their preferences over time and thus the dispute’s direction was changed dramatically. The dispute in each time frame is studied using SD-based GMCR and the changes of decision makers’ preferences within two time frames are examined using the feedback loops technique. The novelty of this research effort lies in developing a dispute management methodology that systematically takes into account the dynamic nature of dispute, a significant feature of complex dispute systems. Finally, the analysis of this real-life dispute, using the methodology employed, provides valuable insights about a better understanding of this complicated dispute over some courses of time so that a real and sustainable resolution can be provided.

Building information modeling (BIM) implementation is growing in the architecture, engineering, and construction (AEC) industry; however, there is little insight on how contract practices can impact BIM implementation and subsequent project performance. The objective of this research was to evaluate the impact of BIM-related contract practices on project performance. Researchers surveyed the industry on BIM practices, including current contract practices, stakeholders’ uses, and the use of BIM execution plans (BEPs). Qualitative comparative analysis was employed to systematically compare cases and identify necessary and sufficient conditions associated with cost success. Researchers found that contractors and subcontractors being contractually required to use BIM and the use of BEP on a project were associated with positive project cost outcomes.

Forensic schedule analysis is necessary to fairly apportion schedule delays and accelerations among project parties. Although each method in the literature has unique benefits, no single method provides a comprehensive schedule analysis, particularly when concurrent events by different parties cause multiday project delays and/or accelerations at different stages along the schedule. This paper, therefore, introduces an enhanced daily windows analysis (EDWDA) that combines the ability of the daily windows method to consider all critical path fluctuations, and the ability of the modified but-for method to analyze concurrent delays and accelerations. The EDWDA follows the day-by-day analysis of daily windows and, within each day, apportions multiday project consequence using the modified but-for method. To facilitate the application of EDWDA, a macro program was written on MS Project software and case studies were used to prove its ability to resolve the shortcomings of parent techniques. The EDWDA method is beneficial to both researchers and practitioners and contributes to developing a readily usable and comprehensive method for schedule analysis that produces accurate repeatable results to avoid disputes among project parties.

In addition to statutory requirements for long-range transportation planning, transportation projects funded in part by USDOT are required to undergo environmental review pursuant to the National Environmental Policy Act (NEPA). NEPA requirements include a statement of the project’s purpose and need and an analysis of alternatives to the proposed project. USDOT adopted federal regulations and guidance in 2007 that would allow these NEPA requirements, including the elimination of potential alternatives, to be conducted as part of the earlier transportation planning process, a concept known as planning and environmental linkage (PEL). Congress has authorized a form of PEL since 2012, albeit with a somewhat stricter standard for public involvement than reflected in the USDOT PEL regulations and guidance. This paper examines legal challenges to environmental review of transportation projects using the PEL approach. The PEL approach has the potential to be abused, because a statement of purpose and need adopted prior to NEPA could be drafted so narrowly as to effectively preclude public participation and detailed environmental review of alternative transportation modes, routes, or strategies. However, courts generally approve the PEL approach, providing legal protection for the elimination of alternatives during transportation planning, even when public participation and environmental impact analysis at the transportation planning stage does not satisfy NEPA requirements.

Construction project controls is a process that is concerned with attempting to complete the contracted works within the allocated time frame and the preagreed budget, all in accordance with the set quality standards. To this end, the earned value management (EVM) method is recognized as a well-established technique offering an integrated approach for the efficient monitoring and controlling of the project’s cost and schedule targets during the course of execution. That said, this research aimed at investigating several decision-aid frameworks that can systematically guide the construction contract engineer in making the EVM tool better accustomed and suited for exercising project control and administrating construction contracts, while making use of and benefiting from the enhanced capabilities of the technique that are widely spread in the archived literature. To this effect, the adopted multistep methodology included (1) the verification of the degree of importance of project controls in relation to project success, (2) the classification of the shortcomings reported to be encumbering EVM’s employability as a project controls tool, and (3) the compilation and synthesis of the encountered improvements. The main research outcomes further involved developing several EVM-based frameworks, which shall be of value to the engineer, through stipulating an integrated set of methods and metrics used for (1) checking the analytical schedule-based S-curve submitted by the contractor, (2) dealing with interim payment valuations and certifications, and (3) forecasting and updating the remaining duration for the construction project on hand. Finally, the related requirements to be met by contractors and the types of authority to be entrusted with the engineer are summarized for facilitating the employability of the proposed frameworks, thereby potentially minimizing the likelihood of conflicts and disputes to arise between owners and contractors on construction projects.

Public–private partnership (PPP) agreement as a response to funding shortage and population increase has been adopted and employed slowly in the United States with its aging infrastructure. Due to the lack of research on highway projects, there are still areas to be addressed regarding the PPP delivery method. These are the distribution of funding and finance sources, and the extent of the public and private sectors’ contributions to highway projects thus far in the US. To fill this gap in the body of knowledge, the authors collected the funding, cost, and schedule data of all completed PPP highway projects in the US, including design-build-finance-operate-maintenance (DBFOM) and design-build-finance-maintenance (DBFM). For the available number of projects, this exploratory study’s results showed that funding sources from the private and public sectors are different for these PPP agreements, which may be attributable to the difference found in the cost performance. The study also found that cost growth was better on DBFM projects compared to DBFOM. In addition, it was found that the cost growth of PPP projects with less than 35% private funding, was better than the cost growth of projects with greater private funding. Therefore, this exploratory study showed that types of PPP arrangements and funding sources had an effect on the cost performance of PPP highway projects.

The purpose of this study is to determine the relevance of the physiological sensors in a virtual construction scenario to monitor the laborers’ physiological behaviors to improve the safety level at the site. This research particularly aims to monitor laborers’ physiological reactions in virtual construction scenarios. Furthermore, this study explores the applicability of physiological sensors in reducing injuries and claim-related disputes. Intending to leverage affective sensing technology in a construction scenario, the authors conducted experiments with galvanic skin response (GSR) and blood volume pulse (BVP) in a three-dimensional (3D) simulation developed based on a real construction site. The GSR and BVP results obtained from the experiment were analyzed to (1) assess the feasibility of using a virtual environment to generate real emotions, (2) examine the relationship between real physiological responses and the questionnaires used to ask participants about their experience, and (3) identify the factors that affect peoples’ emotional reactions in a virtual environment. Subjects of the experimental group exhibited incoherent responses, as expected in human subjects–involved experiments. Based on the various reasons for this incoherence obtained from the questionnaire part of the experiment, the authors identified the potential in research for developing training methods concerning laborers’ physiological response capability.

Arbitration has been touted as one of the best methods of resolving construction disputes, largely due to its perceived speed, cost-effectiveness, and finality of the award. However, studies have shown that arbitration has fallen into disrepute, with several complaints raised regarding its effectiveness in terms of delays, huge expenses, and the high number of challenged awards, leaving many users frustrated. Despite much having been written about the effectiveness of arbitration, little effort has been made toward explaining why construction arbitration tends to be more effective in some cases than in others, leaving a weak conceptual understanding of the interactions among the various factors in influencing such effectiveness. Drawing on the various theories and models of organizational justice, the aim of this multiple case study is to explain the interactions among the factors influencing the effectiveness of construction arbitration. Based on rich qualitative data from documentary analysis and 13 semistructured interviews involving arbitrators, parties, and their representatives in five arbitration cases, findings indicate that out of the 10 factors identified in the literature, favorability of the awards negatively influenced the effectiveness of construction arbitration by interacting with distribution of process control, approaches to the presentation of evidence, competence of the tribunals, and complexity of the dispute. The research is significant because it developed a structural model that has helped in understanding how these factors may collectively interact in influencing the effectiveness of construction arbitration, based on multiple accounts of case participants with first-hand experience, rather than relying on mere opinions of practitioners.

Disputes in construction projects are a common phenomenon around the world. The practice of approaching courts to resolve disputes, a risk-seeking behavior of parties in a dispute, is influenced by several factors. The availability of litigation risk transfer instruments like litigation insurance (LI) and third-party litigation funding (TPLF) can potentially change the litigious behavior of disputants. LI and TPLF markets have evolved differently in various jurisdictions around the world. The variation in the maturity levels provides a research opportunity to distill and document the learnings pertaining to the growth LI and TPLF in matured regimes and apply them in nascent markets. In this research, the authors consider the German (matured market for LI and TPLF) and Indian (nascent market) jurisdictions to identify potential focus areas influencing the growth of litigation risk transfer instruments. With reference to TPLF, this study concludes that while the legal framework is no doubt important in creating a favorable climate for adoption, its growth is influenced by agreement-level factors.

America’s infrastructure failure in water main breaks has led to personal property damage; in recent years, thousands of homes and businesses have been damaged by flood waters, and property owners are often unsuccessful in seeking financial remedy through the municipalities owning deteriorating systems. Municipalities in America are spending valuable infrastructure repair money in defense of lawsuits out of fear of setting precedent and are often successful in defense utilizing sovereign immunity against negligence cases. Insurance often refuses coverage for property damage from water entering from outside. This paper examines the current application of insurance programs and negligence lawsuits in water main break damage cases, provides suggested legal causes of action that have been successful, and examines cases in which property owners have collected from municipalities through the utilization of inverse condemnation, trespass, and nuisance claims in cases resulting in personal property damage.

Delays are a matter of fact in the majority of construction projects; accordingly, the field of forensic planning resulted in numerous delay methods being utilized. Implementing these methods has given rise to the major dispute of attributing an undocumented delay in the project schedule to a certain party. Despite previous research efforts, no established delay analysis technique sets a methodology while taking into account that some delays may exist that have not been identified or attributed. This paper aims to establish a step-by-step protocol for a delay analysis that would focus on merging two established techniques to fill the aforementioned gap while combining their recognized advantages. This paper demonstrates that adding one to the other would enhance the latter by properly identifying/attributing undocumented delays. Such takes place through a tracking process that utilizes the float path interface in Primavera P6 for an automated process. Through a case study demonstration, the proposed method shows promising results as opposed to applying the techniques individually.

Bid-rigging is common in many industries, and in recent years we have seen litigation concerning damages from bid-rigging increase with a variety of collusion scandals being disclosed. Several studies have estimated damages due to bid-rigging in construction. However, these studies were limited from two perspectives: they mainly focused on damages estimated by econometrics, and they did not consider specific characteristics of the real circumstances in each construction project. This study proposes an objective methodology to estimate damages due to bid-rigging in construction, especially for design-build and turnkey projects, which have bidding processes with unique characteristics: design and cost proposals are solicited from the shortlisted design-builders. The decision tree (DT) technique was used as the basis for the proposed decision-making model for estimating damages in these cases. In addition, the case study using a real bid-rigging case demonstrated the feasibility of the proposed decision-making model by making an objective estimate of damage due to bid-rigging in a design-build project. This study’s main contribution is the incorporation of a DT during the decision-making process for objective estimation of damages due to bid-rigging in construction projects.

Public–private partnerships (PPPs) increasingly face disputes that have significantly impacted their outcome. These disputes may result in legal actions or renegotiation, which in any case lead to outcomes such as increased contract duration, increased subsidy schemes, or changes in the risk-sharing mechanism between the public and private parties. Statistics have shown that a large number of PPPs go through renegotiations, sometimes even more than once during the concession period. As a result, communities, policy makers, planners, and managers are often challenged by the potential uncertainty stemming from the wide range of outcomes. This paper applies the concept of robust decision-making (RDM) to model renegotiations in a multiactor setting in public–private partnership projects. The analysis is based on a game theory model of the interaction scenarios and their simulation to assess the impact of potential mitigation strategies. The model is applied to the case study of the Tanzania Railway project to showcase the application of the proposed approach.

Blasting is a common practice in surface mining operations to remove waste rock and to excavate mineral deposits. However, blasting creates adverse effects such as blast-induced ground vibrations, air overpressure, dust, fumes, and flyrock. Residential communities living close to a mine site and other structures in the vicinity of a mining operation are subject to blast-induced damages. Humans can perceive low-level vibrations from blasting events that cause house to shake. They become concerned about cosmetic or structural damages due to blast-induced vibrations and air overpressures. Some cosmetic and structural damage claims from the community are legitimate. However, many are found to be false during the investigation of citizen complaints. In these instances, monetary compensation is still expected, on the basis that damages were solely due to blasting activities in nearby mines. This study presents cases and investigations to resolve owner-filed complaints for regulatory action and monetary compensation. It emphasizes recordkeeping and monitoring of blast operations, from which two positive outcomes result: (1) assisting regulatory authorities in assessing compliance with blasting regulations and prevention of damage to structures; and (2) helping the mining industry identify critical blasting information needed to protect nearby structures minimize liability claims.