Lecture 10 2023

University of New South Wales **We aren't endorsed by this school
Oct 13, 2023
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Contract management 1 Alternative dispute resolution. Alliances Senior management negotiation Dispute resolution boards Mediation Expert Determination Arbitration.
Contract management 2 Dispute Resolution Clauses The general requirements of a dispute resolution clause was set by Justice Vickery in WTE Co-Generation & Anor v RCR Energy Pty Ltd & Anor [2013] VSC 314 at [18] - [23] who's judgement may be summarised as follows: courts should generally be slow to declare dispute resolution clauses void for uncertainty; dispute resolution clauses should be interpreted 'robustly' by avoiding 'a narrow or pedantic approach in favour of a commercially sensible construction' with the objective of upholding the parties' bargain; the use of broad and general words will not make a dispute resolution clause uncertain if a sensible meaning can be given to them; a dispute resolution process does not need to be 'overly structured' to be certain - a 'court does not need to see a set of rules set out in advance by which the agreement, if any, between the parties may in fact be achieved'; and a 'contract which leaves the process or model to be utilized for the dispute resolution ill defined, or the subject of further negotiation or agreement, will be uncertain'. This decision confirms that courts will continue the trend of construing dispute resolution clauses broadly. You should ensure that the dispute resolution clauses in your contracts describe the process of dispute resolution to be followed with sufficient certainty because the failure to do so will likely result in the clause being declared uncertain and hence unenforceable.
Contract management Dispute resolution possibilities Court Action Arbitration Expert Determination Mediation Senior Management Neg. Dispute Resolution Board Alliancing Increased hostility Less commonly used. Can be costly but more effective in reducing conflict. Traditional methods resulting in increased Costs 3
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