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Adham’s research is in the field of construction law and dispute resolution. Its aim is to support developers and contractors in the prevention and efficient resolution of contractual disputes.

Adham Kotb

The practical significance of Adham’s research is that it tackles a longstanding problem that undermines the performance of the construction industry, both in the UK and internationally. Disputes commonly arise between parties in construction contract practice and often linger for long time. This disrupts the construction process, harms the parties’ relationships, and results in substantial financial losses. Published reports highlight that, on average, a dispute takes more than one year to resolve, and the financial losses from disputes are estimated at about 6% of the contract price of each construction project. In the bigger picture, such losses from separate projects add up to waste billions of pounds from the annual national budget.

Adham argues that the key to solving this problem lies in developing a clear understanding of the root causes of contractual disputes and the remedies required for their resolution. Identifying the root causes is critical for effective dispute prevention. As the saying goes: “For every thousand hacking at the leaves of evil, there is one striking at the root”. In respect of dispute resolution, efficiency involves enabling a party to obtain adequate remedy in a timely and cost-effective manner and, where possible, through an amicable process.

To explain the root causes and required remedies, Adham’s research has developed an original taxonomy that classifies contractual disputes into two types: ‘promissory dispute’ and ‘performance dispute’. A promissory dispute is a difference between two parties on the meaning or effect of a contract. For example, where parties differ in the assertion of a contractual right, hold different views on the value of a variation to a contract’s scope, or disagree on a contractor’s entitlement to an extension of the time for completion of the works. In a promissory dispute, the parties merely seek to vindicate a right or obligation. In contrast, in a performance dispute, a party asserts that the other party has failed to perform and demands performance of an alleged obligation. Because each type has different root causes and requires different remedies, prevention and efficient resolution of each type calls for implementing different provisions.

Adham has found that the existing statutory and private (standard form) provisions support the prevention and efficient resolution of performance disputes, but not of promissory disputes. To reach this conclusion, Adham’s research went beyond legal doctrine to draw on insights from economic theory, analysed key developments of the law and practice in construction dispute resolution, and examined the dispute avoidance and resolution provisions in four renowned standard forms of contract. The current lack of targeted provisions for preventing and resolving promissory disputes means that disputes will continue to occur frequently in construction contract practice and parties will find themselves ill-equipped to resolve promissory disputes in an efficient manner.

Considering the above, Adham’s research proceeded to develop a contractual provision that has the purpose of supporting the prevention and resolution of promissory disputes. The proposed provision adopts techniques that mitigate the occurrence of disputes by addressing the question of self-interest and opportunistic behaviour in the making/rebutting of contractual claims. It enables efficient resolution of promissory disputes by providing a specialised, expedited, and amicable form of arbitration procedure. As the proposed provision can be suitably standardised in construction contracts, Adham’s research is well placed to support the improvement of dispute prevention and resolution in the construction sector, not only in the UK, but globally.

If you are interested to know more, or find this area of research relevant to what you do, please get in contact.

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