The Lawful Process of Adjudication - Essay Example

Adjudication refers to the lawful process which is used to solve a dispute between two parties. There are several principles that are related to adjudication; the first principle states that, `` the construction Act of 1996 should always apply agreement in writing’’. The meaning of this principle is extensive and complex; it may also embrace oral agreements though there should be satisfactory written proof of the agreement. It is not compulsory for the terms to be acknowledged but correspondence after or through construction be act as a sufficient proof. In addition all suggestions may have been made in any previous adjudication or legal proceedings will be ample if the terms of the agreement are not denied. The second principlestates that the construction Act of 1996 will only be applicable to only contract that are related to construction. The main standards applied here is that the contract work should be associated with structures, installation and buildings which are part of the land though the Act does not cover fittings and moveable structures. Also there are other construction operations that are not included in the Act as stated in section 105 (2) of the construction Act, for instance, works which are done on plant sites and are mainly carried out primary activities like power generation or processing are excluded from the Act. This principle was applied in the case of, palmer Vs ABB. The next principle is that payment notice should be made by the paying party though the Act does not state clearly if the payee should make any application for making the payment in the nonappearance of express terms. This shows that making an application does not necessarily mean that payment right has been made, except in a case where there contract states so or in any right that pre-existed. In a case where payment will not be paid fully a notice should be given to the payee. Also, this method applies to over payment claims, set-off and abatement. The fourth principle is that the parties involved may not contract outside the construction Act but they are allowed to contract with in the act. In such adjudication the court will administer the decisions like if the adjudications were statutory. A good example of an application of this principle is the case of SiemensVsNordot. The fifth principle is that in order to resolve disputes related to construction contracts the parties has a right which should not be regulated. The right to the party will not be restricted to procedural limits. The rights will be practiced even if proceedings are concurrent. In general, the court should not intervene to stop continuation of any adjudication even if the dispute was solved was earlier decided in any other adjudication. The sixth principle is that adjudicators should have jurisdiction. Most of the adjudicator's decision could not be enforced because they lacked jurisdiction but given that the adjudicators had jurisdiction, their decisions will be enforced fully. Though there are signs in today's cases, and mainly those under the Scots law, which indicates that this area is suitable for development. The last principle is that the adjudicator should not be biased in his or her actions. The adjudicator should allow the parties to make submissions on their case based on the law and fact that the adjudicator relies on. # 1 (b) The potential problems that are associated with the implementation of the construction act 1996 are that one of the challenges is that the Act fails to consider the principle of having a justice in nature. The determination of the adjudication which is under section 21 of building and construction industry security of payment act (`` SOPA’’) were advanced based on adjudicators jurisdiction to decide the dispute. Another potential problem is that the amendment was only to apply only to those contracts that are verified through writing yet not all contracts that are evidenced in writing whether it is by circumstance or by design. Another problem that is associated with the amendment of the act is the incur of the cost, under the act it is just one party which is entitled to bear all the cost irrespective of whether it will benefit or not. This clause hinders parties from filling their cases. For instance in the case of Yuanda (UK) Co Ltd Vs WW Gear construction ltd; this clause limited Yuanda from practicing its freedom and it was also deprived the solution. The following are alternative methods which may be used to deal with disputes apart from adjudication in the construction industry. The first approach is known as step negotiation, this method requires the parties that are directly engaged in the disputes to solve the dispute by negotiating directly. If the dispute is not solved within a specific set time, the dispute should be solved by the next level in the organization. This approach usually moves to the next senior level in the industry if the junior level fails to handle it effectively. Another one is the Dispute Review board approach. Normally the board is composed of three experts who are neutral; they regularly visit the site so that they may observe the progress and any possible problems. If the board is asked to solve a dispute by the involved parties, it carries out an informal hearing on the issue and gives opinion to the parties that will act as the basis for their negotiations. This method is more effective because it considers prevention to solving the dispute. The method is also too flexible as it addresses the key industry concerns. The next approach is mediation. This is a forum whereby a mediator enhances communication between the parties who are in dispute with the aim of promoting settlement, understanding and reconciliation among the parties who are having the disputes. Lastly, is the arbitration. This method involves a counsel and each party presents a situation of the parties before a third party who will give out the way forward. #2 (a) Competitive tendering is a method that encompasses giving securities to the highest bidders. There must be a clear plan which entails making payment at a specific date with certain amount of money. While on the other hand side, fixed fee rates are is a type of tendering that encompassessubscriptionof tenders beyond a given amount of money. Firstly, competitive tendering conveys fairness to prospective contractors. This comes in as a result of its dependency on a competition to achieve a better provision and efficient service from the consultants. Thus a fair decision should be made without conspiracy based on the available individuals who presents their desire to offer a service. Thus when a tender is presented the available consultants are chosen depending on the ability to make it at the company. Priority is for the people who attend the interview. Unlike fixed free rates that does not convey fairness. Also, competitive tendering improves the performance of an internal area. This is due to the close supervision by the council at the quality delivered. This can help to maximize the effectiveness of the consultants through closer monitoring with the help of other stakeholders. Thus competition can be internally or externally realized in the council. Competitive tendering still helps in achieving the finest value of money. This is achieved by choosing the most worth contractor among a variety of potential consultant options and saving the rest money for other activities. This money can be re-invested in other activities that may be profitable. Competitive tendering aids in conveying in new possible contractors. This helps to bring in new innovations and ideas. This is a method of creating job opportunities for the parties who would like to invest in the industry thus enhancing better production methods due to ideas used in the industry, also competitive tendering aids in establishing the most reasonable service price through presenting the several optional prices that are agreed to be logical depending on various grounds hence; the clients are not put under pressure. Finally, competitive tendering facilitates service quality and effectiveness for customers as a result the output is, satisfied consumers. #2 (b) The problems of charging a fee on a tender are as outlined below.The issue of tender fee tends to create a state of corruption. This is because the individual or a firm willing to part with a given amount is given the first priority. Individuals with no money are left out because of this fee. This leads to poor individuals being in a desperate position when they cannot raise this amount to participate in the tender process. Tender fee also, increases the chances of hiring non skilled people. This comes in when the highest individuals given the contract are based on ability to pay the fee and not on the base of skills. The output of such people is characterized of poor output because of low quality input applied in the first place. This leads to a situation of an underdeveloped state at large with no machinery to pull it out of this hectic situation. Tender fee, again, locks out individuals with potential skills to tackle a particular skills leading to outcry of clients who are not satisfied. The problem comes in when there is lack of skilled individuals to deal with each issue as presented by the consumer. This results into consumers lacking faith with the consultants present. Also, it becomes cumbersome to sort out from the available consultants who to pick for the offer. This results into time wastage and energy which could be utilized into other income earning activities. Lastly, tender fee creates a situation of classes in the society where it becomes obvious that only a particular group of firms or individuals can try to get the tender. This creates a situation of isolation in the society on the grounds of potential ability. This can induce the vice of tribalism which is a force towards failure. The qualitative part can be induced by choosing consultants on the base of the past delivery of services. This involves selecting contractors on the argument that they are the best of the best. The consultants can be put under a test then the best are chosen. This will ensure that quality is delivered. Also, a tender may be given to a company or an individual with a past that is positive in terms of delivering contracts that are of quality, timely and satisfactory. This will make it easy in selecting contractors. Also, it gives the clients confidence that the work will be done well. Lastly, potential contractors should be absorbed in the system to increase the bow of knowledge and new ideas that are crucial for development. # 3 The supply chain takes key note of the world wide trends for the benefit of the upcoming industries. A carbon footprint is the amount of greenhouse gas emissions at a certain period of time. It is significant when it comes to evaluating goals for climate moderation. The magnitude of carbon footprint either direct or indirect is 39% of all the emissions in FY2009. Taking a look of a case study of a certain campus, emissions due to commute, water, solid waste removal and the procurement of UC Berkeley constitutes 50% of the total emissions. Berkeley University for instance has the following top most categories of carbon emissions: IT and telecommunication, construction, office products, and scientific resources such as different varieties of chemical reagents and other laboratory supplies. The learning process in the university is known to give rise to most of the carbon due to the most scientific research that occurs. It is therefore important for UC Berkeley to assume low carbon intense ways or communicate with known dealers for the purpose of minimizing environmental impacts within their areas of production. These sellers ought to be selected in terms of their degree of Green House Gas emissions (GHG), their efficiency in energy use, their ability to recycle metals, plastics and waste disposal. In 2009, the carbon dioxide emitted was 33% of all the gained expenses and 18% of the campus footprint was procured. In order to reduce carbon footprint, most industries have embraced steps like the following. Much institution of energy saving schedules and replacing the equipment and facilities that consume much energy have greatly enabled the personnel reduce these emissions. Being able to find other sources of energy that pollute less is also another step towards reducing these emissions. It is known that the carbon footprints are as a result of many physical processes involved in any industry. Because of this, industries have no option but to determine how often supplies are made and to cause a great alteration in the production processes they use and still improving efficiency in them. All production firms are also encouraged to emphasize much on the way they recycle some materials in order to minimize consumption of goods. This is important as it reduces costs of purchase of production resources and also greatly reduces carbon emission. Campaigns for instance the Re use campaign and the Office of Sustainability’s Green Department Certification program have provided strong basis for this type of initiative for many industries in the past. Firms are still taught to place an order the purchase of environmentally friendly product: Ones with less carbon footprint. Besides, different firms should encourage coordination among themselves in terms of the decisions they make in ordering things especially when delivering products which need much refrigeration. By this doing, they ensure quick response to such issues thus minimizing carbon footprint. Operational alterations could also be done in industries to assist a lot in minimizing carbon footprint. The industries should therefore ensure that the fixed cost of the inventory cost should be different from the ratio of fixed carbon emissions. Again, industries should work towards reducing emissions as a result of transportation, process set up, production or ordering in every unit, and emissions due to storage of every unit held in the records of the industry. Imposing penalties to companies emitting much carbon is also another method of minimizing carbon footprint. This strict rule or policy will enable these companies to control their processes in a way that less carbon footprint is experienced. The policies are made in a way that the companies become more flexible in fulfilling the accepted limit. An example of such a policy includes borrowing. A carbon tax may still be paid by the companies causing excess pollution. These taxes are well known to enable many firms in energy efficient technologies and this is to their advantage because most of the production expenditures are minimized. On the contrary, prizes presented to companies emitting less carbon are another good way of ensuring this. These gifts could possibly be to those firms which have joined the reusable packaging association because they are well termed to embrace innovation in reusable solutions especially when it comes to used plastics with a target of minimizing the carbon emissions. A self- regulating agent or trading fairs are left to perform these duties. Companies could also invest in carbon equalizers. These involve the investments a company gets in carbon-reducing projects. To promote this measure, the policy makers should therefore encourage competitive markets in which at the end leads to low prices of these offsets. The boat carbon footprint is also another contributor of these emissions. Limiting them would therefore involve using less fuel, using moderate engines which are good condition mechanically, use of small boats because they are known to use less fuel and produce less carbon . Moreover, tree planting is also a good solution in minimizing carbon footprint. This is because trees are well known to absorb carbon dioxide in the environment and therefore less pollution is experienced. Companies are therefore called to invest in projects that both reduce the generation and traps carbon dioxide emitted. The use of specific software for calculating carbon footprint is also a measure. Companies can thus control their production processes in such a way that they limit the amount of these gases and the managing costs that come with them. Users in these companies are advised to ensure that the software they are using is up to date and precise for it to be effective. The computers also ought to be put in sleeping mode in order to save as much energy as possible. Companies could also embrace the following steps to limit carbon emissions when using energy. Fluorescent bulbs are most recommended for use because they consume less energy. Use of energy saving light bulbs and ensuring that they are switched off when not in use, recycling of water and other resources, the use of energy efficient fridge and boilers. REFERENCES. Energy Information Administration (EIA).(2011). U.S. States – California.Department of Energy.http://www.eia.gov/state/state-energy-profiles.cfm?sid=CAretrieved on 5 may 2013. Read More