CONDITIONS AND BACKGROUND FOR THE INTRODUCTION OF NON-JUDICIAL DISPUTE RESOLUTION METHODS IN THE INVESTMENT AND CONSTRUCTION SPHERE

Abstract

The use of more compliant and least conflicting ways to resolve differences in the implementation of state projects, especially in the public sector, is due to a systematic increase in the number of economic disputes, as well as initiated bankruptcy procedures for construction companies in the absence of prospects for financial recovery. The scale of the problems that characterize the investment and construction activity dictates the need for stricter government measures, including in the area of legislative initiative. In addition to that, the development of mediation, in its traditional sense, is also not sufficient in current conditions. In this context, we should take into account the experience of foreign countries. They also faced a crisis in the construction industry and adopted special legislation aimed at supporting small and medium-sized construction companies; they introduced such dispute resolution methods as an institution of specialized Commissions that are created at the initial stage and supervise the project performing a preventive function. The specific focus on investment and construction activity is explained by its significant distinctive features: increased riskiness, low-profit income, systematic disagreements of different ranges, the involvement of the public law element, high probability of conflict of interest. In order to develop the concept of non-judicial dispute resolution mechanisms, arising in the course of project implementation, the article explores the following aspects: competence and special qualifications of persons involved in relevant procedures (beyond the scope of mediation practices), organization of a specialized body dealing with dispute resolution, and conception of legislation.