1. Introduction

It does not mean that the parties to construction contracts often end up in dispute-like situations.

That this is happening may not be so strange. A lot of unforeseen things often happen in the course of a construction or construction project, and it is not the case that the builder in any project is able to exhaustively describe what work is desired to be carried out. Ambiguities in the tender or competitive basis should also be at the risk of the builder and this has been largely borne out by case law. A contractor who has misunderstood as a result of ambiguities on the part of the builder will therefore be able to have justified claims for additions. However, it is not a given that the builder is of the same opinion as the contractor that one himself has caused ambiguities.

Conversely, another builder may find that a contractor makes incorrect additional claims in order to compensate for an offer where he or she priced too low. It is not a given that a contractor will agree with the builder in such a point of view.

Either way, it's not hard to see that both parties to a construction contract may have legitimate interests to safeguard, even if it ends in a conflict.

Therefore, in the standard contracts, provisions are included that say something about how the parties can try to resolve their disagreements within the framework of the contract.

For the record, it is clarified that we are starting from the provisions of the main contracts (NS 8405 and NS 8407), but the rules are the same in the subcontracts (NS 8415 and NS 8417).

2. Overview of the rules

As always, we start from NS 8407 which is the contract type that is most often used today.

3. Amicable solutions

The standard contracts' provisions on amicable solutions can easily be perceived as somewhat superfluous.

Perhaps these provisions are perceived somewhat similarly to the provision that the parties should act loyally to each other.

That there will be a bit of a “party speech” feel to these.

To the extent that this is the case, the parties should rather take such provisions seriously. They signal a value choice and they indicate alternative routes to case management and high processing costs.

Many costs could have been saved if the participants in a construction case viewed each other as co-contractors, and not as counterparties.

Moreover, the provisions of the standards on amicable solutions contain a separate passage concerning the situation in which one party requests the other to bring the parties' disagreement up to the (upper) management of the parties. If this has been done, the parties should not initiate any further proceedings until the dispute resolution meeting has been held.

Involving management in disputes that have arisen at lower levels of the organization can be very redemptive.

Often the leadership will not have the same closeness to the conflict as the parties' representatives. Not infrequently, one finds that conflicts can have elements of personal contradictions in them, and ownership of the conflict can be strong. Management will also be able to have other perspectives and will often be able to have a greater willingness (and ability) to find alternative solutions.

The provisions of the standard contracts for amicable solutions should therefore be the first to be resorted to in the event of a conflict.

4. Project Integrated Brokerage

Project integrated brokerage (PRIME) is most often used in the really large construction contracts, and first of all this has been most common in construction projects.

In projects where PRIME is to be used, the parties appoint the mediators already in the start-up phase, possibly at the latest when the contract is signed. The mediators then follow the entire project from A-Z. When problems arise that the parties are unable to resolve on their own, mediators are involved so that conflicts can be resolved before they grow large.

This is a relatively cost intensive scheme in isolation, but presumably an affordable scheme relatively speaking.

We will not go into more detail about PRIME, but perhaps the little we have written can be an inspiration for the parties in smaller projects.

5. Referee decision

If one of the parties so requests, a dispute may be submitted to an arbitrator.

This opportunity is available until the acquisition.

The rules are so designed that the parties should come to an agreement on who they want to be the umpire. If they do not agree, the standard contract governs the procedure. In this case, you can contact Norsk Standard, which has an overview of the arbitrators that can be used.

The very process of arbitration is reminiscent of the case preparation of an arbitration case or a case before the ordinary courts.

The person who has demanded an adjudication submits a document explaining his views on the case and attaching the documentation that he believes supports his own case. This document is transmitted to the arbitrator and the counterparty. The latter are given a deadline to reply to the quotations and provide documentation themselves. After this, both parties are given the opportunity to submit their respective posts to supplement.

In the event of an arbitrator's decision, the proceedings are prepared in writing and no meetings are held between the parties and the arbitrator. All proceedings are in writing, there are no witnesses and the parties are not allowed to explain themselves to the judge.

Once the arbitrator has given his assessment and conclusion, it follows from the standard that the parties must notify the other party in writing whether they accept the decision or not.

This must be done no later than one month after receiving the dismissal decision.

It also follows from the provisions of the court contract that the award decision becomes legally binding if no legal action has been taken in the form of a subpoena to the district court or a petition for arbitration within six months of the award decision being handed down.

6. Dispute resolution

In NS 8407, the main rule is that a dispute must be brought before the ordinary courts, unless the parties agree to arbitration separately.

In NS 8405, disputes involving values lower than 100 G are to be settled by the ordinary courts, while disputes where the aggregate claims are 100 G or higher are to be settled by arbitration.

Often it is seen that builders take out the arbitration clause in their special contract terms so that any dispute should be settled by the ordinary courts. This is especially true for public builders.

G stands for basic amount, and is determined annually by the Storting with effect from 1 May of the year in question.

For the period 1.5.2023 — 1.5.2024, the basic amount is NOK 118 620, -.

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