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IEK ANNUAL CONFERENCE MAY 2013

IEK ANNUAL CONFERENCE MAY 2013. Paper from IEK Disciplinary and Dispute Resolution Committee By: Eng. A. Okelo Rogo Date: 8 th May, 2013. Introduction/Background IEK: a professional institution Core Functions Training and accreditation of engineers, Standards,

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IEK ANNUAL CONFERENCE MAY 2013

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  1. IEK ANNUAL CONFERENCE MAY 2013

  2. Paper from IEK Disciplinary and Dispute Resolution Committee By: Eng. A. OkeloRogo Date: 8thMay, 2013

  3. Introduction/Background IEK: • a professional institution Core Functions • Training and accreditation of engineers, • Standards, • Ethics/discipline in engineering practice, • Dispute resolution.

  4. Since its founding over 50 years ago, changes have been witnessed in: • Engineering technologies, • Rules of practice, and • Methods of design and works implementation.

  5. Increased engineering investment and construction over the last 10 years: • has occurred at a rapid rate never seen before, • Large scale infrastructure projects on: • roads, harbours, airports, dams, power generation/distribution, railways and bridges.

  6. Involvement of international players in: • Financing, • Designs’ • Consultation, and • Operations

  7. Challenges to IEK and Kenya engineers resulting from increased investment: • Acquiring professional requirements related to: • Financing, • Procurement, • Projects management • Design and construction practices.

  8. Urgent need to adopt Conditions and Procedures conforming to internationally accepted requirements, ie • FIDIC, Adjudication, Arbitration and need to Avoid Courts (Litigation). Hence, vital need to update procedures on: • Engineering training/practice/ethics, • Dispute resolution.

  9. Vital Responsibilities of IEK: • Awareness on Procedures for Dispute Resolution, • Updating existing Procedures and Rules, • Collaboration with other Professional Institutions e.g.: LSK, CIArb. • Seeking opinion of members on above issues,

  10. 2. Rules of Procedures for Disciplinary Systems Require: • Internationally recognised engineering practice/rules, • Construction industry practice/rules Based on: • Kenya law • History/culture

  11. Draft Rules of Procedures on Methods of Discipline Paper: • Being presented here for: • Perusal and • Urgent comments to • IEK Secretariat

  12. Emphasis: • Rules must conform to: • Engineer’s Board Act and • Provisions of all the laws of Kenya Wherever conflict arises against Engineers Act or other laws of Kenya: • Provisions of the Act and laws of Kenya shall take preference.

  13. 3. Dispute Resolution (Arbitration/Adjudication) Rules Construction industry • Has many disputes • Disputes can be costly to: • Clients and • Other stakeholders in a contract/project

  14. International participation in construction industry in Kenya: • Chinese, • Japanese, • German Consultants and contractors

  15. Hence dispute resolution procedures must be: • Internationally recognised/acceptable, • Avoid detailed local court procedures unfamiliar to international practitioners, • Cost effective/timely to avoid delays in Projects Commissioning.

  16. FIDIC Procedures: • Institution on Engineering Practice/Industry Contract Conditions, • Internationally recognised/accepted, • Regularly issues guidelines on dispute resolution procedures.

  17. FIDIC Conditions: • Provide clear procedures for dispute resolutions on: • Amicable settlements, • Adjudication and • Arbitration. These are Alternative Dispute Resolution (ADR) Procedures.

  18. FIDIC • Give litigation (High Court) action in Dispute Resolution a last resort status. • Within FIDIC contracts, Adjudication precedes Arbitration. NOTE: Adjudication in Construction Industry is now taking key role in Dispute Resolution.

  19. Adjudication Rules for Construction Industry in Kenya: • Prepared by the Chartered Institute of Arbitrators, Kenya Branch in consultation with Local Institutions, • Adopted by IEK, • Commissioned during October, 2003, • By the then Minister for Public Works • Rules key to Adjudication procedures in Kenya.

  20. Draft Adjudication Bill: • Prepared by the CIArb, Kenya Branch, in consultation with Stakeholder Institutions. • To be presented to Parliament for enactment soon after full deliberation/comments by Stakeholders. • Copies of the Draft Bill are available. • Comments on the Bill are invited to CIArb before tabling in Parliament.

  21. IEK Arbitration Rules: • Based on Arbitration Act in Kenya. NOTE: • Arbitration in all disputes including Construction Industry has a longer history internationally than Construction Adjudication.

  22. 4.Role of IEK as an Appointer of Dispute Resolvers in Dispute Related to Construction Industry • IEK- key to appointment of: • Arbitrators • Adjudicators, • Mediators • Expert determination To handle disputes arising in Engineering/Construction Industry.

  23. Documentation/Specification in Contracts for IEK as an Appointer of Dispute Resolvers • Engineering/Construction Industry players need access to an institution which is: • Reputable • Professional • Knowledgeable To oversee their issues of dispute resolution

  24. IEK has all the necessary requirements in guiding those in Engineering/Construction industry in appointment of individuals/tribunals to effectively deal with their disputes. • IEK in consultation with CIArb (Kenya Branch),Architects/Quantity Surveyors Association,LSK etc – has compiled data of qualified/experienced Disputes Resolvers

  25. All Stakeholders to specify in their contracts the Chairman- IEK, as an Appointer of Dispute Resolver; whether in Arbitration, Adjudication, Mediation, Expert Determination etc as regards all Engineering/Construction Industry Contracts. • This is within Kenya Law and FIDIC.

  26. 5. Catering for the Devolved Government System in the New Constitutional Dispensation in Kenya • Counties must comply with Internationally Acceptable Engineering Standards/Practice • Counties must employ competent Engineering Staff capable of the desired output.

  27. Experienced Engineering staff in Kenya, now, inadequate to serve all Counties, • Counties should share the available experienced Engineering Staff at the onset of devolution. • Arrangement should be made to urgently train Engineers to serve in the Devolved Government

  28. IEK – to support the Counties in training of key Staff to run Infrastructure Projects • IEK- should establish County Branches. • Conference to come up with proposals on the contribution of IEK on Devolved Government. • IEK to collaborate with other Stakeholder Institutions in Addressing County Government needs.

  29. APPENDICES • IEK- Arbitration Rules • The Chartered Institute of Arbitrators (Kenya Branch)- Adjudication Rules for Construction Industry, • IEK- Rules of Procedure on Matters of Discipline (Draft), • IEK- Appointment Procedure (Dispute Resolution) • Adjudication Bill- to be enacted by Parliament

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