Chong, H-Y and Oon, C K (2016) A practical approach in clarifying legal drafting: Delphi and case study in Malaysia. Engineering, Construction and Architectural Management, 23(5), pp. 610-621. ISSN 0969-9988
Abstract
Purpose Legal drafting is one of the root causes for interpretation errors and misunderstandings in construction contracts. Moreover, most construction personnel do not have legally trained background. Therefore, the purpose of this paper is to determine the feasible use and practicality of Plain English in clarifying legal drafting in Malaysian construction contracts. Design/methodology/approach Two research approaches were adopted, namely, Delphi research and case study. The Delphi method was to elicit local experts' knowledge and consensus view on the given examples of restructured contract provisions. Next, an actual case study was conducted to examine and substantiate the research findings by critically reviewing the latest and revised standard form of contract for its Plain English usage. Findings The Delphi research shows that all the restructured contract provisions were agreed by the local experts; whereas the case study reveals that significant changes and the acceptance of Plain English in most of the contract provisions. Originality/value The research renders insightful references in clarifying legal drafting in construction contracts based on the empirical evidence and the use of Plain English from the Malaysian scenario. It also contributes into the resolution of contractual differences and conflicts caused by the misunderstandings or interpretation problems.
| Item Type: | Article |
|---|---|
| Uncontrolled Keywords: | Malaysia; risk; information; contracts; disputes; contract law |
| Index terms: | construction personnel, methodology, evidence, dispute, standard form of contract, Delphi method, contract law, Malaysia, case study, resolution, drafting, construction contract |
| Subjects: | contractual arrangements, technical documentation, dispute resolution, contract type, workforce, evaluation and assessment methods, data collection methods, conflict resolution, Geography, contract law, research methods |
| Topics: | Legal Issues, Design Practice, Human Resources, Research Practice, Geographical Context, Stakeholder Management, Procurement |
| Descriptive scope: | 5 PCTEA |
N.B. Descriptive scope is a count of how many of the five facets of empirical research are indicated by the words used in title, abstract and keywords. It is not intended as a judgement on the research; merely a count of the kind of word we would expect to indicate Phenomenon, Concepts, Theoretical framing, Empirical techniques, Analytical techniques. If all five are present, then a code of “5 PCTEA” will indicate this. If you feel the coding for this record is questionable, we welcome discussion around the terms we matched or the way we categorized them. The facet you would expect may not be coded, or a facet may be coded inappropriately. This can also bear on a larger question, of which facets should be treated as defining in construction management research. Please get in touch, and we will look at it. More details here