|Construction agreements are special contracts in the field of civil contract law. This is simply because such contracts involving a lot of clauses concerning technicality and performance of the current Alternative Dispute Resolution (ADR). The arbitration system has been deemed as the more practicable to resolve issues and disputes arising out of or in connection with the construction agreements between the parties concerned than by filing court actions.
In the case of Department of Repaid Transit system TCG v. S.A .MATRA transport concerning CC-350 disputes, however, the result of courts applying different laws has leaded to the unreasonableness of using the prescription system in a particular case. If such unseasonableness can not be remedied, it would be less incentive for the adoption of arbitration system to solve disputes under construction agreements.
In order to point out the progress of raising legal issues and their methods of resolution, it is interesting for us to touch the basic concepts of prescription period for claiming under construction agreements, the characteristic of arbitration system and the enforcement of an arbitration award.
However, the point of interrupting the prescription period due to filing the arbitration, whether the extension of the prescription period as set for the in the sub-paragraph 3 of article 137 of Civil Code (Taiwan) is applicable, and the re-counting point of the prescription period upon the granting of an arbitration award have created different positions among judicial practices and legal theories. Reasons for such difference partly are due to the insufficiency of legal regulations and partly due to improper legal interpretation.
The mostly criticized problem among such issues with regard to arbitration award is that if the court grants an order of invalidating its original decree for execution of the arbitrative award in accordance with the sub-paragraph 2,Article 42 of the Arbitration Law (Taiwan), the claimant will lose his opportunity to re-interrupt the prescription period with resort to requesting for judicial collection. As to this unreasonable situation, it may be remedied case by case with reference to the principle of god faith.
In my opinion, the fundamental resolution is to delete such unreasonable and contradictory provision set forth in the said sub-paragraph 2 of Article 42 so as to avoid the concerned party to select any of ADR most favorable to him but which will lead to contradictory consequence as result of applying different clauses. If such proposal of deletion can be achieved, the characteristic function of arbitration system would be mostly developed and thus it will increase the willingness and opportunities of the parties in dispute to take advantage of arbitration system to resolve disputes arising out of or in connection with construction agreements.