نگرشی تطبیقی به مشروعیت داوری اجباری در قراردادهای پیمانکاری با نگاهی به سند AIA ایالات متحده امریکا

This study examines the legitimacy and effectiveness of mandatory arbitration in construction contracts through a comparative analysis of AIA standard documents and the Iranian General Conditions of Contract. The central issue concerns the tension between the broad enforceability of arbitration clauses and the requirements of informed consent, procedural fairness, and the complex, multi-party structure of construction disputes. The research adopts a descriptive–analytical and comparative approach. It hypothesizes that the legal enforceability of an arbitration clause, by itself, is insufficient to establish its legitimacy. The findings indicate that parties’ consent in standard-form contracts does not necessarily constitute informed consent; the bilateral structure of arbitration encounters limitations in addressing the multi-layered nature of construction projects, particularly with respect to the joinder and consolidation of related claims; and arbitral costs, economic asymmetry between the parties, and limited judicial review may undermine the effectiveness of arbitration. Conversely, Article 15 of AIA Document A201–2017, through its provision for an Initial Decision Maker, mediation, and subsequently a contractually selected method of binding dispute resolution, reflects a shift toward a staged architecture of dispute resolution. The study concludes that the appropriate model lies neither in the unconditional endorsement nor in the outright rejection of arbitration, but rather in designing a proportionate and multi-stage mechanism consistent with the requirements of contractual justice.