Monthly Archives: March 2011

REUTERS | Mike Blake
March 30, 2011

The “not so great” section 108A debate

Over the last couple of weeks Jonathan Cope has looked at what he dubbed “the great section 108A debate”. In one sense this title is very apt – the substandard drafting in new section 108A of the Construction Act 1996 is certainly generating a great deal of debate in the industry. However, I wonder if we should instead call this the “not so great section 108A debate”. Not because the concoction of rhymes in that phrase is a bit of an awkward mouthful, but because it is not so great, in fact it is ridiculous that we even have to have this debate in the first place.

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REUTERS | Toby Melville
March 30, 2011

March 2011 digest: political unrest, a Tsunami and the Budget

Harold Macmillan:

“The wind of change is blowing through the continent. Whether we like it or not, this growth of national consciousness is a political fact.”

The political unrest that has been spreading through the middle east dominated the headlines at the start of March but was overtaken by the catastrophic natural disaster in Japan, subsequent concerns over nuclear safety and then, much closer to home, the coalition government’s latest Budget. (For more information on the detail, we published notes on the implications for a number of practice areas, including construction, environment, property and business tax.) Continue reading →

REUTERS | Mike Blake
March 30, 2011

Civil litigation reform after Jackson; the government has its say

I am acting for a client who is thinking about bringing a claim under a CFA supported by ATE insurance. The company has never been involved in litigation before, except for small debt actions. Apart from trying to understand the litigation process, the whole system of recoverability of premiums and success fees is quite a lot to take on board, particularly with a risk that the other side could go bust, which means my client may end up paying for these, even if it wins.
Today the whole picture became more complex. (Luckily I had told my client a while back that the system of CFA and ATE was subject to political “interference”).  Continue reading →

REUTERS | Kim Hong-Ji
March 29, 2011

Ask the team: can I do without a retention?

Retentions seem to have been around since time immemorial. For their supporters, they are easy to administer and represent a sensible lever over contractors and sub-contractors, encouraging them to fix defects (or providing a fund to pay for the fix if they can’t or won’t remedy a defect themselves). However, the opponents of retentions are increasingly vocal. So, why might you do without a retention and what’s the easiest way to do so?

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REUTERS | Sukree Sukplang
March 21, 2011

Civil disturbance – do you have an exit strategy?

I have just returned from a visit to Dubai. The main issue of concern for my contractor clients is the civil upheaval in North Africa and parts of the MEA, which Edward Davies’ blog post also referred to recently.

I was asked for advice on a range of issues relating to contractual relationships, including whether the “employer” still exists, force majeure clauses (such as those Edward referred to), what might happen if you have no force majeure clause at all, insurance complications and the impact of the current crises on construction contract security (for example, letters of credit, bonds and guarantees). Continue reading →

REUTERS | Mike Blake
March 16, 2011

The Italian torpedo disarmed?

The European Commission proposes amending the Brussels Regulation to reduce the scope for avoiding arbitration by commencing court proceedings in breach of an arbitration agreement. This is a welcome boost to those involved with international contracts. The proposals would reinstate one of arbitration’s main advantages: access to speedy justice outside of a judicial system.

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REUTERS | Tobias Schwarz
March 15, 2011

Drafting limitation of liability clauses: say it like it is

The liability clause is arguably the most important clause in a contract being notoriously the subject of dispute and yet it is the one clause that is usually drafted inadequately.

The judgment in Markerstudy Insurance Company Ltd v Endsleigh Insurance Services Ltd has served as a sharp reminder to contract drafters of the need for absolute clarity and precision when it comes to excluding liability for certain heads of loss. Continue reading →

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