Monthly Archives: February 2012

REUTERS | Ahmad Masood
February 29, 2012

February 2012 digest: spring is in the air

Percy Bysshe Shelley, The Sensitive Plant:

“And spring arose on the garden fair, like the spirit of love felt everywhere;
And each flower and herb on earth’s dark breast rose from the dreams of its wintry rest.”

Spring is here, with the first signs of flowering bulbs, buds breaking through and birdsong in the air. With thoughts of spring, our attention during February has been on matters environmental, including new guidance (and a revised definition) on contaminated land and a new waste water national policy statement. We have also seen a number of consultations that will have an environmental impact, including on changes to the Building Regulations 2010, the building control system and energy efficiency in buildings. Continue reading →

REUTERS | Eric Thayer
February 29, 2012

How can I get out of this contract?

We all know that things change. What seemed like a good idea a few years ago, might now be less appealing. We may all cringe at old photos, at a past hairdo or choice of outfit. The same can apply in a commercial context. Added to that are the likes of continuing financial uncertainty, strikes, bail outs, currency fluctuations, cuts, revolutions and wars that have all changed the economic landscape, especially in the past year or so. We are increasingly asked to advise in situations where, although there has been no default, one party is trying to extricate itself from a contract.

Continue reading →

REUTERS | John Kolesidis
February 28, 2012

Adjudication or arbitration as viable alternatives to court

I tend to keep quite a close eye on BAILII to see what’s coming out of the TCC (sad, I know). Up to last week, February had been somewhat quiet, a drought in fact. However, as the month draws to a close a couple of cases have appeared (but not the rain!).

One of the cases that I’m talking about is West Country Renovations v Mr and Mrs McDowell, which concerned the transfer of a case from the TCC in the High Court in London to the TCC in the Central London County Court. On the face of it this may not appear to be terribly exciting, but it is a significant decision. Continue reading →

REUTERS | Mike Blake
February 21, 2012

Arbitrating in Hong Kong after FG Hemisphere

A storm in a Chinese teacup?

The Hong Kong Court of Final Appeal’s (HK CFA) decision in Democratic Republic of the Congo and others v FG Hemisphere Associates LLC [2011] 4 HKC 151 (FG Hemisphere) has caused concerns, but those concerns are misplaced. A business considering whether Hong Kong will retain its position as a pre-eminent Asian arbitral seat should rest at ease. Continue reading →

REUTERS | Eduardo Munoz
February 21, 2012

Why should you adjudicate?

It was way back in May 1998 that statutory adjudication first became a reality in the UK. Back then, I suspect everyone wondered what would become of what was a new way of resolving construction disputes. Almost 14 years on, adjudication has become the construction industry’s method of choice for resolving disputes large and small. I imagine few people give as much thought now as they once did to the question “why should you adjudicate?”.

However, the pros and cons of adjudication are on my mind because I am giving a talk about them in the Republic of Ireland. You see, they don’t have a statutory scheme yet and are still unsure about what the process will mean to them and their construction industry. Continue reading →

REUTERS | Ahmad Masood
February 14, 2012

Adjudication “torpedoed” by adjudicator’s frolic

A project that finished late, with issues over the final account caused, in part, by delays, and with the parties arguing over who was liable for those delays (unsurprisingly, weather was one of the reasons cited, as was asbestos removal).

So far, this sounds like many other construction disputes. However, the contract in Herbosh-Kiere Marine Contractors Ltd v Dover Harbour Board was to remove the remains of a boat sunk to stop torpedoes being fired into Dover harbour during the first world war. It was a wreck-removal agreement, with a lump sum price of almost £1.8 million and with scope for certain extra costs to be priced and paid for. The contractor (Herbosh-Kiere Marine’s) disputed final account claimed just under £4 million. That is a lot of extras. Continue reading →

REUTERS | Yuriko Nakao
February 13, 2012

Adjudication and limitation: adjudication unlimited?

Recently, I had reason to think about whether the Limitation Act 1980 applies to adjudication. This seems like a “no-brainer” – of course there must be a time limit on the ability to refer a construction dispute to adjudication. Remarkably, though, there is no clear answer and judicial and other opinion on the matter is inconclusive and hard to come by.

I have split my thoughts into two parts – this post is part one. Continue reading →

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