Monthly Archives: April 2016

REUTERS | Vasily Fedosenko
April 29, 2016

April 2016 digest: ch-ch-ch-ch-changes

Alfred, Lord Tennyson, Locksley Hall:

“Forward, forward let us range, let the great world spin for ever down the ringing grooves of change.”

This month saw a number of legislative changes that will impact on construction practitioners, including significant changes to costs management, new public procurement regulations (which Stella Mitchell and Kate Wall discussed) and amendments to the Construction Industry Scheme (CIS). The government’s mandate requiring BIM level 2 for all centrally procured government projects also came into effect this month. Continue reading →

REUTERS | Stefano Rellandini
April 29, 2016

Know what you are dealing with: lessons learned from Murphy v Beckton

Carr J’s judgment in J Murphy & Sons Ltd v Beckton Energy Ltd offers a salutary reminder of the dangers that can befall a contractor when dealing with an unfamiliar amended contract. Not getting to grips with the operation of amended clauses, and the interplay between them, can be a trap for the unwary, as J Murphy & Sons found out to its cost. It is critical that parties know and understand the operation of the terms they are agreeing to before entering into the contract. Continue reading →

REUTERS | Fadi Al-Assaad
April 27, 2016

Tough times: termination under Qatari law

As the Gulf nations enter a period of readjustment following the oil price rout and debate continues about where the price of crude is heading, the fact remains that infrastructure projects are being impacted by dwindling funding opportunities. In turn, this increases the temptation to “press the termination button” throughout the contracting chain.

Sector downturn leads to an increase in the rate of contract terminations, as the construction industry knows all too well. Whatever the originally anticipated outcome of the Doha meeting between oil producing and exporting nations on 17 April 2016, an upturn in fortunes was always unlikely to be speedy. For this reason, a review of the law surrounding the termination of contracts in Qatar seems timely. Continue reading →

REUTERS | Eric Gaillard
April 26, 2016

Successful use of Part 8 leads to adjudicator’s decision being severed

We don’t often see adjudicators’ decisions severed. Therefore, it came as a bit of a surprise to get to the end of Carr J’s judgment in Stellite v Vascroft and find that not only did she sever those parts of the adjudicator’s decision she held to be made in excess of jurisdiction, the parties had agreed to this somewhat pragmatic course or, in judicial parlance, it was “common ground” that the decision could be severed. (In case you missed it, it is tucked away in paragraph 89.)

Aside from the severance point, I also thought the arguments on jurisdiction were interesting, especially as the approach adopted allowed the “good” parts of the adjudicator’s decision to survive a natural justice challenge. Continue reading →

REUTERS | Nigel Roddis
April 19, 2016

Alternative tactics to obtain payment (but only where there are no “shadowy” claims)

Back in 2011, when Jeremy Corbyn was a mere back-bencher and few of us were aware of what an emoji was, I wrote a blog on the amendments to the Construction Act 1996. The blog arose from a panel debate held by the Adjudication Society concerning the amendments to the Act’s payment provisions. Five years on, some of the questions raised and issues discussed make for interesting reading.

It is also interesting to note what wasn’t discussed. For example, nobody appears to have foreseen the ISG v Seevic point that a payer cannot refer to adjudication the merits of an interim valuation where an adjudicator has already awarded payment as a result of the payer’s failure to serve an effective payment notice and/or pay less notice. Continue reading →

REUTERS | Jumana ElHeloueh
April 18, 2016

Today’s the day: Utilities Contracts Regulations 2016

Unlike 18 April 1930, when the BBC reported there was no news and played out with piano music, 18 April 2016 is an important date for utilities and their suppliers. Today the Utilities Contracts Regulations 2006 will be replaced by the Utilities Contracts Regulations 2016, transposing the Utilities Directive 2014/25/EU into law in England, Wales and Scotland. The new regulations extend the principles that have applied to public bodies since April 2015 under the Public Contracts Regulations 2015 to utilities and concession contracts.

These changes have been introduced to codify case law, simplify procedures, provide additional flexibility and facilitate the market participation of small and medium sized enterprises (SMEs) and start-ups.

So what do we need to be aware of? Here are some of the key changes and messages to consider. Continue reading →

REUTERS |
April 12, 2016

Adjudication enforcement arguments “change with the seasons”

Coulson J’s opening remarks in Penten Group Ltd v Spartafield Ltd set the scene for what followed, and for what I am going to discuss this week – serial adjudication:

“And now the wheel has turned again and the courts are grappling with the consequences of what might be termed serial adjudication.

…this is a case bedevilled by the almost maniacal desire of the parties to issue notices of adjudication against each other. This impulse seems to have overwhelmed every other consideration. I note too that this has not always been successfully translated into action. I have seen at least five notices of adjudication, and I am told that there might be as many as nine in total.” Continue reading →

REUTERS | Chaiwat Subprasom
April 7, 2016

Enforcing a judgment against assets in Dubai: a new path or shaky ground?

Enforcement of a judgment against a debtor’s assets in Dubai can be a difficult process. Therefore, a recent DIFC Court of Appeal’s decision will be of interest to those considering dispute resolution options in Dubai – in particular, where a judgment is handed down by a court outside Dubai against a party with assets in Dubai.

To what extent can the DIFC Courts be used as a conduit for the enforcement of a foreign judgment in Dubai? Continue reading →

REUTERS | Zohra Bensemra
April 6, 2016

Arbitrators’ conflicts of interest and apparent bias

Two cases on the apparent bias of arbitrators caught my eye recently. Both cases concerned the apparent bias of a sole arbitrator based on an alleged conflict of interest.

In Cofely v Bingham, the claimant applied to the court to remove an arbitrator during the course of an arbitration, under section 24 of the Arbitration Act 1996, which Michelle Rousell discussed in her blog post. This case was closely followed by W Ltd v M SDN BHD in which the claimant sought to challenge two awards for serious irregularity under section 68(2) of the Arbitration Act 1996. These cases have a wider application because they give guidance as to how the English courts will treat conflicts of interest of an arbitrator, and by analogy, of an adjudicator.

Continue reading →

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