In this first of a three-part blog series we consider some key contractual issues in the context of the Qatari and UAE construction market. We begin with an overview of liquidated damages (LDs) provisions for project delays.
We all know that an employer’s entitlement to liquidated damages has a significant impact on contractors and the supply chain. If the contractor misses a contract milestone, most contracts in Qatar and the UAE allow employers to levy liquidated damages. Continue reading
I’m not telling you anything new when I say that it’s a funny thing, adjudication. We have a statutory process for resolving disputes in the construction industry set out in section 108 of the Construction Act and Part 1 of the Scheme for Construction Contracts 1998. Both the Act and the Scheme provide for when the referring party will put in its evidence (within seven days of the notice of adjudication, which the Scheme calls a “referral notice“, the Act doesn’t even go that far) but neither contain an express provision for the responding party to do the same.
Without looking back to the Parliamentary discussions on the Act and the Scheme, I’m not sure exactly why we ended up with this state of affairs, or whether it has really ever prevented the process from operating properly. It only really came to mind the other day, when I was looking at Akenhead J’s judgment in A T Stannard v J and T Tobutt. Continue reading
In this blog, I focus on “re-adjudication” of a dispute. In summary, Eurocom Ltd v Siemens plc confirmed that once a claim had been adjudicated, it could not be re-adjudicated, regardless of how the referring party wanted to repackage or re-label the same claim. Others have commented on nominating an adjudicator, so I’d like to start with some brief thoughts on that aspect. Continue reading
Often parties engaged in proceedings want to park those proceedings while they turn their attention to alternative dispute resolution (ADR).
In some types of dispute, judges favour a stay for ADR. Indeed in any boundary, right of way or other neighbour dispute (as I discussed last month in relation to Norris J’s decision in Bradley v Heslin), whatever the parties might say about their willingness to engage in the process, they should expect a court-ordered two-month stay for mediation and a direction that all reasonable steps to conduct that mediation must be taken.
No stay or window for ADR in the TCC
However, in CIP Properties (AIPT) Ltd v Galliford Try Infrastructure Ltd, Coulson J said that in the TCC ordinarily there would be no stay for ADR ordered or pause in the proceedings for ADR created by the fixing of a window in the timetable. Instead, parties in the TCC must do both: work towards a fixed trial date and attempt to settle the litigation. Continue reading
If you Google my name (so I am told as I obviously wouldn’t do that myself…), I’m nowhere to be seen. The first hit you get is the former lead male in the Royal Ballet (the name is where the similarities end) and an English General who took a pounding from the Scots in 1745. Similarly, if you Google Matt’s name you are normally directed to an Irish musician or a pub in Westport, rather than an experienced dispute resolver. However, after the publication of Ramsey J’s judgment in the adjudication enforcement case of Eurocom v Siemens, I suspect Matt might be climbing the Google list, partly because his name is mentioned 19 times (despite not being the adjudicator in the case), but also because the case seems to be causing quite a stir. Continue reading
In adjudication, the identity of the adjudicator can be of critical importance. Not only do adjudicators decide the referred dispute, they also deal with questions of jurisdiction, and manage the fairness of the process. Some experienced users of adjudication develop favourites or those they would rather avoid.
Not surprisingly, referring parties have sought to influence the appointment of the adjudicator by the nominating body (ANB). The courts have generally taken a permissive view of this. For example:
For those of you that practise solely in England, the Inner House of the Court of Session is the Scottish equivalent of the English Court of Appeal. As we seldom see decisions related to adjudication from either court, it is therefore worthwhile taking a look at Lord Bracadale’s judgment in T Clarke v MMaxx Underfloor Heating, if only for the support the court gives to the adjudication process. Continue reading
The Dubai International Financial Centre (DIFC) Courts recently consulted on an innovative proposal to allow for the “conversion” of DIFC Court judgments into arbitral awards.
The English-speaking DIFC Courts have gained considerable traction in the UAE in recent years. Since 2011, contracting parties can opt-in to its jurisdiction even if they are not based in the DIFC and the dispute is not DIFC-related. The quality and consistency of the DIFC Court judgments are widely considered to be excellent and so DIFC Court dispute resolution clauses are becoming increasingly commonplace. Continue reading
Defining the scope of an adjudicator’s jurisdiction is at the heart of adjudication and it is the focus of many of the challenges to adjudicators’ decisions that we see in the courts. It is not a new topic to these pages either. Therefore it will come as no surprise to regular readers that I’m looking at Roland Horne v Magna Design Building Ltd this week. Continue reading
I’ve talked about dispute boards on a number of occasions over the past few years, but only once did it involve a case in the TCC.
Fans of dispute boards will be pleased to hear that the TCC has recently handed down another judgment on this topic and, on this occasion, it involved a dispute board appointed under the FIDIC Silver Book.
Peterborough City Council v Enterprise Managed Services Ltd is interesting for a number of reasons, not least because it shows the increasing use of FIDIC contracts in domestic UK projects. Continue reading
