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March 2017 digest: arbitration, Brexit and JCT

Elizabeth Gilbert:

“The only thing more unthinkable than leaving was staying; the only thing more impossible than staying was leaving.”

Although it is hard not to mention the government formally triggering Article 50 this month, it is not the purpose of this review to keep you up-to-date with the minutiae of Brexit events. For that, you can check out our Brexit landing page and key developments tracker.

In adjudication news, Coulson J set out guidance on what parties should do when challenging enforcement (which Helena White discussed) and the Court of Session implied a slip rule into a pre-2011 construction contract and held the adjudicator did not breach the rules of natural justice. Also, Jonathan Cope considered the CIC’s new user guide to adjudication.

On the arbitration front, the courts were unusually busy staying proceedings under section 9 of the Arbitration Act, commenting on an arbitrator’s unilateral contact with one party (which Jonathan Cope discussed) and finding that a party misled the tribunal (which was fraud under section 68 of the Arbitration Act). Matt Molloy looked at removing an arbitrator for bias (or not, in this instance) and Costain v Tarmac, and the ICC 2017 arbitration rules came into force.

Other issues before the courts included the SAAMCO principle in professional negligence, the Third Parties (Rights against Insurers) Act 1930, costs and mediation, the meaning of a reasonable endeavours clause (in a senior debt facility), and whether terminating a side letter was a penalty. We also found out that from June 2017, the specialist civil courts (like the TCC) will have a new name.

Plenty of other things happened this month. For example, more of the JCT 2016 Editions were published, along with the ACE Agreements 2017 and the FIDIC White Book. We also heard that NEC4 will be published in June and the Chancellor delivered his last March budget (at least for now). The SCL published its new delay protocol and the NIC was busy publishing reports on infrastructure and on economic growth, a paper on the Cambridge/Milton Keynes/Oxford corridor and consulting in Wales. We published a note on Heathrow expansion and the Reporting on Payment Practices regulations were published.

On the public procurement front, the TCC examined the principles relating to the expedition of hearings and confidentiality in public procurement disputes, and the Administrative Court rejected a judicial review challenge, new common minimum standards were published, the Scottish government published a policy note on BIM and James Neill discussed settlement of the Magnox procurement litigation.

We also published lots of comment this month, with:

So, to end with JRR Tolkien and The Return of the King:

“Well, here at last, dear friends, on the shores of the Sea comes the end of our fellowship in Middle-earth. Go in peace!”

Monthly digest

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