Firstly, and most importantly, a Happy New Year to you all!
As regular readers to this blog will know, in our first piece each year Matt or I like to set out our construction law wish list for the coming 12 months. I don’t know whether it’s been caused by over indulging in turkey and Christmas pudding, but I’ve been struggling to come up with my list, so I decided to refer back to the last list I wrote in 2017 for some inspiration.
Amendment of Article 257 of the UAE Penal Code
One of the things that caught my eye from my 2017 list was my wish for Article 257 of the UAE Penal Code to be amended, and just a few weeks ago I got my wish!
To refresh you, the previous version of this article stated:
“An expert, arbitrator or translator or investigator who is appointed by a judicial or an administrative authority or elected by the parties, and who issues a decision or expresses an opinion or submits a report or presents a cause or proves an incident, in favour of a person or against him, contrary to the duty of fairness and unbiasedness, shall be punished by temporary imprisonment.”
When this article was enacted in October 2016 there was grave concern expressed by the arbitration community that the UAE may have set itself back some years by threatening imprisonment of arbitrators and experts.
The newly enacted article now states:
“Any person who, while acting in the capacity of an expert, translator or investigator appointed by a judicial authority in a civil or criminal case, or appointed by an administrative authority, confirms a matter contrary to what is true and misrepresents that matter while knowing the truth about it, shall be sentenced to imprisonment for a minimum term of a year and a maximum term of five years…”
The keen-eyed among you will have noticed that, while there is no reference to arbitrators in the revised article, it still refers to experts. However, it is important to note that this is only in respect of dishonesty, and not a lack of impartiality, and that it does not apply to party-appointed experts. No doubt this will go some way to the UAE restoring its reputation as one of the preferred seats for international arbitration.
However, almost simultaneously to the news that Dubai had an enacted an amendment to Article 257, news surfaced that in Qatar three arbitrators had been criminally convicted, with the headline in the Global Arbitration Review stating:
“Three prominent arbitrators have been criminally convicted by a court in Qatar and are being pursued for US$250 million in damages in connection with their role on a tribunal that issued an award against a relative of the Qatari royal family.”
The details of the case are sketchy, but notwithstanding this, it is deeply concerning to see arbitrators criminally convicted.
Judicial support for adjudication in Ireland
This was also included on my 2017 wish list and, while adjudication in Ireland is certainly building momentum (the Irish Construction Contracts Adjudication Service appointed nine adjudicators in the year to July 2018), to the best of my knowledge we are yet to see an adjudicator’s decision come before the courts in Ireland.
I said it two years ago, but it is worth repeating: when an adjudication enforcement does come before the courts, it is vital for the success of adjudication in Ireland that its courts are seen to support the process, just as the TCC did in the UK in Macob Civil Engineering v Morrison Construction.
Clarification on S&T v Grove
“Therefore, it is quite clear that, despite section 108 providing a party with the right to refer a dispute to adjudication ‘at any time‘, the Court of Appeal has found that there is a fetter on this right, namely that where an employer has not paid the notified sum in accordance with section 111, that employer is unable to refer a dispute concerning the correct value of the works to adjudication.”
I set out a scenario as to how the Court of Appeal’s findings might play out in the rough and tumble world of adjudication, and how I thought it would be helpful to see these points dealt with by the TCC, or even the Court of Appeal. Otherwise, I fear that a lot of money is going to be spent by parties to adjudications arguing over the implications of S&T v Grove.
Publication of the results on the consultation on the Construction Act
In late 2017 and early 2018 I wrote a couple of blogs on the consultation being conducted by the Department for Business, Energy & Industrial Strategy (BEIS) into the 2011 amendments (introduced by Part 8 of the LDEDC Act 2009) to both the Construction Act 1996 and the Scheme for Construction Contracts 1998. Although the consultation closed on 19 January 2018, sadly we still don’t have the results. Although this is understandable given the amount of the government’s time that is being taken up by the likes of Grenfell and Brexit, the longer the publication of the results are delayed, the less relevant they will be, as other issues will arise (such as those in S&T v Grove).
Whenever they are published, I hope that they will lead to amendments to the payment provisions of the Construction Act 1996. Perhaps it’s best to start from scratch though? I know a recently retired Court of Appeal judge specialising in construction law who would be perfect for the job…
Other dispute avoidance schemes
Last year Matt wrote about the need for an adjudicator pupillage/mentoring scheme. Last month he wrote about how he’s put his “money where his mouth is” and has been mentoring some budding adjudicators. However, these types of schemes need to be rolled out to a greater extent.
Matt normally signs off his wish lists by hoping that West Ham avoid the drop but, as a Chelsea fan, I very much hope that they don’t 😉
Happy New Year!