Construction disputes often throw up complex technical issues that need to be resolved by reference to expert evidence. Selecting an appropriate expert in any dispute can be a difficult task. There have been a few recent changes in the law surrounding the appointment of experts, which may impact upon you when you are next faced with the task of selecting an expert in a dispute.
My last post was all about unconscious bias, derived from an alleged relationship between the arbitrator and party representatives. It got me thinking about other types of bias that may be alleged, especially in adjudication where you have a modest number of companies adjudicating, with an even smaller number of party representatives and adjudicators.
Lewis Carroll, Through the Looking Glass:
“I mean, what is an un-birthday present?
A present given when it isn’t your birthday, of course.
Alice considered a little. ‘I like birthday presents best’, she said at last.”
Amazingly, this month saw PLC Construction turn three. Back in 2008 when we launched, the industry was in the midst of a consultation over the Construction Act 1996 changes. Now, three years later, it finally feels like the calm after a storm. The effective date of the Construction Act 1996 changes has come and gone, the publishers of the major standard form contracts have issued their amendment sheets (NEC, RIBA, IChemE, PPC2000 and ICC) or new contracts (JCT) and we have reviewed and updated all of our maintained resources to ensure they are “ship shape and Bristol fashion”.
Time to turn our attention to other things… and as we do, please let us know if there are any documents or clauses that you would like us to publish. You can email us at constructionfeedback@practicallaw.com. Continue reading
International arbitration can sometimes be a lengthy process that does not always address the complex nature of construction disputes. The International Chamber of Commerce (ICC) has issued a revised set of rules for international arbitration, due to come into force from 1 January 2012 (the ICC Rules 2012). It hails these as being the “answer to today’s business needs”.
Last week I considered some of the issues that might arise from the prohibition on pay-when-certified provisions and the new payment and default payment notices. This week, in the second part of the Adjudication Society panel debate, I consider pay less notices and suspension.
By now, most construction practitioners will be aware that Part II of the Construction Act 1996 has been amended by Part 8 of the LDEDC Act 2009. Among the many changes, this has introduced the pay less notice (in place of the withholding notice).
Therefore, the two key notices under the Construction Act 1996 (as amended) are:
Under the Construction Act 1996 (as enacted), a paying party could combine a payment notice and a withholding notice. The question is, can a paying party still combine those two notices under the amended Act? Continue reading
In my last blog I talked about the repeal of section 107 of the Construction Act 1996 (which came into force on 1 October 2011). However, while the repeal of this section and the other amendments to the adjudication provisions are interesting, in my view, it is the changes to the payment provisions that will have a more significant impact on the industry:
One of my clients recently reorganised into a number of trading companies plus a holding company. They did not novate any existing contracts but wanted new contracts to be entered into by the appropriate trading company. The trading companies were brand new and therefore had no credit history. Some of the customers (and sub-contractors) were a bit “anxious” and asked for a parent company guarantee (PCG) from the holding company.
Few expressions are more likely to get construction practitioners hot under the collar than “fitness for purpose”. But is the hype justified? And what does it really mean? I was pondering these questions when recently reviewing a client’s in-house (bespoke) form of design and build contract.
Many projects are procured on a design and build basis, but what exactly does this mean in terms of the contractor’s design liability? The positions adopted across standard contracts and common bespoke drafting are far from uniform.