Part 8 of the LDEDC Act 2009 comes into force next month. One of the most radical changes it makes to Part II of the Construction Act 1996 is the repeal of the requirement (in section 107) that the construction contract be made in writing. From 1 October 2011, construction contracts need no longer be in writing in order to benefit from the statutory right to adjudicate and the new payment regime.
There I was, quietly drafting some LDEDC Act 2009-compliant payment terms when, hitting a patch of writer’s block, I turned to my trusty PLC mark-up of the revised English Scheme. All of a sudden it dawned on me that either I had fundamentally mis-read the LDEDC Act 2009 or the revised English Scheme was not Act-compliant.
Expert determination is a funny old process. I occasionally get involved, doing something with my time other than adjudicating (or training for triathlons). It’s the same with arbitration or mediation.
In some ways, expert determination has many parallels with adjudication: it’s quick, there are limited submissions and the parties rights are determined. However, the overriding difference is the fact that the “expert” is being asked to provide an opinion on a technical matter and that typically results in a binding decision (as we all know, adjudication is only temporarily binding). Continue reading
I was up early the other day for a visit to the new Rolls Building and to participate in a promotional film. I was an extra in a production that will not, I suspect, be nominated for an Oscar but is intended to promote the Technology and Construction Court (TCC), particularly internationally.
Sometimes I’m glad that I don’t have many years’ experience in civil engineering like Dr Robert Hunter in Carillion v SP Power or Mr George Ross in SGL Carbon Fibres Ltd v RBG Ltd. If I did, it may just make being an adjudicator all the more difficult since I may find it harder to draw the line between using the parties’ materials and submissions to determine an issue, and drawing on my own knowledge and experience, either to fill gaps in the evidence or when I don’t like what is before me.
The question is, “Is adjudication a collaborative tool that can be used to avoid disputes?”.
Crossing collaboration with adjudication is a bit like crossing a labrador with a poodle. Some people will like the results, others will not.
One of the risks in writing a blog is that anything you write will be used against you in evidence when you raise a related issue on behalf of a client. I’ll take that risk and share some thoughts on my experience of a (possibly) more sophisticated way of using adjudication. Continue reading
Many construction and engineering projects have an international element, be it an overseas specialist contractor, an overseas parent company providing a guarantee or a foreign stakeholder.
William Shakespeare, Richard II:
“His rash fierce blaze of riot cannot last, for violent fires soon burn out themselves.”
August saw some of the worst civil commotion in decades, with riots in a number of English cities. Once the violence and looting was over, the clean-up began. The impact goes much wider than just the construction and engineering industry, and the government announced a number of measures to ease the pain. The ABI also issued guidance to its members. Continue reading
From 1 October 2011, for the first time, parties will be entitled to refer disputes arising under wholly or partly oral contracts entered into after this date to adjudication.
We will have to wait and see whether this change produces an avalanche of new claims but, even if it doesn’t, clients, their advisers, adjudicators and the courts will be presented with a variety of new challenges as a consequence of the change in the law. Continue reading
A few weeks ago I read about a talk by Lord Hamilton, the president of the Scottish Court of Session, on adjudicator’s acting judicially and something called the Statement of Principles of Judicial Ethics for the Scottish Judiciary (see Tony Bingham, Building, 1 July 2011). Tony made the talk sound interesting so I googled it and took a look for myself. It is an interesting paper and well worth a read, if you have the time. Although it refers primarily to adjudication in Scotland, there is no reason why the principles advanced by Lord Hamilton cannot apply equally south of the border. In fact, a new English judiciary guide has recently been published.