REUTERS | Amit Dave
April 13, 2011

It’s a choice: your law or mine?

It can be easy to overlook the choice of governing law clause in a contract when negotiating issues which, on the face of it, appear more important, like price or time for delivery. However, the law applicable to the contract can have a considerable impact on:

  • Interpretation of the contract.
  • Performance obligations.
  • Consequences of breach, such as assessment of damages.
  • Expiry of obligations, including limitation.

The choice of law for a contract is an important issue in international contracts and one that can present great benefits or unpleasant surprises. Therefore, any contract you enter into should incorporate a clearly drafted governing law clause stating expressly the substantive law that will govern the rights and obligations of the parties to that contract. Continue reading →

REUTERS | Mike Blake
April 12, 2011

Adjudicator using own knowledge and experience (again)

Last month, in Paton and another, Re Judicial Review, Lord Bannatyne enforced an adjudicator’s decision even though the adjudicator had relied on his own knowledge and experience in arriving at certain conclusions. Now the Scottish court has been asked the same question again (in SGL v RBG) but this time Lord Glennie refused to enforce the adjudicator’s decision.

Why did the court arrive at two different outcomes when, on the face of it, it was being asked the same question, arising out of the same type of allegation?  Continue reading →

REUTERS | Ahmad Masood
April 11, 2011

Terminating a building contract and mistaken motives

Terminating a contract is not for the faint hearted. If you terminate for the wrong reasons, you can find yourself having to pay a contractor’s lost profits or an employer’s additional completion costs and a contractor’s wrongful suspension can lead to an employer terminating the contract altogether.

But if the mistake is a genuine one, will attempts to suspend or terminate always give the other party the upper hand? Continue reading →

REUTERS | Robert Pratta
April 8, 2011

Ask the team: is there an implied right to revoke a copyright licence?

A professional consultant often produces important documents relating to a project, many of which are subject to copyright, such as architects’ plans or engineering schematics. This is valuable material, which clients derive obvious benefits from. Accordingly, the parties to a professional appointment usually negotiate specific provisions relating to copyright material; but what happens if the parties fail to agree the terms of an appointment? Continue reading →

REUTERS | Eric Thayer
April 5, 2011

Adjudication Latham-style: is this how it was meant to be?

It was always about cash flow. That’s what Sir Michael Latham said (and Lord Denning before that). Cash-flow was (and remains) the “lifeblood of the industry”.

Somewhere in the last 12 years the cash-flow message seems to have gotten lost in the complexity and detail of many of the construction disputes that are referred to adjudication. As a consequence, the process that we generally refer to as adjudication is a far cry from the process I believe Sir Michael envisaged when statutory adjudication was but a twinkle in his eye. Continue reading →

REUTERS | Mike Blake
March 30, 2011

The “not so great” section 108A debate

Over the last couple of weeks Jonathan Cope has looked at what he dubbed “the great section 108A debate”. In one sense this title is very apt – the substandard drafting in new section 108A of the Construction Act 1996 is certainly generating a great deal of debate in the industry. However, I wonder if we should instead call this the “not so great section 108A debate”. Not because the concoction of rhymes in that phrase is a bit of an awkward mouthful, but because it is not so great, in fact it is ridiculous that we even have to have this debate in the first place.

Continue reading →

REUTERS | Toby Melville
March 30, 2011

March 2011 digest: political unrest, a Tsunami and the Budget

Harold Macmillan:

“The wind of change is blowing through the continent. Whether we like it or not, this growth of national consciousness is a political fact.”

The political unrest that has been spreading through the middle east dominated the headlines at the start of March but was overtaken by the catastrophic natural disaster in Japan, subsequent concerns over nuclear safety and then, much closer to home, the coalition government’s latest Budget. (For more information on the detail, we published notes on the implications for a number of practice areas, including construction, environment, property and business tax.) Continue reading →

REUTERS | Mike Blake
March 30, 2011

Civil litigation reform after Jackson; the government has its say

I am acting for a client who is thinking about bringing a claim under a CFA supported by ATE insurance. The company has never been involved in litigation before, except for small debt actions. Apart from trying to understand the litigation process, the whole system of recoverability of premiums and success fees is quite a lot to take on board, particularly with a risk that the other side could go bust, which means my client may end up paying for these, even if it wins.
Today the whole picture became more complex. (Luckily I had told my client a while back that the system of CFA and ATE was subject to political “interference”).  Continue reading →