Retentions seem to have been around since time immemorial. For their supporters, they are easy to administer and represent a sensible lever over contractors and sub-contractors, encouraging them to fix defects (or providing a fund to pay for the fix if they can’t or won’t remedy a defect themselves). However, the opponents of retentions are increasingly vocal. So, why might you do without a retention and what’s the easiest way to do so?
Last week I looked at the natural justice issues that arose in the Scottish case, Paton and another, Re Judicial Review. Another aspect of Lord Ballantyne’s judgment also interested me – the evidence as to how the adjudicator decided what events were the cause of critical delay and warranted the granting of an extension of time to the contractor. Continue reading
I seem to have written quite a few posts about cases where the adjudicator was alleged to have breached the rules of natural justice in this column over the last two years or so. That trend does not seem to be abating, as this post demonstrates, following the judgment in Paton and another, Re Judicial Review. Continue reading
I have just returned from a visit to Dubai. The main issue of concern for my contractor clients is the civil upheaval in North Africa and parts of the MEA, which Edward Davies’ blog post also referred to recently.
I was asked for advice on a range of issues relating to contractual relationships, including whether the “employer” still exists, force majeure clauses (such as those Edward referred to), what might happen if you have no force majeure clause at all, insurance complications and the impact of the current crises on construction contract security (for example, letters of credit, bonds and guarantees). Continue reading
The European Commission proposes amending the Brussels Regulation to reduce the scope for avoiding arbitration by commencing court proceedings in breach of an arbitration agreement. This is a welcome boost to those involved with international contracts. The proposals would reinstate one of arbitration’s main advantages: access to speedy justice outside of a judicial system.
The liability clause is arguably the most important clause in a contract being notoriously the subject of dispute and yet it is the one clause that is usually drafted inadequately.
The judgment in Markerstudy Insurance Company Ltd v Endsleigh Insurance Services Ltd has served as a sharp reminder to contract drafters of the need for absolute clarity and precision when it comes to excluding liability for certain heads of loss. Continue reading
In last week’s post, I outlined the views of the two camps in the “great section 108A debate”, namely:
So where do I stand on this? Continue reading
In Perriam v Wayne and Daly, the Technology and Construction Court (TCC) considered a deed of variation that “would win no drafting prizes for precision or clarity”. Not only did it transpose the names of various parties, it also “struggled to convey the essential agreement reached between the parties”.
In trying to work out what the parties had meant, the TCC decided it could and would consider “absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man.” Continue reading
The Society of Construction Law has hosted various “great” debates over the years, most memorably the Great Delay Analysis Debate. A new title the SCL may wish to consider is the “great section 108A debate”, as I seem to hear about little else at the moment.
There is extensive experience within the UK construction and engineering industries (and the advisers to those industries) of working in many different parts of the world. However, there is now a need (as opposed to a willingness) to work abroad because of the reduced workload in the UK. Less experienced companies will seek to work internationally, possibly for the first time. Some (including experienced players) might be willing to take on more risk than would be acceptable under normal market conditions in order to secure the revenue they need to keep the financial wolf from the door.