The question screams bias to me. Certainly, if the question was the other way around (can a party’s expert subsequently act as an adjudicator on the same dispute), I doubt anyone would think anything other than apparent bias.
But is the answer so black and white? Continue reading
It’s a cloudy, warm and humid Saturday afternoon here in Panama City and I’ve been sitting on the balcony of my apartment gazing out into the Pacific Ocean and drinking a cup of milky coffee. There are about thirty ships in Panama Bay waiting to transit the canal, the Pacific entrance to which is about five miles from here and clearly visible. A dark red container ship is at the front of the queue and is slowly moving up the approach channel. On the far side of the canal entrance there is a huge build-up of clouds and I can see the occasional lightning flash, but the storm is too far away for me to be able to hear any thunder.
The HSE recently released its provisional offshore safety statistics for 2009/10 and the figures may raise some concern in the industry. The number of fatalities has risen (after a good year in 2008/9). In addition, the combined fatal and major injury rate rose for the first time since 2001/2. The numbers don’t look good, but what are the underlying issues for health and safety regulation in oil and gas, and for construction? Continue reading
Aristotle said:
“The end of labour is to gain leisure.”
August is traditionally the month when people take a holiday, and yet this month it has not been at all quiet on the legal front (although the furore over the judgment in City Inn v Shepherd seems to be over). Continue reading
What do you do when your contractor is in delay, but a key part of the works is substantially complete and could be used? You don’t have all the technical documents, such as your as-built programmes and operating manuals, and the tests haven’t been fully completed yet. Despite this, the needs of your business are pressurising you to use what is, after all, a substantially ready asset.
Much has been written about section 107 of the Construction Act 1996 and the meaning of “in writing“, not to mention the myriad of case law on the point. In the last few years, a fair number of paragraphs have also been devoted to the changes in the LDEDC Act 2009 that, if they ever come into force, will delete section 107 and remove this requirement for construction contracts. Continue reading
Parties are free to agree that a dispute will be referred to adjudication, even if the Construction Act 1996 does not apply to their contract or there is no contractual adjudication clause. Such ad-hoc adjudications are nothing new. As HHJ Gilliland QC said (in Nordot Engineering Services Ltd v Siemens PLC, CILL September 2001), when drawing an analogy with arbitration:
“I can see no reason, as a matter of law, why parties cannot agree to abide by the decision of a third party if they so wish… why should it not be appropriate in the case of adjudication.” Continue reading
If there is a contract between the adjudicator and the parties (and case-law suggests that there is), can you apply all the usual rules of contract, including repudiation, to it? Could this give an aggrieved party a tactical advantage?
Chalbury McCouat International Ltd v PG Foils Ltd shows the English courts’ willingness to support the process of arbitration, where that is what the parties intended. It also reminds us that if the dispute resolution clause is properly thought out in the first place, parties can avoid getting into disputes about dispute resolution.
Continue reading
As the City of London office market gradually picks up, we are involved in a number of projects that are following the construction management (CM) route. Are these isolated examples of the use of CM, or is this the start of a trend? And should other developers think about joining the CM bandwagon?