This post is the third part of a series covering issues that frequently arise in international arbitration, each with a specific regional focus. This post addresses the enforcement of arbitral awards, and the potential liability of arbitrators and experts practising in the region. We also consider the impact of COVID-19 on these two topics. Continue reading
Any adjudicator will tell you that dealing with jurisdictional challenges can be one of the most demanding parts of the job. Such challenges must be dealt with at speed because the parties need to know whether the reference will be proceeding, and the adjudicator’s non-binding conclusion can have far reaching consequences. For example, reaching a conclusion that the contract in question was not a construction contract will result in the adjudicator resigning and the referring party will probably not refer the dispute to another adjudicator.
Thankfully, we no longer have to deal with challenges that a contract is not in writing as, in many respects, they were even more challenging, often involving quite a close analysis of what the parties had agreed, or not, as the case may be. For those of you who have not been practising in this area for long, take a look at cases such as RJT Consulting Engineers Ltd v DM Engineering (Northern Ireland) Ltd for an insight into the “delights” of parties arguing whether a contract was in writing, whether oral variations had been agreed, and so on.
Another issue that can sometimes be quite taxing is when there is, at least on the face of it, a cross-over between substance and jurisdiction. This often arises where there is a question as to whether the work was undertaken under one contract or multiple contracts, and it can leave adjudicators wondering whether they should deal with it as a jurisdictional point or as part of their decision on the substantive dispute. It’s just such a case I want to discuss today, which dates back to December 2020, Ex Novo v MPS Housing. Continue reading
The final account is normally a wrap-up of the contractor’s valid claims for extra payment. It’s particularly helpful if claims were not submitted or assessed as works progressed. So, what happens if the contract doesn’t have a final account procedure but there are claims outstanding once the works are finished? Can a final account procedure be implied under section 110(3) of the Construction Act 1996?
This was one of the questions the TCC faced in the recent case of JSM Construction v Western Power. Continue reading
Some of us are old enough (just) to remember life before statutory adjudication was a thing, before the Construction Act 1996 was enacted and came into force. Those giddy days of the early 1990’s when the idea of responding to a notice of adjudication within a matter of days (not weeks or months or even years) was a mere twinkle in Sir Michael Latham’s eye (and horrified the rest of us)! Roll forward to 2021 and statutory adjudication is an integral part of the legal landscape that most construction practitioners have only ever known.
It is with this backdrop that I find events in Ireland of particular interest. Jonathan and I have been writing about Ireland’s Construction Contracts Act 2013 since long before it came into force in 2016. For example, see Behold the Celtic adjudication tiger (almost), Comparing adjudication enforcement in Ireland and England, More thoughts on adjudication in Ireland and Adjudication in Ireland is finally a reality.
Adjudication may be a relatively new feature in the Irish dispute resolution landscape but we are finally starting to see the odd court judgment filtering through the system. I began the year discussing O’Donovan and another v Bunni and others, then added a comment to that post about Gravity Construction Ltd v Total Highway Maintenance Ltd. Now it is time to turn the spotlight on Construgomes & Carlos Gomes SA v Dragados Ireland Ltd and others.
One thing all three cases have in common is the fact that none are dealing with enforcement issues per se but, in my view, all three demonstrate the court’s intention to support the adjudication process. Continue reading
The dust is slowly settling over the arguments about how contracts should be interpreted. We know that “this is not a literalist exercise focused solely on a parsing of the wording of the particular clause” and that “[t]extualism and contextualism are not conflicting paradigms in a battle for exclusive occupation of the field of contractual interpretation” (as stated by Lord Hodge in Wood v Capita Insurance Services Ltd). That means the factual background (matrix of fact) and commercial common sense still have a role to play where the plain meaning of the words is not clear (which is usually the reason why there is a dispute in the first place).
Identifying the relevant factual background presents its own challenges, but I am interested in how you identify what makes commercial sense. We are familiar with the reasonable man on the Clapham omnibus, do we now need to look for his sister, the commercially reasonable business woman on the Waterloo & City line (when not working from home)? Continue reading
Earlier this month, Scotland beat England in the Six Nations at Twickenham for the first time in 38 years. When it last happened (in 1983), Michael Jackson’s Billie Jean was number one and Octopussy was the latest James Bond movie (which we all know is not in my top five movies of the 1980’s).
I mention this only because Scotland’s courts are also currently ahead of the English courts in terms of published adjudication enforcement judgments in 2021. For that reason, this week I’m looking at two of them: Hochtief Solutions AG and others v Maspero Elevatori S.p.A and Barhale Ltd v SP Transmission plc (I realise Hochtief is from late December, but we shouldn’t let that fact get in the way of an amusing intro!).
Both cases concerned jurisdictional issues but with very different outcomes. Continue reading
If the Brexit deal, ongoing Covid-19 developments and updates on the Building Safety Bill and the Corporate Insolvency and Governance Act isn’t enough to keep those in the construction industry on their toes, the latest guidance from HMRC is that the VAT reverse charge on construction services will commence from 1 March 2021.
In our previous blog on the VAT reverse charge in September 2019, we discussed what the VAT reverse charge is, why it is being introduced and the major effects it will have on how VAT is handled in the construction industry. The key message is that the reverse charge will require a recipient (the employer), rather than the supplier, of specified building and construction services to account for VAT. The new rule will apply unless the recipient is an “end user” or an “intermediary supplier” or is not required to report payment under the Construction Industry Scheme, in which case the normal VAT rules apply. Continue reading
This post is the second part of a series covering issues that frequently arise in international arbitration, each with a specific regional focus. This article examine two categories of issues that frequently arise in construction arbitrations related to Qatar:
I often wonder how much time parties spend on looking at the dispute resolution clauses in their contracts. Before work starts they might ponder whether they want to arbitrate or litigate at the end of the day (and draft the contract accordingly), but do they really pay attention and debate the benefits of a tiered dispute resolution clause? You know the sort of thing I mean, where the parties agree to having senior individuals meeting, or mediating (or both), before they refer a dispute to adjudication or get embroiled in court/arbitration proceedings.
I realise that tiered dispute resolution clauses might not work so well if the parties are parties to a construction contract, since they have a right to refer a dispute to adjudication “at any time” but, just having the right to do so, shouldn’t stop parties trying to agree to resolve their differences before any notice is served.
However, regardless of whether the parties are parties to a construction contract, if they have a tiered dispute resolution clause in their contract, one thing they shouldn’t do is jump in at the deep end, missing out a step or two on the way. We know the judges don’t like this and Lady Wolffe (in The Fraserburgh Harbour Commission v McLaughlin & Harvey) is the latest to pass judgment on this type of behaviour. Continue reading
It is well known that the Construction Act 1996 does not provide for a method for the enforcement of a disputed adjudicator’s decision. Those of you practicing south of the border may be familiar with what happens there, but less familiar with how enforcement is dealt with in the Scottish courts.
This post looks at that procedure, and then goes on to discuss the impact of Lord Clark’s judgment in D McLaughlin & Sons Ltd v East Ayrshire Council and whether his discussion about the judgment in Hutton Construction Ltd v Wilson Properties (London) Ltd changes anything in Scotland. Continue reading