REUTERS | David Mdzinarishvili

International arbitration is the dispute resolution forum of choice for most international contracts, in particular in the construction and energy sectors.

Arbitration can be procedurally slow and disproportionately expensive for some disputes. It does not enable parties to resolve their disputes as quickly and efficiently as other mechanisms, most notably adjudication, which is available in the UK and a number of other common law countries. This is a problem for construction parties, especially as the speedy resolution of disputes and release of cash plays an important role in smooth project delivery.

In March 2017, the ICC launched its expedited procedure provisions (EPP). This aims to shorten the length of arbitration proceedings. Certain other arbitration institutions have similar procedures. The EPP quickly gained popularity and, in 2020, the ICC reported a significant increase in its use. This is set to continue with an expanded second iteration of the EPP, which launched with the introduction of the ICC’s Arbitration Rules 2021 with effect from 1 January 2021.

This post analyses the role the EPP could play in helping parties to international construction contracts resolve their disputes more efficiently. Firstly drawing comparisons to the widely accepted and successful statutory adjudication regime in England, Wales and Scotland, it will then refer to other contractual alternatives such as expert determination and dispute adjudication and avoidance boards. Continue reading

REUTERS | Clodagh Kilcoyne

I’ve just been looking back over our past blogs and neither Matt nor I have written about an English adjudication enforcement case since May. That’s in part been because there weren’t many reported adjudication enforcement judgment on BAILII over the summer, but that changed in September with publication of judgments in Downs Road Development LLP v Laxmanbhai Construction (UK) Ltd and CC Construction Ltd v Mincione, both judgments of HHJ Eyre QC. There are lots of similarities between them as both are about an adjudicator’s jurisdiction, breach of the rules of natural justice and severance. Theresa Joo has already written an excellent blog on the former case, and so I thought I would plump for the latter.

CC Construction Ltd v Mincione is one of those cases where, not only were the parties in dispute, they also had the added stress of it concerning conclusivity issues with a JCT Final Statement. Continue reading

REUTERS | Alexander Kuznetsov

The genuine article? Does a valid payment notice need to set out the sum the payer genuinely considers due?

The requirement that a valid payment notice must set out “the sum the payer considers due” is often at the centre of payment disputes. The recent decision in Downs Road Development LLP v Laxmanbhai Construction (UK) Ltd, provides a necessary clarification around what this actually means, confirming that a valid payment notice must set out the sum the payer genuinely considers due.

In addition, the court refused to enforce the adjudicator’s decision, because the failure to consider a cross claim was a breach of the rules of natural justice and the decision could not be severed. Continue reading

REUTERS | Eric Vidal

Those of you who’ve been following this blog will be aware that I’ve written about adjudication in Ireland multiple times, and had been waiting for what I’d call a “proper” enforcement judgment to discuss. That arrived in the summer with the judgment in Principal Construction Ltd v Beneavin Contractors Ltd. We now have another one, this time in the form of Garrett Simons J’s judgment in Aakon Construction Services Ltd v Pure Fitout Associated Ltd, which was handed down last month. He is the judge nominated in Practice Direction HC 105 to deal with High Court adjudication enforcement applications (something else I discussed earlier this year).

The opening couple of paragraphs of the judgment refer to some very familiar terminology, like the fact that it was a statute (this time, the Construction Contracts Act 2013 (CCA 2013)) that introduced a statutory scheme whereby disputes under construction contracts could be referred to adjudication; that adjudicators’ decisions are provisionally binding on the parties; and that they will be enforced summarily.

It is all part of the “pay now, argue later” approach that we’ve known for the last 20-odd years. The only real difference in Ireland is that it is only payment disputes that can be referred to adjudication, and their payment rules are quite different from ours. Also, the CCA 2013 makes express provision for the enforcement of an adjudicator’s decision with the leave of the court “in the same manner as a judgment or order of the High Court”. If leave is given, judgment is entered “in the terms of the adjudicator’s decision”. We all know that in England and Wales, the TCC had to develop the enforcement procedure that we are all familiar with.

It comes as no surprise that the paying party raised jurisdictional and natural justice arguments to defend its position (a third ground related to impartiality was “sensibly” withdrawn). Perhaps it is also no surprise that the court rejected these grounds and enforced the adjudicator’s decision. However, I’m getting ahead of myself and need to tell you how the court arrived at that conclusion. Continue reading

REUTERS | Baz Ratner

The Court of Appeal has handed down judgment in John Doyle Contractors Ltd v Erith Contractors Ltd. It is one of the first cases following the Supreme Court’s decision in Bresco Electrical Services Ltd v Michael J Lonsdale (Electrical) Ltd to test the courts’ willingness to allow insolvent parties to enforce adjudicators’ awards.

The Court of Appeal has affirmed that an insolvent company will not be entitled to enforcement of an adjudicator’s award by way of summary judgment where there is a potential set-off by way of cross-claim that has not been finally determined. Further, adjudication of those claims and cross-claims will not amount to a final determination such as to allow enforcement. Continue reading

REUTERS | Mike Hutchings

“I’m going to make him an offer he can’t refuse”, was Vito Corleone’s favourite negotiating tactic. While his methods are a far cry from how things are done in the construction industry, commercial pressure can be used to force a party to accept an unfavourable deal. When does such behaviour cross the line and become illegitimate pressure or duress? Is it where a party, possibly a monopoly, tells the other it will never deal with it again unless it gives up all its claims? That is the situation that the Supreme Court looked at recently but it is worth looking at how this works in a construction context. Continue reading

REUTERS | Kai Pfaffenbach

What, I hear you ask, am I doing writing about football? Well, despite the title of this blog, it’s actually about an arbitration and subsequent court proceedings that just happen to involve a football club. I think it’s interesting for a number of reasons, not least because it applies the Supreme Court’s findings in Halliburton Company v Chubb Bermuda Insurance Ltd, which I blogged about last year.  Continue reading

REUTERS | Vincent Kessler

As has been well-known in the industry for some time and is also now being picked up by the mainstream media, UK construction is currently under considerable pressure due to global shortages of key materials. The combination of a worldwide surge in demand for essential materials, as existing projects are revived and new projects are greenlit following the uncertainty of the pandemic, compounded with many other factors such as Brexit, congested transport routes, rises in shipping costs, labour shortages (particularly in the haulage sector) and even climate change have meant that UK builders are especially exposed. Key materials, including bagged cement, Scandinavian timber, steel and aluminium have all been affected and there does not appear to be any chance of relief, at least in the short-term.

Consequently, it is important that employers and contractors agree how to mitigate the risk to their projects of increased costs and delays as developments compete for a finite number of resources. Traditionally, employers would usually expect to pass the risk of obtaining materials onto the contractor and, more often than not in our experience, contractors would generally be willing to accept this position. However, we are increasingly seeing contractors becoming more reluctant to contract on this basis due to the uncertainties in the market. Continue reading

REUTERS | Brendan Mc

Since the COVID-19 pandemic began, a key question for practitioners has been whether COVID-19 constitutes a force majeure event and so entitles parties to relief under contracts that include force majeure provisions. Much has been written on how little case law there is on this topic and how English law does not recognise force majeure as a standalone concept.

What is not asked so often, but most certainly should be, is what factors the party deciding whether an event constitutes force majeure should have regard to when making that decision. As the recent case of Dwyer (UK Franchising) Ltd v Fredbar Ltd illustrates, here there is no lack of case law. When exercising discretion under a contract, English law has clear principles in place. Failure to exercise these can lead to repudiatory breach.

This blog takes a closer look at this case focusing on the force majeure elements. Continue reading

REUTERS | Dominic Ebenbichler

It is no coincidence that construction cases play a prominent role in many of the leading decisions concerning limitation. It is the nature of our work that problems have a tendency to emerge some time after the work was completed and, more than occasionally, new problems come to light after proceedings have commenced.

As construction litigators, we are therefore all no doubt familiar with having to draft an amendment to a claim that is, or might be, vulnerable to a limitation challenge. While we probably trust that we are familiar with the law on the point, many of us would likely turn to our reliable friend, the White Book, to remind ourselves of how the court might approach such an application. A couple of TCC decisions over this year suggest that this course of action might not reveal the full picture. Continue reading