Berwin Leighton Paisner Blog

The Berwin Leighton Paisner engineering, construction and procurement group give their views on current developments and share their practical experience.

Keeping the (good) faith: discretion advised

Posted by Berwin Leighton Paisner on 30th July 2014

Tim HillierTim Hillier, associate, Berwin Leighton Paisner LLP:

A case of two halves

In our last blog Katy Saunders said farewell to the World Cup whilst also discussing key personnel LDs, in Bluewater Energy Services Limited BV v Mercon Steel Structures. While any mention of liquidated damages in the TCC sparks almost as much water cooler chatter as Luis Suarez’s appetite, this post discusses another interesting outcome from Bluewater.

Bluewater also tackled the issue of a party’s right to exercise discretion, and comments on how a good faith clause might affect such a right. With good faith clauses becoming more commonplace in construction contracts, it is important to consider their effect on how we interpret the contract as a whole. Read the rest of this entry »

The World Cup may be over, but should losing your key players always lead to penalties?

Posted by Berwin Leighton Paisner on 16th July 2014

Katy Saunders, senior associate, Berwin Leighton Paisner:

Reading through a judgment the length of Bluewater Energy Services BV v Mercon Steel Structures BV and others is no mean feat. Luckily for the brave and steadfast, the case considers a number of core issues that arise time and again in construction contracts and raises some interesting questions. One example that caught my eye was the analysis of liquidated damages (LADs) levied for the replacement or removal of key personnel. Read the rest of this entry »

Enforcing domestic arbitral awards in UAE: anticipating the inevitable

Posted by Berwin Leighton Paisner on 1st July 2014

Ian Clarke, associate, Berwin Leighton Paisner:

“Procedural irregularities” are increasingly being used as the basis for resisting domestic arbitral awards in the UAE. For any party who is or may be involved in an arbitration in the UAE, it is critical to understand the procedural requirements contained in the UAE’s Civil Procedure Code (CPC) and how this is being interpreted by the UAE courts. This is because, to those unfamiliar with the CPC, the grounds for resisting enforcement may seem to be based on minor and insignificant technicalities. Read the rest of this entry »

When must a contractor give notice of an entitlement under FIDIC’s condition precedent clause?

Posted by Berwin Leighton Paisner on 17th June 2014

David Robertson, partner, Berwin Leighton Paisner:

Obrascon Huarte Lain SA v AG for Gibraltar approves an interpretation of the notice requirements in the FIDIC Conditions of Contract that may offer contractors greater flexibility as to when they must notify an entitlement (or risk losing it). Read the rest of this entry »

The continued growth of statutory adjudication is good news for a global construction industry

Posted by Berwin Leighton Paisner on 4th June 2014

David Robertson, partner, Berwin Leighton Paisner:

The continued proliferation of legislation providing for the mandatory adjudication of construction payment disputes is a welcome step in the global trend of encouraging alternative and interim dispute resolution. Experience of dispute resolution models of this type feeds into international practice in jurisdictions where this is not, presently, the norm, with positive results for all.

Last month Malaysia became the latest country to bring into force legislation providing for the mandatory adjudication of construction payment disputes. Read the rest of this entry »

TCC Guide catches up with Jackson

Posted by Berwin Leighton Paisner on 20th May 2014

Claire McNamara, associate director and head of LDR knowhow, Berwin Leighton Paisner:

We now have the revised TCC Guide, updated to ensure TCC practice is aligned with the CPR changes brought in as part of the Jackson reforms.

Through TeCSA, we were fortunate in that we had the opportunity to assist Edwards-Stuart J, Judge in Charge of the TCC, in updating the Guide. For those of you who haven’t yet taken a look, don’t expect anything radically different. I think the view was taken that “if it ain’t broke, don’t fix it”. The key driver for the update was simply to reflect the changes in procedure already in play in the TCC following the Jackson reforms, rather than remedying any perceived inadequacies in the existing version.

That said, personally I had always tended to prefer the look and feel of the Commercial Court Guide and the good news is the TCC Guide now has the same font, format and more detailed contents page as the Commercial Court Guide. A minor change but a welcome improvement for navigating what is a fairly lengthy tome.

So what are the main points of interest in the revised guide and what, if any, can be considered as missed opportunities? Read the rest of this entry »

In international arbitration, to cross-examine or not to cross-examine?

Posted by Berwin Leighton Paisner on 7th May 2014

Carolina Carlstedt, associate, Berwin Leighton Paisner:

Having read some of the academic material out there on the civil/common law divide as a law student, as I stepped into my first international construction arbitration I was very curious to see how cross-examination and oral evidence would work in practice. Read the rest of this entry »

The effect of a failed adjudication on the JCT final certificate “conclusive evidence” clause

Posted by Berwin Leighton Paisner on 15th April 2014

James Clarke, senior associate, Berwin Leighton Paisner:

In University of Brighton v Dovehouse Interiors Ltd, Carr J in the TCC gave guidance on the meaning of “commenced” adjudication proceedings for the purposes of challenging a final certificate under the JCT standard form of contract. The judgment also considers what the position is where the adjudication is then aborted. Read the rest of this entry »

Net contribution: a problem shared?

Posted by Berwin Leighton Paisner on 9th April 2014

John Hughes-D’Aeth, partner, Berwin Leighton Paisner:

I can’t believe that it is nearly five years since I blogged on the Langstane case. Time obviously flies when you’re getting old.

For those of you with short memories or with youth on your side, in Langstane a Scottish judge held (among other things) that a net contribution clause (NCC) in a consultant’s appointment was not “unreasonable” for the purposes of the Unfair Contract Terms Act 1977. That led to a flurry of claims from consultants (and their representative bodies) that NCCs were “fair” and “judicially endorsed”. Of course, the case decided nothing of the sort; merely that the NCC in question was not so unreasonable as to fall foul of UCTA. Read the rest of this entry »

“The Legend of Sleepy Hollow” – pitfalls of a failed novation

Posted by Berwin Leighton Paisner on 26th March 2014

Matthew Crossley, associate, Berwin Leighton Paisner:

With design and build (D&B) now firmly established as the procurement route of choice for many UK building projects, novation is a popular way of ensuring that single point responsibility for design rests with the contractor. However, the recent decision in Hillcrest Homes Ltd v Beresford and Curbishley Ltd reminds us that we must not take it for granted. In that case, a novation agreement executed by the structural engineer after practical completion was held not to be effective to transfer its appointment to the contractor. As a result, the employer remained responsible for structural design defects as between it and the contractor. Read the rest of this entry »