Fenwick Elliott Annual Review 2008/2009

10 years after the HGCRA came into force, adjudication has undoubtedly sped up the dispute resolution process in the construction industry.

The Government has published a bill introducing amendments to key provisions of the HGCRA.

Simon Tolson looks at one of the fundamental points of law and practice which has arisen time and again, since statutory adjudication came into being.

Julie Stagg discusses some of the ways to avoid the perils and pitfalls that may be faced when negotiating or proceeding to work under a letter of intent.

In 2007, the revised Pre-Action Protocol for Construction & Engineering Disputes came into force. There have already been a number of decisions where the courts have indicated how the Protocol should be interpreted, which are explored in this article.

There can be no doubt that the courts now give every encouragement to parties to mediate. Today that encouragement comes not just from the words of the judges, but from the actual court rules themselves. And, as we explain, the judicial arm is extending into comment on the behaviour of parties during the mediation itself.

This article comments on the number of cases coming before the courts involving successful challenges to tender procedures in particular in relation to alleged breaches of the European Public Procurement Rules.

Whilst framework agreements are not new, and in particular have been used by many local authorities and government departments, we have noticed that they are becoming increasingly popular, something recognised by the fact that both the NEC and JCT have recently issued standard form framework agreements to supplement their respective contractual suites.

A year after the RIBA introduced its new suite of agreements, the debate about its success continues. With clients and architects questioning the revised clauses and the Association of Consultant Architects declining to endorse the forms, Stacy Sinclair explores the controversy and asks: what’s all the fuss about?

Jeremy Glover considers the new DBO contract from FIDIC (the Gold Book).

In last year’s Review we highlighted the increasing tendency in construction contracts to include time bar clauses which are intended to have the effect of disallowing the contractor a claim that might otherwise be legally recognisable. As Simon Tolson and Jeremy Glover explain, this trend has continued.

We look at recent case law dealing with international arbitration.

Here, Nicholas considers the role of the expert in international construction disputes. He focuses on the difference between party and tribunal appointments and the procedural rules that might apply. He also considers some practical considerations, such as issue identification, timetabling, joint meetings and expert reports, which are relevant to the appointment of an expert in any jurisdiction.