Fenwick Elliott Annual Review 2011/2012

Our 15th Review contains our usual round up of the key developments in the construction and energy arena over the past year. This includes a summary of everything you need to know about the payment and adjudication changes introduced in October 2011. We also take the opportunity to review a number of key questions regarding the formation of your contract. Whenever a dispute arises, the first question is always: what does the contract mean? We have articles about contract formation, implied terms, subject to contract negotiations and the classic “battle of the forms”.

In these difficult times, it is interesting to see how the current economic climate influences what we do. Certainly, this is one reason for the increase in claims and cases that relate to bonds and guarantees. The Review summarises what the recent cases tell us, including discussion of a groundbreaking case we were involved in, where the court held that fraud was not the only ground upon which a call on a bond can be restrained by injunction.

In the courts in the UK, considerable attention is being paid to the question of costs. The Review sets out some further details about both the pilot scheme that has been introduced at the TCC to give the courts greater case management powers to monitor and thereby control expenditure, and the project to monitor the pilot which has been put together by a team lead by Nicholas Gould, in his capacity as a senior visiting lecturer at King’s College London. The question of costs is equally in the minds of those involved in international arbitration.

The International Chamber of Commerce has revised its arbitration rules. These new rules, which come into effect from 1 January 2012 include, as we explain, an express obligation on both the parties and tribunal to make every effort to conduct the arbitration in an expeditious and cost effective manner. And on that international note, the ability to enforce FIDIC Dispute Board decisions has always been a live issue. It has become livelier still following events in Singapore. The Review discusses the options available to parties where the other side is refusing to honour a Dispute Board decision.

Finally we review the impact of the various changes to the procurement regulations, the most recent of which also took place on 1 October 2011. We look at the impact of the Remedies Directive. It has been said that currently the procedures are too complex and too bureaucratic and the rules need revision to remove legal uncertainties and the costs of legal challenges. We will be keeping an eye on what happens during 2012.

If you would like a hard copy of this Annual Review and/or would like to subscribe to receive a yearly hard copy, please contact jglover [at] fenwickelliott [dot] com (Jeremy Glover) with your name, company name, address and email.