By Vijay Bange and Sam Laycock
Coulson LJ could not have encapsulated Adjudication more succinctly:
“It is not an alternative to anything; it is the only game in town.”
In the UK construction and engineering industry adjudication remains the main forum and means for resolution of disputes, many of which are complex and significant in value. In this blog the author looks at, and summarisers, the salient points arising from an illuminating report arising from a collaboration between The Adjudication Society and the team at Kings College, led by Professor Renato Nazzini and Aleksander Kalisz. The collation of data from the questionnaire(s) looks at emerging trends and identification of areas of further refinement in the process. Continue reading “UK Construction and Engineering Adjudication 2022 – A Year in Review”
By Vijay Bange and Chris Recker
The developments in the cyber world are moving at a rapid pace, and at times the challenge in keeping up from a regulatory perspective is relentless. Below are the some of the recent topical/discussive issues in this space, particularly focussing on digital assets: Continue reading “The Cyber Universe: Recent Developments”
Construction, energy and engineering companies have lagged others in taking steps to protect themselves from the growing number of cyber-attacks, and failing to take preventive measures can lead to expensive litigation.
To read the full text of this article by Duane Morris attorneys Vijay K. Bange and Chris Recker, please visit the firm website.
By Vijay Bange and Tanya Chadha
The global pandemic continues to challenge us, with various measures ranging from further lockdowns to restrictions on in-person meetings. The judicial machinery, including that in the arbitration world, has continued to function throughout the pandemic notwithstanding the difficulties of embracing innovative processes and new technology.
In January 2021, Vijay Bange wrote an article examining the challenges of using technology in formal dispute resolution proceedings. Whilst technology has of course been used in international arbitration and high court litigation (particularly in the Technology & Construction Court) for quite some time, that use has been somewhat limited with parties, their legal counsel, and the tribunal often preferring in-person hearings and hard copy papers. 2021 however saw a dramatic rise in the use of technology in dispute resolution proceedings. This was almost certainly borne out of necessity as a result of the COVID-19 pandemic, rather than necessarily by choice or organic progression. If disputes were to continue to be resolved, parties had no option but to get to grips with remote hearings, electronic bundles and virtual breakout rooms. Whilst some inevitably faced technological and logistical stumbling blocks, the move to virtual hearings and electronic working proved largely successful with many disputes being resolved expeditiously along the way. In fact, the move towards technology was so successful that many people are now opting to use technology out of choice and not simply out of necessity. Continue reading “Using Technology in Arbitration: Necessity or Choice?”
The impact and uncertainty caused by the Achmea case on investor state dispute settlement provisions contained in intra-EU Bilateral Investment Treaties continues. These issues are potentially far reaching and may extend further than originally envisaged, namely that this case was arguably specific to the BIT between Netherlands and Slovakia. Continue reading ““So long, farewell, auf Weidersehen…” Is This the End of Intra-EU BIT Arbitrations?”
It’s probably too early to deliberate whether COP26 was a success, and if progress has been made since Paris. Glasgow will be remembered for the passionate speech from the Maldives representative, which reminded us (if ever we needed reminding) of the Armageddon-esque effects of climate change to the planet as a whole, and to small island nations in particular. The target remains to aim for net-zero carbon emissions by 2050, and to keep global warming close to 1.5 degrees. Continue reading “De-carbonisation of the UK Construction Sector: Are We Ready for the Net-zero Age?”
By Vijay Bange and Tanya Chadha
Globally, notable incidents of freak weather events giving rise to destruction and death have dominated the news. The increasing frequency of these erratic climate events has undoubtedly raised awareness of global warming and, on a political level, the need for states to move quicker towards green energy and the reduction of carbon emissions. Global warming is an inescapable issue that affects us all and which has forced governments to elevate this to the top of the agenda, filtering down to economic policies that will touch upon most industry sectors.
On 31 October 2021, representatives from over 200 countries are set to descend on the Scottish city of Glasgow for the United Nations climate change conference; the 26th Conference of the Parties (COP26). During this global climate summit, world leaders are expected to talk all things climate change. Commitments have already been made to aggressively tackle global warming and the reduction of carbon emissions. Energy is therefore likely to be high on the agenda. Continue reading “Earth, Wind and Fire- Energy and the Green Agenda. The New Industrial Revolution?”
By Vijay Bange
The timeless catch phrase is of course from the famous comedy duo Oliver Hardy and Stan Laurel. Looking beyond the blame game is important. Problems will inevitably arise with complex large infrastructure projects. Understanding the underlying reasons and what the root causes are will perhaps aid in the process of reducing conflict. Continue reading ““And That’s Another Fine Mess You’ve Gotten Me Into:” Disputes in the Construction, Engineering and Energy Sectors”
Mr Justice Fraser’s decision in Multiplex Construction Europe Ltd v Bathgate Realisation Civil Engineering Ltd and Others is one of the more curious decisions you will ever read.
Not that I would particularly encourage anyone to read it. The case necessitated some pretty comprehensive and in-depth legal analysis that means the judgment runs to some 206, fairly dense, paragraphs, and an Appendix; I would challenge even the most avid consumer of legal treatises to read the whole thing in one sitting without their eyes glazing over at some point. Helpfully, my colleague Vijay Bange has already produced a very useful summary of the decision and its legal implications here.
However, the density and depth of the judgment does not mean it is without interest; far from it. In fact I suspect this case will prove to be one of the more fascinating legal tangles the Courts will be asked to unravel this year. This article looks at some of the more curious aspects of this dispute, away from the key aspects of the case. Continue reading “Multiplex v Bathgate: Legal Riddles and Unsolvable Problems”
A step too far?
- Third party consultants, and duty of care in tort.
- No duty of care owed in tort by a third party design consultant to a contractor with no direct contractual nexus.
Large infrastructure projects are often subject to intricate contractual relationships between the relevant stakeholders, and this will also include collateral warranties to cover any potential gaps in liability to mitigate potential effects of one of the participants in the contractual matrix becoming insolvent. Parties lower down the contractual chain may engage their own designers or consultants to discharge their obligations up the contractual chain. An interesting scenario arose in the recent case Multiplex Construction Europe Ltd v Bathgate Realisations Civil Engineering Ltd (Formerly Dunne building & Civil Engineering Ltd (In administration) (2) BRM Construction LLC (3) Argo Global Syndicate 1200 (2021) , and the two issues that were heard by way of preliminary issue.
- The main contractor sub-contracted certain design works to the sub-contractor.
- In turn the sub-contractor sub-contracted certain design work to the designer (Second Defendant).
- There was a requirement pursuant to BS 5975 for certain independent design checks and approvals to be done by an independent third party. For that reason, and to discharge its contractual obligations to the main contractor, the sub-contractor engaged a firm of consulting engineers to do this, and issue the relevant certificates.
- The contractor alleged that defects issues arose because of design issues.
- The contractor issued proceedings against the sub-contractor and the designer.
- Judgment in default was obtained against both.
- The sub-contractor was in administration. The designer was uninsured. The consultant had gone into liquidation.
- The contractor pursued the consultants insurers.
- There were two preliminary issues that were dealt with by His Honour Judge Fraser, sitting in the TCC:
Continue reading “A step too far?”