Knowledge Hub Archive - May 2016

The Highest UK Court Reviews The Law On Penalties

Written by Steve Mangan | 24/05/2016

A penalty is now to be regarded as: “a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest of the innocent party in the enforcement of the primary obligation.” The UK Supreme Court has reviewed the English law of penalties and re-formulated the test in a landmark judgment on two unrelated appeals heard together: (1) Cavendish Square Holding BV – v – Talal El Makdessi (“Cavendish”); and (2) ParkingEye Ltd – v – Beavis ("Beavis"). ...

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Cofely v Knowles - From Appointment to Disappointment

Written by Dominic Helps | 24/05/2016

There have been two High Court cases within the last 15 months that lift the lid off what some perceive to be questionable practices (particularly in relation to the Eurocom case) that have developed over the last few years in the world of adjudication and arbitration in the UK. The first, in November 2014, was a decision of Ramsey J sitting in the Technology and Construction Court in Eurocom v Siemens PLC and the second, which is the focus of this article, was a decision of Hamblen J, in the Commercial Court in Cofely Limited v Anthony Bingham and Knowles Limited. Both of these cases illustrate the lengths to which some parties will go to steer the nomination process in order to secure the tribunal of their choice. Some view these practices as innocent forum shopping; others see them as tantamount to forum shop-lifting. What is becoming increasingly clear is that these practices have become by no means exceptional or even unusual. Hopefully the outcome of these cases will act as a real deterrent to these practices in the future....

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ICC Arbitration – Penalties for Slow Arbitrators

Written by Elizabeth Slattery | 24/05/2016

In its bulletin of 5 January 2016, the ICC announced penalties to encourage arbitrators to deliver up their awards more quickly than at present. The tardiness of some arbitrators has long been cause for major discontent amongst both lawyers and clients. Corbett & Co’s worst experience was a sole arbitrator who took more than 18 months to issue an award on a preliminary issue!...

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Claim Notice: When Should The Contractor Notify?

Written by KJ Park | 24/05/2016

On a project for a tunnel and dual carriageway, a variation instruction is issued on 1 June to widen a part of the dual carriageway. At the time of the instruction, that part of the carriageway is not on the critical path. Although it is foreseeable that the variation will extend the period reasonably programmed for constructing the dual carriageway, it is not foreseeable that it will delay the Works. By the time that the dual carriageway is started in October, it is only then clear that the Works overall will be delayed by the variation. It is only, however, in November that it can be said that the Works are actually delayed. The conditions of contract used was the FIDIC Yellow Book. When should the contractor give notice of claim for extension of time? (i.e. When is the contractor obliged to give notice of claim for extension of time before he will be precluded from claiming?)...

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