The Baby is Back in the Bath: Liquidated Damages in the UK Supreme Court
In March 2019, in the English Court of Appeal, Sir Rupert Jackson upended the orthodox approach to the operation of liquidated damages clauses in commercial contracts. Sir Rupert had suggested that where the contractor fails to complete the project, general damages at common law may be a more logical remedy than liquidated damages up to the date of termination, with general damages thereafter. Order has been restored in the UK Supreme Court, which recently held in Triple Point Technology, Inc v PTT Public Company Ltd[1] that liquidated damages for delay were payable in respect of work which had not been
Tribunal Secretaries: Tasks, Transparency and Regulation
Background The debate surrounding the use of tribunal secretaries in international arbitration is not new. In 2002, Partasides christened the issue "the Fourth Arbitrator"[1]. Noting concern within the arbitration community at a perceived excessive role of tribunal assistants, Partasides argued that this concern could damage the legitimacy of the arbitral process. Hindsight shows that it is, at least, a fertile ground for arbitral challenges. The concern centres on the concept of the arbitrator's mandate as personal ('intuitu personae'). It therefore should not be delegated to a tribunal secretary, who is most often a junior lawyer. The use of tribunal secretaries
Damages at Large: Triple Point, FIDIC and the TCC
Triple Point Technology, Inc v PTT Public Company Ltd [2019] EWCA Civ 230 Triple Point Technology, Inc v PTT Public Company Ltd [2017] EWHC 2178 (TCC) PBS Energo AS v Bester Generacion UK Ltd and others [2020] EWHC (TCC) Triple Point was a case heard in the English Court of Appeal in March 2019 concerning the operation of liquidated damages clauses in the event of termination of a bespoke form of software contract. Sir Rupert Jackson gave the leading judgment, suggesting that where the contractor fails to complete the project, general damages at common law may be a more logical
