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

It has been suggested that FIDIC’s new Emerald Book may be “a contractors’ charter for riches”. 1 This article examines whether this new form of contract for underground works by FIDIC and the International Tunnelling and Underground Space Association is too contractor-biased or whether it provides a sensible and pragmatic risk allocation process, in an area of construction and engineering which is well known for claims. If more risks are placed on the Employer in this form of contract, what are the benefits of the contract compared to, for example, an unamended FIDIC Yellow Book?

Experience includes: Road projects in Ethiopia, Malawi, Kampala, Uganda Building projects in Libya, Egypt, Sudan Energy and power projects in Uganda, Tunisia, Kenya, Sudan, Tanzania, Egypt, Ethiopia, Rwanda Airport projects in Ethiopia Heavy industrial projects

Will an oral agreement override a written one that expressly prohibits oral modification?  No.  The UK Supreme Court in Rock Advertising Ltd - v - MWB Business Exchange Centres Ltd[1] brings welcome clarification to the English common law on “no oral modification” (NOM) clauses.  The courts will now uphold them. 

Contract clauses that deny a contractor entitlement to an extension of time for concurrent delays caused by both employer and contractor are valid in principle.  In North Midland Building Ltd -V- Cyden Homes Ltd [1] the Court of Appeal of England and Wales has ruled that such clauses do not offend the common law prevention principle.  Nor do they give rise to an implied term to prohibit the imposition of delay damages that may result.

This article considers what the arbitration landscape will look like when (or perhaps if!) the UK leaves the EU and concludes that big changes are unlikely.

Clause 6 deals with Staff and Labour. These provisions need to be read with the applicable laws where the works are being carried out or the relevant employment law if different. Sub-Clause 6.1 commits the Contractor (unless otherwise specified) to pay for his staff and their housing feeding and transport. Sub-Clause 6.2 requires the Contractor not to pay lower wages or give lower conditions than those generally applicable locally. Sub-Clause 6.3 forbids the Contractor from attempting to recruit from the Employer’s Personnel. Sub-Clause 6.4 requires the Contractor to abide by labour laws and to require his staff to obey the law generally. Sub-Clause 6.5 forbids work on locally recognised rest days or outside the working hours set out in the Appendix to Tender, unless stated in the Contract or agreed to by the Engineer or essential for the protection of life or property or for safety reasons. Sub-Clause 6.6 requires the Contractor to provide and maintain all necessary accommodation for its personnel and for the Employer’s personnel to the extent stated in the Specification. It is forbidden from permitting its own Personnel from living within the structures forming part of the Permanent Works. Sub-Clause 6.7 requires the Contractor to maintain the health and safety of its personnel and maintain proper medical facilities for its own personnel and for any Employer Personnel accommodated. It is required to appoint an accident prevention officer. It is required to notify the Employer of any accidents and maintain records. Sub-Clause 6.8 requires the Contractor to provide all necessary superintendence by a sufficient number of properly qualified people with adequate knowledge of the defined language of communications. Sub-Clause 6.9 requires the Contractor to ensure that its personnel are properly qualified, skilled and experienced. The Employer may require the Contractor to remove any person employed on the Site or the Works who commits misconduct, is incompetent or negligent, fails to perform in accordance with any provision of the Contract or persists in any conduct prejudicial to health, safety or the environment. If a person is removed the Contractor will have to replace him. Sub-Clause 6.10 requires the Contractor to submit to the Engineer details showing personnel and equipment on Site. This is required each month and must be in a form approved by the Engineer. Sub-Clause 6.11 requires the Contractor to take reasonable precautions to prevent disorderly conduct by Contractor’s Personnel and to preserve the peace and protection or nearby persons and property.

Much has been said about the new Red, Yellow and Silver Books 2nd Editions launched by FIDIC in December last year. The most obvious comment has been about their size, almost 50,000 words, which is some 60% longer than the 1999 forms. Although the 1999 forms were not perfect, most regular users seem to be agreed that they did not need 20,000 words to fix the issues. This consensus led this author to attempt to cherry-pick the good bits from the 2017 forms and to propose amendments to add the good ideas to the 1999 forms. The amendments apply to all three forms unless it is indicated otherwise.