Knowledge Hub Archive - March 2015

Time’s up for FIDIC’s Pink Book?

Written by Edward Corbett | 09/03/2015

Rumour reaches us that the Multilateral Development Banks (MDBs) behind the Pink Book, FIDIC’s harmonised version of the 1999 Red Book, will discontinue the experiment. Should we be sorry to see the back of the Pink Book? We think not. ...

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Can an Employer Instruct an Airport Instead of a Road?

Written by Taner Dedezade | 09/03/2015

What is the point of a variations clause? It is almost inevitable that, however well thought through a construction project is at design stage, when it comes to be built, there will be a need for some variations. At least under English law an employer is not entitled unilaterally to vary the works unless the contract contains an express right to do so. The purpose of a “variation clause” is to enable an employer to avoid having to enter into a new contract with the same contractor, or perhaps another contractor, to have him perform a variation. If the employer were to approach a new contractor, he would face re-tendering costs, possible increases in prices, delay and clashes between the original and new contractors on site. If on the other hand the employer is able to vary the original contract, costs and inconvenience may be kept to a minimum. The contractor may argue however that the nature of the proposed varied works falls outside the scope of his original pricing mechanism and he should be properly compensated for that. Therefore, arguably, a well-drafted variations clause will address the type of changes that fall to be valued and provide a clear mechanism for valuing them....

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Time Waits for no Man – So you think the Adjudicator got it wrong? How long do you have to challenge the decision?

Written by Dominic Helps | 09/03/2015

How long have you got to challenge the adjudicator’s decision? The English Court of Appeal has decided: 1) the claimant who considers the adjudicator awarded too little must challenge before the original limitation period for his claim expires; and 2) the defendant who considers he paid too much has a new limitation period starting on the day he paid the adjudicator’s decision. Is it unfair that the loser may have years longer than the winner? That question will soon be answered by the Supreme Court of the United Kingdom. Their decision will be of interest to anyone involved with FIDIC DABs anywhere in the world....

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The Problem with Enforcing Arbitration Awards that have been Annulled

Written by Andrew Tweeddale | 09/03/2015

The purpose of the 1958 New York Convention is to facilitate so far as possible the international recognition and enforcement of foreign arbitral awards. Nevertheless it provides that a court may refuse to do that if such an award has already been set aside or suspended at its seat. The English courts have interpreted this word ‘may’ as giving themselves a wide discretion. But it is one that in practice is likely to result in a refusal to enforce....

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