Construction & Engineering London Legal Update

Construction & Engineering London Legal Update

Issue 63May 2012

Page

1. In this issue.

2. International arbitration:

• India - Supreme Court faces big decision on future of arbitration;

• What’s new in the 2012 ICC rules?

• International arbitration in Sub-Saharan Africa – the Quick Reference Guide.

8. Middle East: Libya: now for the three commercial ghosts.

10. Afghanistan – a matter of construction.

12. Hurdling your way into Vietnam.

14. Oral “construction contracts” – what about your writes?

16. Extras.

20. Keeping the project up to speed – or not?

22. What’s been happening @ Mayer Brown?

23. Procurement: new Government recipes for a lean future.

25. The clock only goes one way.

26. Case notes.

mayer brown 1

In this issue

Welcome to issue 63.

If you haven’t yet booked your holidays, we can offer a wide choice of destinations.

How about Afghanistan? Jon Olson-Welsh and Tamsin Travers check out the legal

regime that will govern commercial activity. Or perhaps India, where the Supreme

Court has to decide if arbitration has a serious future in the country. Vietnam?

Kevin Hawkins and Matthew Williams in the Mayer Brown JSM Ho Chi Minh City

officelookatdoingbusinessinVietnam.OrLibya?RaidAbu-MannehandWisam

Sirhan consider the commercial reality - past, present and future. And our Africa

team have produced a rather handy Quick Reference Guide to international

arbitration in Sub-Saharan Africa.

VennaChengfromtheMayerBrownJSMHongKongofficehasproducedahelpful

guide to the changes to the ICC Arbitration Rules and, with one eye on the new age of

oral Construction Act contracts, we look at two cases on the unexciting, but

potentially crucial, virtue of putting contracts in writing – and accurately. We

preview some new Government procurement recipes, we discover whether

contractors have to proceed “regularly and diligently” and discuss the importance of

time limits. And then there are some case notes, contract updates and other news to

complete the mix.

We hope you enjoy the contents.

2 Construction & Engineering London Legal Update

International Arbitration

ARBITRATION IN INDIA

Supreme Court faces big decision on future of arbitrationArbitration is the popular way forward for international disputes. No getting caught

in queues in local courts that may lack the necessary expertise, no judicial

interference and the reassurance (in the majority of countries) of enforceability under

the New York Convention. Look at the enthusiasm for arbitration centres – Dubai,

Ghana, Nigeria, enthusiasm that you might expect to see in the BRIC countries, the

stars of the future, if not today. But all is not well with arbitration in India (see issue

61). The Indian Supreme Court has a big decision to make in the coming months (or

even years) which could have a seriously big impact on the future of international

arbitration in India. And India, as they say, has history on this topic.

The story so far...In 1994, in Renusagar Power Co. v General Electric Ltd under the old, 1940, law,

before the arrival of the 1996 Arbitration & Conciliation Act, the Supreme Court

ruled that a foreign award would, as a matter of public policy, not be enforced if it was

contrary to the fundamental policy of Indian law, the interests of India, or justice or

morality.AndthatconfirmedtheyearsofcaselawfromIndiancourtsthatwerenot

shytorefusetoenforcearbitrationawardsthathadachievedfinality,eventhough

India had signed up to the New York Convention in 1960.

Fast forward eight years and soon after the 1996 Arbitration & Conciliation Act came

into force, in Narayan Prasad Lohia v Nikunj Kumar Lohia, the Supreme Court

said that, if an award had been made in accordance with the agreement of the parties,

it could not be set aside by the court. Arbitration awards in India were back on track.

But not for long. Barely a year later the Supreme Court set off in the opposite

direction in ONGC v Saw Pipes, giving a wide interpretation to the public policy

groundforsettingasideanawardunderthe1996Act.Anawardthatconflictedwith

Indian law would be contrary to public policy and therefore unenforceable. And its

decisions in Bhatia International v Bulk Trading SA and Venture Global Engineering v. Satyam Computer Services Ltd, opened the door to parties to

challenge “ foreign awards” (i.e., awards in arbitrations outside India) in Indian

courtsiftheywereinconflictwithIndianstatutoryprovisionsandsocontraryto

Indian public policy, unless the parties had, by their contract, excluded or limited

judicial intervention.

Arbitration & Conciliation (Amendment) BillTheIndianParliamentdidattempttorestorearbitration’sfinalityandcommercial

attractions. The Arbitration & Conciliation (Amendment) Bill offered a number of

solutions, including provisions to stay court proceedings where a matter had been

referred to arbitration, to end the automatic stay of enforcement of an arbitration

awardwhenachallengehadbeenfiledandtoprovideforfasttrackandtime-limited

arbitrations. But that was in 2003 and the Bill was eventually withdrawn from

Parliament with a view to reintroducing it with certain changes. The Ministry of Law

& Justice did subsequently initiate a consultation on amendments to the 1996 Act,

but that was in April 2010.

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And now, the Bharat Aluminium appealWhich brings us to Bharat Aluminium Co. v Kaiser Aluminium Technical Services Inc. In hearing an appeal by Bharat Aluminium, a two-judge Supreme

Court expressed its reservations about the decisions in Bhatia and Venture Global and referred the matter to a three-judge Supreme Court that included the Chief

Justice of India.

The three-judge Supreme Court agreed that Bhatia and Venture Global should be

reconsidered,forwhichafive-judgeSupremeCourtwasarranged.Anumberofother

appeals, raising similar issues, are to be heard by the same judges, with respondents

including Australian metal producer White Industries, Dutch bank Rabobank, Coal

India and Ferrostaal. The Court has also invited amici curiae briefs from leading

arbitral institutions operating in India, notably LCIA India and SIAC.

There may even be omens. Only a few weeks ago, the Indian Ministry of Law and

Justice declared the People’s Republic of China to be a state to which the New York

Convention applies, thereby enabling PRC awards to be enforced in India. And now

the Delhi High Court has refused to set aside an award in favour of a German

engineering company against the Steel Authority of India Ltd., despite the latter’s

claim that it was deprived of an opportunity to defend itself.

Whether or not the omens are propitious, the Supreme Court has a massive

opportunitytoinfluencethefutureofarbitrationanditsenforcement,inIndia,for

better or worse. Will it follow the lead of Dubai, Ghana and Nigeria – or not? The

business community will be watching.

Raid Abu-Manneh Chetna L Gulati-Kapoor

[email protected] [email protected]

Construction&EngineeringGroup IndiaQualifiedAdvocate

mailto:[email protected]



WHAT’S NEW IN THE 2012 ICC RULES?

The new Rules of Arbitration of the International Chamber of Commerce (ICC) took

effect on 1 January 2012. They replace the previous Rules which have been in use

since 1998.

Unless otherwise agreed by the parties, the 2012 Rules apply to all ICC arbitrations

commenced on or after 1 January 2012. These are the key changes in the 2012 Rules:

Role of ICC Court • The ICC Court becomes the only body authorised to administer ICC

arbitrations. By agreeing to arbitrate in accordance with the 2012

Rules, the parties accept that the ICC Court will administer the

arbitration - Articles 1(2) and 6(2)

• The implication is that an arbitration clause which provides for

administration of arbitration under ICC Rules by an institution other

than the ICC (such as the clause in Insigma Technology Co Ltd v

Alstom Technology Ltd [2009] SGCA 24) will no longer be valid

New provision

on emergency

arbitrator

• Oneofthemostsignificantchangesisthenewprovisiononthe

appointment of an emergency arbitrator before a tribunal is

constituted. Their role is to deal with applications for urgent interim

or conservatory measures - Article 29

• An application for an emergency arbitrator must be made before the

filehasbeensenttothearbitraltribunal,andcanbemadebeforethe

filingoftheRequest-Article29(1)

• The emergency arbitrator will normally be appointed within two days

of receipt by the ICC of the application and the arbitrator must make

anOrderwithin15daysfromreceiptofthefile-Articles2and4of

Appendix V

The emergency arbitrator provisions will not apply if:

1. the arbitration agreement was concluded before 1 January 2012;

2. the parties have agreed to opt out of them; or

3. the parties have agreed to another pre-arbitral procedure that provides

for conservatory, interim or similar measures - Article 29(6)

The arbitral tribunal is not bound by (and may modify, terminate or annul)

any order made by the emergency arbitrator - Article 29(3)

The pre-arbitral referee procedure is not affected by the introduction of the

emergency arbitrator provisions

New provision

on joinder of

additional parties

• A party may make an application to the Secretariat to join an

additional party to the arbitration. Unless otherwise agreed by all

parties, a joinder application must be submitted before the tribunal is

constituted - Article 7

New provision on

multiple parties

• Where there are multiple parties to an arbitration, claims may be

made by any party against any other party - Article 8

New provision on

multiple contracts

• Claims arising out of, or in connection with, more than one contract

may be made in a single arbitration - Article 9

Communication

by the Secretariat

and the tribunal

• Toreflectdevelopmentsintechnology,referencestotelegrams,telex

and facsimile transmission are replaced by email and “any other

means of telecommunication that provides a record of sending” -

Article 3(2)

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Request for

Arbitration

• ARequestcanbesenttotheSecretariatatanyoftheofficesspecified

in the Internal Rules - Article 4(1)

• TheRequestmustcontaintheadditionalinformationspecifiedin

Article4(3),e.g.theamountofanyquantifiedclaim,anestimateofthe

monetary value of any other claims and the claimant’s observations

and proposals on the number and choice of arbitrators, place of

arbitration etc.

Filing fee • Advance payment of administrative expenses is replaced by the

paymentofafilingfee-Article4(4)

Answer to the

Request and

Counterclaim

• ACounterclaimmustcontaintheadditionalinformationspecifiedin

Article5(5),e.g.theamountsofanyquantifiedcounterclaimsandan

estimate of the monetary value of any other counterclaims etc.

• The respondent may submit other documents with its Answer or

Counterclaim - Articles 5(1) and 5(5)

Challenges to

the existence,

validity and scope

of arbitration

agreements

• Unless the Secretariat refers the matter to the ICC Court, the tribunal

will make decisions on jurisdictional issues - Articles 6(3) and 6(4)

Consolidation of

arbitrations

• The ICC Court’s power to consolidate two or more arbitrations at any

stage of the proceedings is broadened to include situations where:

1. the parties have agreed to the consolidation;

2. all the claims are made under the same arbitration agreement; or

3. if the claims are made under more than one arbitration agreement,

the arbitrations are between the same parties, the disputes arise in

connectionwiththesamelegalrelationshipandtheICCCourtfinds

the arbitration agreements to be “compatible” - Article 10

Impartiality

and disclosure

obligations of

arbitrators

• Arbitrators must be impartial and independent (rather than just being

independent) and must sign a statement of acceptance, availability,

impartiality and independence - Article 11(1)

• A party may challenge the appointment of an arbitrator on the ground

of a lack of impartiality - Article 14(1)

• In addition to the disclosure obligations set out in the 1998 Rules, an

arbitrator must also disclose any circumstances that could give rise to

reasonable doubts as to their impartiality - Article 11(2)

Appointment of

arbitrators where

one party is a state

or state entity

• Where one or more of the parties is a state or claims to be a state

entity, the ICC Court may appoint an arbitrator directly rather than

following a proposal by an ICC National Committee or Group - Article

13(4)


New provision on

proof of authority

• The arbitral tribunal or the Secretariat may require proof of the

authority of any party representatives - Article 17

New provisions to

ensure efficiency

and cost-effective

case management

• Both the tribunal and the parties are required to make every effort to

conduct the arbitration in an expeditious and cost-effective manner -

Article 22(1)

• Toensureefficiencyandcost-effectiveness,thetribunal:

1. may, after consulting the parties, adopt such procedural measures as

it considers appropriate - Article 22(2)

2. must convene a case management conference with the parties when

drawing up the Terms of Reference or as soon as possible after

doing so - Article 24(1)

3. may conduct further case management conferences or consultation

with the parties - Article 24(3)

4. is required to inform not only the Secretariat but also the parties of

the date by which it expects to submit its draft award to the ICC

Court for approval - Article 27

Power to make

confidential

orders

• The tribunal may, if requested by a party, make orders concerning the

confidentialityoftheproceedingsandtakemeasuresforprotecting

tradesecretsandconfidentiality-Article22(3)

Costs sanction • The tribunal is entitled to take into account the parties’ conduct when

dealing with costs, including the extent to which the parties have

conducted the arbitration expeditiously and cost-effectively - Article

37(5)

Effects of the 2012 Rules on Dispute Resolution in Hong Kong and AsiaInadditiontothenewprovisionsdescribedabove,whichenhancetheefficiencyand

cost effectiveness of conducting arbitration proceedings pursuant to the ICC Rules, a

requestforanICCarbitrationcannowbesubmittedtotheSecretariat’sofficein

Hong Kong, pursuant to Article 4(1). It is therefore no longer necessary for parties

basedinAsia(orelsewhere)tofilearequestforarbitrationattheICCinParis.This

could no doubt encourage Asian based parties to consider prescribing the ICC Rules

in their arbitration agreements, which will avoid the administrative and logistical

disadvantages which existed before the new Rules came into effect. The new Rules

will therefore provide contract draftsmen with further options in addition to the

Arbitration Rules produced by regional arbitration institutions such as the Hong

Kong International Arbitration Centre and the Singapore International Arbitration

Centre.

Venna Cheng

Construction & Engineering Group

Mayer Brown JSM, Hong Kong.

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International Arbitration

INTERNATIONAL ARBITRATION IN SUB-SAHARAN AFRICA – THE QUICK REFERENCE GUIDE

Our Africa practice group has produced a quick reference guide to key facts on

international arbitration in Sub-Saharan Africa. It is designed as a good place to

start when considering arbitration issues - such as the seat of the arbitration,

enforcement options/risks and any protection afforded by bilateral investment

treaties.

Which countries does it cover?Angola Benin Botswana

Burkina Faso Burundi Cameroon

Cape Verde Central African Republic Chad

The Comoros Democratic Republic of the Congo Republic of the Congo

Côte d’Ivoire Djibouti Equatorial Guinea

Eritrea Ethiopia Gabon

The Gambia Ghana Guinea

Guinea-Bissau Kenya Lesotho

Liberia Madagascar Malawi

Mali Mauritania Mauritius

Mozambique Namibia Niger

Nigeria Rwanda Sao Tome and Principe

Senegal The Seychelles Sierra Leone

Somalia South Africa South Sudan

Sudan Swaziland United Republic of Tanzania

Togo Uganda Zambia

Zimbabwe

What information does it provide?• New York Convention: Has a country acceded to the New York Convention? If

so, on what basis and when?

• ICSID Convention: Has a country acceded - and when?

• Inter African conventions: Is a country signatory to any of the relevant

conventions?

• Local arbitration law: What is the arbitration law of each country? When was it

enacted?

• Local arbitral institutions: Does a country have a local arbitration institution?

• Bilateral investment treaties: What bilateral investment treaties has each

country entered into?

• ICSID Cases: the number of pending and concluded cases.

If you would like a copy please contact:

Kwadwo Sarkodie

[email protected]

+44 20 3130 3335




Middle East

LIBYA : NOW FOR THE THREE COMMERCIAL GHOSTS

Rather like Dickens’ Mr Scrooge, Libya under new management has, commercially,

to confront three ghosts – Contracts Past, Present and Yet to Come. Tough decisions

have to be made about them and those with business interests in Libya need to think

hard about what the answers might be. So, legally, does the way things were provide

a likely practical solution for the new Libya and its contracts or might the new

commercial landscape be something completely different?

Contracts Past (a case of force majeure?)TherecentupheavalinLibyawillhavehadasignificantimpactontheperformance

ofcontractsenteredintoundertheoldGaddafiregime.Thecontractsthattreatcivil

war or insurrection as an event of force majeure will have contractual machinery to

dealwiththeconsequences,butthosecontractsthatdon’tmayfindsomehelpinthe

Libyan Civil Code.

Article 360 (Impossibility of Performance) of the Code says that:

“An obligation is extinguished if the debtor establishes that its performance has

become impossible by reason of causes beyond his control”.

If impossibility can be shown then, as a matter of law, the obligation to perform the

contract is terminated but it is not necessarily an easy test to satisfy. It is

impossibility that must be shown. This may also be the case if the force majeure

clause in the contract is ambiguous.

Contracts Present (Libyan law now is...?)Like many Arab laws, including that of the UAE, the Libyan Civil Code of 1953 is

based almost entirely on the Egyptian Civil Code. In fact Sanhouri, who was

responsible for drafting the Egyptian Civil Code, combining some of the Shari’a with

the then modern Western codes (primarily the French Civil Code), chaired the

Committee which wrote the Libyan Civil Code. Despite the similarities between

UAE and Libyan law, however, those negotiating contracts to which Libyan law is to

apply should not assume that current Libyan law will be identical and they will need

toobtainspecificadviceonitsapplication.Where,forexample,thecontractiswith

the Libyan Government, administrative and public procurement laws may apply to

the project and these need to be carefully considered.

If there are problems on a project the Libyan courts, from experience generally, have

agoodreputationbutcanbeexpectedtohaveasignificantbacklogofcases.Inany

event they are unlikely to be able to cope with a large and complex project dispute.

ThisgapisnormallyfilledbyarbitrationbutLibyadoesnotyethaveaseparate

arbitrationlawandallawardscurrentlyhavetoberatifiedbythecourtsbeforethey

can be enforced. In addition, because Libya is not a signatory to the New York

Convention on the Recognition and Enforcement of Foreign Awards, even if

arbitration awards are recognised by the Libyan courts, parties are often able to

appeal and so delay the process of enforcement.

mayer brown 9

Effective contract management may, of course, avoid disputes but, as a deterrent to

disputes, it is important to ensure that contracts therefore include reference to

arbitration in an established venue such as London or Paris. This is particularly

effective where the employer has assets outside Libya against which the contractor

could execute an award.

Contracts Yet to Come (Reassertion of Shari’a?)This is the most uncertain of them all, and one ghost whose exact form remains

undefined.Whatisclearisthatthereisadesireforchangeand,reportedly,fora

reassertion of the Shari’a.

In October 2011, Libya’s National Transitional Council leader, Mustafa Abdul-Jalil,

told a rally in Benghazi that, as a Muslim country, the Shari’a will be the main source

of law in Libya, and any law that contradicts the Shari’a will be “null and void

legally”.

If this is indeed the future for Libyan law it raises a number of questions about the

shape of Libya’s future legal system. Will the new system be based, for instance, on

the Saudi system where Shari’a is the only source of law, or will its legal system be

more like its new ally Qatar, where Shari’a is the main source of law? Will Libya sign

up to the New York Convention?

It is, of course, too early for answers as these are unlikely to come until after this

year’s elections, but should the Ghost of Yet to Come turn out to be Shari’a, it is a

ghost to be understood commercially, rather than to be feared. Shari’a, with its

underpinning theme of good faith, can be a good friend to a contractor in a time of

need.

Raid Abu-Manneh Wisam Sirhan



ThisarticlefirstappearedinaslightlydifferentforminBuilding.




Afghanistan – a matter of construction

Away from the front page headlines, Afghanistan is taking steps to move forwards

– commercially. Its considerable mineral wealth is to be mined to provide for its

economicdevelopment.Thismeanssignificantconstructionandinfrastructure

projects are needed - new roads, railways, power and water plants, schools, hospitals

and housing, and that adds up to opportunities for foreign contractors and suppliers.

But just what sort of legal regime might those contractors and suppliers face?

Constitution and Shari’aThe starting point is the Afghanistan Constitution of 2004. It says that the courts

must apply the provisions of any enacted law but, if there is none, they must decide

issues according to Shari’a (Islamic) law. Any laws or decrees that are contrary to the

Afghan Constitution are expressly invalid, and no law may contravene the principles

of Islam. An example could be a law prescribing the payment of interest, something

which is forbidden under Islamic principles.

ProcurementAfghanistan has a number of laws relevant to construction projects. The 2008

Procurement Law (as amended) regulates procurement of works, services and goods

by Government entities (but not procurement by private entities) and is intended to

provide a transparent basis for Government procurement. Those wishing to bid for

Government contracts can expect to have to follow these procedures, which set out

the tender process in some detail and provide review procedures in the event of a

breach by the Government.

ContractThe 1955 Law of Commerce and the 1977 Civil Law regulate general contractual and

commercial law matters. They deal with key contractual issues - who is entitled to

enter into a contract, what is required for a contract to come into existence and what

happens if contractual relations between the parties break down? The Civil Law goes

on to deal in more detail with the performance of works and the supply of goods and

services. It includes a statutory defects liability period for defective work and design

and a right for the employer to terminate the works at any time, subject to

compensatingthecontractorforexpenditure,wagesandtheprofitthatwould

ordinarily result from the works.

Licences and permitsTo do business in Afghanistan, contractors and suppliers need to register with the

Afghanistan Investment Support Agency and/or the Ministry of Commerce and

Industry. Although this is a relatively simple process, in practice further licences and

permitsarelikelytoberequired,dependingonthespecificactivity.Forexample,

construction companies may be required to obtain a construction licence from the

Ministry of Urban Development. The 2006 Private Investment Law also comes into

play on construction activities by foreign entities as it promotes and protects private

investments and businesses.

mayer brown 11

Environment, tax and briberyThe 2007 Environmental Law regulates environmental matters and the National

Environmental Protection Agency deals with the licences and permits required by

contractors and suppliers. The 2009 Income Tax Law and 2005 Customs Law are the

relevant tax and customs laws and the latest published Customs Tariffs list the

detailed rates payable on the import and export of goods into Afghanistan, including

machinery and equipment.

Bribery and money laundering are prohibited; the latter, on conviction, carrying a

twotofiveyearprisonsentenceand/orafine.

Dispute ResolutionFor disputes, there are three levels of courts - the Primary Courts, the Courts of

AppealandtheSupremeCourt.Anydisputesfiledbeforethecourtswouldfollow

this route, but perhaps more attractive for foreign contractors and suppliers is

arbitration, for which the 2007 Commercial Arbitration Law provides. Afghanistan

has also signed up to the New York Convention on the Recognition and Enforcement

of Foreign Arbitral Awards, which is good news for enforcement. The laws also

recognise that parties may try to resolve disputes through mediation.

In addition to the formal legal system, Afghanistan also has an “informal” legal

system which applies Shari’a law and custom, mainly to resolve local issues and

disputes through traditional institutions such as Shura (local councils) and Jirgas

(gatherings of elders).

Help with the homework?It is, of course, vital for contractors and suppliers wishing to do business in

Afghanistan to get up to speed with all the legal requirements and issues relevant to

the proposed project and the Afghanistan Investment Support Agency may be

helpful. Set up by the Government to facilitate foreign investment, it can be a useful

gateway to doing business in Afghanistan (http://www.aisa.org.af/).

Jonathan Olson-Welsh Tamsin Travers




Jonathan and Tamsin are part of the Mayer Brown team working on developing

Afghanistan’s mining sector for the Government of Afghanistan and the US

Department of Defense.

http://www.aisa.org.af/




Hurdling your way into Vietnam

Vietnam – a great place for an exotic holiday but what about doing business there?

What legal hurdles might international engineering and construction companies

have to jump to do business in the Socialist Republic of Vietnam?

Since 2006, life has become easier for companies carrying on business in Vietnam.

With the introduction of the Laws on Investments and Laws on Enterprises, and, a

year later, accession to the World Trade Organisation, the Government of Vietnam

has been attempting to increase foreign investment and make it easier for companies

to set up in Vietnam and carry on business. Unfortunately, the rules are not uniform

and differ according to the type of services a foreign entity wishes to provide.

Foreign Contractor’s Licence Foreign companies wishing to provide integrated engineering services in Vietnam (e.g.

advisory services, M&E, design or EPC works or turnkey projects), or to undertake general

building and civil engineering works, can do so without establishing a commercial or

corporate presence in Vietnam if a Foreign Contractor’s Licence (‘FCL’) is issued.

Themaindifficulty,however,isthattheforeigncompanymusthavewonatenderor

have been shortlisted in a tender process before an FCL can be awarded and a

prospective Employer may be reluctant to award a tender on this conditional basis. It

is possible, in certain circumstances, and should not deter companies from applying

toundertakeworkbutitisadifficultythatmustberecognised.

Additionally, to obtain an FCL, a foreign company must establish a partnership with

a Vietnamese contractor or employ a Vietnamese sub-contractor in the works.

Applications for an FCL are processed by the Ministry or Department of

Construction within 15 days of the application being submitted.

Establishing a corporate presence Cross-border supply is not the only option for companies looking to provide

construction and engineering services. While the rules of accession to the World

TradeOrganisationdonotpermitcompaniestoopenabranchofficetoundertake

integrated engineering services, a more long-term business solution for companies is

to establish a corporate presence within Vietnam, either in the form of a Wholly

Foreign Owned Enterprise (‘WFOE’) or through a joint venture (‘JV’). There are pros

and cons to both approaches but where local know-how and knowledge are

considered useful then setting up a JV may be the way forward.

Investment CertificateWhatever form of corporate presence a foreign entity wishes to establish, the lead

time is between three and four months. Setting up a holding company or shell

company is simply not possible in Vietnam. From the outset, the company must have

a ‘project’ such as the ‘provision of engineering services for domestic and foreign

enterprises within Vietnam’ and the foreign entity must apply to the relevant licence

issuingbodyforanInvestmentCertificate(‘IC’).

Acompanyisrequiredtohaveanofficeandemployees,andcapitalmustbeinjected,

within 36 months from the date of the IC. Once issued, the IC is both the business

registrationcertificateandapprovaltoundertaketherelevantinvestmentprojectand

thebusinesscanundertakeworkforforeignanddomesticfirmsalike.

mayer brown 13

The branch office optionFor foreign companies wishing to undertake general building and civil engineering

works,abranchofficeisanoptionnotavailabletofirmsprovidingintegrated

engineering services. Establishing a branch is much less onerous, the documentation

is far more straightforward and the lead-in time can be as little as one month.

Vietnam standard form building contractOnce established, a company providing construction services needs to familiarise

itself with the standard form building contract used in Vietnam. This form is used by

organisations and individuals procuring construction services where 30% or more of

State capital is used to fund the Works. Use of this standard form is also encouraged

in other circumstances.

It will come as no surprise that the standard form is Employer friendly but it does not

leave the Contractor completely without rights of redress. The Contractor is given the

right to claim extensions of time and to seek additional compensation in terms

similar to those of standard form construction contracts in use in other jurisdictions.

While legal hurdles exist in establishing a business in Vietnam, they can be overcome

and, unlike many other jurisdictions, security is not a problem for businesses and

their employees. With the foreign investment now being poured into Vietnam,

making the initial effort to clear the legal hurdles presented can often bring great

rewards to those who try.

Kevin Hawkins

Matthew Williams


Mayer Brown JSM, Ho Chi Minh City



Oral “construction contracts” – what about your writes?

We live in the new age of oral Construction Act contracts. No more worrying about

whether all the terms were in writing. But when, inevitably, arguments surface as to

whether there was an oral agreement, how will an adjudicator or court deal with

them?

A telephone call one Friday afternoon in September, MD to MD, and a court

appointment in October, conveniently provide a curtain raiser to the Construction

Act oral contract arguments that may be just round the corner. The MDs were, as

you might guess, trying to resolve their companies’ dispute, on the last day for

acceptance of an offer. But by the following Monday they were disagreeing as to

whether a deal had been done. There were no other witnesses to the call so how did

the court approach the issue?

The judge looked at the evidence objectively, applying the conventional analysis of

offer and acceptance. But what evidence? Where there is a disputed oral agreement,

especially one not made face to face but in a telephone call, the court also looks at

what was said and done after the discussion, to see whether it is consistent with there

being an agreement.

AnemailwassentbyoneoftheMDsminutesafterthephonecall,confirmingan

agreement - acceptance of the offer on the table plus a procedure to deal with a

possible increase. That email, sent so soon after the conversation, was, said the judge,

consistentwiththeneedtoconfirmasettlementagreementand“inherently more

likely to record what happened”. And, after reviewing all the subsequent

correspondence, the judge decided that agreement had indeed been reached.

Confirmatoryemailscanbeveryhelpful.

Of course the problem would never have arisen if the parties had put their agreement

in writing – or would it? Even with a reassuring written document there can be

problems. What if the parties do the hard part and sign a contract, only to discover

later that what was written down is not in fact what was agreed. Is it game over?

Notnecessarily.Anothercaseafewdaysearlierremindedusthatacourtcanfixthe

problem. It can rectify the contract, where there is common or unilateral mistake.

Common mistake, on which the case was decided, requires a common intention on

an issue in the contract, again looking at the facts objectively, that continues until the

document is executed, but is wrongly recorded. The potentially tricky part, however,

is working out just what, objectively, that common intention was.

The case involved a decision on the rather important question of the parties’ common

intentionastowhowastomakegooda£2.4millionpensionfunddeficit.TheCourt

of Appeal split 2 to 1 on the question, which was complicated by unusual facts,

including the “disreputable” conduct of one party’s agent, who wrongly permitted

both parties to be misled.

mayer brown 15

All of which reminds us of the boring old virtues of recording your contracts carefully

andmakingsurethatwrittencontractdocumentsreflectwhatboth parties really did

understand to have been agreed. And if you want to pre-empt the possibility of a

premature oral contract there’s the magic label “subject to contract”, designed to

postpone a binding contractual relationship until a formal contract is signed

(although the magic isn’t always effective).

The refurbished Construction Act may no longer require the terms of “construction

contracts” (other than the adjudication provisions) to be put in writing but that

doesn’t mean that it’s not a seriously good idea.

Richard Craven Tamsin Travers



ThisarticlefirstappearedinaslightlydifferentforminConstruction News.




Extras

CONSTRUCTION ACT CONVERSION KITS

In case you do not yet have all the Construction Act conversion kits that you need, the

NEC3, ACA, RIBA and IChemE amendments to convert their contract forms to

comply with the amended Construction Act can be downloaded, free, from these

websites:

NEC3: http://www.neccontract.com/documents/NEC3_Local_Democracy_

Economic_Development_and_Construction_Act_October_2009_Amendments.pdf

PPC 2000: http://www.ppc2000.co.uk/pdfs/PPCAmended08HGCRAUpdates.pdf

SPC 2000: http://www.ppc2000.co.uk/pdfs/SPC2000HGCRAUpdates.pdf

RIBA (see Amendment 1): http://www.ribabookshops.com/item/

riba-agreements-2010-complete-reference-set/72709/

IChemE: http://www.icheme.co.uk/media_centre/news/2011/forms%20of%20

contract%20amended.aspx

JCT PUBLIC SECTOR SUPPLEMENT

Again, in case you do not already have a copy, the JCT Public Sector Supplement can be

obtained through this link: http://www.jctltd.co.uk/public-sector-supplement-form.aspx

Designed for public sector clients and their contract administrators, the supplement

can be used with JCT contracts in public sector procurement projects. It incorporates

key features from the Government’s Construction Strategy, including provisions to

ensure alignment with the Government’s Fair Payment guidelines, a model clause

authorising disclosures by public sector clients in accordance with the Freedom of

Information Act 2000 and the Government’s Transparency Policy and reference to

any agreed BIM protocol.

CDM SHAKE-UP

The HSE has announced that it will be redrafting the CDM Regulations, for reissue

in 2014. Details will not be known until an HSE Board Paper is presented in

December, but the HSE has indicated that the new Regulations will be based much

more closely on the requirements of the EU Temporary Mobile Construction Sites

Directive.

FIDIC SUBCONTRACT

There is now a FIDIC subcontract for use with the FIDIC Conditions of Contract for

Construction, 1st Edition 1999 (Red Book). See:

http://www1.fidic.org/resources/contracts/describe/FC-RB-U-AA-10.asp?back=/

bookshop/prod_page.asp&ProductCode=FC-RB-U-AA-10&price=30

http://www.neccontract.com/documents/NEC3_Local_Democracy_Economic_Development_and_Construction_Act_October_2009_Amendments.pdf

http://www.neccontract.com/documents/NEC3_Local_Democracy_Economic_Development_and_Construction_Act_October_2009_Amendments.pdf

http://www.ppc2000.co.uk/pdfs/PPCAmended08HGCRAUpdates.pdf

http://www.ppc2000.co.uk/pdfs/SPC2000HGCRAUpdates.pdf

http://www.ribabookshops.com/item/riba-agreements-2010-complete-reference-set/72709/

http://www.ribabookshops.com/item/riba-agreements-2010-complete-reference-set/72709/

http://www.icheme.co.uk/media_centre/news/2011/forms of contract amended.aspx

http://www.icheme.co.uk/media_centre/news/2011/forms of contract amended.aspx

http://www.jctltd.co.uk/public-sector-supplement-form.aspx

http://www1.fidic.org/resources/contracts/describe/FC-RB-U-AA-10.asp?back=/bookshop/prod_page.asp&ProductCode=FC-RB-U-AA-10&price=30

http://www1.fidic.org/resources/contracts/describe/FC-RB-U-AA-10.asp?back=/bookshop/prod_page.asp&ProductCode=FC-RB-U-AA-10&price=30

mayer brown 17

EU COMMISSION PUBLIC PROCUREMENT UPDATE PLANS

The European Commission proposals to modernise the EU procurement rules

include the adoption of a directive on concessions. Key features of the plan to make

proceduressimplerandmoreflexibleareincreaseduseofnegotiation,cuttingdown

on documents, a target of full electronic communication in public procurement two

years from the new Directive’s implementation deadline, shorter deadlines and

reduced publication requirements.

The proposals go to the EU Council and the European Parliament for negotiation and

adoption. If adopted by the end of this year, they will have to be implemented by

Member States by 30 June 2014. See: http://ec.europa.eu/internal_market/

publicprocurement/modernising_rules/reform_proposals_en.htm

MOJ BIM PILOTS TO TAKE OFF

TheMinistryofJusticeisinvolvedinthefirstGovernmentconstructionpilotprojects

to use Building Information Modelling. Full ‘level 2’ BIM has been selected for new

building and refurbishment projects at HMP Cookham Wood in Kent and at HMP

Chelmsford in Essex. The MoJ is also piloting the Construction Operations Building

Information Exchange (COBie) data drop point 4 (handover information) on two

projects currently under way at Oakwood prison in Staffordshire and a new court in

Aberystwyth.

http://ec.europa.eu/internal_market/publicprocurement/modernising_rules/reform_proposals_en.htm

http://ec.europa.eu/internal_market/publicprocurement/modernising_rules/reform_proposals_en.htm


NO MORE SWaMPS

The government is to tear up the Site Waste Management Plans Regulations. It says

that evidence and feedback suggests that the regulations are ineffective. There have

beennoprosecutions,enforcementisinconsistentandoftenpoorandlandfilltaxis

by far the most powerful driver for construction companies to deal effectively with

their waste. It considers that much of the industry would still produce site waste

management plans even if the regulations were removed, but in a way that minimises

burdens.

NEW ARRIVAL - D.O.B. 27 MARCH 2012: NPPF

Afterthefiercepublicdebate,theGovernment’sNationalPlanningPolicyFramework

is in force. The NPPF, which replaced more than a thousand pages of national policy

withjustfifty-nine,mustbetakenintoaccountinpreparinglocalandneighbourhood

plans and is a material consideration in planning decisions. Its key ingredient is a

presumption in favour of sustainable development.

See: http://www.communities.gov.uk/documents/planningandbuilding/pdf/2116950.pdf

HSE COST RECOVERY SCHEME LOOKS AT AUTUMN START

The start date for the HSE Fee for Intervention scheme has been put back. The

scheme, designed to recover the HSE’s costs of resolving, investigating and enforcing

health and safety issues from those who break the health and safety laws, will now be

introduced at the next available opportunity, which is likely to be October this year,

instead of the original April target.

Discussions are still taking place on the technical details of the scheme and the HSE

is working with businesses to improve their understanding of FFI and how it will

affect them. Detailed guidance for employers and organisations will be available on

the HSE’s website ahead of implementation.

HELLO NRM 1 & 2 AND GOODBYE, NEXT YEAR, TO SMM7

The RICS has issued an updated version of New rules of management (NRM) 1,

Order of cost estimating and cost planning for capital building works, and new NRM

2, Detailed measurement for building works. NRM 2 is to replace SMM7, which will

be ‘switched off ’ from July 2013. The new editions update quantity surveying

standards and now cover the full costs of a construction project including additional

items such as marketing and fees.

NRM 3, Order of cost estimating and cost planning for building maintenance works,

is expected to be available later this year. See: http://www.rics.org/nrm

DOM1 AND DOM2 MAKEOVER AND THE JCT NAMED SPECIALIST OPTION

2011 Editions of the DOM1 and DOM2 Domestic Sub-Contracts, for use with the JCT

2011 Standard Building Contract and Design and Build Contract respectively, are being

published. DOM 1 is here and DOM 2 is expected soon. See: http://www.cip-books.

com/product-details.aspx?productID=2293 and http://www.cip-books.com/product-

details.aspx?productID=2295

http://www.communities.gov.uk/documents/planningandbuilding/pdf/2116950.pdf

http://www.rics.org/site/scripts/download_info.aspx?fileID=11838&categoryID=452

http://www.rics.org/site/scripts/download_info.aspx?fileID=11838&categoryID=452

http://www.rics.org/site/scripts/download_info.aspx?downloadID=8621&fileID=11839

http://www.rics.org/site/scripts/download_info.aspx?downloadID=8621&fileID=11839

http://www.rics.org/nrm

mayer brown 19

The JCT new Named Specialist option can be incorporated in all versions of the

Standard Building Contract 2011 (With and Without Quantities, and With

Approximate Quantities).

The option enables the employer to name individual specialists as domestic sub-

contractorsforidentifiedpartsoftheworkseitherinthecontractdocumentsorinan

instruction for expenditure of a provisional sum. Named Specialist Update for SBC 2011

ASBESTOS REGULATIONS UPDATE

Changes to the asbestos regulations mean that some types of non-licensed work with

asbestos now have additional requirements:

• some non-licensed work now needs to be notified to the relevant enforcing

authority;

• briefwrittenrecordsshouldbekeptofnotifiablenon-licensedwork;and

• byApril2015,allworkers/self-employedcarryingoutnotifiablenon-licensed

asbestos work must be under health surveillance by a doctor.

See: http://www.hse.gov.uk/asbestos/regulations.htm?ebul=gd-cons/apr12&cr=11

http://www.jctltd.co.uk/docs/Named Specialist Update for SBC2011 Feb2012.pdf

http://www.jctltd.co.uk/category/standard-building

http://www.jctltd.co.uk/docs/Named Specialist Update for SBC2011 Feb2012.pdf

http://www.hse.gov.uk/asbestos/licensing/notifiable-non-licensed-work.htm

http://www.hse.gov.uk/asbestos/regulations.htm?ebul=gd-cons/apr12&cr=11


Keeping the project up to speed – or not?

It may not be one of Hogwarts’ Dark Arts but contract interpretation might as well

be. Take, for instance, the mantra “proceed regularly and diligently” – wording that

has been part of the JCT contract furniture for decades. If you don’t, the other party

to the contract can take steps that may lead to its termination. But is this veteran

phrase also a contract obligation so that if, say, you fail to comply with an activity

schedule, you may be liable for damages before the contract completion date?

Main contractor Mulalley said that it was. And that the way to check that Leander,

their subcontractor, had complied with the alleged obligation was to check progress

against an activity schedule. Leander’s progress, said Mulalley, did not comply with

the schedule and therefore Leander was in breach of contract. Mulalley could

therefore deduct damages – not liquidated damages for delayed completion but

unliquidated damages for not getting a move on with the works prior to the

completion date. On the strength of that argument Mulalley withheld money from

Leander. Leander, understandably, objected and Mr Justice Coulson had to decide

who was right.

Was there an implied term that that Leander would “proceed regularly and

diligently”? No , said the judge. A term will generally only be implied if it is

necessary to make a contract work and the courts are generally slow to imply terms,

particularly where there are already detailed terms and conditions. The Leander

subcontract worked perfectly well without the alleged term.

In addition, in the previous case law, the courts had declined to imply a term

imposing interim obligations as to rate of progress and detailed performance. In

those cases they had repeatedly given priority to the principle that, provided that the

main contractual obligation is an obligation to complete by a certain date, it is

unnecessary and unhelpful to impose other interim progress obligations on a

contractor or subcontractor.

Features of the subcontract drafting also led to the conclusion that there was no need

for the alleged implied term. Just because failure to proceed “regularly and

diligently” was a ground for termination did not automatically mean that there was a

similar separate contractual obligation. Some of the grounds were breaches and

some, e.g. insolvency, were not.

The fact that the contractor did have an express contract entitlement to terminate for

failure to proceed “regularly and diligently” in fact pointed in the opposite direction.

This was not a case where the parties had failed to consider and allow for the alleged

failure. They had decided that the issue was best dealt with by a “hurry-up notice”, as

the judge called it, with termination, rather than damages, as the sanction.

And, just supposing that there was this alleged implied term, that would also bring

withitanumberofstartandfinishdatesforphasesoractivitiesbut,astherewas

only one subcontract completion date and the contract machinery was only designed

to cope with that, additional extension of time machinery would then need to be

implied to deal with the individual construction phases or activities.

mayer brown 21

Besides which, Mulalley already had the ability, through express and implied terms,

to exercise considerable control over Leander’s works, for instance through Leander’s

obligation to comply with instructions and generally to co-operate. No more were

needed.

All of which meant that there was no freestanding obligation to proceed “regularly

and diligently” and no unliquidated damages for not doing so. Just the (not

insignificant)threatofterminationinstead.

Richard Craven Debbi Simon






What’s been happening @ Mayer Brown?

• Chris Fellowes and Jon Olson-Welsh were part of the Mayer Brown team that

was awarded a top tier “stand-out” ranking in the “Legal Innovation in Finance”

category of the 2011 Financial Times Innovative Lawyers (Europe) report.

This accolade was awarded for the work, led by global head of Mining Ian Coles,

undertaken to develop the mining industry in Afghanistan. The Mayer Brown

work was described as “instrumental in developing a legal framework to attract

sophisticated investment into the country’s mining sector, which is potentially

valued at $3,000 billion.”

• ABA Houston Forum on the Construction Industry

In early February Raid Abu-Manneh was one of the speakers at the ABA Forum

on the Construction Industry in Houston “Innovative legal strategies developed

from challenging projects”. Raid’s talk focused on dispute resolution in the

Middle East.

• The Arab Spring one year on

Raid was also the speaker at the end of March at the Mayer Brown seminar on the

Arab Spring. His talk included an overview of key issues of contract law in Arab

countries and looked at the application and effect of Shari’a law, key

distinguishing features between Arab Civil Codes and English law and force

majeure under local Arab laws.

• Contracts & Dispute Management Conference 2012

Raid and Kwadwo Sarkodie were speakers at the IBC Legal 4th Annual

Construction Law: Contracts & Dispute Management Conference 2012, on Risk

Management and Dispute Resolution in, respectively, the Middle East and Africa.

• South Africa Indaba mining conference

On the mining front, Jonathan Hosie and Jon Olson-Welsh attended the Indaba

mining conference in South Africa in February as part of a six-strong Mayer

Brown Indaba team. The conference attracts mining companies, investors,

governments and suppliers from around the globe and focuses on the mining

industry in Africa.

• PDAC mining conference in Toronto

In March Jon Olson-Welsh also attended the Toronto PDAC mining conference,

one of the largest mining conferences in the world, attracting nearly 30,000

attendees. Jon attended as part of the transaction adviser team to the Ministry of

Mines of Afghanistan.

mayer brown 23

Procurement: new Government recipes for a lean future

The Government is worried about putting on the pounds. It wants to slim down

public sector construction expenditure by 15% to 20% by 2015. As part of the new

financialdiet,theappropriately-namedGovernmentProcurementandLeanClient

Task Group has come up with three new public sector procurement recipes.

• Cost-Led Procurement:

Two or three integrated supply chain teams from the client’s framework are

invited to develop proposals to deliver a project within the client’s cost ceiling.

Successful completion of the project by the selected team would lead to it being

offered similar projects, but with the expectation of lower cost, achieved through

continuous improvement.

• Integrated project insurance:

Again an integrated project team, selected through a competition, has to meet the

specificationwithinacostceilingbutthewholeprojectiscoveredbyasingle

insurance policy which includes cover for any cost overruns above an agreed

‘pain-share’ threshold. Estimated likely cost of this overrun cover is 2.5% of the

project sum, but the expectation is that it will be matched by the saving from

having just one project policy.

• Two-Stage Open Book:

Integrated teams selected from a framework bid against an outline brief and cost

benchmark. The winning team then works up a full proposal to meet the cost

ceiling and functional outcome with the client on an open book cost basis, with

independentverificationatstage-gatereviews.

The contracts recommended for trials of the new recipes are JCT Constructing

Excellence, PPC 2000 and NEC3 Option C, with only minor amendments and

subject to certain rules, for example, no retentions in the supply chain and use of

projectbankaccounts.NEC3,inparticular,hasbeenchosenforcurrenthighprofile

projects, notably CrossRail, though with substantial amendments.

So might the new procurement approaches produce the savings that the Government

wants? Construction contracts should give effect to the parties’ risk allocation, even

if it takes a court to work out what that was, and the risk allocation obviously affects

thefinalfinancialoutcome.Thecontractcontainsthepriceandriskrecipe.Thenew

options could therefore make a difference, but life is rarely as simple as that and the

Task Group has warned that technical reform efforts “...must be supported by

behavioural change within the industry...”

As a start it has mapped out the DNA of “the intelligent client”, identifying the “... commercial and behavioural competencies that must be instilled within public

clients...” to achieve 20% cost savings on the pilot projects.

The draft list of these competencies currently includes:

• consistency in the procurement models used;

• strong leadership;

• development of collaborative culture within the client;


• focus on early supply chain involvement;

• ensuring supplier engagement based on ability to collaborate;

• establishing mutual objectives;

• commitment to continuous improvement;

• transparent issue resolution; and

• opportunity to innovate throughout project development and implementation.

The list might look ambitious, but the Task Group has asked the government to roll

out professional development within public sector clients so that their staff can

deliver the competencies. It also recommends a similar push in industry to encourage

equivalent best practice to be promoted within the whole supply chain.

And there is, of course, that word “integrated” that recurs in the descriptions of the

teams in the three new procurement models. Successful integration is another

challenge.

In addition, the Task Group has been looking at the effectiveness of public sector

framework agreements and has developed a scorecard of attributes by which future

agreements can be judged, with a Framework Quality Mark awarded to those that

meet the required characteristics.

It has also raised the possibility (for consideration by the Government Procurement

Service) of cross government collaboration on procurement, to achieve savings

through aggregation of goods and services, i.e. mobilising the collective bargaining

power of public sector bodies.

It’s not going to be easy, but then slimming regimes rarely are. As they say, no pain,

no gain.

Richard Craven Wisam Sirhan





mayer brown 25

The clock only goes one way

Time limits can be seriously unforgiving. You need to be the right side of the line – or else. Take, for example, those routine, and, you might say, unexciting, clauses in construction warranties or third party rights schedules that say no action may be started more than 6 or 12 years after practical completion. Dull they might seem but potentially fatal also, if you issue your claim even one day late.

And if 6 or 12 years sounds too generous (or even mean), you can agree your own limitation period. One year was the period agreed in a contract recently before the Court of Appeal. The contract said that no proceedings should be brought against the contractor more than one year after practical completion or, where practical completion did not occur, one year after the contractor last performed “Services in relation to the Project”.

The parties disagreed as to whether practical completion had been achieved and the argument then came down to whether the claimant had issued proceedings within a year of performing the “Services”. The proceedings had been issued 22 months after the defendant completed certain snagging items but, after the snagging, there had been an on-site meeting, inspection and production of a report prepared by the contractor, all on a without prejudice basis for the purpose of negotiations for a possible settlement. Without prejudice protection for the correspondence was subsequently waived. Were these activities then a continuation of the contractor’s services or was the employer’s claim consequently too late?

Too late, was the court’s answer, by some ten months.

In another court battle about time limits, the contract said that, where an adjudicator gave a decision after the date of the Final Account and Final Statement, a party wishing to determine that dispute by legal proceedings “may” commence the proceedings within 28 days of the date of the adjudicator’s decision. The contractor commenced proceedings after this 28 day period. Was the adjudicator’s decision therefore binding?

Although the clause did not say that the adjudicator’s decision would be binding if the contractor commenced proceedings outside the 28 day period, the court said that it was. Setting a time limit was the purpose of the clause and to decide otherwise would make the clause redundant and meaningless.

That was not the only time trap in the contract issues before the court; the JCT Design and Build form provided that the Contractor’s Final Account and Final Statement would become conclusive after a given period except to the extent disputed by the employer before the period had expired. The court found that the employer had, in fact, served a valid notice, in time, disputing the Final Account and Final Statement. It was the right side of the line.

MORAL OF THE STORY?

No prizes for guessing the moral of the story. Contractual and statutory time limits regulate performance of certain obligations and provide certainty. Complying with those time limits requires watchful contract administration. We can’t turn the clock back, however much we wish we could.

Ryan Fordham [email protected]




Case notes

ADJUDICATION DISPUTES – PASS THE CALCULATOR

Adjudication disputes are rationed. No more than one dispute per adjudication

(without agreement); probably because of the breathtaking pace of an off-the-shelf

adjudication. So how you tot up the disputes is crucial, a piece of arithmetic that

divided the parties in Witney Town Council v Beam Construction (Cheltenham) Ltd, an adjudication about the construction of a community hall. The contractor’s

claimsinvolvedtwofinalaccounts,aclaimforinterestonretentionandaclaimfor

the retention, based on repudiatory breach. So was that four disputes or one?

In summarising the legal principles, the judge said that what is a dispute will be a

question of fact, although the facts may need to be interpreted. Courts should not

adopt an over legalistic analysis of what the dispute is and the notice of adjudication

and referral notice do not necessarily determine what is the true dispute, or if there is

more than one. One also looks at the background facts. If there is a clear link between

two or more arguably separate claims or assertions, that may point to there being one

dispute. A useful if not invariable rule of thumb is that, if disputed claim No 1 cannot

be decided without deciding all or parts of disputed claim No 2, that establishes such

a clear link and points to there being only one dispute.

The judge decided that there was just one dispute - what was due and owing to the

contractor.

Witney Town Council v Beam Construction (Cheltenham) Ltd [2011] EWHC 2332

IMPARTIALITY: KEEPING UP APPEARANCES

Adjudicators, arbitrators and judges must be impartial - and appear impartial, but

how do you tell if there is apparent, rather than actual, bias? In A v B and X Leading

Counsel who had been appointed arbitrator had not realised that, after his

appointment, he had resumed acting in an entirely separate case in which the

solicitors instructing him were also solicitors for a party in the arbitration. Was that

apparent bias so that the arbitrator could be removed?

The test, according to the courts, is whether the fair-minded and informed observer,

having considered the facts, would conclude that there was a real possibility that the

tribunal was biased. In this case, the judge emphasised three aspects of the test. It is

objective and not dependent on the characteristics of the parties. It also assumes that

that the impartial observer is “ fair-minded” and “informed”, i.e. in possession of all

the facts relevant to the question whether there was a real possibility that the

arbitrator was biased. The third, and particularly relevant, aspect, was that although

the observer is not to be regarded as a lawyer, they are expected to be aware of the

way in which the legal profession in this country operates.

On the facts before the court, the judge decided that the fair-minded and informed

observer would conclude that there was no real possibility of apparent or unconscious

bias.

A & Ors v B & Anor [2011] EWHC 2345 (Comm)

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/TCC/2011/2332.html&query=Witney&method=boolean

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/TCC/2011/2332.html&query=witney+and+v+and+beam&method=boolean

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Comm/2011/2345.html&query=EWHC+and+2345&method=boolean

mayer brown 27

WHODUNNIT? AND WHO’S GOING TO PAY FOR IT?

Like Inspector Morse, judges often have to disentangle competing allegations to work

out what happened. In Hi-Lite Electrical Ltd v Wolseley UK Ltd, Mr Justice

Ramseyhadtodecidethecauseofafireinasubmersiblesumppumpina

hairdressing salon. The pump installers, already found liable to the salon owners in

other proceedings, sued the pump suppliers who joined the manufacturers in the

proceedings. Different causes were put forward but the judge said that the claimant

must always prove the cause of the damage on the balance of probabilities. He found

thatthecausewasdamagetothefloatswitchcablebysalonstaffbuthealsodecided

thataresidualcurrentdeviceshouldhavebeenfittedbytheinstallersandwouldhave

preventedthefire.If,however,thepumpsupplierhadbeenliableundertheSaleof

GoodsAct,wouldthenegligentfailuretofitanRCDhavebrokenthechainof

causation, reduced the damages or made an apportionment of liability appropriate?

No,wastheanswer.ThefailuretofittheRCDoccurredbeforethefireandthe

assumedbreachofcontractwasstillaneffectivecause,evenifthefailuretofitthe

RCDwasalsoacause.Thedamagewasnottooremote,becauseanelectricalfirewas

not unlikely to result from an electrical cable defect, and there were no grounds for

apportionment. Contributory negligence is not a defence to strict contractual liability

and in the absence of an ability to apportion damages under the Civil Liability

(Contribution) Act 1978 (where parties are both liable to a third party for the same

damage) there is no other general ability to apportion damages.

Hi-Lite Electrical Ltd v Wolseley UK Ltd [2011] EWHC 2153

MUST YOU PAY FOR AN ADJUDICATION AWARD THAT DOESN’T WORK?

The story so far:Asteelfixingsubcontractorsucceedsinitsadjudicationclaimfor

retention but the award is unenforceable. Without hearing argument from the

parties, the adjudicator decided that he could not deal with the main contractor’s

finalaccountdefence,thatthesubcontractorhadbeenoverpaidandnomorewas

due, and so the award is in breach of the rules of natural justice. But then the

company that employed the adjudicator sues the main contractor for his fees. Can it

do that, when the award is defective?

The court’s answer depended on whether there had been a total failure of

consideration, or performance, but that, in turn, depended on what the contractual

performance should have been. The judge said that it was the provision of the role of

adjudicator, which not only covered the production of the decision but also the

conduct of the adjudication up to the decision. There had therefore been partial

performance, which meant that the main contractor had to pay the fees.

Systech International Ltd v PC Harrington Contractors Ltd [2011] EWHC 2722

HOW TO FIND INVISIBLE CONTRACT TERMS

In any written contract there can be two types of terms – those you can see and those

you can’t. And while the parties and courts can agonise over what the terms written

down might mean, implied terms can be at least as troublesome. So where do they

come from and how do you know if you have them?

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/TCC/2011/2153.html&query=HT-11-158&method=boolean

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/TCC/2011/2153.html&query=HT-11-158&method=boolean

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/TCC/2011/2722.html&query=systech&method=boolean


In Estafnous v LLBCL, an estate agent introduced a prospective buyer to a company

property owner, and the agent and owner entered into an agreement which said that

commissionwaspayableonthesaleoftheproperty.Thetransactionthatfinallywent

through, however, was structured as a sale of shares in the owner’s ultimate holding

company. The express terms of the commission agreement did not cover the share

sale but could a term be implied to save the agent’s commission? No, said the Court

of Appeal. An implied term is not an addition to the contract; it only spells out what

it means. The question is whether such a term would spell out what the contract, read

against the relevant background, would reasonably be understood to mean. The

parties had not thought about what should happen if the property sale was

restructured as a share sale, so there was no implied term and no commission.

Estafnous v London & Leeds Business Centres Ltd [2011] EWCA Civ 1157

SUPREME COURT SAYS COMMON SENSE IS THE ANSWER

The law and common sense do not always coincide but in Rainy Sky S. A. v Kookmin Bank they did. A dispute about refund guarantees given by a shipbuilder

in six shipbuilding contracts ended up in the Supreme Court, which had to decide

what they meant.

Where the parties have used unambiguous language, said Lord Clarke, the court

must apply it. If, however, a term of a contract is open to more than one

interpretation, it is generally appropriate to adopt the interpretation which is most

consistent with “business common sense”. He also noted that it is not necessary to

conclude that a particular construction would produce an absurd or irrational result

before having regard to the commercial purpose of the agreement. What “business

common sense” dictates, in a relevant case, may not, however, be as straightforward

as it sounds.

Rainy Sky SA & Orsd v Kookmin Bank [2011] UKSC 50

ADJUDICATION DISPUTES - ONCE IS ENOUGH

It took 8 years and £320,000 for Mr Smith to put together an adjudication claim.

The adjudicator awarded Mr Smith about 80% of the £1million plus that he claimed,

the adjudicator’s costs were over £60,000 and the adjudication costs likely to exceed

£100,000. But, after all that, there was a potential glitch. Was the dispute the same,

or “substantially the same”, as that decided in a previous adjudication in 2003?

Indecidingthequestion,MrJusticeAkenheadidentifiedseveralfactors.Onehadto

consider the scope of the disputed claims, taking a reasonably broad brush approach

in determining what they were. Different or additional evidence or arguments would

notusuallyaltertheessentialdisputeanddifferentquantumorquantificationdoes

not necessarily point to a substantial difference. Particular caution is required not to

be “over-awed” by the bulk of a claim’s attachments, one can look at the stated

motivation and reasons for the later claim and must bear in mind that notices of

adjudication and referral notices do not have to be strictly interpreted. One strong

pointer is whether essentially the same causes of action are relied on in both the

earlier and later notices of adjudication and referral notices.

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The judge decided that Mr Smith’s claim was the same or “substantially the same” as

the2003adjudicationclaim.Itwasanattempttofixthegapsthatcausedthe

previous claim to fail. After all that, the later adjudication award was unenforceable.

Carillion Construction Ltd. v Stephen Andrew Smith [2011] EWHC 2910

PICK YOUR OWN ADJUDICATOR – HOW COOL IS THAT?

Allowing one contracting party to choose the adjudicator might look attractive to the

appointor but does it work? The London Borough of Camden had just such a clause

in its contract with building consultants and in a fee dispute the court had to decide

not only if the construction contract was in writing, and just how the Scheme

adjudication provisions should apply if the contract arrangements did not comply

with the Construction Act, but also whether Camden was really entitled to appoint

the adjudicator in its own dispute.

Mr Justice Akenhead decided that the contract was all in writing, so that the

unamended Construction Act applied, but a contract clause suspending an

adjudicator’s decision as to payment meant the adjudication provisions were non-

compliant. But were they completely replaced by the Scheme’s provisions or was just

therelevantSchemeprovisionusedtofixtheproblem?Thejudgeconfirmedthat,if

the contract has just one material non-compliance, all the Scheme adjudication

provisions apply instead. And the contract clause allowing Camden to choose the

adjudicator did not work, not only because the contract adjudication provisions were

to be disregarded but it was also inherently unsound and contrary to the HGCRA

policy of having impartial adjudicators for the contract to specify that one side should

nominate the adjudicator.

Sprunt Ltd v London Borough of Camden [2011] EWHC 3191

ADJUDICATION AWARD – WHY THE JUDGE SAID HE WOULDN’T STAY

Adjudication awards must be honoured, in the short term, even if the losing party

wants to go to litigation or arbitration to get a different result. But what if the

successfulclaimantisinfinancialdifficultiesandinsolvencymightswallowany

money handed over, so that any reversal of the original outcome would be futile? If a

claimant would probably be unable to repay the judgment sum after subsequent

litigation or arbitration, the court can stay enforcement of an adjudicator’s award,

and will usually do so if the claimant is in insolvent liquidation or there is no dispute

on the evidence that it is. But even if the evidence suggests that the claimant would

be unable to repay the judgment sum, a stay will not usually be granted if the

claimant’sfinancialpositionissimilartowhatitwaswhentherelevantcontractwas

made or it is due, wholly or partly, to the defendant’s failure to pay the sums awarded.

In Partner Projects Ltd v Corinthian Nominees Ltd the court refused a stay

becausetheclaimant’sfinancialpositionhadbeenbroughtabout“to a significant

extent” by the default of Corinthian and because of Corinthian’s conduct generally

- which had itself previously traded while insolvent. The judge said that the claimant

genuinely wished to try and trade itself out of its indebtedness but it could only do so

if it received payment of the sum awarded.

Partner Projects Ltd v Corinthian Nominees Ltd [2011] EWHC 2989

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ADJUDICATOR SHOPPING GETS THE ALL CLEAR – AGAIN

Lastyear’sdisputeaboutare-roofingandglazingsubcontractforaNetworkRail

infrastructure depot has gone back to the courts. Question 1 for the Court of Appeal

was whether a claimant can go adjudicator shopping. Can it let an adjudication

lapse, if it doesn’t like the appointed adjudicator, start another adjudication and get a

different adjudicator? Not an appealing proposition, said the Court, but adjudicator

shopping is legitimate. Sometimes adjudications need to be restarted and, unlike

arbitration, an adjudicator has no powers until there has been a referral. Even if

there has, a head of claim can be dropped and raised in a later adjudication.

Question 2 was whether the adjudicator’s 35 page “Preliminary Views”, produced for

the parties’ comments before seeing the response to the referral, meant his decision

was a nullity because of apparent bias. No, said the Court. A judge can set out a

provisional view at an early stage, for the parties to correct any errors or concentrate

onmattersapparentlyinfluencingthejudge.Ajudgemustnotreachafinaldecision

prematurely but that is different from reaching a provisional view that is disclosed to

help the parties, which is what had happened in this case. The courts are reluctant to

strike down adjudication decisions for breach of natural justice or on similar

grounds, unless the complainant’s case is clearly made out.

Lanes Group Plc v Galliford Try Infrastructure Ltd [2011] EWCA Civ 1617

COURT UNHAPPY WITH DUTY TO REVIEW OLD COMMISSIONS

The scope of a professional’s duty to review old commissions has been worrying Mr

Justice Akenhead. In a recent Technology & Construction Court case he said there

was “something commercially and professionally worrying” if professional people

were to be held responsible for reviewing all previous advice or services.

Hedistinguishedaspecificretainerthatimposedacontinuingdutytokeepearlier

advice or services under review and some sort of obligation to review and revise

previous advice or services provided on completed commissions. If architects or

engineers had the former retainer and discovered (or should have discovered) during

the defects liability period that the design adopted was defective, the retainer might

at least require them to raise this with the client. The fact that they had a number of

commissions with the client would not mean, however, that they must review the

designs on completed commissions. Different considerations might apply if the

professional actually knew or became aware that their earlier work was, or had

become,insomewaydeficient.Eventhatmightbesubjecttotimeconstraintsand

notanindefiniteresponsibility.Inadditiontherewasthecosttoconsider.Ifan

obligationtoreviewcontinuedindefinitelyoratleastforalongtime,isthe

professional entitled to be paid for time spent reviewing and advising on any changes

required?

Shepherd Construction Ltd v Pinsent Masons LLP [2012] EWHC 43

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FOR MOST, ARBITRATION HAS NO APPEAL

Like holy matrimony, arbitration should not be undertaken lightly. Whatever its plus

orminuspointsintermsofspeed,cost,simplicityorconfidentiality,arbitration

providesanalmostbullet-prooffinality,astheCourtofAppealremindedusinHMV UK v Propinvest Friar Ltd Partnership.

Rights of appeal from an arbitration award, under the 1996 Arbitration Act, are

severely restricted. An arguable error on a point of law or the fact that an appeal

judge might have come up with a different answer is not enough to justify an appeal.

If the alleged error is not one of general public importance, it has to be “obviously

wrong” or even, as one judge previously said, the arbitrator must have had “a major

intellectual aberration”. The error must be transparent and clear and it must be “ just

and proper” for the court to deal with the issue, despite the arbitration agreement. It

is part of the statutory policy that arbitration should be speedy and, where possible,

cheaper than court proceedings and the court will only intervene if it can be

demonstrated quickly and easily that the arbitrator was plainly wrong.

HMV UK v Propinvest Friar Ltd Partnership [2011] EWCA Civ 1708

ADJUDICATOR’S FROLIC WRECKS AWARD

It’s hard to stop enforcement of an adjudicator’s award. The courts take a robust line

onchallenges.Inafinalaccountdisputeoveracontracttoremoveasunkenship

from Dover harbour, the adjudicator used a method of assessing the amount awarded

that neither party had argued and on which he gave them no chance to comment.

Was that enough to sink the award?

Mr Justice Akenhead said that it was. The adjudicator had gone off “on a frolic of his

own” in using an assessment method that was not part of the dispute and without

giving the parties an opportunity to comment. That might not be enough to prevent

enforcement if the “ frolic” made no material difference to the outcome, but the

adjudicator’s approach meant that the claimant was effectively awarded more than

£350,000 more than was being claimed. His breach of the rules of natural justice

was therefore material and enough to doom the award.

Herbosh -Kiere Marine Contractors Ltd v Dover Harbour Board [2012] EWHC 84

(TCC) (26 January 2012)

MEANWHILE, NORTH OF THE BORDER...

Another adjudicator in a natural justice tangle. Asked to deal with a claim about a

defective runway on Shetland, the adjudicator telephoned a Scottish QC for ‘ freebie’

advice on interpretation of clause 41.3 of the NEC Professional Services Contract. He

didn’t tell the parties, who only learned of the call by accident, after the adjudicator’s

decision.Wasitabreachofnaturaljusticesufficienttobringdowntheaward?

The Scottish court said that a peripheral or irrelevant breach of natural justice, not of

potential importance, would not taint an adjudicator’s decision and make it

unenforceable.Whethertheissuewasofsufficientimportancewasaquestionof

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degreetobeassessedbythecourt.Heretheissuewascentraltoquantificationofthe

largest part of the award and so of considerable potential importance. But could the

tainted part of the award be severed, saving the remainder? Not in this case. This

was a single issue dispute and it was not possible to sever the good from the bad.

Highlands & Islands Authority Ltd v Shetland Islands Council [2012] ScotCS

CSOH_12

DRIVING A BARGAIN TOO HARD?

Drivingahardbargainisfine,butwhendoescommercialpressurespilloverinto

economic duress and make a contract voidable? In Progress Bulk Carriers v Tube City ship owners repudiated a charter to carry shredded scrap to China, by

chartering the ship to another party. They then promised the original charterer an

alternative vessel and full compensation for their losses. The charterers, relying on

these assurances, did not look elsewhere for an alternative ship but, after

negotiations, the owners made a “take it or leave it” offer which, going back on their

promise of compensation, included a waiver of all claims by the charterers. Now

desperatetofulfiltheirsalecontractsintime,thecharterersacceptedtheofferunder

protest. Hard bargain or economic duress?

Economic duress in English law requires “illegitimate pressure” but does that have to

be unlawful, e.g. by threatening a breach of contract? The court said that illegitimate

pressure could be created by conduct that was not itself unlawful, although that

would be an unusual case, particularly in a commercial transaction, or by a past

unlawful act, as well as the threat of a future unlawful act. The pressure created by

the owners’ demand for a waiver of rights had to be seen in the light of their

repudiatory breach and their subsequent conduct, including their refusal to honour

their previous assurances as to a substitute vessel and paying full compensation. In

these circumstances, the refusal to supply the substitute vessel, unless the charterers

waived their rights, was “illegitimate pressure”.

Progress Bulk Carriers Ltd v Tube City IMS LLC [2012] EWHC 273 (Comm)

REPUDIATION – THEY THOUGHT IT WAS ALL OVER

Repudiation should have a health warning on the packet. You can accept what you

think is a repudiation and stop further performance of a contract but, in cases where

there is any doubt, only a judge can say for sure if you made the right call. Getting it

wrong can be expensive but what if (just to raise the stress levels) you made the

wrong call but, unknown to you at the time, the other party had done something else

that was a repudiation that you could have accepted? Happy ending after all?

This was a key issue in Leofelis v Lonsdale, where the court gave three answers to

the puzzle. It ruled that the wronged party could rely on the previously unknown

repudiatory breach, to defeat any claim by the wrongdoer for damages for the original

wrongful termination, and to bring its own claim for damages for the breach. What it

could not recover, however, was damages for loss caused by the termination. That had

occurred in ignorance of the wrongdoer’s real default, which had therefore not been

thecauseofthetermination,orofanylossflowingfromit.

Leofelis SA & Anor v Lonsdale Sports Ltd & Ors [2012] EWHC 485 (Ch)

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COURT SAYS CLAIMS CONSULTANTS MUST DISCLOSE LEGAL ADVICE

Thelegaladvicegivenbyprofessionallyqualifiedlawyers,solicitorsandbarristers,

does not have to be disclosed in litigation because the protection of legal advice

privilege applies. But does that protection extend to lawyers employed by claims

consultants?

No, said the court in Walter Lilly & Company Ltd v Mackay. The claims

consultants in question had been retained to give claims and project handling advice,

and not as barristers. The protection of privilege does not extend to the relationship

betweenapersonandsomeonewhoisnotaqualified,practisinglawyer,otherthanin

exceptional circumstances. The decision did not, however, deal with the separate

issue of litigation privilege and the position, on privilege, of claims consultants in

adjudication proceedings.

Walter Lilly & Company Ltd v Mackay & Anor [2012] EWHC 649 (TCC)

THE PROJECT AT THE END OF TIME

Block M looked abandoned – site locked and marketing suite inaccessible. The

original contractor had gone into administration and work only restarted more than

fourteen months later but the developer had entered into off-plan sales of the

apartments. Purchasers said the delay was a repudiation, which they accepted, and

asked for their deposits back.

There was no completion date, and, as in building contracts (unless the contract says

otherwise), time was not “of the essence” so that delay gave no entitlement to

terminate. But was it an implied term that the developer would complete the

apartments in a reasonable time? The developer’s counsel conceded that it was; the

salecontract’sspecificexclusionsofliabilityfordelayonlymadesenseifitwasbut

there was, in any event, an express obligation to complete “with all due diligence”.

So what was a reasonable time for completion after the contractor’s administration?

The court could not say a reasonable time had expired by the time the alleged

repudiation was accepted but delay alone was not a repudiation. That required

conduct that showed an intention no longer to be bound by the contract. The site

apparentlyabandoned,whilethedeveloperreviewedthedevelopment’sfinancial

viability and decided if it would ever build the apartments, showed this intention and

that meant the developer had repudiated and the purchasers could get their deposits

back.

Rashpal Singh Bhat v Masshouse Developments Ltd (No link yet available)

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3 4 Construction & Engineering London Legal Update

COURT FINDS BLACK HOLE IS NOT A DEAD LOSS

It’s a bit like losing your car keys. If a cause of action, the right to sue for, say,

damages for defects, becomes detached from the property to which it relates, the

owner of the property gets the bill but no longer has the right to sue. The person with

the right but without the property has suffered no loss. A car without keys won’t go

anywhere but does a claim for the defects – or does it fall into a black hole?

In Pegasus v Ernst & Young, negligence was alleged against accountants who

advised on a scheme to protect against capital gains tax liability. On liquidation, the

claimant company, Pegasus, had transferred its cause of action and substantially all

its assets to another company on a voluntary basis, as part of a reorganisation of the

business. The accountants said Pegasus had therefore suffered no loss so the claim

must fail. The court disagreed, saying that, where a wrong has been committed in

relation to property, and loss may result, the fact of an assignment, whether for value

or not, does not mean that the assignor can be said to have suffered no loss. The

consequent loss can and should still be treated as a loss of the assignor which they

can recover. Black holes are to be avoided where possible.

Pegasus v Ernst & Young [2012] EWHC 738 (Ch)

CO-OPERATION, GOOD FAITH AND THE OUT OF DATE KETCHUP

Like the opening sentiments of NEC3, an obligation to co-operate in good faith may

soundfineatthehoneymoonstageofacontractbut,ifitallendsintears,what

exactly does it mean? A catering company’s contract with an NHS Trust included

such an obligation and provided for deductions from payments where there were

“service failure points” but the Trust made “absurd” calculations of the points,

including 30,860 service failure points and a deduction of £46,320 for out of date

ketchup found in a cupboard. The court ruled that these calculations and deductions,

and the Trust’s failure to respond positively to the company’s attempts to resolve the

dispute, were breaches of the good faith obligation.

It also said that the precise scope of the duty to co-operate will depend on the

circumstances and nature of the contract. In a long-term contract of the sort it was

considering, the duty necessarily required the parties to work together constantly, at

all levels of the relationship, including working together to resolve the problems that

would almost certainly occur from time to time. It also necessarily required the

parties not to take unreasonable actions that might damage their working

relationship.

Compass Group UK and Ireland Ltd (t/a Medirest) v Mid Essex Hospital Services

NHS Trust [2012] EWHC 781 (QB)

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BEST ENDEAVOURS BUDGET FLIGHT DISPUTE LANDS IN COURT OF APPEAL

“Best endeavours”, “reasonable endeavours” and “all reasonable endeavours” – handy

phrases to resolve contract negotiation issues but a real challenge to interpret - even

for the Court of Appeal. Jet2.com Ltd, a budget airline, has a 15-year contract with

Blackpool Airport Limited that requires both parties to use “best endeavours” to

promote Jet2’s low cost services from the airport. For years Jet2, with BAL’s support,

operatedregularflightsoutsidetheairport’snormaloperatinghours,eventhough

this cost BAL money, but, after a change of ownership, BAL said it would no longer

acceptflightsoutsidenormaloperatinghours.Wasthisabreachofthebest

endeavours clause?

By 2-1, the Court of Appeal said that it was. In general, a “best endeavours”, or “all

reasonable endeavours” obligation, is not in itself regarded as too uncertain to be

enforceable,providedtheobjectoftheendeavourscanbeascertainedwithsufficient

certainty. The content of an obligation to use best endeavours to promote another

person’s business is not so uncertain as to be incapable of giving rise to a legally

bindingobligation,althoughitmaybedifficulttodetermineinanygivencase

whether there has been a breach of it. Whether, and to what extent, a person who has

undertakentousebestendeavourscanhaveregardtotheirownfinancialinterests

will depend very much on the nature and terms of the contract in question.

Jet2.com Ltd v Blackpool Airport Ltd [2012] EWCA Civ 417)

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Construction & Engineering London Legal Update

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