Lecture Notes and Papers

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Society of Construction Law Papers

“The Tribunal in the Driving Seat: Inquisitorial Procedures in Adjudication and Arbitration”

What procedural innovations can an adjudicator employ to improve the process of determining UK construction adjudications for the parties within the very tight statutory timescales? This paper explains a range of initiatives open to a proactive adjudicator and consistent with the procedural basics which the courts insist on; it then argues that the same techniques could be used (with appropriate safeguards) to advantage within arbitrations as well.

Updated: December 2005

“The PFE Change Management Supplements: Are They What the Industry Wants?”

The paper considers whether general adoption of the Pickavance/Fenwick Elliott Change Management Supplements to popular standard forms would be helpful in reconciling these with the SCL Delay and Disruption Protocol. It argues that the approach of the PFE Supplements is too detailed, too prescriptive and too costly - for the Employer - as well as failing to achieve the better resolution of time issues in projects.

Updated: December 2005

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Public Courses: BLS/BPP Professional Development Course Papers

Arbitration - Law and Practice

This paper is intended to provide a comprehensive review of the law and practice of arbitration conducted under the Arbitration Act 1996. It is intended for those who are involved in arbitral proceedings or who engage in areas of commerce were arbitration is commonly used for the resolution of disputes. In addition to explaining the legal framework that governs arbitral proceedings and reviewing recent case law, this seminar explores the role of both the tribunal and of the court in arbitral proceedings. It gives practical guidance on how arbitration can be used to achieve a just and cost-effective resolution of disputes.

Last updated: March 2012

International Commercial Arbitration

“International commercial arbitration lies between international and national law, private and public law, substantive and procedural law, and, in a wider perspective between the science of law, the jurisprudentia of the Roman jurisconsults, economics and politics.” Eduardo Silva-Romero, Deputy Secretary General ICC International Court of Arbitration.

This paper introduces the legal and practical aspects of international commercial arbitration. Arbitration being one of the principal methods available for resolving commercial disputes between parties, including where one of the parties is a state or state entity, from different countries. It is intended for solicitors and others who, while working in or advising on international transactions, have little experience of the resolution of disputes concerning such transactions. It is assumed that those reading will be familiar with domestic arbitration.

This paper is a companion paper to “Arbitration Law and Practice”, which covers arbitration conducted under the Arbitration Act 1996.

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Kings College, London, Centre of Construction Law and Management: Course Papers

Introduction to Dispute Resolution and Arbitration

Overview of dispute resolution methods: litigation, arbitration, adjudication, expert determination and mediation/conciliation. Introduction to arbitration law: the nature of arbitration, privity and confidentiality, party autonomy, role of the tribunal. Court attitudes to arbitration. The sources of arbitration law. Overview of the Arbitration Act 1996.

Last updated: March 2012

Agreeing to Arbitrate and Commencing Arbitral Proceedings

The arbitration agreement and its terms: contractual requirements, statutory formalities. Terminating an arbitration agreement. Commencing arbitral proceedings: what types of disputes can be referred, preparing a notice of arbitration. Establishing the tribunal: methods of appointment, suitability for appointment, remuneration. Revocation, removal and resignation of arbitrators, consequences for the proceedings and the arbitrators. Enforcing an arbitration agreement, obtaining a statutory stay, staying proceedings by injunction. Dealing with jurisdictional disputes.

Last updated: March 2012

The Tribunal's Powers and Duties

The tribunal's powers and the general duty. Procedural powers: managing the proceedings and controlling evidence, consolidation and concurrent hearings, appointing experts, legal advisors and assessors. General powers: security for costs, preserving property, evidence and assets. Dealing with unmeritorious claims or defences. Relief on a provisional basis. Sanctions available to the tribunal: dealing with stale claims, dealing with failures to provide security for costs, continuing the proceedings in the absence of a party, making and enforcing peremptory orders.

Last updated: March 2012

The Court's Supportive and Supervisory Powers

These notes consider the court’s powers to assist the tribunal and the parties both during and after the proceedings (the court’s supportive powers) and its powers of control (its supervisory powers) over the tribunal and its awards.

Last updated: March 2012

Awards and their Drafting

The purpose, effect and essentials of an arbitration award. When should a reasoned award be given? What reasons should be given, how should they be structured and what should they contain? Drafting style and layout? Gathering material for and working an award, before during and after the hearing. Notifying an award to the parties. The basic structure of an award. Precedents and sample travel arbitration award.

Last updated: March 2012

Principles and Practice of Pleading

The purpose of case statements in court and arbitral proceedings. Causes of action, positive defences and material facts. The relationship between case statements and the legal burden of proof. The formal requirements of case statements: claims, defences, counterclaims and replies. Deciding how much detail to include. Deciding the form of and method for exchange of case statements in arbitral proceedings. Drafting a case statement.

Last updated: December 2009

International Arbitration Review

Laws affecting international arbitration and their implications, law of the substantive agreement, law of the arbitration agreement, law of the arbitration, law of the place or places of domicile of the parties, law of the place of enforcement; Arbitration of investment disputes in outline; Support and supervision from local courts including enforcing arbitration agreements, court assistance in appointing the tribunal, jurisdictional objections, conservatory and interim measures, challenging the proceedings or the tribunal in a local court, challenging an award in a local court, the arbitration exception in the Brussels and Lugano conventions and in the judgments regulations; Obtaining recognition and enforcement of an award other than at the seat.

Last updated: March 2012

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International Bar Association Conference; Chicago 17-22 September 2006

“Inferior Tribunals and Enforcing Their Decisions”

There has, over the last ten years or so, been a growing world wide interest in, and use of such tribunals for the determination of disputes concerning construction projects. It is not the purpose of this paper to consider the pressures that have lead to this development. Suffice to say that they include, on one hand, dissatisfaction with and loss of trust in the traditional role of those appointed to administer construction contracts, usually Architects or Engineers, in determining the parties’ rights and entitlements and, on the other, concerns about the excessive cost and time involved in the taking of disputes to arbitration or litigation and the effect of such proceedings on business relationships

Updated: 23 October 2006

Public Courses: BLS/BPP Professional Development Course Papers

Payment and Adjudication under “the Construction Act”

A review of the statutory regime for Construction Contracts created by Part II of the Housing Grants, Construction and Regeneration Act 1996 and the related Statutory Instruments

Updated: March 2012

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Law and Contracts

Kings College, London, Centre of Construction Law and Management: Course Papers

The Law of Torts

Part 1: Basic definitions. The distinction between tort and contract, general characteristics of tortious liability, vicarious liability, general defences, general remedies.

Part 2: The law of negligence, general definitions. Establishing a duty of care: the three stage test, categories of actionable harm, statutory duties of care. Breach of Duty. Causation. Damage. Immunities and defences. Accrual and limitation of actions.

Part 3: Other torts. Public nuisance: basis of liability and remedies. Private nuisance: basis of liability, strict or fault based, liability of occupiers, potential claimants and defendants, defences and remedies. Escapes: the rule in Rylands v. Fletcher, basis of liability, defences and remedies. Special rules relating to fire. Other torts in outline.

Tort in Construction

Negligence and defective construction works after D&F Estates v. Church Commissioners. The duty of care problem: generalists and incrementalists. Establishing liability for defective work and design using the three-stage test and the categories of actionable harm. Remoteness of damage problems. Limitation of action problems. Miscellaneous developments in tort affecting the construction industry: is there a duty to warn, can certifiers be liable under the economic torts? The statutory torts: the Defective Premises Act 1972, the Consumer Protection Act 1987. Breach of statutory duty.

Last updated: March 2011

Mid-Career College: Course Papers

Introduction to JCT Contracts

Part 1: General principles of contract law. Objectives of standard form construction contracts: establishing the parties' primary obligations (what, how much, when), altering the contracted for performance, monitoring and controlling the manner of performance, valuation and timing of payments, risks and sanctions, dispute resolution.

Part 2: Overview of standard form building contracts and JCT contracts. Assembling the contract package: selecting the right contract, elements of the contract package, entering into the contract. Overview of the Joint Contracts Tribunal and its principal standard forms.

Part 3: JCT 98 Private With Quantities: articles, conditions, appendix and bonds. IFC 98, articles, conditions, appendix and bonds. Minor Works Agreement 1998, articles and conditions.

Public Courses: BLS/BPP Professional Development Course Papers

Construction Law - Basic Principles

Introduction to the basic principles of construction law, not a detailed consideration of particular standard form contracts or contractual arrangements, or a detailed analysis of recent construction law cases.

Construction law is not a separate branch of law, such as the law of trusts, or real property or family law. Rather it involves the application of well-understood legal principles, in particular the law of contract and tort, to a particular commercial activity, the procuring of construction projects.

Last updated: March 2012

Public Courses: Law South

Collateral Warranties

This paper considers the methods by which liability for third party losses on construction projects can be created, focussing on the use of collateral warranties. It also reviews the type of provision typically found in tenant/purchasers and funder’s warranties, and considers the practical issues that have to be addressed when negotiating and concluding such warranties.

Last updated: January 2005

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