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Unjust Enrichment and Construction Contracts – A Cinderella Story?

Two decades ago, unjust enrichment was described as “the Cinderella of law, barely 10 years old but growing up rapidly. Until recently unrecognised and overshadowed by the ugly sisters, Contract and Tort, Cinderella’s day has arrived.” In England a claim for unjust enrichment was initially referred to as a claim in ‘quasi contract’. This language has now been abandoned and unjust enrichment has a strong foothold in the landscape of commercial law and its role and limits are becoming more clearly defined. Despite this, it is only infrequently pleaded in construction cases and when argued it is often set out in broad terms where the facts do not support such a claim. However, this is cause of action that should not be overlooked by a contractor or employer – especially if they have claims that fall outside the four corners of their construction contract.

By |October 3rd, 2016|Bonds, Dispute Boards, English Law, Knowledge Hub|Comments Off on Unjust Enrichment and Construction Contracts – A Cinderella Story?

Where Do FIDIC Cases Go?

FIDIC is arguably the most widely used standard form of international construction contract but reported FIDIC cases are rare. Is it time for an increased publication of FIDIC cases? There are three categories of decisions arising out of FIDIC dispute resolution provisions: 1. Decisions of the Engineer or the Dispute Adjudication Board (DAB), which will generally not be published or reported to anyone other than the parties involved in the dispute. 2. Decisions of arbitral tribunals, which are not usually made public although this is subject to certain exceptions. 3. Decisions of national courts, which are a relatively rare occurrence for the reasons discussed below.

By |December 16th, 2015|Arbitration, Dispute Boards, Knowledge Hub|Comments Off on Where Do FIDIC Cases Go?

FIDIC’s Sub-Clause 20.5 – A Condition Precedent to Arbitration

The 1999 FIDIC forms of contract contain a number of obligations and/or conditions precedent that require (a) a party to give notice of a claim (Sub-Clauses 20.1 and 2.5); (b) refer the claim to the Engineer (Sub-Clauses 20.1 and 3.5); and (c) submit the dispute to a Dispute Adjudication Board (“DAB”) (Sub-Clause 20.4). If either party gives a notice of dissatisfaction relating to the DAB’s Decision then Sub-Clause 20.5 provides that: “Where notice of dissatisfaction has been given under Sub-Clause 20.4 above, both Parties shall attempt to settle the dispute amicably before the commencement of arbitration. However, unless both Parties agree otherwise, arbitration may be commenced on or after the fifty-sixth day after the day on which notice of dissatisfaction was given, even if no attempt at amicable settlement has been made.”

By |December 16th, 2015|Adjudication / Dispute Boards / ADR, Arbitration, Knowledge Hub|Comments Off on FIDIC’s Sub-Clause 20.5 – A Condition Precedent to Arbitration

PERSERO 2 – Singapore Court of Appeal rules DAB decisions are enforceable by way of interim award

On 27 May 2015, the 160-page reserved judgement of the Singapore Court of Appeal (“CA”) was handed down in Persero 2 - PT Perusahaan Gas Negara (Persero) TBK (“PGN”) v CRW Joint Operation (“CRW”)[1]. It will be regarded a triumph for contractors wishing to enforce DAB decisions. The CA ruled that the interim award issued by the arbitral tribunal ordering enforcement of the DAB’s decision should stand. Using the concept of an “inherent premise”, the CA made two important findings: 1) it was not necessary for the Contractor to refer the failure to pay (the secondary dispute) back to the DAB; and 2) it was not necessary for him to refer the merits (the primary dispute) in the same single arbitration as his application to enforce.

By |September 14th, 2015|Dispute Boards, Knowledge Hub|Comments Off on PERSERO 2 – Singapore Court of Appeal rules DAB decisions are enforceable by way of interim award

FIDIC’S procedures for the appointment of a DAB need improvement

If the parties to a FIDIC contract cannot agree on a suitable DAB member and they have selected FIDIC as their appointing entity, they may request FIDIC to appoint that DAB member. FIDIC’s present procedures however seem less than ideal. They increase the prospect of rejection of the candidate nominated by FIDIC in the first instance and so also the need to repeat the exercise. They could also result in an appointment unacceptable to one or both parties. In my view they need to be revised.

By |September 14th, 2015|Dispute Boards, Knowledge Hub|Comments Off on FIDIC’S procedures for the appointment of a DAB need improvement

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

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

By |March 9th, 2015|Dispute Boards, Knowledge Hub, Litigation|Comments Off on Time Waits for no Man – So you think the Adjudicator got it wrong? How long do you have to challenge the decision?

Can a party ignore FIDIC’s DAB process and refer its dispute directly to arbitration?

If there is no DAB appointed by the parties to a FIDIC 1999 contract, may disputes be referred directly to arbitration under clause 20.8? This issue has troubled many in the industry – and has now been considered in English and Swiss courts.

By |November 17th, 2014|Adjudication / Dispute Boards / ADR, Dispute Boards, Knowledge Hub|Comments Off on Can a party ignore FIDIC’s DAB process and refer its dispute directly to arbitration?

FIDIC’s Silver Book – Payments due shall not be withheld … really?

There is a substantial difference between the payment provisions of the FIDIC 1999 Red and Yellow Books compared with the Silver Book. This article explores how a court in Queensland (Australia) has dealt with the Silver Book’s provision. Contractors have good cause to be wary.

By |November 14th, 2014|Knowledge Hub|Comments Off on FIDIC’s Silver Book – Payments due shall not be withheld … really?

Light at the end of the tunnel? Gibraltar dispute reviews key FIDIC Yellow Book provisions

As disputes under the FIDIC forms of contract are normally resolved in private Dispute Adjudication Board (“DAB”) proceedings or confidential arbitration proceedings, reported FIDIC cases are rare and often of considerable precdential value either formally or informally. In this article, originally published in The International Construction Law Review, Corbett & Co. Director Victoria Tyson considers one such recent decision which was transferred from the Gibraltar courts.

By |September 14th, 2014|Arbitration, Dispute Boards, Knowledge Hub|Comments Off on Light at the end of the tunnel? Gibraltar dispute reviews key FIDIC Yellow Book provisions
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