The document summarizes developments discussed at the Construction Law Conference 2016 relating to construction insurance. It discusses trends in building information modeling (BIM), integrated project insurance, and inherent defects insurance. For BIM, it outlines the different levels of maturity and potential issues for professional indemnity insurance. For integrated project insurance, it describes how the approach aims to replace separate insurance policies and move away from assigning blame. It also notes some early trial projects and considerations. For inherent defects insurance, it compares advantages to traditional collateral warranties and discusses what policies typically cover.
Olswang 2nd Annual Construction Law ConferenceFrancis Ho
The document summarizes the agenda for the Construction Law Conference 2015 event on "On Time and Budget" to be held on 5 February 2015. The agenda includes sessions on sustainability, insurance, case law updates, liquidated damages, CDM 2015, and networking. There will be a welcome and introduction, followed by several speaker presentations and a Q&A session on various construction law topics. The event will conclude with refreshments and networking.
Utahcondolaw -- Construction Defects in Utahlwhobbs
The document provides an overview of construction defect law in Utah. It summarizes key court rulings that established the economic loss doctrine in Utah, limiting construction defect claims to breach of contract unless there is an independent duty of care. It also outlines the implied warranty of workmanlike construction and usual defenses raised in construction defect cases, such as blaming subcontractors or arguing it was the owner's fault for lack of maintenance. The document advises homeowners associations to complain loudly and often about defects and mitigate damages while pursuing legal action.
Building Regulations, Collateral Warranties and Third Party Rights - 2014 Ols...Francis Ho
The document summarizes the key topics to be discussed at the 2014 Construction Law Conference on February 6, 2014. The conference will address updates to UK building regulations regarding energy efficiency standards, the use of collateral warranties in construction projects, and third party rights under the Contracts (Rights of Third Parties) Act 1999. Speakers will discuss challenges with negotiating collateral warranties and industry reluctance to use third party rights, as well as arguments for why third party rights can provide benefits over traditional warranty agreements.
This document summarizes key points from a construction law summer school discussion on emerging markets. It outlines some of the interactions between civil law and common law systems that can cause conflicts in construction contracts. Cultural and political concerns in emerging markets are also discussed, such as being bound by local dispute resolution forums and public policy requirements. The document also summarizes considerations for working with local contractors, splitting EPC contracts, contract administration expectations, and managing claims in international construction projects in emerging markets.
4th Qatar BIM User Day, BIM and the LawBIM User Day
1. The document discusses whether Qatar should establish a legal or policy framework for building information modeling (BIM). It considers the benefits and drawbacks of coercive, facilitative, and aspirational legislation and policies.
2. Current Qatari law may provide some foundation for BIM through contract law, but facilitative legislation could address specific legal needs to fully enable BIM.
3. Key legal issues that arise with BIM implementation include responsibilities for the BIM model and information, intellectual property ownership, insurance coverage, and contract provisions regarding these topics.
CONSTRUCTION DISPUTES IN CONSTRUCTION WORK SITES AND THEIR PROBABLE SOLUTIONSIAEME Publication
All over the world the developing and developed nations are spending billions of
dollars each year to improve their existing infrastructure in order to bring it to next
level. Construction projects are generally considered as the back bones of each nation
be it any format. So when we talk about construction then it’s not alone generally it
involves different sectors such as electrical, mechanical and off course the civil sector
in order to work together as a single unit under one firm or organization. Here work is
divided into different small segments due to which different parties gets involved. The
construction projects requires highly specified designs , specifications and plans with
full detail not leaving a single scope of error. So being lengthy and complicated process
it undergoes through various phase which involves a hindrance popularly known as
disputes. It is nothing but a stage where contractor and client have different view or
prospective on any matter which needs to be sorted as soon as possible so as to maintain
smooth flow of work. So whenever there arise dispute it is followed by claims raised by
one or the other party which needs to be sorted out.
The newsletter provides information on upcoming construction law events and recent court judgements. It summarizes that the usual UK Adjudicators spring conference will not take place and encourages attendees to attend the Dispute Resolution Board Foundation's international conference in London in May. It also summarizes two panel topics at the DRBF conference on dispute boards and writing effective decisions. Recent Technology and Construction Court judgments from January to March 2022 are listed. Forthcoming events in construction law from April to June 2022 are also advertised.
Olswang 2nd Annual Construction Law ConferenceFrancis Ho
The document summarizes the agenda for the Construction Law Conference 2015 event on "On Time and Budget" to be held on 5 February 2015. The agenda includes sessions on sustainability, insurance, case law updates, liquidated damages, CDM 2015, and networking. There will be a welcome and introduction, followed by several speaker presentations and a Q&A session on various construction law topics. The event will conclude with refreshments and networking.
Utahcondolaw -- Construction Defects in Utahlwhobbs
The document provides an overview of construction defect law in Utah. It summarizes key court rulings that established the economic loss doctrine in Utah, limiting construction defect claims to breach of contract unless there is an independent duty of care. It also outlines the implied warranty of workmanlike construction and usual defenses raised in construction defect cases, such as blaming subcontractors or arguing it was the owner's fault for lack of maintenance. The document advises homeowners associations to complain loudly and often about defects and mitigate damages while pursuing legal action.
Building Regulations, Collateral Warranties and Third Party Rights - 2014 Ols...Francis Ho
The document summarizes the key topics to be discussed at the 2014 Construction Law Conference on February 6, 2014. The conference will address updates to UK building regulations regarding energy efficiency standards, the use of collateral warranties in construction projects, and third party rights under the Contracts (Rights of Third Parties) Act 1999. Speakers will discuss challenges with negotiating collateral warranties and industry reluctance to use third party rights, as well as arguments for why third party rights can provide benefits over traditional warranty agreements.
This document summarizes key points from a construction law summer school discussion on emerging markets. It outlines some of the interactions between civil law and common law systems that can cause conflicts in construction contracts. Cultural and political concerns in emerging markets are also discussed, such as being bound by local dispute resolution forums and public policy requirements. The document also summarizes considerations for working with local contractors, splitting EPC contracts, contract administration expectations, and managing claims in international construction projects in emerging markets.
4th Qatar BIM User Day, BIM and the LawBIM User Day
1. The document discusses whether Qatar should establish a legal or policy framework for building information modeling (BIM). It considers the benefits and drawbacks of coercive, facilitative, and aspirational legislation and policies.
2. Current Qatari law may provide some foundation for BIM through contract law, but facilitative legislation could address specific legal needs to fully enable BIM.
3. Key legal issues that arise with BIM implementation include responsibilities for the BIM model and information, intellectual property ownership, insurance coverage, and contract provisions regarding these topics.
CONSTRUCTION DISPUTES IN CONSTRUCTION WORK SITES AND THEIR PROBABLE SOLUTIONSIAEME Publication
All over the world the developing and developed nations are spending billions of
dollars each year to improve their existing infrastructure in order to bring it to next
level. Construction projects are generally considered as the back bones of each nation
be it any format. So when we talk about construction then it’s not alone generally it
involves different sectors such as electrical, mechanical and off course the civil sector
in order to work together as a single unit under one firm or organization. Here work is
divided into different small segments due to which different parties gets involved. The
construction projects requires highly specified designs , specifications and plans with
full detail not leaving a single scope of error. So being lengthy and complicated process
it undergoes through various phase which involves a hindrance popularly known as
disputes. It is nothing but a stage where contractor and client have different view or
prospective on any matter which needs to be sorted as soon as possible so as to maintain
smooth flow of work. So whenever there arise dispute it is followed by claims raised by
one or the other party which needs to be sorted out.
The newsletter provides information on upcoming construction law events and recent court judgements. It summarizes that the usual UK Adjudicators spring conference will not take place and encourages attendees to attend the Dispute Resolution Board Foundation's international conference in London in May. It also summarizes two panel topics at the DRBF conference on dispute boards and writing effective decisions. Recent Technology and Construction Court judgments from January to March 2022 are listed. Forthcoming events in construction law from April to June 2022 are also advertised.
This document provides a summary of the legal and commercial issues involved in the Channel Tunnel project between France and England. It was one of the largest privately funded infrastructure projects involving multiple governments, banks, and contractors. Key challenges included differing legal standards between countries, scope changes, delays, and cost overruns. The summary discusses contract processes and disputes that arose, as well as risk factors, commercial best practices, and conclusions about contract types and remedies for breach.
Talk on the Joint Contracts Tribunal and JCT 2016 Editions by Richard Saxon CBEFrancis Ho
1. The Joint Contracts Tribunal (JCT) has a long history of over 80 years of developing standard form construction contracts through industry-wide collaboration and consensus.
2. The 2016 edition of JCT contracts will update and consolidate provisions from previous editions and supplements to reflect current legislation and practices regarding topics like fair payment, transparency, BIM, CDM regulations, and public contracts regulations.
3. Key changes in the 2016 edition include simplifying and standardizing payment provisions, revising loss and expense claim procedures, expanding performance bond and parent company guarantee options, and minor updates to insurance, intellectual property, and other provisions.
"Ranking of Causes of Disputes and Use of Dispute Resolution Methods for Cons...Abhishek Shah
National Conference on Recent Research and Development in Core Disciplines of Engineering” held at Vadodara, Gujarat, India Institute of Engineering on 25th and 26th April 2015.
It Pays to Be Right: Payment in Construction ContractsFrancis Ho
This document summarizes key principles regarding payment in construction contracts under the Housing Grants, Construction and Regeneration Act 1996 in the UK. It discusses mandatory payment provisions, including requirements for adequate payment mechanisms and notices. It notes that failing to serve valid pay less notices can result in having to pay the notified sum. It also discusses issues like overpayment, making valid interim payment applications, and the need for employers to strictly follow notice requirements in order to later challenge payment amounts.
The newsletter provides information on recent events and updates in construction law adjudication. It summarizes that the annual London adjudication conference in August was a success, with the next major conference planned for Edinburgh in 2022. It also summarizes a recent Irish court case that enforced an adjudicator's decision and clarified that parties have an unfettered right to refer disputes to adjudication under Irish law. Upcoming events and conferences are also announced.
Building contracts define responsibilities and allocate risk between parties in a construction project. The Joint Contracts Tribunal provides standard forms of building contracts for different project sizes and types. The key parties are the employer/owner and contractor. Contracts establish risk management by apportioning risks like delays or unsatisfactory work between the parties.
SWOT ANALYSIS OF ARBITRATION AWARDS IN INDIAN CONSTRUCTION CONTRACTSIAEME Publication
Contract forms, terms, specification, analysis of rate and conditions of contract
are being followed by various governments departments in the field of civil
construction are not uniform. Against the backdrop of India’s burgeoning macroeconomic prospects, the weaknesses of the construction industry create challenges,
particularly with respect to settlement of disputes between the owner and contractor
that it will have to overcome. Arbitration awards have been studied and based upon
their analyses a series of survey questionnaire have been developed. The responses to
the above along with the gist of focused discussions and interviews with domain
experts forms the basis for SWOT analyses of arbitration awards.
Contractual Options for Procuring Major Projects in the UKFrancis Ho
This document discusses contractual options for procuring major construction projects in the UK. It outlines several methods used to fund projects, including project finance, equity, sovereign wealth funds, and forward funding. It also discusses framework agreements and two-stage tendering processes. Framework agreements involve establishing umbrella agreements with terms for future works, while two-stage tendering selects a preferred contractor who then works on pre-construction services before providing a final fixed price. The document advises being flexible on projects and considering these procurement strategies in an overheated construction market.
Dr. Shriniwas Kashalika wishes all readers and friends a wonderful new year in 2010. He expresses gratitude for the tolerance and affection shown to him. Through his work, millions were able to freely read and download his books and articles on Namasmaran, Geeta, and Vishnusahasranam. He plans to wake early on New Year's Day to thank God for linking him with others and these spiritual texts, which help people rise above conflicts and come together in harmony.
Caini watches over the decomposing body of a woman who died 3 months earlier. He reminisces about their relationship and how he killed her husband years ago out of jealousy so they could be together. The story then flashes back to show how Caini stalked and murdered the woman's husband, and later killed her as well when she refused his advances. It describes Caini as a serial killer who takes the decomposing bodies of his victims and talks to them, believing they love him in death as he wanted in life.
Nishkama karma, or action without attachment to results, is a concept in the Bhagavad Gita. While it seems impossible to act without thinking of results, subtle actions like thinking and feelings cannot be defined by their physical causes and effects. As actions evolve, they become less crude and more cosmic in nature, with results that cannot be quantified. The highest form of action is namasmāran, or remembering God, as it merges subjectivity and objectivity such that ownership of actions and results ceases. Namasmāran is widely practiced in religions and can help emancipate oneself and others.
1) O documento apresenta um teste de geografia sobre divisões territoriais e demografia em Portugal.
2) Inclui questões sobre distritos, unidades territoriais estatísticas, estrutura etária da população e taxas demográficas.
3) Apresenta dados sobre nascimentos, óbitos e migrações em vários países europeus.
Dr. Shriniwas Janardan Kashalikar discusses his new study of the Bhagavad Gita. He analyzes chapters 2-4, in which Lord Krishna emphasizes the importance of swadharma, or righteous duty according to one's nature. Krishna explains that swadharma leads to union with cosmic consciousness. Those who follow swadharma blossom, while those who do not become obstacles for others. Krishna also reveals his immortal nature and role in manifesting and annihilating forces of darkness throughout the universe. He describes how different personality types emerge from consciousness to perform various functions in the world.
This document provides a summary of the author's tour of Southeast Asia, including stops in Hong Kong, Macau, Malaysia, and Singapore. Some key details include:
- The tour was organized by Sachin Travels and included 15 people led by two guides, Prashant and Amol.
- In Hong Kong, the group visited Victoria Peak, Aberdeen Village, Repulse Bay with Buddhist idols, and Star Avenue with Bruce Lee statues.
- In Macau, they saw the Temple of the Goddess Maa and toured old government buildings from the Portuguese rule. That evening they visited the opulent Casino Venitia.
- Stops in Malaysia included Genting Highlands for
This document provides a summary of the legal and commercial issues involved in the Channel Tunnel project between France and England. It was one of the largest privately funded infrastructure projects involving multiple governments, banks, and contractors. Key challenges included differing legal standards between countries, scope changes, delays, and cost overruns. The summary discusses contract processes and disputes that arose, as well as risk factors, commercial best practices, and conclusions about contract types and remedies for breach.
Talk on the Joint Contracts Tribunal and JCT 2016 Editions by Richard Saxon CBEFrancis Ho
1. The Joint Contracts Tribunal (JCT) has a long history of over 80 years of developing standard form construction contracts through industry-wide collaboration and consensus.
2. The 2016 edition of JCT contracts will update and consolidate provisions from previous editions and supplements to reflect current legislation and practices regarding topics like fair payment, transparency, BIM, CDM regulations, and public contracts regulations.
3. Key changes in the 2016 edition include simplifying and standardizing payment provisions, revising loss and expense claim procedures, expanding performance bond and parent company guarantee options, and minor updates to insurance, intellectual property, and other provisions.
"Ranking of Causes of Disputes and Use of Dispute Resolution Methods for Cons...Abhishek Shah
National Conference on Recent Research and Development in Core Disciplines of Engineering” held at Vadodara, Gujarat, India Institute of Engineering on 25th and 26th April 2015.
It Pays to Be Right: Payment in Construction ContractsFrancis Ho
This document summarizes key principles regarding payment in construction contracts under the Housing Grants, Construction and Regeneration Act 1996 in the UK. It discusses mandatory payment provisions, including requirements for adequate payment mechanisms and notices. It notes that failing to serve valid pay less notices can result in having to pay the notified sum. It also discusses issues like overpayment, making valid interim payment applications, and the need for employers to strictly follow notice requirements in order to later challenge payment amounts.
The newsletter provides information on recent events and updates in construction law adjudication. It summarizes that the annual London adjudication conference in August was a success, with the next major conference planned for Edinburgh in 2022. It also summarizes a recent Irish court case that enforced an adjudicator's decision and clarified that parties have an unfettered right to refer disputes to adjudication under Irish law. Upcoming events and conferences are also announced.
Building contracts define responsibilities and allocate risk between parties in a construction project. The Joint Contracts Tribunal provides standard forms of building contracts for different project sizes and types. The key parties are the employer/owner and contractor. Contracts establish risk management by apportioning risks like delays or unsatisfactory work between the parties.
SWOT ANALYSIS OF ARBITRATION AWARDS IN INDIAN CONSTRUCTION CONTRACTSIAEME Publication
Contract forms, terms, specification, analysis of rate and conditions of contract
are being followed by various governments departments in the field of civil
construction are not uniform. Against the backdrop of India’s burgeoning macroeconomic prospects, the weaknesses of the construction industry create challenges,
particularly with respect to settlement of disputes between the owner and contractor
that it will have to overcome. Arbitration awards have been studied and based upon
their analyses a series of survey questionnaire have been developed. The responses to
the above along with the gist of focused discussions and interviews with domain
experts forms the basis for SWOT analyses of arbitration awards.
Contractual Options for Procuring Major Projects in the UKFrancis Ho
This document discusses contractual options for procuring major construction projects in the UK. It outlines several methods used to fund projects, including project finance, equity, sovereign wealth funds, and forward funding. It also discusses framework agreements and two-stage tendering processes. Framework agreements involve establishing umbrella agreements with terms for future works, while two-stage tendering selects a preferred contractor who then works on pre-construction services before providing a final fixed price. The document advises being flexible on projects and considering these procurement strategies in an overheated construction market.
Dr. Shriniwas Kashalika wishes all readers and friends a wonderful new year in 2010. He expresses gratitude for the tolerance and affection shown to him. Through his work, millions were able to freely read and download his books and articles on Namasmaran, Geeta, and Vishnusahasranam. He plans to wake early on New Year's Day to thank God for linking him with others and these spiritual texts, which help people rise above conflicts and come together in harmony.
Caini watches over the decomposing body of a woman who died 3 months earlier. He reminisces about their relationship and how he killed her husband years ago out of jealousy so they could be together. The story then flashes back to show how Caini stalked and murdered the woman's husband, and later killed her as well when she refused his advances. It describes Caini as a serial killer who takes the decomposing bodies of his victims and talks to them, believing they love him in death as he wanted in life.
Nishkama karma, or action without attachment to results, is a concept in the Bhagavad Gita. While it seems impossible to act without thinking of results, subtle actions like thinking and feelings cannot be defined by their physical causes and effects. As actions evolve, they become less crude and more cosmic in nature, with results that cannot be quantified. The highest form of action is namasmāran, or remembering God, as it merges subjectivity and objectivity such that ownership of actions and results ceases. Namasmāran is widely practiced in religions and can help emancipate oneself and others.
1) O documento apresenta um teste de geografia sobre divisões territoriais e demografia em Portugal.
2) Inclui questões sobre distritos, unidades territoriais estatísticas, estrutura etária da população e taxas demográficas.
3) Apresenta dados sobre nascimentos, óbitos e migrações em vários países europeus.
Dr. Shriniwas Janardan Kashalikar discusses his new study of the Bhagavad Gita. He analyzes chapters 2-4, in which Lord Krishna emphasizes the importance of swadharma, or righteous duty according to one's nature. Krishna explains that swadharma leads to union with cosmic consciousness. Those who follow swadharma blossom, while those who do not become obstacles for others. Krishna also reveals his immortal nature and role in manifesting and annihilating forces of darkness throughout the universe. He describes how different personality types emerge from consciousness to perform various functions in the world.
This document provides a summary of the author's tour of Southeast Asia, including stops in Hong Kong, Macau, Malaysia, and Singapore. Some key details include:
- The tour was organized by Sachin Travels and included 15 people led by two guides, Prashant and Amol.
- In Hong Kong, the group visited Victoria Peak, Aberdeen Village, Repulse Bay with Buddhist idols, and Star Avenue with Bruce Lee statues.
- In Macau, they saw the Temple of the Goddess Maa and toured old government buildings from the Portuguese rule. That evening they visited the opulent Casino Venitia.
- Stops in Malaysia included Genting Highlands for
The document is an SEO competitive analysis report from SEO, LLC analyzing the search engine rankings of 22 keywords and one URL on Google and Bing. It finds that the keywords and URL received a total of 30 top 30 search engine results page listings. Most of the top 30 listings were on Google, with 18 listings, while 12 were on Bing. The report provides details on the keywords that were analyzed, their rankings, and the URLs and search engines checked.
The document discusses a lack of proper functional connections between various aspects of human existence including connections between the metabolism and central nervous system, right and left brain, instincts and higher self, masculinity and femininity, use and enlightenment, the individual and society, inside and outside, self and universe, art and science, as well as matter, energy, space, time and consciousness. The lack of connection between humans and the name of God or truth is also mentioned.
[1] This prayer is meant to wish happiness, health, and well-being for all, with no grief.
[2] Some object to prayers, seeing them as weakness, but they can be a way to remove "blocks" like ego and gain strength from cosmic powers that we are extensions of.
[3] Prayers and chanting can effectively remove these blocks by connecting us to the source of empowerment and the universe, just as reconnecting leaves to the roots of a tree makes them stronger.
N E W S T U D Y O F B H A G A V A D G I T A D E C 22 D R S H R I N I W...shriniwaskashalikar
Dr. Shriniwas Kashalikar discusses statements in the Bhagavad Gita implying that even the worst sinners can achieve emancipation. He addresses potential concerns that this could demoralize righteous individuals or promote a condescending attitude of forgiveness.
He explains that the Gita does not encourage sinning but aims to avert dangerous guilt complexes that prevent self-improvement. It offers cosmic solutions to all equally through practices like Namasmaran, though individual benefits depend on evolutionary state. Namasmaran reveals inner potentials for crime but also a need for forgiveness without punishment, through corrective behavior. This allows one to forgive themselves and others by linking to universal blossoming.
Dr. Shriniwas Janardan Kashalikar conducted a new study of the Bhagavad Gita. In his analysis, he summarizes Arjuna's experience in Chapter 11 where Arjuna gains an "objective vision" and sees the cosmic consciousness. This experience was destabilizing but thrilling. In Chapter 12, Arjuna asks Krishna to clarify whether worship of formless cosmic consciousness or a deity form is preferable for individual and global blossoming. Krishna explains that worshipping a form is more practical for common people. In Chapter 13, Krishna describes concepts like the field (kshetra), the knower of the field (kshetrajna), knowledge (jnana
Zero is an important mathematical concept that gives meaning and structure but its existence is complex. Zero represents nothingness or absence, but nothingness cannot truly exist on its own - zero only has meaning in relation to other entities like time, space, and an observer. The concept of zero has paradoxically led to ideas of endings and death, though its origins and nature remain uncertain and indeterminate. This document raises philosophical questions about the nature and existence of zero.
Update on Construction Insurance, Bonds and Guarantees - Francis Ho - Olswang...Francis Ho
This document summarizes key topics from the Construction Law Conference 2015 including:
1) Recent trends in insurance, bonds, and guarantees in construction including BIM, cyber liability, integrated project insurance, and court cases.
2) The upcoming Third Party (Rights Against Insurers) Act 2010 and Insurance Bill which will impact third party claims against insurers.
3) Details on the "fair presentation of risk" and other provisions in the Insurance Bill regarding disclosure obligations and remedies for non-disclosure.
Construction law update august 2015 quarter 2 aColin Tomlinson
The document provides an overview of commercial management best practices for construction contracts. It discusses when commercial managers should be appointed and their key responsibilities, which include understanding contract terms, managing notification dates, and ensuring procedures are followed correctly. It then summarizes two recent court cases related to payment disputes - Caledonian Modular Ltd v Mar City Developments Ltd and Henia Investments Inc v Beck Interiors Ltd. Both cases emphasize the importance of strictly following contractual payment procedures and timelines.
Commercial and Construction Law Update Q2 2015Colin Tomlinson
The document provides an overview of commercial management best practices for construction contracts. It discusses when commercial managers should be appointed and their key responsibilities, such as managing contract terms and conditions, mapping out notification dates, and ensuring procedures are followed correctly. It also summarizes two recent court cases related to payment disputes, where the courts emphasized strict adherence to contractual payment processes and timelines.
Slides from the niceties of notices and their importance for construction claimsRobert MacDonald
This document summarizes a legal article about notices under the UK's Housing Grants, Construction and Regeneration Act 2009 and the NEC3 construction contract.
The article discusses three recent court cases that dealt with failures to serve payment or pay less notices under the 2009 Act. It also examines issues around distinguishing interim payments from final accounts. Additionally, the document outlines key points in NEC3 regarding compensation event notices and the 8-week time limit for notifying such events. The author notes that in practice, both contractors and project managers often fail to follow the notice procedures as intended by the contracts.
The document discusses construction insolvencies in the UK construction industry. It notes that the construction sector experiences the most insolvencies, accounting for about a quarter of all UK insolvencies. In the first quarter of 2016, construction industry output decreased by 1.1% compared to the previous quarter. The document also discusses how "Brexit" could impact construction companies through potential loss of EU labor and funding. It outlines some factors that make construction companies prone to insolvency, such as cash flow issues, disputes, and lack of credit. Finally, it provides tips for mitigating insolvency risks through due diligence, documentation, and actions to take if insolvency occurs.
Payment in construction contracts: how to get paidBarry Hembling
This document discusses payment in construction contracts and provides practical advice. It covers:
1) The impact of changes to the Construction Act regarding payment, including requirements to pay notified sums and give notices of intention to withhold payment.
2) Differences between contractual and valuation assessments of payment amounts.
3) Ensuring applications for payment properly set out calculations, sums due, and timing.
4) Practical tips for both payers and payees, such as serving compliant pay less notices, checking payment claims are properly notified, and reviewing contracts closely.
INVESTMENT OPPORTUNITIES - PPP FISCALIA GENERAL DE LA NACIÓN –CALIProColombia
Fiscalía General de la Nación and ProColombia in alliance with Bonus Banca de Inversión and Currie & Brown, would like to extend our thanks to everyone who participated in the PPP FISCALIA GENERAL DE LA NACIÓN webinar, project that aims to facilitate access to justice for the citizens.
The document discusses FIDIC, an international organization for consulting engineers. It was founded in 1913 and now has over 60 member countries. FIDIC is best known for publishing standard contract conditions used around the world for construction projects. The document discusses the new editions of FIDIC's standard contracts, including the Red Book for construction, Yellow Book for plant design/build, and Silver Book for EPC turnkey projects. It provides details on the applicability of each book under different project delivery systems. The document also discusses improvements made in the new editions to address issues like back payments, financial arrangements, and contractor-financed projects.
Contract management is the systematic process of creating, administering, and enforcing contracts between two or more parties. It ensures both parties fulfill their obligations as outlined in the agreement and minimizes potential risks.
This document discusses statutory and contractual adjudication in Hong Kong. It provides an overview of the development of security of payment legislation in Hong Kong, including reports and public consultations from 2001 to 2021. It outlines the application and requirements of the proposed security of payment legislation, including payment claim processes, maximum payment periods, adjudication procedures, and the adjudicator's jurisdiction. It also discusses recent proposals to implement aspects of security of payment in public works contracts prior to the enactment of legislation.
BIDDING-TENDER-CONTRACT
TENDERING PROCEDURE – AWARD OF TENDERS
ESSENTIAL ELEMENTS OF CONTRACTS
Types of contracts
MEASUREMENT BOOK
Security deposit
CONTRACT DOCUMENT
Earnest money deposit (EMD)
Qualification of contractors
IMPORTANT CLAUSES IN CONSTRUCTION CONTRACTS
Professional Practice II (Group Assignment)Yee Len Wan
1) The contractor failed to procure required insurance before commencing works, which entitled the employer to set-off costs according to contract clauses. However, the employer must follow proper procedures for set-off including providing written notices and details from QS.
2) There was a significant 73% reduction in provisional piling quantities from the contract. This qualified as a variation where the contractor can claim a fair adjustment to rates under the valuation rules.
3) The contractor did not notify the engineer soon enough about missing ground beam details, so they are not entitled to EOT or loss/expense claims despite the engineer's 5 day delay in providing details. Any missing details would be treated as a variation but rates would
Managing the Construction Lien Process: A Primer on the Lien Act and Recurrin...Bodman PLC
Presentation by Bodman Construction Practice Group Partners Matthew T. Jane and Matthew R. Rechtien at the Washtenaw Contractors Association (WCA)'s Emerging Professionals in Construction (EPIC) program on March 10, 2016.
An overview of the Michigan Construction Lien Act and how construction liens work. Modern construction lien statutes provide procedures that allow builders who make property improvements on credit to have assurance (or security) of payment, while property owners protect themselves against double-payment. Knowing and following the process to preserve and enforce lien rights will provide real estate improvers security for the debt owed, bargaining leverage, and a way to seek payment from the owner or interested party.
Matthew T. Jane is a member in Bodman's Ann Arbor office, focusing in construction law, contracts, and general business litigation, including contract development and negotiation, construction liens, construction defect and delay claims design errors and omissions, insurance matters, and disputes under the Uniform Commercial Code. He is active in local construction industry & bar associations and was recently listed as a 2015 Michigan Super Lawyer for Construction Litigation.
Matthew R. Rechtien is a member in Bodman's Ann Arbor office, focusing his practice in construction law as well as commercial & insurance litigation. He is a licensed professional engineer, and prior to law school, Matt worked as a consulting structural engineer in Texas, designing structures for buildings & stadiums. He is listed as a "Rising Star" in Construction Litigation in the 2015 edition of Michigan Super Lawyers.
Bodman's Construction practice group represents owners, developers, architects, engineers, general contracts, construction manager, and specialty and other subcontractors both public and private projects. We have extensive experience representing clients in various phases of the construction project process, including the acquisition & development of real estate; project bonding & financing; contract negotiation; risk management; employment issues; zoning & land use; intellectual property matters; and claim avoidance, litigation & alternative dispute resolution (ADR). For more information, please visit http://www.bodmanlaw.com
ICDS-III provides accounting standards for construction contracts that must be followed for income tax purposes. Key aspects of ICDS-III include:
1) Contractors must use the percentage of completion method to recognize revenue and expenses over time based on the stage of completion, rather than the completed contract method.
2) Retention money is considered contract revenue under ICDS-III, conflicting with some court precedents.
3) Compliance may be difficult for non-corporate contractors accustomed to the completed contract method.
The presentation covers infrastructure project financing, typical configurations, key project parties, project contracts, It explains financing of a power project, security mechanism, SPV payment hierarchy and risk mitigation mechanism
The document is an assignment submission for a student named Sameh Kandil Mohammed Ibrahim. It discusses a district cooling plant project in the United Arab Emirates. The project involved constructing a district cooling plant to provide cooling water to Rihan Heights Towers. An EPC contract was signed between the client Mubadala Capital Land and the main contractor Kharafi National. The student provides a critical appraisal of the project, discussing the procurement route chosen, benefits to the client, roles of different business units, and compares the EPC route to a traditional route. The student also discusses an alternative procurement route of BOT that could have been used and compares the advantages and disadvantages for the client and concessionaire.
1. The document outlines the requirements and penalties of Cleveland's Fannie Lewis Resident Employment Law, which requires that 20% of work hours on applicable city construction contracts be performed by Cleveland residents.
2. It specifies that the prime contractor is responsible for submitting monthly workforce tables and certified payrolls documenting the hours and residency of all workers to demonstrate compliance.
3. Failure to meet reporting requirements or the 20% residency quota can result in financial penalties of 1/8 of 1% of the total contract amount for each percentage point short of the goal.
ICDS III, IV and Draft ICDS on Real Estate TransactionRishabh Khandal
This standard provides guidance on accounting for revenue from construction contracts. It outlines that revenue and expenses should be recognized based on the percentage of completion method as the construction project progresses. The percentage of completion may be determined based on surveys of work performed or costs incurred. Revenue is only recognized to the extent of contract costs if the outcome cannot be reliably estimated during the early stages of a project. The standard also provides guidance on combining or segmenting contracts, accounting for contract variations, and disclosing contract balances.
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City of London Law Society - Submittal to BEIS on Statutory Retention Deposit...Francis Ho
A supplemental submission from the City of London Law Society's Construction Law Committee sent to the Department for Business, Energy & Industrial Strategy (BEIS) on 3 December 2018 regarding potential proposals to introduce a statutory retention deposit scheme for construction contracts in the United Kingdom.
City of London Law Society - Construction Law Committee - Response to Retenti...Francis Ho
RESPONSE OF THE CITY OF LONDON LAW SOCIETY CONSTRUCTION LAW COMMITTEE TO THE DEPARTMENT FOR BUSINESS, ENERGY & INDUSTRIAL STRATEGY'S CONSULTATION ON THE PRACTICE OF CASH RETENTION UNDER CONSTRUCTION CONTRACTS
Variations and their Consequences - Olswang Construction Law Masterclass - 5 ...Francis Ho
This document summarizes key aspects of variations in construction contracts, including:
1) What constitutes a variation based on standard contract definitions.
2) Why variation clauses are included in contracts to allow flexibility for changes.
3) Procedures for instructing, valuing, and agreeing to variations.
4) Issues that can arise regarding scope, instructions, notice periods and whether a variation has actually occurred.
5) The impact of anti-oral variation clauses and agency on how variations are authorized.
6) Special considerations for omitting contracted work versus instructing additions.
The document summarizes a presentation on managing complex construction projects. It discusses the definition of complex projects as those that are high value, major real estate developments, or engineering/infrastructure projects. It outlines the Chartered Institute of Building's Complex Projects Contract 2013 (CPC 2013), which provides contract terms and conditions for managing complex projects. The CPC 2013 introduces new roles like Project Time Manager and adds provisions for transparency, collaboration, electronic data transfer, and BIM use. Finally, the presentation provides resources for further information on the CPC 2013 and notes that construction knowledge, risk management, and critical path analysis are still essential for complex project management.
Two stage tendering is commonly used for large or complex projects where it is difficult to get accurate bids from contractors based on incomplete designs. It involves contractors submitting initial bids based on limited information, with one contractor then selected to work with the client during the pre-construction stage to develop a fixed price bid. This allows for early contractor input to improve design and feasibility, while giving the client greater cost certainty. However, it also carries risks of compromising the client's negotiating position or damaged relations if not handled properly. The document provides tips for clients on maintaining control during both stages.
Managing the Risks of Delay in Construction ProjectsFrancis Ho
Delay is a common risk in construction projects with multiple potential causes. Proper notice provisions and documentation are essential to support any delay claims between the employer and contractor. Liquidated damages, termination, and instructions to accelerate works are some of the remedies available to employers for contractor delay, but contractors may challenge these and claim their own remedies for employer-caused delays.
The document provides an overview of adjudication procedures in the UK construction industry. It discusses:
- The basics of adjudication, including its compulsory nature, binding interim decisions, and typical process.
- How to effectively "spring ambushes" in adjudication, such as by including all necessary evidence and considering timing carefully. It also discusses how to prevent being ambushed through contract drafting and monitoring for warning signs.
- Key considerations regarding the adjudicator, including expertise, conflicts, and fees. It emphasizes the importance of accurately describing the dispute in the notice of adjudication.
- Challenging the adjudicator's jurisdiction, reserving positions, and identifying and correcting errors in the adjud
Introductory Note on International Construction ContractsFrancis Ho
Olswang LLP is a limited liability partnership in England and Wales that is authorized and regulated by the Solicitors Regulation Authority. The document discusses several key points regarding international construction contracts: (1) common standard form contracts used internationally include FIDIC, ICE, IChemE, CIOB, and NEC contracts; (2) while UK forms can be adapted, it is not recommended as they are too locally specific and international contractors prefer standard international forms; (3) the various FIDIC contracts - Red, Yellow, Silver, Pink, Gold, Blue, White, and subcontract - are introduced along with their key purposes and differences.
Works Insurance and Latent Defects InsuranceFrancis Ho
The document discusses various types of insurance related to construction projects, including all risks insurance, latent defects insurance, and options for insuring works under JCT contracts. All risks insurance covers physical damage to works and materials, and is often maintained by the contractor. Latent defects insurance provides protection for inherent defects discovered after practical completion up to a specified threshold. While it has advantages over collateral warranties like being freely assignable, there are also gaps in protection if no warranty package is also in place. The document also notes potential issues with Option C of insuring works under JCT contracts and ways to address them.
Third party rights allow non-parties to a contract to enforce certain terms of that contract. They provide an alternative to collateral warranties in construction contracts. Uptake of third party rights has been slow due to familiarity with collateral warranties and concerns over control. However, recent cases indicate third party rights may avoid issues like adjudication that can arise with collateral warranties. Effective drafting and clarity around beneficiaries and their obligations can maximize the benefits of third party rights.
A Practical Guide to the Construction (Design and Management) Regulations 2015Francis Ho
The Construction (Design and Management) Regulations 2015 came into effect in April 2015 and introduced several significant changes from the 2007 regulations. Key changes include:
- Replacing the CDM Coordinator role with a new 'Principal Designer' role to have more influence over design.
- Requiring written construction phase plans for all projects, not just notifiable ones.
- Applying the regulations to domestic clients who can delegate duties to contractors.
- Introducing transitional provisions for projects that began before April 2015.
- Awaiting new, shorter guidance from the HSE to replace the abolished Approved Code of Practice.
Construction Dispute Resolution and Avoidance in a Boom MarketFrancis Ho
This document discusses construction dispute resolution and avoidance in a booming construction market. It summarizes various dispute resolution methods including (1) adjudication which provides quick, binding interim decisions but may be less suited to complex cases; (2) court proceedings through the specialist Technology and Construction Court which are suited to complex cases but slow and expensive; (3) arbitration which is confidential but can be slow to start; and (4) alternative dispute resolution methods like mediation and dispute boards. It stresses that dispute avoidance through careful contract drafting and project management is the cheapest option.
This document discusses types of letters of intent (LOIs) and provides tips for drafting binding LOIs for construction projects. It outlines four types of LOIs from non-binding to fully binding. It advises including key details in binding LOIs like scope, payment terms, standards, and timelines. It also recommends stating what happens if the final contract is not signed and having both parties execute the LOI for it to be binding. The document cautions against treating an LOI as a full contract and delaying the final contract. It also notes the primary standard form used is the City of London Law Society's but it can be awkward and out of date.
Early Dispute Resolution in the Construction IndustryFrancis Ho
The document discusses various alternative dispute resolution (ADR) methods for resolving construction disputes more efficiently than litigation. It describes problem-solving hierarchies, expert determination, dispute boards, and highlights advantages and disadvantages of each method. Problem-solving hierarchies allow issues to be referred to increasingly senior individuals until resolved, while expert determination and dispute boards utilize neutral experts to resolve technical or specialized issues more quickly than courts. However, no single ADR method is suitable for every dispute type.
Terminating a Construction Contract: Getting it RightFrancis Ho
The document discusses terminating construction contracts, including:
- The different types of termination under common law and standard form building contracts like the JCT SBC 2011.
- The JCT SBC 2011 outlines specific grounds and procedures for termination if the contractor suspends work, fails to proceed regularly, or becomes insolvent.
- Wrongful termination is a repudiatory breach that entitles the innocent party to damages but not contract reinstatement.
Olswang Construction Law Masterclass - October 2014 - Liqudated Damages and P...Francis Ho
This document discusses liquidated damages clauses in construction contracts. It defines liquidated damages as a pre-determined sum payable in the event of a specified breach of contract, and explains that they aim to provide a genuine pre-estimate of loss to avoid disputes over damages calculations. The document outlines reasons for using liquidated damages clauses and defenses against them, and analyzes how courts determine whether a clause imposes a penalty rather than reasonable damages. It also discusses implications if a challenge to liquidated damages succeeds.
Adjudication: Challenging the Adjudicator's JurisdictionFrancis Ho
The document discusses challenging an adjudicator's jurisdiction in construction disputes. It notes that the courts take a robust approach to enforcing adjudicator's decisions, allowing challenges only where the adjudicator acted without or in excess of jurisdiction or in serious breach of natural justice. However, it also presents recent cases where courts have been willing to accept genuine jurisdictional challenges. It then examines various jurisdictional issues that could be considered before and during an adjudication, such as whether the dispute has crystallized, whether it arises under the contract, whether the adjudicator was properly appointed, and whether more than one dispute is being referred.
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At Stark Builders our vision is to redefine the renovation experience by combining both stunning design and high quality construction skills. We believe that by delivering both these key aspects together we are able to achieve incredible results for our clients and ensure every project reflects their vision and enhances their lifestyle.
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June 2024 Lancaster County Sales Meeting for Berkshire Hathaway HomeServices Homesale Realty covering the following topics: 1. VA Suspends Buyer Agent Payment Plan (article), 2. Frequently Used Terms in title, 3. Zillow Showcase Overview, 4. QuickBuy commission promotion, 5. Documenting Cooperative Compensation, 6. NAR's Code of Ethics - Mass Media Solicitations, 7. Is it really cheaper to rent? 8. Do's and Don't's when Terminating the Agreement of Sale, 9. Living in an UBER World
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welcome to knox groups real estate company in Bangalore. best farm land for sale near Bangalore and madhugiri . Managed farmland near Kanakapura and Chickkabalapur get know more details about the projects .Knox groups is a leading real estate company dedicated to helping individuals and businesses navigate the dynamic real estate market. With our extensive knowledge, experience, and commitment to excellence, we deliver exceptional results for our clients. Discover the perfect foundation for your agricultural aspirations with KNOX Groups' prime farm lands. These aren't just plots; they're the fertile grounds where vibrant crops flourish, livestock thrives, and unique agricultural ventures come to life. At KNOX, we go beyond selling land we curate sustainable ecosystems, ensuring that your journey toward agricultural success is seamless and prosperous.
Dholera Smart City Latest Development Status 2024.pdfShivgan Infratech
Explore the latest development status of Dholera Smart City in 2024. Discover the progress, infrastructure, and future plans of India's first greenfield smart city.
2. Francis Ho, Head of Construction
francis.ho@olswang.com | +44 20 7067 3505 | @fkyh
Construction Law Conference 2016 4 February 2016
Developments in Construction Insurance
3. |
Current Trends
constructiveblog.comConstruction Law Conference 2016: Developments in Construction Insurance3
• Building Information Modelling
• Integrated Project Insurance
• Inherent Defects Insurance (Latent Defects Insurance)
4. |
Building Information Modelling
constructiveblog.comConstruction Law Conference 2016: Developments in Construction Insurance4
• 3D digital representation of a facility or building
• Information on physical and functional aspects
• Data shared and manipulated between project participants
• Government deadline of April 2016 for adoption of Level 2 BIM
5. |
BIM: 4 Levels of Maturity
constructiveblog.comConstruction Law Conference 2016: Developments in Construction Insurance5
• Level 0: No BIM (e.g. 2D drawings)
• Level 1: Partial BIM (e.g. some CAD, some 2D drawings)
• Level 2: Federated BIM model (but separate 3D models from each participant)
• Level 3: True BIM; single model
6. |
BIM and Professional Indemnity Insurance
constructiveblog.comConstruction Law Conference 2016: Developments in Construction Insurance6
• Building magazine/Zurich Insurance BIM and insurance survey in 2013
• 43% of contractors believe BIM will lead to increased PII premiums
• 87% of insurers believed BIM made no difference but 8% reluctant to insure
• What about Level 3?
• Potential issues
• Who is liable for what?
• Who owns the intellectual property in data?
• Is application of design being extended?
• Cyber liability
• Should premiums reduce?
7. |
Integrated Project Insurance
constructiveblog.comConstruction Law Conference 2016: Developments in Construction Insurance7
• 2011 Government Construction Strategy
• Latham (1994) and Egan (1998)
• Moving away from “blame game” and towards better integration
• IPI covers losses for whole project not liabilities
8. |
Integrated Project Insurance
constructiveblog.comConstruction Law Conference 2016: Developments in Construction Insurance8
• Replaces PI, CAR, Public and Latent Defects (possibly also consequential loss and
late completion)
• For every £5 spent on costs, £1 spent by insurers (Griffiths & Armour)
• Excess shared by project team members under pain-share
• Cost fixed at 2.5% of construction cost
• Covers all team (including supply chains)
9. |
Integrated Project Insurance – Different measures of success
constructiveblog.comConstruction Law Conference 2016: Developments in Construction Insurance9
• Performance is measured against agreed success criteria
• Creates roles of Independent Facilitator, Technical Independent Risk Assuror and
Financial Independent Facilitator
• Project board takes control of project. Client sits on project board
• Target cost and project solution are insured and insurer has recourse to TIRA and
FIRA
• An end to collateral warranties and third party rights
10. |
Integrated Project Insurance – Thoughts
constructiveblog.comConstruction Law Conference 2016: Developments in Construction Insurance10
• Alliancing model
• Insurer becomes active project participant
• Insurer covenant is critical
• Project team has to be competitively appointed
• Beware of exclusions
11. |
Integrated Project Insurance – Thoughts
constructiveblog.comConstruction Law Conference 2016: Developments in Construction Insurance11
• Savings on duplicated insurance cover
• First trial project commenced April 2015 (Dudley College (Centre for Advanced
Building Technologies))
• Private sector has adopted wait and see approach
• Viable for projects within £10m to £25m range but larger projects may be suited in
future
• Only solution to insuring BIM Level 3
12. |
Inherent Defects Insurance
constructiveblog.comConstruction Law Conference 2016: Developments in Construction Insurance12
• What does an IHD policy cover?
• Latent Defects Act 1980:
“defects that are not immediately apparent and which cannot be discovered by a
reasonable inspection of the property”
• On top of buildings insurance
• What is it procured?
• Purchaser expectation
• Tenant expectation
• Problems/concerns with collateral warranty/third party rights package
13. |
Inherent Defects Insurance
constructiveblog.comConstruction Law Conference 2016: Developments in Construction Insurance13
• Cover up to a specified level of indemnity
• Are they available retrospectively?
• Take effect 12 months after practical completion
• Insurers will wish to be able to subrogate against construction team
14. |
Advantages and disadvantages
constructiveblog.comConstruction Law Conference 2016: Developments in Construction Insurance14
IHD Collateral Warranties/Third Party
Rights
No fault Need to prove loss
Endure 10/12 years 6 or 12 year duration
Freely assignable to successors Limited assignments
Insurer offers stronger covenant Contractor covenant less certain
Extent of cover narrow Broader protection offered
Premiums can be high Costs are well-known
Policy excess applies No deductibles
15. |
Inherent Defects Insurance
constructiveblog.comConstruction Law Conference 2016: Developments in Construction Insurance15
• Must remember to treat as an insurance policy
• Is there increased demand for IHD insurance?
• Is it just laziness or is there a genuine need for IHD on projects?
16. Ben Worthington, Senior Associate
ben.worthington@olswang.com | +44 20 7067 3541 | @disputes_lawyer
Construction Law Conference 2016 4 February 2016
Payment in Construction Contracts
17. |
Payment regime – the basic principles
constructiveblog.comConstruction Law Conference 2016: Payment in Construction Contracts17
• The employer must pay the notified sum
• The notified sum is the sum stated in the payment notice
• The payment notice can be given by (or on behalf of) the employer or by the contractor
• If the employer is required to give a payment notice and doesn’t, the notified sum is that
stated in the contractor’s payment application
• If the employer wants to pay less than the notified sum, it can issue a pay less notice
• Right to adjudication
18. |
Failure to serve payment and pay less notices
constructiveblog.comConstruction Law Conference 2016: Payment in Construction Contracts18
(1) ISG Construction Ltd v Seevic College (2014)
• If E fails to serve any valid notices, it must be taken to be agreeing the value stated in the
application
• contractor becomes entitled to the amount stated in the interim application irrespective of the
true value of the work actually carried out
• E cannot start a second adjudication on the same interim payment application
(2) Galliford Try Building Ltd v Estura Ltd (2015)
• E cannot bring a second adjudication to determine the value of the work at the valuation date
of the interim application in question
• But there was nothing to prevent the E challenging the value of the work on the next
application
19. |
Interim applications and overpayment
constructiveblog.comConstruction Law Conference 2016: Payment in Construction Contracts19
• Many contracts do not allow for a negative valuation - an overpaid contractor cannot be
compelled to repay money to the employer on the next valuation date
• If E fails to serve a valid notice it may be able to adjust for any overpayment in the next
payment cycle
• BUT whether this will work depends upon the timing and amount of the application
• E may have to wait until the final account stage then issue proceedings to recover any
overpayment
• It might be possible to challenge the contractor’s application
• In summary, serve the notices !!!
20. |
Final accounts - Harding t/a MJ Harding Contractors v Paice
(Court of Appeal) (2015)
constructiveblog.comConstruction Law Conference 2016: Payment in Construction Contracts20
• Failure to serve valid pay less notice did not mean E was deemed to have agreed the value
of C’s termination account
• E was entitled to adjudicate in order to determine the correct value of Harding’s claims and
their counterclaims in the termination account
• ISG v Seevic and Galliford Try v Estura do not apply to final accounts
21. |
What constitutes a valid application for payment?
constructiveblog.comConstruction Law Conference 2016: Payment in Construction Contracts21
(1) The Timing of the Application
Leeds City Council v Waco UK Ltd (2015):
• Applications had to made on the dates set out in the contract but parties had established
through conduct of CA that applications made 3 – 4 days late would be processed
• Applications could not be made early – they must "state the financial position as at that date"
(i.e. at the date stated in the contract)
• E had certified and paid one application that had been made early - that was a one-off / no
waiver
• As the application was made earlier than the valuation date, the application was invalid
22. |
What constitutes a valid application for payment?
constructiveblog.comConstruction Law Conference 2016: Payment in Construction Contracts22
(2) It must be sufficiently clear that the document is an application for payment
Caledonian Modular Ltd v Mar City Developments Ltd (2015)
• C made interim applications in the same format at the end of each month
• On 13 February it issued a “final account application summary” and supporting documents during final account
negotiations
• No pay less notice served against these documents – adjudicator considered the documents constituted a payment
application and awarded C £1.5m
Held:
• C’s interim application was invalid because the documents did not identify themselves as a new application for payment
• Further, it was made two weeks early – a valid interim application was made at the end of January, and no further
application could be made until 28 February
• C’s interim application “... must be clear that it is what it purports to be so that the parties know what to do about it and
when.”
23. |
What constitutes a valid application for payment?
constructiveblog.comConstruction Law Conference 2016: Payment in Construction Contracts23
(3) The application must be free from ambiguity
Henia Investments v Beck Interiors Limited (2015)
• The IA issue number and valuation date indicated that it related to April, but it was served too late for the
April due date
• Court considered that it was not a valid application in respect of the May date - E could not reasonably
have understood the application to relate to the April due date (as it was too late) or the May due date
(as it was early and only referred to April )
• “the document relied upon as an Interim Application… must be in substance, form and intent an Interim
Application stating the sum considered by the Contractor as due at the relevant due date and it must be
free from ambiguity.”
Severfield (UK) Ltd v Duro Felguera UK Ltd (2015)
A valid application for payment must:
• Set out the total sum said to be due
• Set out the basis on which that sum has been calculated
• Be clear and free from ambiguity
24. |
Taking control of the payment process
constructiveblog.comConstruction Law Conference 2016: Payment in Construction Contracts24
• Do not get caught out by lack of notices !!!
• Consider contract term that allows any overpayment on an interim payment to be repayable
on the next valuation (negative valuation)
• Consider making payment due date the same date each month and synchronize payment
due dates across all projects
• Do not allow contractor to submit interim applications later than the dates specified in the
contract
• Make sure notices are clear, unambiguous and timely
26. |
Cavendish Square Holding BV v El Makdessi and ParkingEye
Ltd v Beavis [2015]
constructiveblog.comConstruction Law Conference 2016: Case Law Update26
• Liquidated damages are a pre-determined sum which become payable by a party in
the event of a specified breach of contract (for example a delay to the completion
date)
• The innocent party need not establish any loss or damage, only that the
circumstances triggering payment has occurred
• Parties on the receiving end of claims for liquidated damages may look at ways of
avoiding them, usually by claiming that the provision is a penalty clause (English
law will not enforce penalty clauses)
27. | Construction Law Conference 2016: Case Law Update27
The position before Cavendish in relation to penalty clauses
• Based on a tangle of case law and has evolved over time
• Is the sum payable a genuine pre-estimate of the innocent party’s loss as a result of
the specified breach? (Dunlop)
• If yes, it’s not a penalty clause
• Or is the sum extravagant and unconscionable when compared to the greatest loss
that the innocent party could suffer as a result of the breach?
• If yes, it’s an unenforceable penalty clause
• However, courts do not want to interfere with the parties’ freedom to contract on
whatever terms they choose, so they have in recent years adopted a more
commercial approach
constructiveblog.com
28. | Construction Law Conference 2016: Case Law Update28
What happened in Cavendish?
• Mr Makdessi agreed to sell to Cavendish a controlling stake in the holding company
of a marketing communications group in the Middle East
• The agreement stated that if he was in breach of certain restrictive covenants
against competing activities, Mr Makdessi would not be entitled to receive the final
two instalments of the price paid by Cavendish
• He would also be required to sell his shares to Cavendish at a price excluding the
value of the goodwill of the business
• Here, monetary compensation was not the only legitimate interest which Cavendish
might have in the performance of the obligations under the agreement
• It was therefore more important that the courts looked at the commercial context of
the deal rather than whether the sum payable was a genuine pre-estimate of the
innocent party’s loss
constructiveblog.com
29. | Construction Law Conference 2016: Case Law Update29
The new test
• The Court decided not to modify the current law surrounding penalties, but rather to
better codify the test
• A clause will be a penalty where it imposes a detriment on the guilty party “out of all
proportion to any legitimate interest of the innocent party” in the enforcement of the
specific obligation
• How this will apply in practice:
• The courts will still consider whether the sum payable is exorbitant or
unconscionable, but this will be considered in the context of a party’s legitimate
interest in the proper performance of the contract (i.e. they will take a
‘commercial view’)
• Whether this will impact on standard delay liquidated damages in construction
contracts remains to be seen – but it may make challenging a liquidated
damages provision on the grounds that it’s a penalty even harder
constructiveblog.com
30. |
Bloomberg LP v Sandberg and Others [2015]
constructiveblog.comConstruction Law Conference 2016: Case Law Update30
• Bloomberg entered into an agreement for lease at 15 Finsbury Square
• They received collateral warranties from various contractors in relation to works
carried out at the Property including from Sandberg, Buro Happold and from
Malling Pre-cast Limited
• In 2001, two cladding tiles fell from the building. Investigative works were carried
out, a condition survey was produced and Malling carried out remedial works to the
cladding. On 8 July 2013 a soffit cladding tile fell to the pavement from the seventh
floor of the Property
• Sandberg and Buro Happold had carried out certain investigative works and
provided the condition survey during 2001 and 2002
31. | constructiveblog.comConstruction Law Conference 2016: Case Law Update31
• The warranty in favour of Bloomberg from Malling contained the following limitation
clause (clause 6):
“Notwithstanding the date hereof no proceedings shall be commenced
against the Contractor after the expiry of twelve years from the date of issue
of the last written statement by the Client that practical completion of the
Project has been achieved under the Contract.”
• The ‘last written statement by the Client that practical completion of the project had
been achieved’ was given on 29 August 2000
• Bloomberg out of time under the Malling warranty to bring a claim directly against
Malling. They instead issued claim forms against Sandberg and Buro Happold
• Sandberg brought a claim against Malling for a contribution from Malling pursuant
to the Civil Liability (Contribution) Act 1978 (the “Act”)
32. | constructiveblog.comConstruction Law Conference 2016: Case Law Update32
• Clause 1 of the Act provides:
“(1) Subject to the following provisions of this section, any person liable in
respect of any damage suffered by another person may recover contribution
from any other person liable in respect of the same damage (whether jointly
with him or otherwise).
. . .
(3) A person shall be liable to make contribution by virtue of subsection (1)
above notwithstanding that he has ceased to be liable in respect of the
damage in question since the time when the damage occurred, unless he
ceased to be liable by virtue of the expiry of a period of limitation or
prescription which extinguished the right on which the claim against him in
respect of the damage was based.”
• Malling resisted relying on the clause 6 wording, arguing that the words “no
proceedings shall be commenced against the Contractor” was meant to be
construed to mean that “no proceedings” included proceedings by any other party
33. | constructiveblog.comConstruction Law Conference 2016: Case Law Update33
• Mr Justice Fraser noted that the words used in the clause were clear. There was no
ambiguity. “No proceedings” in the context of a warranty between Bloomberg and
Malling, could only mean proceedings by Bloomberg
• He noted that the overall effect of Malling’s arguments would be that parties could
effectively “contract out” of the operation of the Act, an act that had been put in
place by Parliament to benefit other third parties
Relevance
• Not a surprising result, but clarifies the impact of limitation clauses within
appointments and collateral warranties
• Enforced principles to be adopted in the process of contractual construction stated
in Arnold v Britton [2015] UKSC 36 – although commercial common sense and
surrounding circumstances may be relied upon as aids to construction, they should
not undervalue the importance of the language of the provision itself
• The exercise of interpreting a provision involves identifying what the parties meant
through the eyes of a reasonable reader
34. |
MW High Tech Projects UK Ltd v Haase Environmental
Consulting GmbH [2015]
constructiveblog.comConstruction Law Conference 2016: Case Law Update34
• In June 2010 MW High Tech, the contractor, was awarded an engineer, procure
and construct contract to build a waste to energy plant
• HEC was engaged by the Contractor as a process engineering design consultant
• Clause 5.9.1 of the appointment required HEC to use “all the reasonable skill, care
and diligence to be expected of properly qualified and competent design
professional experienced in the design of works similar in size, scope, nature and
complexity to the Process Technology.”
• The appointment also required HEC to design the works in accordance with the
EPC output specification and the delivery plan (the “Requirements”)
35. | constructiveblog.comConstruction Law Conference 2016: Case Law Update35
• After the contractor and HEC had entered into the formal appointment, HEC had
developed the design to include features not present in the basic design. The
contractor alleged that the new features were not required by the Requirements,
but had caused the contractor to incur increased costs
• As the additional features would not be treated as variations under the contract, the
contractor could not recover those additional costs from the employer. The
contractor accordingly claimed the additional costs from HEC
• An adjudication found in HEC’s favour and so the contractor brought the issue to
the TCC
• The Court held that on a proper construction of the appointment, the requirement to
comply with the Requirements was “subject to the Consultant's overriding
obligation to exercise reasonable skill and care as more particularly provided in
clause 5.9.1.”
• Further the Court concluded that “[i]n the hierarchy of the principal obligations, the
obligation to exercise reasonable skill and care is paramount.”
36. | constructiveblog.comConstruction Law Conference 2016: Case Law Update36
• The Judge, however, found that as a matter of proper contractual construction, the
obligation to comply with the EPC Requirements could be read as an independent
obligation alongside the over-riding obligation to take reasonable skill and care
• The only qualification to the strict requirement to comply with the EPC
Requirements would be if it would be negligent for HEC to design in accordance
with a certain part of the latter they would not be obliged to comply with that part of
the EPC Requirements
• This follows an earlier ruling in Costain v Haswell & Partners Ltd [2009] which
related to an appointment which had a skill and care obligation and an obligation
for the works designed under the appointment to meet the requirements set out in
the specification
Relevance?
• A “reasonable skill and care” qualification may serve to increase the consultant’s
liability rather than reducing it since compliance with a strict obligation could put the
consultant in breach of its skill and care obligation
37. | constructiveblog.comConstruction Law Conference 2016: Case Law Update37
• By the same token, a non-negligent breach of the specifications could still
constitute a breach
• In order to be sure that an appointment does not impose “fitness for purpose” and
other strict obligations which may not be backed by PI insurance, it is crucial to
ensure that any “strict” obligations in the appointment are expressly qualified by
wording such as “The Consultant shall exercise the standard of skill and care
required by clause [ ] to see that...”
38. |
Caterpillar Motoren GmbH & Co KG v Mutual Benefits
Assurance Company [2015]
constructiveblog.comConstruction Law Conference 2016: Case Law Update38
• An on-demand bond is a primary obligation that takes the form of an undertaking
from the bondsman to pay a sum of money to the employer without reference to the
liability of the contractor
• As such, it tends to include phrases such as “on-demand”, payment “without proof
or conditions”, and payment upon “first written demand”, all of which are indicative
of on-demand bonds
• Payment guarantees, on the other hand, are secondary obligations in which the
bondsman’s liability to pay the employer is contingent upon a breach by the
contractor of the underlying construction contract (in other words they act as a form
of insurance)
• If the employer cannot establish a breach by the contractor then the bondsman has
no liability to pay. Payment guarantees may mention the words “guarantee” and
“lawful claims” or include other wording that is suggestive of a secondary obligation
39. | constructiveblog.comConstruction Law Conference 2016: Case Law Update39
Wuhan Gouyu Logistics Group C Ltd and another v Emporiki Bank of Greece SA
[2013]
Presumption that a bond is an on-demand bond where:
i. It relates to an underlying transaction between parties in different jurisdictions;
ii. It is issued by a bank;
iii. It contains an undertaking to pay “on demand”; and
iv. It does not contain clauses excluding or limiting the defences that are available
to a guarantor
40. | constructiveblog.comConstruction Law Conference 2016: Case Law Update40
The Facts of the case
• Caterpillar entered into two sub-contracts for the provision of construction services
in relation to two power plants. Each sub-contract (which was in materially identical
terms) required the sub-contractor to procure an advance payment bond (“APB”)
and a performance bond (“PB”) in favour of Caterpillar.
• The APBs were described as instruments that guaranteed the due performance by
the sub-contractor for an advance payment made by Caterpillar to the sub-
contractor
• The PBs were described as instruments that guaranteed the due performance of all
work by the sub-contractor.
• Disputes subsequently arose between Caterpillar and the sub-contractor and
Caterpillar demanded the return of advance payments and also a sum in respect of
liquidated damages
41. | constructiveblog.comConstruction Law Conference 2016: Case Law Update41
The Decision
• The Court considered the terms of each bond
APBs
• “guarantees and undertakes to pay” “forthwith on demand” and “without reference
to” the contractor
• The word “guarantees” could be suggested to mean that the parties intended that
bondsman would only pay where the sub-contractor had failed to perform its
obligations, whereas the words “forthwith on demand” and “without reference to”
the contractor suggested bondsman’s liability was to pay the sum which was
demanded by Caterpillar
• Met the Wuhan requirements for an on-demand bond
42. | constructiveblog.comConstruction Law Conference 2016: Case Law Update42
PBs
• Ability to pay “lawful” claims which tended to suggest a payment guarantee over an
on-demand bond
• There was also an obligation upon bondsman to pay Caterpillar once Caterpillar
had declared that sub-contractor was in default, but bondsman was to pay
“unconditionally” “the amount of damages claimed by” Caterpillar, which was
inconsistent with the concept of lawful claims and payment guarantees
• The deciding factor, however, was that any demand was expressed as being
“conclusive” as regards the amount that was due from bondsman, which left no
doubt that the PBs were on-demand bonds as opposed to payment guarantees
Lessons
• Look beyond the name of the instrument
• Look at the language
• Apply the Wuhan test
• Draft clearly to avoid uncertainty
44. |
Hypothetical scenario
constructiveblog.comConstruction Law Conference 2016: The role of lawyers in a Reputational Crisis44
• Buildem High plc is a substantial player in the construction industry which has
publicly denounced blacklisting.
• An anonymous internet user "BuildemLow" has posted on an internet discussion
forum that a "whistleblower" has revealed "explosive documents" which apparently
show that "Buildem High engaged in blacklisting practices 4 years ago".
• The posting has been tweeted and is causing a stir on Twitter.
• The Mail on Sunday has called the press office asking for comment.
• A temporary employee called Jane, who left under a cloud several weeks ago, is
suspected of being responsible for the allegations. A review of her emails has
revealed that she sent an email from her work email account to her Hotmail
account with a copy of confidential internal report on blacklisting.
• The report concludes that "Whilst conversations about blacklisting clearly took
place at Buildem in September 2012, we are confident they were not acted upon."
45. |
Issues
constructiveblog.comConstruction Law Conference 2016: The role of lawyers in a Reputational Crisis45
• How should Buildem deal with the Mail on Sunday?
• How should Buildem deal with "BuildemLow" and Twitter?
• What is the role of the legal team (internal and external) in the unfolding crisis?
• What can be done once the heat has died down to better prepare for the future?
46. |
How should Buildem deal with the Mail on Sunday?
constructiveblog.comConstruction Law Conference 2016: The role of lawyers in a Reputational Crisis46
• The first call with a hostile journalist
• Do not respond "no comment"
• Take contact details
• Ascertain deadline
• The twin track approach (law/PR)
• Ask for further information and ascertain the underlying allegations (preferably in
writing)
• "Reynolds push back"
• Delay tactics
• On the record / off the record comments
47. |
How should Buildem deal with "BuildemLow"?
constructiveblog.comConstruction Law Conference 2016: The role of lawyers in a Reputational Crisis47
• Take screen shots and analyse content
• Assess the extent of the damage (who has noticed and republished?)
• Cross-check against internal information/data
• Consider Norwich Pharmacal disclosure orders to identify BuildemLow
• Consider injunction against "persons unknown"
• Consider the impact of engaging (the "Streisand effect")
48. |
How should Buildem High deal with Twitter?
constructiveblog.comConstruction Law Conference 2016: The role of lawyers in a Reputational Crisis48
• Assess extent of the damage
• Consider carefully whether to engage at all
• Timing is critical – the conversation will move on quickly
• Surgical removal if necessary
• Obtaining information from Twitter
49. |
What is the role of the legal team in a crisis?
constructiveblog.comConstruction Law Conference 2016: The role of lawyers in a Reputational Crisis49
• Assessors of risk (insurance, litigation, regulatory scrutiny)
• Martials of the facts
• Work closely with communications and operations to ensure consistency with the
facts
• Project managers(calls, meetings, updates)
• Set communications protocols to protect confidentiality and privilege (e.g. assign
project name, encrypt documents, email restrictions)
• Instruct outside advisors (for privilege reasons)
• Auditors of steps taken
50. |
What can be done to improve preparedness?
constructiveblog.comConstruction Law Conference 2016: The role of lawyers in a Reputational Crisis50
• Form a crisis team
• Brainstorm the types of crisis that might hit your company
• Draft a simple crisis plan which is accessible and can be easily updated
• Use checklists for specific subject matters (e.g. data breach) rather than
prescriptive "to do lists" and flow charts
• Practice using "war games" in different scenarios
• Know who to call internally and externally
• Ascertain your online footprint and key influencers