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.
Increasing SME participation in procurements
Angelica Hymers
Local authorities power on fracking to be limited?
Emma Braidwood
PCER, DPA and satisfaction surveys
Megan Larrinaga
FOI review: the increasing burden
Emma Graham
Putting a stop to public procurement boycotts
Tom Nanson
Potential employment law implications of a ‘Brexit’
Sarah Hooton
The Environment (Wales) Act 2016
Ben Standing
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
UK Adjudicators are an Adjudicator Nominating Body (ANB) for the United Kingdom and International construction and engineering industries.
www.ukadjudicators.co.uk
February 2019 newsletter of UK Adjudicators.
MACOB 20 years on
NSW adjudication
Hong Kong adjudication
2019 Edinburgh Adjudication and Arbitration Conference
Bresco Electrical Services Ltd v Michael J Lonsdale (Electrical) Ltd [2019] EWCA Civ 27 (24 January 2019)
In our first edition of 2014, we:
• continue with our series on the new public procurement directive, this month analysing subcontracting under the new directive
• include articles on conflicts of interest in the shared services context and the new state aid de minimis regulation
• Anja Beriro discusses what is on the legal horizon for 2014.
UCT wayfinder - new guidance for businesses still transitioning to the unfair...Erin Tanner
Our latest update regarding the Federal Court's decision against JJ Richards. The update includes a wayfinder tool to help businesses navigate the unfair contracts provisions and ensure documents are compliant.
Vietnam – Infrastructure and Waste Treatment Sector – Current Issues and Solu...Dr. Oliver Massmann
Vietnam – Infrastructure and Waste Treatment Sector – Current Issues and Solutions for Investment and Outlook on the Major Trade Deals CPTPP, EUVNFTA and the EU Vietnam Investment Protection Agreement (IPA)
This paper was written in 2001 as part of the CEPMLP's LLM in Petroleum Law and Policy program. It examines the main contractual components of a typical BOT arrangement and the terms that should be included to enhance bankability.
UK Adjudicators are an adjudicator nominating body who nominate sole adjudicators and dispute board members in the United Kingdom and internationally. The nomination service is a free service to the parties.
The June newsletter features adjudication cases from the UK, NSW, Singapore and updates from Canada and NSW on adjudication legislation.
UK Adjudicators are an adjudicator nominating body with the largest multi disciplinary panel in the UK.
Adjudicator nominations are made free of charge.
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.
Increasing SME participation in procurements
Angelica Hymers
Local authorities power on fracking to be limited?
Emma Braidwood
PCER, DPA and satisfaction surveys
Megan Larrinaga
FOI review: the increasing burden
Emma Graham
Putting a stop to public procurement boycotts
Tom Nanson
Potential employment law implications of a ‘Brexit’
Sarah Hooton
The Environment (Wales) Act 2016
Ben Standing
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
UK Adjudicators are an Adjudicator Nominating Body (ANB) for the United Kingdom and International construction and engineering industries.
www.ukadjudicators.co.uk
February 2019 newsletter of UK Adjudicators.
MACOB 20 years on
NSW adjudication
Hong Kong adjudication
2019 Edinburgh Adjudication and Arbitration Conference
Bresco Electrical Services Ltd v Michael J Lonsdale (Electrical) Ltd [2019] EWCA Civ 27 (24 January 2019)
In our first edition of 2014, we:
• continue with our series on the new public procurement directive, this month analysing subcontracting under the new directive
• include articles on conflicts of interest in the shared services context and the new state aid de minimis regulation
• Anja Beriro discusses what is on the legal horizon for 2014.
UCT wayfinder - new guidance for businesses still transitioning to the unfair...Erin Tanner
Our latest update regarding the Federal Court's decision against JJ Richards. The update includes a wayfinder tool to help businesses navigate the unfair contracts provisions and ensure documents are compliant.
Vietnam – Infrastructure and Waste Treatment Sector – Current Issues and Solu...Dr. Oliver Massmann
Vietnam – Infrastructure and Waste Treatment Sector – Current Issues and Solutions for Investment and Outlook on the Major Trade Deals CPTPP, EUVNFTA and the EU Vietnam Investment Protection Agreement (IPA)
This paper was written in 2001 as part of the CEPMLP's LLM in Petroleum Law and Policy program. It examines the main contractual components of a typical BOT arrangement and the terms that should be included to enhance bankability.
UK Adjudicators are an adjudicator nominating body who nominate sole adjudicators and dispute board members in the United Kingdom and internationally. The nomination service is a free service to the parties.
The June newsletter features adjudication cases from the UK, NSW, Singapore and updates from Canada and NSW on adjudication legislation.
UK Adjudicators are an adjudicator nominating body with the largest multi disciplinary panel in the UK.
Adjudicator nominations are made free of charge.
UK Adjudicators 2021 London Adjudication & Arbitration Conference pack with speakers slides. Speakers included:
Marion Smith QC 39 ESSEX / CIARB
Daniel Miles AQUILA FORENSICS
Abdul Jinadu KEATING CHAMBERS / UK ADJUDICATORS
Jeremy Glover FENWICK ELLIOTT
Sean Gibbs UK ADJUDICATORS / HANSCOMB INTERCONTINENTAL
Seamus O’Doherty BRG / RICS / UK ADJUDICATORS
Sean Fishlock BRG
Matt Finn ANKURA / UK ADJUDICATORS
Iain Aitchison ANKURA / UK ADJUDICATORS
Giorgiana Tecuci SCPA TECUCI PĂLTINEANU / DRBF / FIDIC
Brandon Malone SAC / RICS / CIARB / UK ADJUDICATORS
Chantelle Humphries THE BRIDGE GROUP OF ADVOCATES / UK ADJUDICATORS
Robert Sliwinski SWL CHAMBERS / UK ADJUDICATORS
Patrick Waterhouse BOWDON CONSULTING / UK ADJUDICATORS
Peter Aeberli 3PB / UK ADJUDICATORS
Karen Gough 39 ESSEX
Johan Beyers KEATING CHAMEBRS
Robert Werth WERTH CONSULTING
Dean Sayers SAYERS COMMERCIAL / UK ADJUDICATORS
Lisa Cattanach CDR / RICS / UK ADJUDICATORS
Suryen Nullamtamby BIRKETT LONG LLP / UK ADJUDICATORS
John Cock ON Q CONSULTING COLLABORATING WITH HANSCOMB INTERCONTINENTAL
Glenn Haley BRYAN CAVE LEIGHTON PAISNER LLP
Albert Yeu AECOM / UK ADJUDICATORS
Paul Checketts HANSCOMB INTERCONTINENTAL / UK ADJUDICATORS
Jonathan Pawlowski COLLYER BRISTOW
Jessica Tresham WOMBLE BOND DICKINSON
Philip Harris WRIGHT HASSALL
Justin Mort QC KEATING CHAMBERS
Giovanni Di Folco TECHNO ENGINEERING / DRBF
Adriana Spassova EQE / DRBF / FIDIC
Sharon McGahey BLACKROCK EXPERT SERVICES
Yasemin Cetinel CENTINEL LAW FIRM
Bernadette Barker BARKER CONSULTANTS
Giorgiana Tecuci SCPA TECUCI PALTINEAU
James Bridgeman SC 4-5 GRAYS INN / ARBITRATOR
Damain James DAMIAN JAMES QUANTUM & DELAY / UK ADJUDICATORS
Peter Clyde ADDLESHAW GODDARD LLP
Panel subjects and programme:
Conference 9.05am to 5.00pm (ZOOM)
09.15 to 10.30 Defining and achieving diversity in tribunals
10.30 to 10.45 break
10.45 to 12.00 Controlling costs by capping fees of tribunal members
12.00 to 12.45 Governing Law after Brexit
12.45 to 13.15 lunch
13.15 to 14.30 Statutory ADR or contractual ADR ?
14.30 to 14.45 break
14.45 to 16.00 Do experts discharge their duties to the tribunal ?
16.00 to 17.00 Management of delinquent party behaviour !
UK Adjudicators 2021 London Adjudication & Arbitration Conference has leading speakers from law firms, barristers chambers, expert firms and adjudicators and arbitrators.
UK Adjudicators London 2021 Conference
Marion Smith QC 39 ESSEX / CIARB
Daniel Miles AQUILA FORENSICS
Abdul Jinadu KEATING CHAMBERS / UK ADJUDICATORS
Jeremy Glover FENWICK ELLIOTT
Sean Gibbs UK ADJUDICATORS / HANSCOMB INTERCONTINENTAL
Seamus O’Doherty BRG / RICS / UK ADJUDICATORS
Sean Fishlock BRG
Matt Finn ANKURA / UK ADJUDICATORS
Iain Aitchison ANKURA / UK ADJUDICATORS
Murray Armes SENSE STUDIO / UK ADJUDICATORS
Giorgiana Tecuci SCPA TECUCI PĂLTINEANU / DRBF / FIDIC
Brandon Malone SAC / RICS / CIARB / UK ADJUDICATORS
Chantelle Humphries THE BRIDGE GROUP OF ADVOCATES / UK ADJUDICATORS
Robert Sliwinski SWL CHAMBERS / UK ADJUDICATORS
Patrick Waterhouse BOWDON CONSULTING / UK ADJUDICATORS
Peter Aeberli 3PB / UK ADJUDICATORS
Karen Gough 39 ESSEX
Johan Beyers KEATING CHAMEBRS
Robert Werth WERTH CONSULTING
Dean Sayers SAYERS COMMERCIAL / UK ADJUDICATORS
Lisa Cattanach CDR / RICS / UK ADJUDICATORS
Suryen Nullamtamby BIRKETT LONG LLP / UK ADJUDICATORS
John Cock ON Q CONSULTING COLLABORATING WITH HANSCOMB INTERCONTINENTAL
Glenn Haley BRYAN CAVE LEIGHTON PAISNER LLP
Albert Yeu AECOM / UK ADJUDICATORS
Paul Checketts HANSCOMB INTERCONTINENTAL / UK ADJUDICATORS
Jonathan Pawlowski COLLYER BRISTOW
Jessica Tresham WOMBLE BOND DICKINSON
Philip Harris WRIGHT HASSALL
Justin Mort QC KEATING CHAMBERS
Giovanni Di Folco TECHNO ENGINEERING / DRBF
Adriana Spassova EQE / DRBF / FIDIC
Sharon McGahey BLACKROCK EXPERT SERVICES
Yasemin Cetinel CENTINEL LAW FIRM
Bernadette Barker BARKER CONSULTANTS
Giorgiana Tecuci SCPA TECUCI PALTINEAU
James Bridgeman SC 4-5 GRAYS INN / ARBITRATOR
Damian James DAMIAN JAMES QUANTUM & DELAY / UK ADJUDICATORS
Peter Clyde ADDLESHAW GODDARD LLP
Hanscomb Intercontinental CEO Sean Gibbs spoke alongside Katie Pickering (BPE Solicitors LLP) and Keith Blizzard HCR Hewitsons) at the recent Constructing Excellence Gloucestershire Club webinar on Material Shortages and Fluctuations clauses in standard from contracts.
Contracts discussed included JCT/NEC/FIDIC & ICHEME
If you need advice do get in touch
info@hanscombintercontinental.co.uk
UK Adjudicators has the UK's largest largest multi-disciplinary panel of adjudicators and as one of the leading Adjudicator Nominating Bodies will nominate an adjudicator to resolve your dispute at cost.
UK Adjudicators London 2021 Adjudication & Arbitration Conference takes place on the 19 August as a hybrid event.
Speakers include:
Marion Smith QC 39 ESSEX / CIARB
Daniel Miles AQUILA FORENSICS
Abdul Jinadu KEATING CHAMBERS / UK ADJUDICATORS
Jeremy Glover FENWICK ELLIOTT
Sean Gibbs UK ADJUDICATORS / HANSCOMB INTERCONTINENTAL
Seamus O’Doherty BRG / RICS / UK ADJUDICATORS
Sean Fishlock BRG
Matt Finn ANKURA / UK ADJUDICATORS
Iain Aitchison ANKURA / UK ADJUDICATORS
Murray Armes SENSE STUDIO / UK ADJUDICATORS
Giorgiana Tecuci SCPA TECUCI PĂLTINEANU / DRBF / FIDIC
Brandon Malone SAC / RICS / CIARB / UK ADJUDICATORS
Chantelle Humphries THE BRIDGE GROUP OF ADVOCATES / UK ADJUDICATORS
Robert Sliwinski SWL CHAMBERS / UK ADJUDICATORS
Patrick Waterhouse BOWDON CONSULTING / UK ADJUDICATORS
Peter Aeberli 3PB / UK ADJUDICATORS
Karen Gough 39 ESSEX
Johan Beyers KEATING CHAMEBRS
Robert Werth WERTH CONSULTING
Dean Sayers SAYERS COMMERCIAL / UK ADJUDICATORS
Lisa Cattanach CDR / RICS / UK ADJUDICATORS
Suryen Nullamtamby BIRKETT LONG LLP / UK ADJUDICATORS
John Cock ON Q CONSULTING COLLABORATING WITH HANSCOMB INTERCONTINENTAL
Glenn Haley BRYAN CAVE LEIGHTON PAISNER LLP
Albert Yeu AECOM / UK ADJUDICATORS
Paul Checketts HANSCOMB INTERCONTINENTAL / UK ADJUDICATORS
Jonathan Pawlowski COLLYER BRISTOW
Jessica Tresham WOMBLE BOND DICKINSON
Philip Harris WRIGHT HASSALL
Justin Mort QC KEATING CHAMBERS
Giovanni Di Folco TECHNO ENGINEERING / DRBF
Adriana Spassova EQE / DRBF / FIDIC
Sharon McGahey BLACKROCK EXPERT SERVICES
Yasemin Cetinel CENTINEL LAW FIRM
Bernadette Barker BARKER CONSULTANTS
Giorgiana Tecuci SCPA TECUCI PALTINEAU
James Bridgeman SC 4-5 GRAYS INN / ARBITRATOR
Damain James DAMIAN JAMES QUANTUM & DELAY / UK ADJUDICATORS
Peter Clyde ADDLESHAW GODDARD LLP
The need for dispute boards on international waste to energy projects was presented to Dispute Resolution Board Foundation members and guests by Sean Gibbs of Hanscomb Intercontinental in May 2021.
UK Adjudicators are the largest multi-disciplinary adjudicator nominating panel in the United Kingdom.
We offer free adjudicator nominations and also a capped fee scheme
UK Adjudicators are an adjudicator nominating body for construction disputes and have the largest multi-disciplinary panel of adjudicators in the United Kingdom.
Hanscomb Intercontinental are pleased to be a supporting patron of the Vis East Moot.The programme for the week long event provides details on the competing teams, arbitrators and networking events.
Advertisements from Keating Chambers & Atkin Chambers and Hanscomb Intercontinental appear in the programme.
UK Adjudicators are an adjudicator nominating body.Nominations are free of charge and are made from our panel of adjudicators. Panel members include retired TCC judges, solicitors, barristers, surveyors, engineers, architects and other built environment professionals.
UK Adjudicators are a leading Adjudicator Nominating Body (ANB )for the construction and engineering industries.
Panel members include retired judges, solicitors, barristers, engineers, surveyors and architects.
Hanscomb Intercontinental provide expert advisory & expert witness services to the global onshore and offshore construction, engineering and shipbuilding industries.
More from Sean Gibbs DipArb, FCIARB, FCIOB, FRICS, MICE (20)
WINDING UP of COMPANY, Modes of DissolutionKHURRAMWALI
Winding up, also known as liquidation, refers to the legal and financial process of dissolving a company. It involves ceasing operations, selling assets, settling debts, and ultimately removing the company from the official business registry.
Here's a breakdown of the key aspects of winding up:
Reasons for Winding Up:
Insolvency: This is the most common reason, where the company cannot pay its debts. Creditors may initiate a compulsory winding up to recover their dues.
Voluntary Closure: The owners may decide to close the company due to reasons like reaching business goals, facing losses, or merging with another company.
Deadlock: If shareholders or directors cannot agree on how to run the company, a court may order a winding up.
Types of Winding Up:
Voluntary Winding Up: This is initiated by the company's shareholders through a resolution passed by a majority vote. There are two main types:
Members' Voluntary Winding Up: The company is solvent (has enough assets to pay off its debts) and shareholders will receive any remaining assets after debts are settled.
Creditors' Voluntary Winding Up: The company is insolvent and creditors will be prioritized in receiving payment from the sale of assets.
Compulsory Winding Up: This is initiated by a court order, typically at the request of creditors, government agencies, or even by the company itself if it's insolvent.
Process of Winding Up:
Appointment of Liquidator: A qualified professional is appointed to oversee the winding-up process. They are responsible for selling assets, paying off debts, and distributing any remaining funds.
Cease Trading: The company stops its regular business operations.
Notification of Creditors: Creditors are informed about the winding up and invited to submit their claims.
Sale of Assets: The company's assets are sold to generate cash to pay off creditors.
Payment of Debts: Creditors are paid according to a set order of priority, with secured creditors receiving payment before unsecured creditors.
Distribution to Shareholders: If there are any remaining funds after all debts are settled, they are distributed to shareholders according to their ownership stake.
Dissolution: Once all claims are settled and distributions made, the company is officially dissolved and removed from the business register.
Impact of Winding Up:
Employees: Employees will likely lose their jobs during the winding-up process.
Creditors: Creditors may not recover their debts in full, especially if the company is insolvent.
Shareholders: Shareholders may not receive any payout if the company's debts exceed its assets.
Winding up is a complex legal and financial process that can have significant consequences for all parties involved. It's important to seek professional legal and financial advice when considering winding up a company.
ALL EYES ON RAFAH BUT WHY Explain more.pdf46adnanshahzad
All eyes on Rafah: But why?. The Rafah border crossing, a crucial point between Egypt and the Gaza Strip, often finds itself at the center of global attention. As we explore the significance of Rafah, we’ll uncover why all eyes are on Rafah and the complexities surrounding this pivotal region.
INTRODUCTION
What makes Rafah so significant that it captures global attention? The phrase ‘All eyes are on Rafah’ resonates not just with those in the region but with people worldwide who recognize its strategic, humanitarian, and political importance. In this guide, we will delve into the factors that make Rafah a focal point for international interest, examining its historical context, humanitarian challenges, and political dimensions.
Military Commissions details LtCol Thomas Jasper as Detailed Defense CounselThomas (Tom) Jasper
Military Commissions Trial Judiciary, Guantanamo Bay, Cuba. Notice of the Chief Defense Counsel's detailing of LtCol Thomas F. Jasper, Jr. USMC, as Detailed Defense Counsel for Abd Al Hadi Al-Iraqi on 6 August 2014 in the case of United States v. Hadi al Iraqi (10026)
Responsibilities of the office bearers while registering multi-state cooperat...Finlaw Consultancy Pvt Ltd
Introduction-
The process of register multi-state cooperative society in India is governed by the Multi-State Co-operative Societies Act, 2002. This process requires the office bearers to undertake several crucial responsibilities to ensure compliance with legal and regulatory frameworks. The key office bearers typically include the President, Secretary, and Treasurer, along with other elected members of the managing committee. Their responsibilities encompass administrative, legal, and financial duties essential for the successful registration and operation of the society.
How to Obtain Permanent Residency in the NetherlandsBridgeWest.eu
You can rely on our assistance if you are ready to apply for permanent residency. Find out more at: https://immigration-netherlands.com/obtain-a-permanent-residence-permit-in-the-netherlands/.
NATURE, ORIGIN AND DEVELOPMENT OF INTERNATIONAL LAW.pptxanvithaav
These slides helps the student of international law to understand what is the nature of international law? and how international law was originated and developed?.
The slides was well structured along with the highlighted points for better understanding .
In 2020, the Ministry of Home Affairs established a committee led by Prof. (Dr.) Ranbir Singh, former Vice Chancellor of National Law University (NLU), Delhi. This committee was tasked with reviewing the three codes of criminal law. The primary objective of the committee was to propose comprehensive reforms to the country’s criminal laws in a manner that is both principled and effective.
The committee’s focus was on ensuring the safety and security of individuals, communities, and the nation as a whole. Throughout its deliberations, the committee aimed to uphold constitutional values such as justice, dignity, and the intrinsic value of each individual. Their goal was to recommend amendments to the criminal laws that align with these values and priorities.
Subsequently, in February, the committee successfully submitted its recommendations regarding amendments to the criminal law. These recommendations are intended to serve as a foundation for enhancing the current legal framework, promoting safety and security, and upholding the constitutional principles of justice, dignity, and the inherent worth of every individual.
1. WWW.UKADJUDICATORS.CO.UK
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EDITORS COMMENTS
The collapse of Carillion has grabbed a
substantial amount of headlines over the last
month.
Whilst inquiries and investigations continue
into what actually happened some of the
issues highlighted by the press coverage are
explored in more detail from both a United
Kingdom and international perspective.
What impact this will have on the
Government response to the consultations on
retention and the Post Implementation
Review of the 2011 changes to Part 2 of the
Housing Grants, Construction and
Regeneration Act 1996 remains to be seen.
We welcome submissions to this newsletter
and you are invited to submit your articles,
case reviews, news and updates and other
such submissions for publication.
Please forward your submission in Word
format, use minimal endnotes if required and
any referencing should use the Harvard
system.
Sean Gibbs LLB(Hons)MICE FCIOB FRICS
FCIARB, is a director with Qualsurv
International and is available to sit as an
arbitrator, adjudicator, mediator, quantum
expert and dispute board member.
THE RIGHT TO SUSPEND
CONSTRUCTION WORKS FOR NON
PAYMENT IN ENGLAND
During the recent questions and answers
session held by MPs from the business select
committee; Carillion’s directors said that they
hadn’t been paid in Qatar and that they had
no right to suspend the works. The position in
England under the common law was not
dissimilar.
Prior to the Housing Grants Construction and
Regeneration Act 1996 a construction
contractor had no right under common law to
suspend works for non-payment. This
common law rule was clearly stated in the
case of Canterbury Pipelines ltd v Christchurch
Drainage Board [1979] 16 BLR 76.
This rule applied until Parliamentary
intervention changed the staus quo by the
introduction of The Housing Grants
Construction and Regeneration Act 1996 and
granted the right to suspend performance for
non-payment. This was later amended by
sections 138 to 145 of part 8 of the Local
Democracy, Economic Development and
Construction Act 2009.
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The revised right is stated at Section 112:
112 Right to suspend performance for non-
payment
(1) Where the requirement in section 111(1)
applies in relation to any sum but is not
complied with, the person to whom the sum is
due has the right (without prejudice to any
other right or remedy) to suspend
performance of any or all of his obligations
under the contract to the party by whom
payment ought to have been made ("the party
in default").
(2) The right may not be exercised without
first giving to the party in default at least
seven days' notice of intention to suspend
performance, stating the ground or grounds
on which it is intended to suspend
performance.
(3) The right to suspend performance ceases
when the party in default makes payment in
full of the amount referred to in subsection
(1).
(3A) Where the right conferred by this section
is exercised, the party in default shall be liable
to pay to the party exercising the right a
reasonable amount in respect of costs and
expenses reasonably incurred by that party as
a result of the exercise of the right.
(4) Any period during which performance is
suspended in pursuance of or in consequence
of the exercise of the right conferred by this
section shall be disregarded in computing for
the purposes of any contractual time limit the
time taken, by the party exercising the right or
by a third party, to complete any work directly
or indirectly affected by the exercise of the
right. Where the contractual time limit is set
by reference to a date rather than a period,
the date shall be adjusted accordingly.
Parties using this right must comply with the
provisions strictly or risk not benefitting from
the right to a reasonable amount in respect of
costs and expenses reasonably incurred by
that party as a result of the exercise of the
right or an extension of time for the period of
suspension.
Indeed just suspending works without
complying with the provisions could at least
be a breach of contract or at worst a
repudiatory breach of contract.
The standard forms of contract issued by the
Joint Contracts Tribunal contain a suspension
provision for non-payment and contractor’s
using the JCT forms could benefit from the
contractual right to suspend works .
The NEC3 and NEC4 Engineering and
Construction Contracts (ECC) do not contain
an express power of suspension for non-
payment. Instead, the statutory power to
suspend for non-performance pursuant to
3. WWW.UKADJUDICATORS.CO.UK
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Housing Grants Construction and
Regeneration Act 1996, s 112 would apply.
In relation to contracts that are subject to
Housing Grants Construction and
Regeneration Act 1996, Option Y(UK)2; the
secondary options clauses of NEC4 makes it
clear that if the contractor exercises its right
under Housing Grants Construction and
Regeneration Act 1996 to suspend
performance, that is to be regarded as a
compensation event
Thomas Johnson, is a director in the global
construction claims consultancy Hanscomb
Intercontinental.
SECOND READING FOR MP’S BILL
FOR SCHEME TO HOLD
RETENTIONS IN TRUST
A private member’s bill to provide for
retentions in construction projects to be held
in a third party trust scheme is due for its
second reading in Parliament on Friday 27
April 2018.
Peter Aldous (Waveney) (Con) said in
Parliament at the first reading:
‘I beg to move,
That leave be given to bring in a Bill to make
provision about protecting retention deposits
in connection with construction contracts;
and for connected purposes.
Let me start by paying tribute to Sir Michael
Latham, who died in November. He was a
Member of this House for 18 years, from
1974. In 1994, he produced a report,
commissioned by the Government and the
construction industry, called “Constructing
the Team”. The report had a significant
impact on the industry and led to the passing
of part 2 of the Housing Grants, Construction
and Regeneration Act 1996, which is
commonly referred to as the Construction
Act. Unfortunately, one of Sir Michael’s
recommendations remains outstanding, and
has not been implemented. It relates to cash
retentions in a secure trust fund. Two decades
on, we should be rectifying that omission.
On 24 October, the Department for Business,
Energy and Industrial Strategy began a
consultation, which ends on 18 January, on
the practice of cash retentions in the
construction industry. That followed an
independent and long-awaited review which
confirmed that retentions are a critical issue
that affect the viability and productivity of
small and medium-sized enterprises in the
construction supply chain. They also increase
the cost of construction. Across the industry,
there is very strong support for putting a
solution in place now, with specialist
engineering contractors recommending that a
statutory ring fence of retentions is the best
option.
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I will now outline what the problem is.
Retentions are deductions—usually 5%, but
sometimes 10%—from moneys due to a
construction business. Ostensibly, they are
held as security in case a firm fails to return to
rectify defects. However, in practice, they are
often withheld to bolster the working capital
of the group withholding them. Under
standard industry contracts, they should be
returned within 12 months of the handover of
the works in question, but there are regular
delays of upwards of three years, and in one
case 12 years. According to Government
figures, almost £8 billion of cash retentions
has remained unpaid over the last three
years. Most of that cash has been provided by
SMEs. No other industry puts so much cash at
risk and places such a burden on small
businesses.
Research carried out by the Building
Engineering Services Association illustrates
the extent of the problem. Some 44% of
contractors have suffered non-payment due
to upstream insolvency in the last three years.
Almost half of businesses that have had
retentions held in the last three years have
experienced non-payment due to upstream
insolvency, with the average amount lost per
contract being £79,900.
Tier 1 contractors suffer average delays of
three months. There are delays of seven
months for tier 2 contractors and delays of
over nine months for tier 3 contractors. It
seems that the smaller the business is, the
harder it is hit. Research shows that
retentions make construction more expensive
than working without retentions. Most main
contractors do not have automated release
payments, and the average cost of taking legal
action over the last three years was £16,300
per contract.
The abuse of retentions has a negative knock-
on domino effect that cascades through the
construction industry. It restricts investment
in new equipment and facilities. It prevents
firms from taking on more work, and
discourages them from employing more
people and investing in apprenticeships. The
Electrical Contractors Association comments:
“smaller businesses can’t invest enough in
skills or equipment, or help to improve
industry productivity, if their cash flow is
restricted in this way.”
That is the problem; I shall now move on to
the solution.
The previous failed attempts to resolve the
problem confirm that the only solution is
legislation that secures moneys so that they
will be available to be returned, subject to the
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other party having right of recourse to the
moneys. A solution would be along the lines
of the statutory requirement in section 215 of
the Housing Act 2004 under which deposits
taken from shorthold tenancies must be
placed in a Government-approved scheme. A
similar scheme would work for retentions.
Ring-fencing the moneys in such a way would
mean that they would be secure and available
to be released on time, rather than subject to
the current wait of two or more years. That
would help to increase the velocity of cash in
the system, and if moneys were secured in
this way, banks would be able to lend to firms
on the back of such security.
It is appropriate that we look at the situation
in other countries. We are now very much out
of step with what happens elsewhere, where
there is legislation to ring-fence cash
retentions and/or to provide security for
construction payments in general. In Canada
and the United States, a system of charges
can be placed on a building or structure by a
firm that has not received its payment.
Australia and New Zealand have legislated to
ring-fence moneys. France has a statutory
framework that requires bank guarantees to
be used as security for payment in the
construction industries.
Doubters might ask whether there is a cost
associated with ring-fencing, but that should
not be a problem. The tenancy deposit
scheme to which I referred is self-funded
through the interest earned on deposits, with
any profit made transferred to a charity that
provides training in the sector. Such a scheme
would be a win-win for construction as it
would be a source of much-needed funds for
training.
This Bill is relatively straightforward. It would
amend the Construction Act to require the
Secretary of State to introduce regulations to
protect retentions. It would bring closure to
the many efforts made in the past to address
the problem. In doing so, it would transform
the prospects of SMEs, which make up 99% of
firms in the UK construction industry.
A key element of the Government’s industrial
strategy is to create the right conditions for
businesses to grow and to encourage them to
invest over the longer term to improve
productivity. The Bill would help to secure
that objective.
This is not the first time that the matter has
been raised in this House. When the then
Trade and Industry Committee carried out an
inquiry more than 15 years ago, it concluded
that the practice of cash retentions was
outdated and that abuse of the system was so
widespread that the Government were invited
to phase out retentions as soon as possible.
Sadly, they did not do so.
Four years ago, a cross-party parliamentary
inquiry into late payments and their impact on
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SMEs recommended that the Government
should introduce a retentions money Bill, with
money retained by a customer from a supplier
to be held in a trust account. That inquiry was
chaired by the hon. Member for Oldham East
and Saddleworth (Debbie Abrahams). On 26
January 2016, the hon. Member for Upper
Bann (David Simpson), a supporter of the Bill,
initiated a Westminster Hall debate on the
subject. As he will recall, the collapse of the
Patton Group in Northern Ireland left £10
million outstanding by way of retention
moneys. SMEs in Northern Ireland never saw
that money again.
On 26 April last year, the hon. Member for
Kilmarnock and Loudoun (Alan Brown)
introduced the Construction Industry
(Protection of Cash Retentions) Bill, also
under the ten-minute rule. Unfortunately, the
general election curtailed progress on that
Bill. The hon. Gentleman is also a supporter of
this Bill.
The Bill has strong support from the
construction industry. At the last count, it was
backed by 30 trade associations. Time, and
the embarrassment of missing someone out,
means I will not list them.
While the current consultation is welcome,
there has been too much talking for too long.
This matter must be addressed as soon as
possible. If one of the larger construction
companies were to fail, the consequences for
SMEs and their supply chains could be
disastrous. They could lose all their
retentions, adding to the £220 million that is
already lost annually. The Bill would help to
avert such a calamity.
This is a critical time for the construction
industry. We need to be building record
numbers of homes. As Brexit approaches, the
construction industry must be able to operate
in top gear. This restrictive and grossly unfair
practice acts as a brake on activity in the
sector. If we remove it, we can unleash
investment in jobs, apprenticeships and
technical innovation.
Sir Michael Latham recognised the need for a
partnership approach, with industry and the
Government working together. It will be a
fitting tribute to his work if, 22 years on, we
could finally deliver the final piece in the
jigsaw of his recommendations in
“Constructing the Team”.
WORSHIPFUL COMPANY OF
ARBITRATORS
Lord Dyson will be giving The Master’s Lecture
on Tuesday 13th March 2018 at Simmons &
Simmons LLP, CityPoint, One Ropemaker
Street, London, EC2Y 9SS . The title of the
lecture is What Are The Proper Limits To The
Immunity Of Arbitrators?
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COULD ADJUDICATOR GRADING
HELP TO INCREASE THE DIVERSITY
OF ADJUDICATORS ?
At the annual Adjudication Society conference
held in London in 2017 the issue of diversity
and inclusion was raised about adjudicators
by Simon Tolson a Senior Partner with
Fenwick Elliott .
One way that it may prove possible to
introduce new and less experienced
adjudicators onto panels is to create a grading
system for adjudicators. Queensland Australia
currently has such a scheme in place and uses
three grades:
1. Adjudicator (lowest)
2. Advanced Adjudicator
3. Senior Adjudicator (highest)
Unlike the United Kingdom there is only one
nominating body and as such this has
succeeded in its aims in line with the
recommendations made by Andrew Wallace
in his report titled Final Report of the Review
of the Discussion Paper – Payment dispute
resolution in the Queensland building and
construction industry dated 24 May 2013.
For such a grading scheme to work in the
United Kingdom the thirty plus adjudicator
nominating bodies and the principle
professional bodies would need to firstly
recognise there is a problem then reach
consensus how to tackle it.
Factors that would need to be discussed and
agreed upon would be the minimum standard
required to become an adjudicator , the
grading process and procedure and how
should disputes and decisions be categorised
so that a an inexperienced adjudicator can
develop from the starting grade and become a
Senior Adjudicator.
How seriously the industry takes the diversity
of adjudicators remains to be seen by the
action and commitment made in the months
ahead to firstly understand the problem then
to identify actions needed. What we cannot
afford to let happen is that the same pool of
old white male faces dominate and hog the
profession until their demise leaving a
succession problem and possible learning
curve for future generations.
UK adjudicators have on the whole been
highly thought of and respected globally and it
is important that their experience and wisdom
is passed on to future generations.
Thomas Johnson is a director in the global
construction claims consultancy Hanscomb
Intercontinental.
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MAXCON v VADASZ – AUSTRALIAN
HIGH COURT FINDS CLAUSES
COMMONLY FOUND IN
CONSTRUCTION CONTRACTS ARE
UNENFORCEABLE
Head contractors should review their
subcontracts to ensure they don’t
inadvertently contain “pay when paid”
provisions, following the High Court’s decision
Maxcon Constructions Pty Ltd v Vadasz [2018]
HCA 5 (Maxcon).
If you’re a construction lawyer or other
construction industry professional, by now
you’ve probably heard about the recent High
Court decision in Maxcon (handed down at
the same time as in Probuild Constructions
(Aust) Pty Ltd v Shade Systems Pty Ltd [2018]
HCA 4). Most commentators have focused on
the judicial review issue which arose in both
of those cases.
However, the High Court in Maxcon also
considered a separate issue. The court held
that a provision allowing a head contractor to
withhold retention moneys under a
subcontract until certain events had occurred
under the head contract was a “pay when
paid” provision, and was therefore not legally
enforceable under the security of payment
(SOP) legislation. This has potentially broad
implications for head contractors – for
retention provisions, but also other provisions
which attempt to make a payment under a
subcontract contingent on an event occurring
under a the head contract.
“Pay when paid” provisions
Prior to the enactment of the SOP legislation,
it was common for head contractors to
include a clause in their subcontracts which
provided that payment to the subcontractor
was either determined by the date on which
the head contractor received payment from
the principal (“pay when paid”); or dependent
on the head contractor receiving payment
from the principal (“pay if paid”).
By including these types of clauses, head
contractors were attempting to share the cash
flow risk of projects with their subcontractors.
The problem was, subcontractors typically
had much smaller balance sheets than head
contractors, and were less able to manage the
effects of poor cash flow – leading to a high
rate of subcontractor insolvency.
The purpose of the SOP legislation is to help
ensure security of payment for subcontractors
and reduce the high levels of insolvency. One
of the ways it does this is by prohibiting both
“pay when paid” and “pay if paid” provisions,
as well as a third, broader, type of provision
which “makes the liability to pay money
owing, or the due date for payment of money
owing, contingent or dependent on the
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operation of another contract”. Importantly
for the following analysis, money owing” is
defined as “money owing for construction
work carried out or undertaken to be carried
out…under the contract.”
Since the enactment of the SOP legislation,
head contractors have generally tried to avoid
drafting direct ‘pay when paid’ or ‘pay if paid’
provisions into their subcontracts. However,
the Maxcon case highlights the potential for
other common clauses to inadvertently fall
foul of the prohibition on pay when paid
provisions.
The High Court’s decision
The subcontract was for piling work, and
included a standard form retention clause.
This clause allowed the head contractor to
retain by way of security 10% of each progress
payment due to the subcontractor until the
head contractor had retained a total of 5% of
the contract sum.
The release of security the retention money
was tied to the issue of a certificate of
occupancy for the entire project. The High
Court held that the retention clause in the
subcontract was in fact a “pay when paid”
provision. This was because the dates for
release of the retention money under the
subcontract were dependent on the issue of a
certificate of occupancy, and such a certificate
could not be issued until completion of the
whole project in accordance with the head
contract. The release/payment of the
retention money was therefore “contingent
or dependent on the operation of another
contract”, and so the whole of the retention
monies clause, including the provision
allowing the head contractor to retain
retention monies from the progress payment
otherwise payable to the subcontractor, was
unenforceable.
Implications
This decision has significant implications for
subcontracting arrangements, particularly as
the High Court’s analysis is likely to apply to
the SOP legislation in most states (other than
Western Australia and the Northern Territory
where the legislation does not prohibit the
broader restriction on provisions that make
liability to make a payment under one
contract “contingent or dependent on the
operation of another contract”).
Retention money
Most obviously, head contractors will need to
consider their subcontract retention
provisions to ensure that they do not
contravene the “pay when paid” prohibition
by making the release of retention money
dependent on practical completion (or some
other event) occurring under the head
contract for the project.
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Instead, release of retention money needs to
be tied to operation of the subcontract itself,
e.g. practical completion and/or the expiry of
the defects liability period under that
subcontract. The problem for head
contractors of course is that in a large project
there may be a large number of subcontracts,
each with different dates for practical
completion that may be earlier (sometimes
significantly so) than the date for practical
completion under the head contract.
Two main issues arise if release of retention
money is tied to the defects liability periods
under each separate subcontract. First, this
adds to the administrative burden for the
head contractor, who now has to manage the
release of many retention amounts at
different times. More significantly, there may
be complications where an important piece of
subcontracted work is completed early in the
project (such the piling subcontract – which
was the relevant subcontract in the Maxcon
case). If the release of retention money under
the subcontract is tied to the expiry of the
defects liability period under that subcontract,
the time for release of retention money is
likely to arrive before the expiry of the defects
liability period under the head contract. And if
there are issues with that subcontractor’s
work which only become apparent after the
release of the retention money, it may be
difficult to get the subcontractor to come
back and fix the problem – even though the
defects liability period under the head
contract is still on foot.
One potential solution is for head contractors
to require bank guarantees or insurance
bonds instead of retention money. Unlike
retention money, a bank guarantee is not
“money owing” in relation to work under the
subcontract, but rather a security
requirement which is separate to the contract
sum. This means the “pay when paid”
provisions won’t apply. However, a
subcontractor has to pay to take out bank
guarantees or insurance bonds, so this kind of
requirement is likely to translate to higher
subcontract prices, and therefore higher
overall project cost.
Milestone payments
Another common type of provision which is
likely to be affected is milestone payments
under a subcontract which are linked to
events occurring under a head contract. For
example, a head contractor may want to tie a
subcontractor’s final payment to practical
completion under the head contract. Similar
to withholding security, the idea behind this is
to ensure the head contractor has some
leverage in circumstances where the principal
does not consider that the works under the
head contract have reached practical
completion due to some issue with the
subcontractor’s work.
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It now seems fairly likely that this kind of
provision is a “pay when paid” provision and is
therefore not enforceable – as it makes
payment to the subcontractor contingent on
an event occur under the head contract, over
which it has no control.
Linked claims/linked disputes provisions in
pass through subcontracts
The High Court’s decision also reinforces the
potential issues with common “linked claims
and linked disputes” type provisions.
The standard AS4903 pass through design and
construct subcontract contains a provision
which allows the head contractor to require a
subcontract dispute which affects the head
contract to be resolved as part of the head
contract dispute resolution process – and the
subcontractor is required to accept the
outcome of that dispute process.
Similar provisions are common in the core
subcontracts on PPP projects, which typically
contain a provision which attempts to limit
the liability of the Project Company to its
contractors by reference to the Project
Company’s entitlements against the State
under the PPP Contract. In essence – if the
contractor makes a claim against the Project
Company and that claim is one that can be
brought by the Project Company against the
State under the PPP Contract, the contractor’s
entitlement is limited to the amount
recovered by (or other relief granted to) the
Project Company under the PPP Contract.
Typically, the clause will also provide that it
does not apply to the extent that it would
have the effect of making the clause a "pay
when paid provision" within the meaning of
the SOP legislation.
The decision of the High Court in Maxcon
reinforces that these types of provisions may
be largely ineffective as, in many cases, they
will in fact operate as “pay when paid”
provisions.
It is relatively clear that a linked claims/linked
disputes provision does attempt to make an
entitlement under one contract “contingent
or dependent on the operation of another
contract”. The entitlement under the
subcontract is contingent on the success of
the head contractor’s claim or dispute under
the head contract. The analysis therefore
turns on the term “money owing”, defined as
“money owing for construction work carried
out or undertaken to be carried out…”
The question is whether a linked claim/linked
dispute provision operates to make payment
of money owing under the subcontract
contingent on the operation of the head
contract. The answer is – it depends on what
kind of claim we’re talking about.
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In my view, most claims that a subcontractor
would bring against a head contractor which
the head contractor would in turn bring
against the principal are likely to be claims for
“money owing”. For example, variation
claims, claims for costs incurred in dealing
with latent conditions, and claims for
acceleration costs (and potentially delay costs
as well), are all claims for money that relate to
the carrying out of construction work. In
those circumstances, a linked claims/linked
disputes provision is unlikely to be effective to
limit the subcontractor’s entitlements to the
extent of the head contractor’s recovery
against the principal. The head contractor can
try to protect itself from a potential gap
between the amount recovered from the
principal and the amount payable to a
subcontractor by ensuring that all relevant
contractual and technical provisions are
passed through to the subcontractor. But
even then there is no guarantee that a claim
or dispute will be determined the same way
under both the contracts.
However, on the other hand, some claims by
the subcontractor against the head contractor
will not be claims for “money owing”, and so
the prohibition on “pay when paid” provisions
will not apply. For example, a claim for an
extension of time is not a claim for money at
all, and a claim for breach of contract is a
claim for damages in respect of loss suffered,
and not a claim for money owing in relation to
construction work carried out.
Pass through of determinations
Finally, many pass through contracts attempt
to ‘pass through’ determinations and
decisions of the superintendent, principal, or
independent certifier under the head contract
to the subcontractor to the extent they relate
to the same issue (unless disputed). Similar to
the linked claims/linked disputes provisions,
these types of provisions are also likely to be
unenforceable to the extent they are linked to
payment of “money owing” to the
subcontractor.
Consider the following example: under the
head contract, the head contractor is required
to pass a certain prototype test before
proceeding to full production. One of the
head contractor’s payment milestones is
linked to passing this test. The head
contractor has subcontracted the work
relating to the production and testing of the
prototype, and has also included a payment
milestone under the subcontract linked to
passing the test. The superintendent under
the head contract determines that the test
had not been passed. The head contractor will
then want to ‘pass through’ that same
determination to the subcontractor. However,
this provision has the effect of making
payment to the subcontractor (the payment
milestone for completion of the test)
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contingent on the operation of the head
contract (whether or not the head contract
superintendent considers that the test was
passed) – and so is likely to offend the “pay
when paid” provisions of the SOP legislation.
To contrast: another example might be where
the head contract superintendent has
determined that a design document produced
by the subcontractor (and submitted by the
head contractor under the head contract)
does not comply with the contract. Provided
that this determination is not linked to
payment or withholding of the subcontract
price, the “pay when paid” provisions will not
apply.
Take-away
It has long been understood that “pay when
paid” and “pay if paid” provisions are
prohibited under security of payment
legislation. What was not well understood is
that provisions allowing a head contractor to
withhold payment under a subcontract until
certain events have occurred under the head
contract will also fall foul of the prohibition in
most states (other than WA and the NT). This
has potentially broad implications for head
contractors – for retention provisions, but
also other provisions which attempt to make a
payment under a subcontract contingent on
an event occurring under a the head contract.
Head contractors should review their
subcontracts to ensure they don’t
inadvertently contain “pay when paid”
provisions.
Owen Hayford, Partner of PwC Legal and
Hannah Stewart-Weeks Senior Associate of
PwC Legal. Owen is contactable by email
owen.hayford@pwc.com.
SCL INTERNATIONAL CONFERENCE
2018
The Society of Construction Law 8th
International Conference is being held at the
Palmer House Hotel Chicago from the 26th-
28th September 2018.
ESCL CONFERENCE 2018
The European Society of Construction Law
conference 2018 is due to take place
fromThursday, 25 October 2018 to Saturday,
27 October 2018.
ESCL SUMMER SCHOOL
Comparative European construction and
procurement law course is being held from
the 2-7 July 2018 at KIVI, Prinsessegracht 23,
The Hague, the Netherlands.
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ADJUDICATION SOCIETY ANNUAL
CONFERENCE 2018
The Society's Seventeenth Annual Conference
will be held at the Mercure Bristol Hotel on
Thursday 8th November 2018.
FIDIC CONFERENCES 2018
The FIDIC Middle East Contract Users'
Conference main conference is taking place
on the 20 & 21 February 2018 with workshops
on the 19 & 22 February 2018 in Dubai.
The FIDIC Asia Pacific contract users'
conference takes place in July 2018, the Latin
America contract users' conference takes
place in September 2018 and the Africa
contract users' conference is taking place at
Livingstone, Zambia in October 2018.
The FIDIC International Infrastructure
Conference takes place in Berlin from the 9-
11 September 2018 at the Intercontinental
Hotel Berlin.
DRBF CONFERENCES 2018
Paris, France 23 March 2018
Mexica City, Mexico 25-26April 2018
Tokyo, Japan 23-25 May 2018
Charlotte, USA 17-19 October 2017
Geneva, Switzerland 14-16 November 2018
UPDATED FIDIC SUITE
The FIDIC conference held in London on the
5th December 2017 saw the release of the
new Red, Yellow and Silver books.
FIDIC have now released copies for sale to the
general public in PDF and hard copy formats.
http://fidic.org/bookshop
ADR-ODR INTERNATIONAL
ADR-ODR International is holding an Executive
Negotiation & Conflict Management Skills
Course in Dubai on the 26th - 28th March
2018 at The Palm in partnership with the
European Institute for Conflict Resolution.
http://adrodrinternational.com/executive-
conflict-and-negotiation-skills-course/
UK ADJUDICATORS DINNER
The UK Adjudicators will be holding a dinner
in Bristol the evening of the 7th
November
2018, before the Adjudication Society's
Seventeenth Annual Conference is held on
Thursday the 8th November 2018.
Anyone with an interest in adjudication is
welcome to attend. Further details will follow
in due course.