Archive for the ‘Contract Administration’ Category

Contractual Easter Eggs

by John Bishop

Monday was a public holiday in China, to celebrate Qing Ming, the Chinese tomb-sweeping festival which also happily coincided with Easter. I spent some time explaining to my Chinese friends the Easter story, and how in recent times there have been other interpretations involving bunnies and chocolate eggs.

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We do not negotiate! Or do we?

by Conrad Egbert
With the market having fallen 40% until now, many clients, contractors and suppliers across the region have begun to renegotiate contracts. CW talks to some of the top experts in the industry to find out what they think about the trend. Last week, CW discovered that City of Arabia – the Ilyas & Mustafa Galadari owned US $3 billion development – is currently renegotiating certain contracts. (Read more..)

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Mediate, adjudicate or both?

by Larry Lin
Increasingly, when a dispute arises between two contracting parties, they are strongly encouraged to settle the dispute in question through various types of resolution methods available. Such methods are collectively called alternative dispute resolution (ADR), and include negotiation, mediation or adjudication and should be used before the dispute is escalated into arbitration or litigation. (Read more..)

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Administration of project preliminaries

by Fattah Aderinto

Estimators and project administrators often administer preliminaries as either function of project cost, project duration or adjudication parameters. Also, most contracts in the Middle East often include an item under preambles, indicating a fixed method of administering preliminaries. These approaches do not agree with the logic of preliminaries and in the long run, are to the disadvantage of both the client and the contractor. (Read more..)

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Consultancy agreements and allegations of illegality

by Matthias Scherer

Contractors and suppliers operating abroad often conclude contracts with agents, consultants and other intermediaries who assist them in tender processes as well as in negotiating and performing contracts. Typically, these consultancy agreements provide that disputes are to be submitted to arbitration. Most disputes concern the consultants’ entitlement to a fee. In these disputes, the principal often argues that the contract was illegal under the applicable law. This notably occurred in two cases which led to two recent decisions of the Swiss Federal Supreme Court on applications to set aside or revise arbitral awards.

In the first case, a Swiss and a Taiwanese party had entered into a consultancy agreement in respect of a contract which the Swiss party wished to obtain for managing and maintaining an electricity plant in Taiwan. On the basis of the agreement, the Taiwanese consultant later initiated arbitration under the Swiss Rules of International Arbitration to obtain payment of his fees. The arbitral tribunal found in a partial award that the consultancy agreement was valid.

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Legal remedies for delay disputes

Building projects are often completed late. This may be due to delay on the part of the contractor, suspension of works, non-payment or other delays caused by the employer, or circumstances outside the control of both parties. MARTIN PRESTON* takes a look at what remedies may be available in such situations. (Read more..)

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New decade, new development of the remoteness rule

by Sarah Thomas

In this, the second of my New Year updates, I would like to discuss two interesting cases which have recently been decided by the UK courts. The first is the UK Court of Appeal upholding of a first instance judgment and the comments that the Court made on the recoverability of damages under English contract law.

The case is Supershield Limited v Siemens Building Technologies FE Ltd. As a reminder, the basic test under English law is that a party will recover losses flowing from the breach that (i) arise naturally, in the usual course of things, or (ii) are losses which the parties may reasonably be taken to have contemplated when entering into the contract (the “Hadley v. Baxendale” test, often known as the “remoteness” test). A previous recent development of this area resulted from the House of Lord’s decision in the Achilleas case which suggests that a defendant will not be liable for losses — even those which are not unusual and therefore potentially not too “remote” — which he cannot reasonably be regarded as having assumed responsibility for.

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The Procurement Process in Canada after the Supreme Court of Canada Tercon Decision*

by Joel Heard

The tendering and procurement process in Canada has traditionally been treated by the courts as a special area of contract law in which fairness and protecting the integrity of the tender process have been guiding principles.  Courts have implied terms into contract “A” bid contracts that have obliged owners to act fairly, and wide discretionary clauses have been interpreted narrowly to ensure the integrity of the tendering process. (Read more..)

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When a ‘notice’ need not be ‘noticed’

by Vincent Connor

Opening the mailbox at my Hong Kong apartment block brings the usual array of bills, more bills, flyers and…what appear to be ‘notices’ (usually from my landlord): but as we know from the world of construction law, often it is argued that what is intended to be a ‘notice’ fails to meet up to the strict requirements of the contract.

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A new year brings fresh thinking from FIDIC and new developments…

by Sarah Thomas

I thought that I would hail in the new year with an update on some interesting construction developments. Put it down to a period of reflection over the Christmas break! As I want to cover a number of areas, I have split this update into 2 postings.

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