Summer 2012

Abstract

The Construction Law Quarterly is gaining readers, both, in the UK and internationally. This has had two immediate consequences: first, I am now receiving significant tangible feedback and requests for discussion on certain topics; and second, there are a number of requests from readers to examine some international themes and topics. I am delighted with this and am trying very hard to balance the competing demands. Indeed, that is exactly what I have sought to do in this issue. We take a brief look at the ‘new’ ICC Arbitration Rules which came into effect at the start of 2012. While ‘rules’ are often learned when one is in the midst of an actual procedure, we thought it made sense to de-mystify the topic and so give readers a head start. On the theme of dispute resolution procedures, I am delighted to include a short article from Penny Harper dealing with the provocative issue of so-called ‘hot-tubbing’. With respect to more substantive themes, we take a look at two cases that deal with liquidated damages, a case that looks at how the orthodox limitation period can be reduced and a case that looks at whether Adjudicators can award interest. It is often said that the law on liquidated damages is settled, but the cases continue to demonstrate the variety of arguments employed to either circumvent the law on liquidated damages or to defeat directly the relevant contractual terms. There are also a number of warnings/practical tips: it is not a good idea not to mediate (even in cases where emotions are driving the legal strategy); you need to be aware that discussions/ correspondences with claims consultants will not be ‘protected’ and so disclosable in litigation and arbitration; you need to be very aware of exactly when the limitation period starts. Finally, I am pleased to introduce a new section, ‘Question Time’. One reader raised a question and I am delighted that we were able to answer the question in such a way as to preserve confidentiality yet provide tangible practical guidance to the wider readership. This issue’s question relates to the 1999 FIDIC Conditions of Contract for Construction – the so-called ‘Red Book’ – and about the risks to the Employer of using a nominated subcontractor. I would welcome more questions from readers and indeed more feedback on the quarterly. This publication is all about assisting the Institution of Civil Engineers and all other readers, both of whom are most important to us in ensuring that we are delivering the most useful information. Feedback, feedback, feedback …