Winter issue 2014

Abstract

In this, the last issue of 2014, we look at one of the most talked about cases in 2014, Eurocom Ltd v. Siemens Plc, dealing with a previously unseen challenge to an adjudicator’s decision based upon defects in the nomination process caused by a practice whereby referring parties will seek to influence the adjudicator nominating body by ‘inventing’ conflicts of interest. The ‘fall out’ from this case is significant, and is likely to lead to changes in the way that nominating bodies now nominate adjudicators. We take a close look at the concept of certification under PFI contracts – which has not ordinarily been considered to be different from orthodox construction contracts, but a recent High Court case has made it clear that an independent certifier is actually restricted to the procedure set out in the contract and limited by what the contract actually requires as ‘pre-conditions’ to completion. In terms of issues that arise in international contracts, we report on a case that looked at the unamended FIDIC dispute adjudication board (DAB) provisions. On the face of the sub-clauses, one says disputes shall be adjudicated, while clause 20.8.1 says that a party can go to court if there is no DAB in place. The judge in Peterborough City Council v. Enterprise Managed Services Ltd dealt with this issue swiftly, holding that ‘[FIDIC] sub-clause 20.8, which is in the same form in all three of the FIDIC Books, probably applies only in cases where the contract provides for a standing DAB, rather than the procedure of appointing an ad hoc DAB after a dispute has arisen.’ I am grateful to David Cornes and Michael Sergeant, who have contributed ‘The strange case of a mediation that was not mediation’ and ‘Variations: different contracts, different solutions’, respectively. It has been my aim for a while to increase the number of articles from external contributors, and I am delighted that we are now making progress. Finally, I hope all our readers had a most enjoyable Christmas…