Lecture Notes and Papers
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Society of Construction Law Papers
“The Tribunal in
the Driving Seat: Inquisitorial Procedures in Adjudication and
Arbitration”
What procedural innovations can an adjudicator
employ to improve the process of determining UK construction
adjudications for the parties within the very tight statutory
timescales? This paper explains a range of initiatives open to a
proactive adjudicator and consistent with the procedural basics
which the courts insist on; it then argues that the same techniques
could be used (with appropriate safeguards) to advantage within
arbitrations as well.
Updated: December 2005
“The PFE Change
Management Supplements: Are They What the Industry Wants?”
The paper considers whether general adoption of
the Pickavance/Fenwick Elliott Change Management Supplements to
popular standard forms would be helpful in reconciling these with
the SCL Delay and Disruption Protocol. It argues that the approach
of the PFE Supplements is too detailed, too prescriptive and too
costly - for the Employer - as well as failing to achieve the better
resolution of time issues in projects.
Updated: December 2005
Arbitration
Public Courses: BLS/BPP Professional Development Course
Papers
Arbitration - Law and Practice
This paper is intended to provide a comprehensive
review of the law and practice of arbitration conducted under the
Arbitration Act 1996. It is intended for those who are involved in
arbitral proceedings or who engage in areas of commerce were
arbitration is commonly used for the resolution of disputes. In
addition to explaining the legal framework that governs arbitral
proceedings and reviewing recent case law, this seminar explores the
role of both the tribunal and of the court in arbitral proceedings.
It gives practical guidance on how arbitration can be used to achieve
a just and cost-effective resolution of disputes.
Last updated: August 2007
International Commercial Arbitration
“International commercial arbitration lies between
international and national law, private and public law, substantive
and procedural law, and, in a wider perspective between the science of
law, the jurisprudentia of the Roman jurisconsults, economics
and politics.” Eduardo Silva-Romero, Deputy Secretary General ICC
International Court of Arbitration.
This paper introduces the legal and practical
aspects of international commercial arbitration. Arbitration being one
of the principal methods available for resolving commercial disputes
between parties, including where one of the parties is a state or
state entity, from different countries. It is intended for solicitors
and others who, while working in or advising on international
transactions, have little experience of the resolution of disputes
concerning such transactions. It is assumed that those reading will be
familiar with domestic arbitration.
This paper is a companion paper to
“Arbitration Law and Practice”, which covers arbitration conducted
under the Arbitration Act 1996.
Kings College, London, Centre of Construction Law and
Management: Course Papers
Introduction to Dispute
Resolution and Arbitration
Overview of dispute resolution methods: litigation, arbitration, adjudication, expert determination and mediation/conciliation. Introduction to arbitration law: the nature of arbitration, privity and confidentiality, party autonomy, role of the tribunal. Court attitudes to arbitration. The sources of arbitration law. Overview of the Arbitration Act 1996.
Last updated: October 2007
Agreeing to Arbitrate and
Commencing Arbitral Proceedings
The arbitration agreement and its terms: contractual requirements, statutory formalities. Terminating an arbitration agreement. Commencing arbitral proceedings: what types of disputes can be referred, preparing a notice of arbitration. Establishing the tribunal: methods of appointment, suitability for appointment, remuneration. Revocation, removal and resignation of arbitrators, consequences for the proceedings and the arbitrators. Enforcing an arbitration agreement, obtaining a statutory stay, staying proceedings by injunction. Dealing with jurisdictional disputes.
Last updated: October 2007
The Tribunal's Powers and Duties
The tribunal's powers and the general duty.
Procedural powers: managing the proceedings and controlling evidence,
consolidation and concurrent hearings, appointing experts, legal
advisors and assessors. General powers: security for costs, preserving
property, evidence and assets. Dealing with unmeritorious claims or
defences. Relief on a provisional basis. Sanctions available to the
tribunal: dealing with stale claims, dealing with failures to provide
security for costs, continuing the proceedings in the absence of a
party, making and enforcing peremptory orders.
Last updated: October 2007
The Court's Supportive and Supervisory Powers
These notes consider the court’s powers to assist
the tribunal and the parties both during and after the proceedings
(the court’s supportive powers) and its powers of control (its
supervisory powers) over the tribunal and its awards.
Last updated: October 2007
Awards and their Drafting
The purpose, effect and essentials of an arbitration award. When should a reasoned award be given? What reasons should be given, how should they be structured and what should they contain? Drafting style and layout? Gathering material for and working an award, before during and after the hearing. Notifying an award to the parties. The basic structure of an award. Precedents and sample travel arbitration award.
Last updated: January 2006
Principles and Practice of
Pleading
The purpose of case statements in court and arbitral proceedings. Causes of action, positive defences and material facts. The relationship between case statements and the legal burden of proof. The formal requirements of case statements: claims, defences, counterclaims and replies. Deciding how much detail to include. Deciding the form of and method for exchange of case statements in arbitral proceedings. Drafting a case statement.
Last updated: January 2006
Adjudication
International Bar Association
Conference; Chicago 17-22 September 2006
“Inferior
Tribunals and Enforcing Their Decisions”
There has, over the last ten years or so, been a
growing world wide interest in, and use of such tribunals for the
determination of disputes concerning construction projects. It is
not the purpose of this paper to consider the pressures that have
lead to this development. Suffice to say that they include, on one
hand, dissatisfaction with and loss of trust in the traditional role
of those appointed to administer construction contracts, usually
Architects or Engineers, in determining the parties’ rights and
entitlements and, on the other, concerns about the excessive cost
and time involved in the taking of disputes to arbitration or
litigation and the effect of such proceedings on business
relationships
Updated: 23 October 2006
Public Courses: BLS/BPP Professional Development Course
Papers
Payment
and Adjudication under “the Construction Act”
A review of the statutory regime for Construction
Contracts created by Part II of the Housing Grants, Construction and
Regeneration Act 1996 and the related Statutory Instruments
Updated: September 2007
Law and Contracts
Kings College, London, Centre of Construction Law and
Management: Course Papers
The Law of Torts
Part 1: Basic definitions. The distinction between tort and contract, general characteristics of tortious liability, vicarious liability, general defences, general remedies.
Part 2: The law of negligence, general definitions. Establishing a duty of care: the three stage test, categories of actionable harm, statutory duties of care. Breach of Duty. Causation. Damage. Immunities and defences. Accrual and limitation of actions.
Part 3: Other torts. Public nuisance: basis of liability and remedies. Private nuisance: basis of liability, strict or fault based, liability of occupiers, potential claimants and defendants, defences and remedies. Escapes: the rule in
Rylands v. Fletcher, basis of liability, defences and remedies. Special rules relating to fire. Other torts in outline.
Tort in Construction
Negligence and defective construction works after D&F Estates v. Church
Commissioners. The duty of care problem: generalists and incrementalists. Establishing liability for defective work and design using the three-stage test and the categories of actionable harm. Remoteness of damage problems. Limitation of action problems. Miscellaneous developments in tort affecting the construction industry: is there a duty to warn, can certifiers be liable under the economic torts? The statutory torts: the Defective Premises Act 1972, the Consumer Protection Act 1987. Breach of statutory duty.
Last updated: January 2007
Mid-Career College: Course Papers
Introduction to JCT Contracts
Part 1: General principles of contract law. Objectives of standard form construction contracts: establishing the parties' primary obligations (what, how much, when), altering the contracted for performance, monitoring and controlling the manner of performance, valuation and timing of payments, risks and sanctions, dispute resolution.
Part 2: Overview of standard form building contracts and JCT contracts. Assembling the contract package: selecting the right contract, elements of the contract package, entering into the contract. Overview of the Joint Contracts Tribunal and its principal standard forms.
Part 3: JCT 98 Private With Quantities: articles, conditions, appendix and bonds. IFC 98, articles, conditions, appendix and bonds. Minor Works Agreement 1998, articles and conditions.
Public Courses: BLS/BPP Professional Development Course
Papers
Construction Law - Basic Principles
Introduction to the basic principles of construction
law, not a detailed consideration of particular standard form
contracts or contractual arrangements, or a detailed analysis of
recent construction law cases.
Construction law is not a separate branch of law,
such as the law of trusts, or real property or family law. Rather it
involves the application of well-understood legal principles, in
particular the law of contract and tort, to a particular commercial
activity, the procuring of construction projects.
Last updated: September 2007
Public Courses: Law South
Collateral Warranties
This paper considers the methods by which liability
for third party losses on construction projects can be created,
focussing on the use of collateral warranties. It also reviews the
type of provision typically found in tenant/purchasers and funder’s
warranties, and considers the practical issues that have to be
addressed when negotiating and concluding such warranties.
Last updated: January 2005
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