A key part of the interim payment process in construction projects is the issuing of payment notices by payee and payer alike. Two recent UK cases demonstrate a strict approach being taken by the courts to the validity of...more
If an extension of time (EOT) clause permits the apportionment of delay, what should be taken into account when apportioning delay? Comments in a recent decision of the Singapore Court of Appeal indicate that a party's...more
Since the Rock Advertising decision of the UK Supreme Court in 2018, 'no oral modification' clauses have generally been strictly enforced. However, in Lim v Hong, the Singapore Court of Appeal has set a more flexible test for...more
Variation powers under construction contracts typically contemplate work being authorised as a variation where it is instructed in writing. This can give rise to disputes over whether work is a "variation" if it is instructed...more
Construction contracts may be priced in a number of ways. For most contracts, even those which are "fixed price", there is usually scope for cost/price variability. Four cases from December 2020 highlight some of the...more
Can a valid claim notice issued, on time, referring to one contractual basis, be relied upon where a claim is ultimately pursued on a different ground? In the first authoritative case to consider this issue, the Hong Kong...more
Courts and arbitral tribunals in many jurisdictions have the power to order contractors to perform building works - to order "specific performance" of a construction contract. But these powers are rarely exercised. A recent...more
In a recent case the Singapore Court of Appeal upheld a decision that an employer may recover damages for rectifying defects even when it has not given the contractor the opportunity of doing so during the defects...more
Main contractors often make claims against subcontractors for liquidated damages for delay. A question that sometimes arises is whether liquidated damages may be claimed by a main contractor where there is no corresponding...more
8/22/2020
/ Construction Contracts ,
Construction Industry ,
Contract Terms ,
Delay Claims ,
General Contractors ,
Liquidated Damages ,
Loss Allocation ,
No Damage For Delay ,
Singapore ,
Subcontractors ,
UK
Advance payment guarantees are commonly used in the construction industry. However, successful challenges to a demand made under an advance payment guarantee appear to be less common. This article looks at three recent cases...more
7/25/2020
/ Advance Payment Guarantees ,
Amortization ,
Banks ,
Condition Precedent ,
Construction Industry ,
Construction Litigation ,
Construction Project ,
Contract Terms ,
Default ,
Encashment ,
Engineering ,
Korea ,
Notice and Demand For Payment ,
Qatar ,
Saudi Arabia ,
Subcontractors ,
UK
The offshore wind sector continues to grow at an unprecedented rate, particularly in Europe, and increasingly in Asia and North America. The construction phase of any project is vulnerable to delay. That is particularly the...more
7/15/2020
/ Asia ,
Construction Contracts ,
Construction Project ,
Contract Terms ,
Delays ,
Design Defects ,
EU ,
Liquidated Damages ,
Offshore Wind ,
Risk Allocation ,
Risk Mitigation ,
Severe Weather ,
Time Extensions ,
United States ,
Wind Power
Liquidated damages provisions in contracts are unenforceable if they constitute a "penalty". The past few years have seen subtle but important shifts in how the concept of a penalty is defined. A recent decision from the...more
The ongoing Scottish case of Serco Limited v Forth Health Limited highlights the difficulties that can arise when applying benchmarking and market testing provisions in long-term maintenance and service...more
Remeasurement provisions are commonly used in construction and engineering contracts where there is uncertainty as to the quantity of work to be performed by the contractor. Remeasurement may be desirable in these situations,...more
Amending standard forms of construction and engineering contracts to change the risk level between the parties is a perennial issue. This, however, can lead to disputes due to amendments not clearly reflecting the intention...more
2/28/2020
/ Amended Forms ,
Construction Contracts ,
Construction Industry ,
Contract Terms ,
Engineering ,
FIDIC Contracts ,
General Contractors ,
London Technology and Construction Court (TCC) ,
Public Procurement Policies ,
Risk Allocation ,
Standard Form Contracts ,
UK
When does title to goods transfer from a contractor to an employer? This can be a critical issue, especially when a party to a project has become insolvent. A recent English case considered this issue, and the application of...more
1/16/2020
/ Certification Requirements ,
Conditions of Payment ,
Construction Contracts ,
Contract Terms ,
Contractors ,
Employer Liability Issues ,
FIDIC Contracts ,
Goods or Services ,
Insolvency ,
Legal Title ,
Ownership Interest ,
Subcontractors ,
Transfer of Title ,
UK ,
Vesting
The case of Doosan Enpure Limited v Interserve Construction Limited represents a rare consideration by the English High Court of a dispute between members of a construction joint venture. The court found that Interserve was...more
10/14/2019
/ Breach of Contract ,
Construction Contracts ,
Construction Industry ,
Contract Disputes ,
Contract Terms ,
Interim Payments ,
Joint Venture ,
Land Developers ,
Profit Sharing ,
Real Estate Development ,
Risk-Sharing ,
UK
A recent decision by Singapore's highest court has held that a contractor must first establish that it is entitled to payment under the contract in order to claim progress payments under the Security of Payment Act, raising...more
Practical completion represents the physical completion of works on construction projects. Despite its importance, it is not a legal term of art, and whether or not practical completion has been achieved requires...more
4/6/2019
/ Appeals ,
Breach of Contract ,
Certification Requirements ,
Construction Contracts ,
Construction Project ,
Contract Terms ,
Contractors ,
Dismissals ,
Landlords ,
Material Defects ,
Practical Completion ,
Property Owners ,
Student Housing ,
Tenants ,
UK
A "global" or "total cost" claim is one in which the damages calculation is derived from the total cost of the work incurred by a contractor, minus the bid amount. Such claims are increasingly used by contractors where...more
3/28/2019
/ Amended Complaints ,
Burden of Proof ,
Construction Contracts ,
Contract Terms ,
Damages ,
General Contractors ,
Lack of Specificity ,
Modification ,
Motion To Strike ,
Pleading Standards ,
Supreme Court of Western Australia ,
Total Cost Claims
In a noteworthy decision to participants in the energy industry, the High Court of England & Wales examined what constitutes a valid liquidated damages clause in the event of delayed completion of a solar project. And last...more
1/12/2019
/ Construction Project ,
Contract Terms ,
Contractors ,
Delay Claims ,
Employer Liability Issues ,
Energy Projects ,
International Litigation ,
Late Payments ,
Liquidated Damages ,
Liquidation ,
Pay-For-Delay ,
Penalties ,
Power Plants ,
Remedies ,
Renewable Energy ,
Singapore ,
Solar Energy ,
UK