International Construction Updates

ICC – New Year, New Arbitration Rules

The International Chamber of Commerce (ICC) has released draft Arbitration Rules, which will come into effect on 1 January 2021.

These will amend the 2017 rules and will continue governing the conduct of arbitration proceedings. Although not finalised, some of the changes will include:

  1. Requiring parties to disclose specific third-party funding agreements, providing more transparency;
  2. Introducing remote hearings; and
  3. Amending the consolidation provision to include claims not made under the same arbitration agreement.

For further information, please see: https://iccwbo.org/dispute-resolution-services/arbitration/rules-of-arbitration/rules-of-arbitration-2021/

John Doyle Construction Ltd v Erith Contractors Ltd [2020] EWHC 2451 (TCC)

Erith Contractors Limited (ECL) employed John Doyle Construction Limited (JDCL) as a subcontractor under an NEC3 contract, to carry out landscape works at the Olympic Park. JDCL went into liquidation and sought a summary judgment to enforce an adjudicator’s decision entitling JDCL to payment.

The issue was whether an insolvent company could enforce an adjudicator’s decision. Mr Justice Fraser rejected JDCL’s application for summary judgment on the basis that inadequate security was provided for the sum of the adjudicator’s decision. Had sufficient security or an undertaking from the liquidator been provided, the decision may have been different.

For further information, please see: https://www.bailii.org/ew/cases/EWHC/TCC/2020/2451.html

Parrwood Pty Ltd v Trinity Constructions (Aust) Pty Ltd [2020] NSWCA 172

The developer (Parrwood) employed the contractor (Trinity) to design and construct the Affinity Project.  The developer believed the contractor breached the contract, and retook possession of the works. Upon receipt of the contractor’s payment claim, stated the contractor was not entitled to any payment. The contractor referred the claim to adjudication.

The first adjudicator concluded the contractor was not entitled to any payment. However, the second adjudicator concluded the first adjudication was void on the basis the adjudicator failed to determine the payment claim.

The developer sought to challenge the second adjudicator’s decision in the Supreme Court, and later in the Court of Appeal. The developer’s appeal was dismissed. The court found the first adjudication was void, as the adjudicator failed to determine the amount of the progress payment the contractor was due.

For further information, please see: http://www.austlii.edu.au/au/cases/nsw/NSWCA/2020/172.html