India is Building Bridges: Cross-Border Collaboration on Construction Disputes
India is cautiously opening its doors to global expertise. The
Howard Kennedy plays key role in launch of the International Construction Arbitrators Association (ICAA)
ICAA, founded by Edward Corbett, offers a global list of specialist arbitrators for international construction disputes. Modeled on the LMAA, it promotes expertise, diversity, and next-generation professionals. The list is available at www.intcaa.org.
Who is writing your arbitration awards?
Arbitration can be expensive and time-consuming. Concerns have arisen over the quality of awards due to excessive copying, delegation, and AI use, potentially damaging credibility and trust in arbitration. Are standards slipping?
New Arbitration and Mediation Guidelines for Indian Public Procurement Contracts
The Government of India has recently introduced important guidelines for
CAB to Resolution: Steering Clear of Conflicts
In August 2024 SIMC introduced a new Integrated Appropriate Dispute Resolution Framework ('INTEGRAF') to help disputing parties "unbundle disputes and apply the most appropriate dispute resolution mechanism to each aspect of a dispute." This article considers INTEGRAF's applicability in construction projects.
No Notice, No Claim? Conditions Precedent in FIDIC Contracts
How do you establish whether a notice provision is really
1999 Suite: Commentary on Clause 20 – Claims, Disputes, and Arbitration
Clause 20 covers claims, disputes, and arbitration. It includes procedures for Contractor claims, appointing a Dispute Adjudication Board (DAB), handling disputes, amicable settlement, arbitration under ICC rules, and actions when a DAB decision is not complied with or absent.
International Arbitration and Third Party Funding: Time to Rethink Reward and Risk?
The English Commercial Court has now confirmed in two separate decisions that an arbitral tribunal may award a winning claimant its third party funding costs. How significant are these decisions and it is time to rethink the potential reward and risk of international arbitration?
Arbitration Update – The new FIDIC certifications: will they pass the test?
In March 2020, FIDIC launched FIDIC Credentialing Ltd (FCL) to certify industry professionals. Though seen by some as overambitious, it aims to address real issues with FIDIC forms. This article examines one programme's potential to solve these problems.
Arbitration Update 2021
This article looks at recent changes in arbitration rules, including new LCIA, DIFC-LCIA, and ICC rules, the Seoul Protocol on Video Conferencing, the Africa Arbitration Academy Protocol on Virtual Hearings, and revisions to the IBA Rules on Taking Evidence.
Changing Tack
A contract may require a party giving notice of a claim to specify the contractual or legal basis of that claim in the notice (or the supporting particulars). What if that party states a contractual or legal basis for the claim but later (perhaps with the benefit of additional information or because of advice from its lawyers) changes its mind or wants to include further contractual or legal bases? This was considered by the Hong Kong Court of Appeal in Maeda Corporation and China State Construction Engineering (Hong Kong) Limited v Bauer Hong Kong Limited [2020] HKCA 830. It found that a subcontractor could not change the contractual basis for its claim once the time period for providing such notice had expired. What, if any, impact will this decision have on the FIDIC forms of contract?
Obstacles to the Appointment of an Arbitrator
Airports Authority of Trinidad and Tobago v Jusamco Pavers Ltd[1]
Jurisdiction, Admissibility and FIDIC
An issue that often arises in international arbitrations involving the FIDIC forms of contract is whether a claimant's failure to: (a) go through the dispute resolution provisions; or (b) comply with a time-bar clause gives rise to a question of admissibility or jurisdiction. Put another way, if a claimant has failed to issue a notice of claim within 28 days or failed to refer a dispute to a DAB, does the arbitral tribunal have jurisdiction to make an award on the merits or should the arbitral tribunal make an award stating that it lacks jurisdiction?
Tribunal Secretaries: Tasks, Transparency and Regulation
The debate surrounding the use of tribunal secretaries in international
FIDIC’s Emerald Book – A contractor’s charter or optimum risk allocation?
Is FIDIC’s new Emerald Book overly contractor-biased or does it offer pragmatic risk allocation for underground works? This article compares its benefits and risk distribution with the unamended FIDIC Yellow Book, especially regarding employer risks in claim-prone areas.
Arbitration in a Post-Brexit World
This article considers what changes might occur for UK arbitration post-Brexit. Arbitration is excluded from EU law, and the New York Convention remains unaffected. Some believe arbitration might increase due to uncertainties in enforcing court judgments in Europe post-Brexit.
Cherry Picking FIDIC 2017
Much has been said about the new Red, Yellow and Silver Books 2nd Editions launched by FIDIC in December last year. The most obvious comment has been about their size, almost 50,000 words, which is some 60% longer than the 1999 forms. Although the 1999 forms were not perfect, most regular users seem to be agreed that they did not need 20,000 words to fix the issues. This consensus led this author to attempt to cherry-pick the good bits from the 2017 forms and to propose amendments to add the good ideas to the 1999 forms. The amendments apply to all three forms unless it is indicated otherwise.
ICC Arbitration – Penalties for Slow Arbitrators
In its bulletin of 5 January 2016, the ICC announced penalties to encourage arbitrators to deliver up their awards more quickly than at present. The tardiness of some arbitrators has long been cause for major discontent amongst both lawyers and clients. Corbett & Co.’s worst experience was a sole arbitrator who took more than 18 months to issue an award on a preliminary issue!
Where Do FIDIC Cases Go?
FIDIC is arguably the most widely used standard form of international construction contract but reported FIDIC cases are rare. Is it time for an increased publication of FIDIC cases? There are three categories of decisions arising out of FIDIC dispute resolution provisions: 1. Decisions of the Engineer or the Dispute Adjudication Board (DAB), which will generally not be published or reported to anyone other than the parties involved in the dispute. 2. Decisions of arbitral tribunals, which are not usually made public although this is subject to certain exceptions. 3. Decisions of national courts, which are a relatively rare occurrence for the reasons discussed below.
Can a party ignore FIDIC’s DAB process and refer its dispute directly to arbitration?
If there is no DAB appointed by parties to a FIDIC 1999 contract, may disputes be referred directly to arbitration under Clause 20.8? This issue has troubled many in the industry – and has now been considered in English and Swiss courts.