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Construction cartel creates dilemma for clients
Schoenherr
  • Austria
  • 10 May 2021

The competition law investigation into approximately 40 construction companies has created a dilemma for clients. On the one hand, there is annoyance that important business partners may have been deliberately deceived for years and the desire to make amends is great. On the other hand, the clients see themselves as almost forced to continue business relationships with the accused construction companies.

Fraserburgh Harbour Commissioners v McLaughlin & Harvey Ltd
Fenwick Elliott Solicitors
  • United Kingdom
  • 19 April 2021

In a recent case, the Outer House of the Scottish Court of Session considered whether Clause W2.4 of the New Engineering Contract 3, in the form agreed between the parties, operated as a contractual bar to preclude resorting to the courts (or arbitration) if a dispute between the parties which fell within the scope of Clause W2 had not first been referred to adjudication.

Expansion of premises liability for construction owners
Bradley Arant Boult Cummings LLP
  • USA
  • 12 April 2021

A property owner is generally liable for hazards on the property that injure others. On construction projects, this presents a significant risk for owners because there are multiple hazards present, and the owner, generally, has little control or knowledge of all the work being performed. Chapter 95 of the Texas Civil Practice and Remedies Code alleviates some of this risk by limiting a commercial property owner's liability for personal injury claims by contractors and subcontractors under specific circumstances.

Tell us what you think and you could win a £100 Mastercard voucher
International Law Office
  • International
  • 07 April 2021

This survey is now closed.

Aqua Leisure International Ltd v Benchmark Leisure Ltd
Fenwick Elliott Solicitors
  • United Kingdom
  • 29 March 2021

This article discusses an adjudication enforcement application to enforce a decision dated July 2017. The adjudication followed the failure of Benchmark to serve a pay less notice against Aqua's final interim payment application. The sum awarded did not represent the full amount due to the claimant as there was a retention payment of £48,000 to consider following completion of warranty works.

Non-compliance with change order requirements dooms differing site conditions claim
Bradley Arant Boult Cummings LLP
  • USA
  • 29 March 2021

In November 2020 the Kentucky Court of Appeals affirmed a trial court's decision which dismissed a contractor's differing site conditions claim on a sewer replacement project. In TSI Construction, Inc v Louisville and Jefferson County Metropolitan Sewer District, the appellate court concluded that the contractor's failure to comply with contractual provisions necessary to preserve its claim were fatal to its lawsuit.

CIDB extends initiatives for contractors affected by Movement Control Order
SKRINE
  • Malaysia
  • 22 March 2021

In 2020 the Construction Industry Development Board (CIDB) introduced initiatives to ease the burden on construction industry players affected by the Movement Control Order. The CIDB has now announced that it is extending several of these initiatives to ease the burden on contractors that intend to register or renew their registrations with the CIDB. It seems that the CIDB's initiatives have assisted industry players; thus, their extension will likely be welcome news.

Public procurement not immune to COVID-19
Schoenherr
  • European Union
  • 22 March 2021

The COVID-19 pandemic has infected public procurement, creating new challenges for companies and public purchasers. At least in the short term, exemptions have become the rule, procurement procedures have gone almost completely electronic and new contracts have had to be 'COVID-19 secured'. Some of these measures have an expiry date, but others will likely remain. The longer that some of these measures persist, the more susceptible the system will be to corruption.

The 2021 ICC Arbitration Rules – what revised joinder and consolidation rules mean for construction disputes
LALIVE
  • International
  • 15 March 2021

The most notable change in the new 2021 International Chamber of Commerce (ICC) Arbitration Rules, which are applicable to all ICC arbitrations initiated from 1 January 2021, is to make it easier to join an additional party to a pending arbitration. This article discusses why the recent changes are relevant for construction arbitration.

Two wrongs don't make a right: unlicensed contractors can pursue designers for negligence
Bradley Arant Boult Cummings LLP
  • USA
  • 01 March 2021

The North Carolina Court of Appeals recently determined that a builder who fails to comply with state licensing requirements may still pursue a negligence claim against design professionals. The case emphasises that contractors should ensure that they comply with state licensing laws before bidding a project and that designers should note when contractors performing work on their projects obtain the necessary licences.

What lies beneath – ground risk and site conditions
Fenwick Elliott Solicitors
  • United Kingdom
  • 01 March 2021

Unforeseen site conditions cause delay and cost overruns for projects of all sizes. Who takes the risk for unforeseen ground or site conditions encountered by a contractor carrying out works on site and what is the standard negotiated position? Unfortunately, the answer is often as varied as the types of condition that are encountered on site, but it usually starts with all parties looking at the contractor.

MCO 2.0: another SOP for construction sector
SKRINE
  • Malaysia
  • 15 February 2021

The construction sector is one of the economic sectors that is permitted to operate during the second Movement Control Order. The Construction Industry Development Board of Malaysia's website recently published the standard operating procedure that companies with permission to operate during MCO 2.0 must comply with when carrying out construction works. This article discusses this standard operating procedure's key points.

MCO 2.0: critical construction works allowed
SKRINE
  • Malaysia
  • 01 February 2021

Following the prime minister's announcement regarding the imposition of the Movement Control Order (MCO 2.0) in Johor, Malacca, Kuala Lumpur, Putrajaya and Labuan, Selangor, Penang and Sabah, the Ministry of International Trade and Industry issued the list of economic sectors that can operate during MCO 2.0, which includes the construction sector. The Ministry of Works subsequently issued a press statement clarifying that critical construction works can be carried out during MCO 2.0.

Continuing rise of statutory adjudication
SKRINE
  • Malaysia
  • 21 December 2020

The surge in the number of disputes involving the statutory adjudication mechanism in the Construction Industry Payment and Adjudication Act (CIPAA) 2012 has led to a significant number of consequential challenges to adjudication decisions in the courts. This article highlights the notable decisions handed down by the Malaysian courts in 2019 and their effect on the future application of the CIPAA.

District cells' social fraud inspection audits focus on construction sector
ALTIUS
  • Belgium
  • 14 December 2020

The COVID-19 pandemic has not prevented the Social Information and Investigation Service from proceeding with its inspection audits concerning illegal employment and social fraud. The available (provisional) data reveals that the construction sector has remained a highly targeted sector. This article highlights some interesting recent findings.

Kentucky fried claim: contractor preserves immunity from suit by complying with government contract specifications
Bradley Arant Boult Cummings LLP
  • USA
  • 23 November 2020

The Kentucky Court of Appeals recently upheld a contractor's immunity from suit for negligence, where the contractor complied with the contract and construction specifications provided by the Kentucky Transportation Cabinet Divisions of Construction Procurement. The case arose from a collision between a motorcycle and a car at an intersection where construction was being performed.

Construing conditional payment terms beyond pay-when-paid clauses under CIPAA
SKRINE
  • Malaysia
  • 26 October 2020

A contractor and claimant, Econpile, has had verdicts delivered by both the Court of Appeal and the High Court on, among other things, the issue of whether an adjudicator has the jurisdiction to decide on a payment claim when the contract has been terminated and whether the contractor is entitled to commence an adjudication proceeding under the Construction Industry Payment and Adjudication Act 2012 after the contract has been terminated.

Open dialogue needed to avoid COVID-19 construction disputes
Ogier
  • Jersey
  • 19 October 2020

The potential for disputes in construction projects has risen sharply with the performance and enforcement of contracts directly affected by COVID-19. An open and frank dialogue early on between the parties steered as a form of informal mediation or collaboration can quickly put an end to frustrations and disputes and lead the way for a successful, more cost-effective solution to any dispute that may arise.

Coverage for defective work? Michigan joins majority
Bradley Arant Boult Cummings LLP
  • USA
  • 12 October 2020

Michigan has joined the majority of jurisdictions in holding that a general liability policy may provide coverage for claims for property damage allegedly caused by a subcontractor's defective work. In a unanimous decision reversing the Michigan Court of Appeals, the Michigan Supreme Court held that a subcontractor's unintentional defective work was an accident and, thus, an occurrence covered under the subcontractor's commercial general liability policy.

Stop in the name of releases, before they break your claims
Bradley Arant Boult Cummings LLP
  • USA
  • 28 September 2020

Given the uncertainty that COVID-19 has brought to federal projects, it is imperative now more than ever that contractors preserve rights to potential claims at all turns. Fortunately, with careful reading and documentation, contractors can satisfy the government's desire for releases while preserving their claims. A recent Armed Services Board of Contract Appeals decision is yet another caution for any contractor that signs a release without preserving claims.

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