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State of play table: 162

This table, prepared by Clyde & Co, provides a regularly amended guide to new and proposed legislation that will affect the construction industry. In addition to EU Directives and UK legislation, the table includes notes highlighting discussion papers issued by both government and non-government organisations, and commentary on the latest developments.

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Exclusions of liability under subcontracts

Guest Editor James Doe of Herbert Smith says the legal position is unclear relating to whether liquidated damages are direct or consequential loss. When drafting clauses, he urges identifying losses that should, or should not, remain recoverable from the subcontractor in a ‘carve-out’.

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Legal terms explained: Negligence – the basics

Construction projects are set up using contracts and it is no surprise that the law of contract generally plays a bigger role than negligence. Nonetheless, the law of negligence has an important part to play, especially if there is no contract between the parties. It is therefore worth looking at the basic principles and issues that come up when looking at claims for negligence.

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Arbitration’s rescue from the Italian Torpedo

In the latest article in our series on alternative dispute resolution, Alexander Whyatt of Clyde & Co examines the risks arising when inserting arbitration clauses into international contracts.

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Long tail liability – a dilemma for insurers

Insurance expert John D Wright of JD Risk Associates argues that the insurance market will not move to a claims made basis from the currently popular occurrence basis any time soon. The long tail problem may force a change one day, however.

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Practical completion pitfalls

Practical completion can be tricky enough to reach agreement on, but Simon Colegate of Wragge & Co argues that parties can make it a lot more difficult for themselves than it need be. Inadequate drafting of the relevant clauses is a prime cause of problems.

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OFT fine setting powers curbed

Companies that appealed the Office of Fair Trading’s fines for cover pricing have seen their fines reduced by up to 90 per cent. Alan Davis of Pinsent Masons examines what this means for competition law compliance and enforcement.

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Expert shopping: try before you buy?

The practice of ‘expert shopping’ to deny opponents access to a small pool of expert witnesses is heavily frowned on by the courts, warn Suzanne Seaman and Jane Hughes of Collyer Bristow in this review of recent case law.

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Cross border mediation

A new European Union mediation directive aims to formalise mediation and encourage its use in cross border disputes, as Jane Fender-Allison of Dundas & Wilson explains. Similar provisions could be enacted in domestic legislation.

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Bribery Act 2010 and the construction industry

Following the much delayed and awaited publication of the Ministry of Justice Adequate Procedures Guidance, the Bribery Act 2010 comes into force on 1 July 2011. Valerie Surgenor of MacRoberts explains what they mean for construction.

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