دانلود کتاب The Law of Construction Disputes (Construction Practice Series)

فهرست مطالب :

Cover
Half Title
Series Page
Title Page
Copyright Page
Contents
The author
Preface
Acknowledgements
Table of cases
Table of legislation
CHAPTER 1 INTRODUCTION TO CONSTRUCTION DISPUTES
Applicable principles of law
Common law
History
Stare decisis
Common law countries
Civil law
The Napoleonic Code
Differences between common and civil law
Civil law countries
Sharia – Islamic law
History
Hanafi Islamic Sharia
Shafi Islamic Sharia
Hanbali Islamic Sharia
Maliki Islamic Sharia
ADR procedure
Enforcement of adjudication decisions versus arbitration awards
Dispute Review Board decisions
Dispute Adjudication Board decisions
The form of the Dispute Board decision
Particulars as to the Kingdom of Saudi Arabia
Particulars as to the Islamic Republic of Iran
Dispute Boards under common, civil or Sharia law
The historical development of dispute resolution in construction matters
The legal development of other dispute resolution methods
The engineer/arbitrator as judge
The engineer as quasi-arbitrator
The development of non-statutory adjudication
The advent of Dispute Boards in England
Extension to international cases
Specific regional differences and methods
Germany
France
Forms of standard construction contacts
Use of form contracts
Standard form provisions
Methods of construction contracting
The traditional method
The design-build method
The management contracting method
The construction manager method
Other methods
Contractual operation and payment formats
The traditional lump sum or fixed price contract
The guaranteed maximum price contract
The remeasurement type of contract
The cost reimbursement or cost plus fee contract
Target cost contracts
CHAPTER 2 THE CONSTRUCTION CONTRACT
Formation
Defining a contract
Offer and acceptance
Implied agreements
Capacity
Consideration
Intent to be legally bound
Privity of contract
Oral contracts
Letters of intent
Other contract issues – battle of the forms and related difficulties
The construction tender
Unilateral versus bilateral contracts
Uncertainty
Conditions as terms of a contract
Implied terms
Terms implied in fact
Misrepresentation
Distinctions
Express false representations
Implied misrepresentations
Negligent misrepresentations
Innocent misrepresentations
Misstatements of the law versus fact
Mistake
Unilateral mistake
Mutual mistake
Common mistake
Mistake versus frustration versus impossibility
CHAPTER 3 DESIGN DISPUTES AND LIABILITY
Design professionals
The design professional: architect/engineer’s duty – tort versus contract
Fitness for purpose liability
Reasonable skill and care
Concurrent negligence and contract duty
Negligence generally
Duty to warn of retrospective danger
Duty to others
Purely economic losses
Miscellaneous matters: personal injury, latent defects and subsequent occupiers
Other issues
The knowledge of others
Matters other than design
New, novel and strict design standards
Liability for design of others
CHAPTER 4 SITE CONDITIONS
The site
Right to access
Possession by whom?
Does the contractor have a licence to enter the site?
Access and possession
Site access after completion
Site conditions
Unforeseen ground conditions
Contract provisions for unexpected ground conditions
Misrepresentation of the site conditions
The site under the Housing Grants Act
Employer responsibility regarding possession
CHAPTER 5 THE SUBCONTRACTOR
Types of subcontract
Relations with the contractor
Employer insolvency and payments
Default by subcontractor
Delay issues
Defect issues
Problems with nominated subcontractors
Relations with employer
No privity
The Contracts (Rights of Third Parties) Act 1999
Liability in tort
Relations with architect and engineer
CHAPTER 6 DEFENCES TO CONSTRUCTION DISPUTES
Force majeure
Is the contract terminated?
Acts of God
The purpose of force majeure clauses – historically and internationally
Typical force majeure clause usage
The necessary requirements for force majeure
When does force majeure commence?
The duration of the condition
When should notice be given
Force majeure’s effect
Frustration
CHAPTER 7 ISSUES REGARDING CONTRACTORS’ RIGHTS AND OBLIGATIONS UNDER STANDARD FORM AGREEMENTS
Design-build form contracts
Particular provisions: contractor to scrutinise employer’s requirements for errors
Extension of time clauses
EOT “sweeping-up” clauses
The other major forms of contract
The JCT forms of contract
JCT 98 Standard Form of Building Contract (JCT 98 SFBC)
The changes made in the SBC05
Payment
Insurance issues
Commencement, progress and completion
Warranties/third-party rights
Termination
Dispute resolution
The ICE conditions of contract
Measurement Version 7th Edition
ICE Design and Construct contract
ICE Minor Works contract
Time and cost issues under the Measurement Version, Design and Construct, Minor Works
The Measurement Version
The Design and Construct Version
The Minor Works Contract
The NEC3 – the New Engineering Contract Engineering and Construction Contract – NEC ECC and the new NEC 4 changes
Overview – NEC3
Some important provisions
Clarifications
Adjudication
Capping contractor liability
The risk register
Prevention Clause 19
The concept of Key Dates
Design liability
Payment for defective work
Overview – NEC4
The FIDIC Forms of Contract
The three main FIDIC Forms of Contract
The proper form
Employer design of the project
Contractor design of the project
Contractor designs and employer supervises
Contractor designs, procures and builds
Contractor designs, procures, builds and operates
Who has the risk?
Common issues between the forms
The role of the engineer
Contractor incentives
Variations
Contractor’s rights and obligations
Rights
Obligations
Additional obligations and issues
Termination issues
Termination for convenience
Impossibility of performance
Force majeure
FIDIC 2017 edition changes
The contractor
The employer
Unforeseen conditions
The Red and Yellow Books
The Silver Book
Damages
Delay/damage claims by the employer
Damage claims by the contractor
CHAPTER 8 TERMINATION OF CONTRACT
Termination versus determination
Common law repudiation versus determination
Can suspension be repudiation?
Anticipatory repudiation
A repudiation need not be accepted
Rescission
Release
Accord and satisfaction
Waiver and promissory estoppel
CHAPTER 9 THE CERTIFICATION PROCESS
Certificates
Certificate requirements
Errors
Interim certificates
Impartiality of the certifier
Certifier liability
History
Variations
Is it a variation or a separate contract?
Implied variations
Ordering variations
Failure to order a variation
Removing work
What is the basis for payment and value of the variation?
Value
Standard methods of measurement
Errors
Final certificates
Final Account Statements
CHAPTER 10 TYPES OF CLAIM
Claims for money
The issue of causation
Contribution
Money damages but at what cost
Reasonableness
Contract versus tort damages
Claims for performance
Liquidated damages and claims for extensions of time
Delay versus disruption
Extensions of time
The standard forms
Who determines the extension
Float
Concurrent delay
Diminution in value
Abatement versus set-off
CHAPTER 11 COLLATERAL WARRANTIES
Collateral warranty provisions
The Contracts (Rights of Third Parties) Act 1999
Enforcing variation and rescission of contract
Defences
Defence 1
Defence 2
Defence 3
The promisee’s enforcement of the contract
Opting out of the Act
CHAPTER 12 NON-CONTRACT LIABILITY
Negligence
The “Threefold Test”
The “Assumption of Responsibility Test”
The “Incremental Test”
The “Holistic Test”
Vicarious liability
Nuisance
Limiting factors
Strict liability in nuisance – the rule in Rylands vFletcher
Trespass versus nuisance
Encroachment
CHAPTER 13 TIME AT LARGE AND TIME-BAR CLAUSES
Time at large
Time-barred claims
CHAPTER 14 DISPUTE RESOLUTION
Conventional model
Litigation versus arbitration versus mediation
Arbitration
The Arbitration Act 1996
The arbitration process
The arbitrator
The award
Arbitration variations
Mediation during the litigation/arbitration process
Refusing to mediate
Enforceability of ADR agreements and mediation settlement agreements
Withdrawing from mediation
Refusing to mediate – no cost consequences
Adjudication
Mandatory provisions
The process under the Act
The Scheme for Construction Contracts
The Act’s main areas – Is there a dispute?
Does the dispute arise under a construction contract?
Does a contract have to be in writing within the meaning of section 107?
The process
Procedures under the Scheme
Notice of adjudication
Appointment of an adjudicator
The referral notice
Adjudicator’s powers and duties
Changes to the Housing Grants Act
Dispute Boards
What is a Dispute Board?
What makes a Dispute Board unique? What can be achieved by using a Dispute Board?
Non-binding recommendations
Interim-binding decisions
History of Dispute Boards
The World Bank
Harmonised contract conditions
Growth of Dispute Boards
An overview — composition of Dispute Boards and their operation
Appointment and membership
The importance of early appointment and of regular site visits
Routine operations
Informal operations
Dispute Board procedures
Dispute Review Board costs
Why Dispute Boards work
International aspects
CHAPTER 15 KEY ISSUES IN DISPUTE RESOLUTION
Agreements
Disclosure
E-disclosure
The Chartered Institute of Arbitrators Protocol for E-disclosure in Arbitration
Confidentiality
Enforcement of foreign awards in the UK
Serial adjudication decisions
Adjudication conundrum
Election
Set-off
Arbitration of Dispute Board decisions
Notice of dissatisfaction
Amicable settlement
Arbitration
New developments
The award
Recent developments
The trend
Persero No 2
The 2011 arbitration
APPENDICES
Appendix 1: Glossary of Construction Terms
Appendix 2: Housing Grants, Construction and Regeneration Act 1996
Appendix 3: The Scheme for Construction Contracts (England and Wales) Regulations 1998
Appendix 4: Contracts (Rights of Third Parties) Act 1999
Appendix 5: Dispute Board Provisions Under the FIDIC Red Book 1999
Appendix 5a: Dispute Board Provisions Under the FIDIC Red Book 2017
Appendix 6: Dispute Board Provisions Under the FIDIC Yellow Book 1999
Appendix 6a: Dispute Board Provisions Under the FIDIC Yellow Book 2017
Appendix 7: Dispute Board Provisions Under the FIDIC Yellow Book 2017
Appendix 7a: Dispute Board Provisions Under the FIDIC Silver Book 2017
Appendix 8: ICC Dispute Board Rules
Appendix 9: The Dispute Board Federation Dispute Adjudication Board Ad Hoc Rules for Use in Independently Administered Dispute Board Matters
Appendix 10: The Defective Premises Act 1972
Appendix 11: Unfair Contract Terms Act 1977
Appendix 12: Torts (Interference with Goods) Act 1977
Appendix 13: Sale of Goods Act 1979
Appendix 14: Limitations Act 1980
Appendix 15: Supply of Goods and Services Act 1982
Appendix 16: Latent Damage Act 1986
Links to useful websites
Index