Newsletter
Information for members
August 2002

Previous issue: July 2002
Next issue: September 2002

Programme

A reminder that the general evening meetings are free of charge to members and guests and that no booking is necessary

CUBATG Guidance for Adjudicators

This Guidance, launched by the Construction Minister Brian Wilson MP on 23rd July, is now available on the SCL website as a pdf file. Drafted and published by the pan-industry Construction Umbrella Bodies Adjudication Task Group, it arises out of the review of the Scheme and Construction Act and covers a number of specific issues raised in that review. It is essential reading for all adjudicators - and others involved in adjudication too.

TCC Users Group Meeting

Copies of the TCC Users Guide are now available; an electronic version is to be put on to the website.

Members of the Society are reminded that TCC judges are available to act as arbitrators, to be appointed on a fixed fee basis. The procedure is that the parties involved should first agree on which judge they wish to appoint and then write directly to the judge, giving a brief synopsis of the case and an indication of how long the arbitration is likely to be.

Enquiries should be directed to the Court Manager on 020 7947 7427 or tcc@courtservice.gsi.gov.uk

Members of the Society are also reminded that if they have any complaints about the state (or lack) of facilities at St Dunstan’s House and other TCC Courts, such as photocopiers, faxes, telephones, meeting rooms, etc, they should be put into the complaints box at St Dunstan’s House, or alternatively, articulated in letters to Mr Justice Forbes for him to pass on to those in charge of maintenance, etc.

The next meeting will be held on Wednesday 9 October. If you have any points which you would like Victoria Russell to put to the meeting on your behalf, please let her know by email on victoriarussell@scl.org.uk

The President’s Reception

Tickets for the President’s Reception, to be held from 6.30-9.00pm on Wednesday 16th October, are selling well. A booking form was sent out with the last newsletter but if you need another, you can either download it from the website, or ask Jackie Morris at the admin office to fax or post one to you.

President’s Medal

You may remember that Professor John Uff QC CBE was the recipient of the first ever President’s Medal in October 2000. If you have not already done so, you are invited to submit your nomination for this year’s award.

If you would like to nominate a candidate or candidates, please email your suggestion(s) to Jackie Morris at admin@scl.org.uk no later than Monday, 2nd September. The candidate(s) need not be a member of SCL but should clearly have made a significant contribution to furthering the Society’s aim of promoting the study and understanding of construction law amongst all those involved in the construction industry.

The winner(s) will be decided by Sir Philip Otton, together with the officers of SCL. The recipient(s) will then receive a special invitation to attend the President’s Reception on 16th October.

SCL Papers

A dozen or so papers given at (or arising from) the highly successful international conference held at King's College on 12th July will be appearing on SCL's website: indeed the first four are already there. With the kind agreement of the other conference organisers, the Centre of Construction Law and European Society, they are being made available to all SCL members on the website free of charge, and will be e-mailed to all participants in the conference who are not members. As a new feature, a short précis of the paper will also be available on the website.

The title of the conference was Delivering Infrastructure: International Best Practice and the papers look at different aspects of this theme.

The first, The British Experience, is the keynote address given by Vivien Bodnar (Executive Director of the Property and Construction Directorate of the UK Office of Government Commerce) and gives an insight into the current thinking of the OGC.

The second, The Contractor's Role, by Frank Kennedy (chairman of the European International Contractors' Conditions of Contract Working Group) looks at infrastructure delivery from the point of view of Europe's international construction companies.

In the third, Domenico Campogrande (the Rapporteur of the Economic and Legal Commission of FIEC (the European Construction Industry Federation)) explains the present position with regard to The Proposed European Community Procurement Directives.

Fourthly, in Planning Dispute Resolution, Adrian Winstanley (Director-General and Registrar of the LCIA (London Court of International Arbitration)) puts forward the arguments in favour of administered arbitration and considers a number of aspects of the LCIA Arbitration Rules.

Further papers will be added in the next few weeks, including three looking at FIDIC's Red, Yellow and Silver Books from the contrasting points of view of a developer, contractor, and (neutral?) lawyer. Papers looking at trends in Mainland China and Hong Kong, civil law Africa and Mexico will follow.

This is all in addition to the papers given to SCL meetings around the country: recently a paper by Stuart Nash Delay and Disruption: Legal Considerations, which looks further at aspects of the Delay Protocol, was put on the website.

SCL Hudson Prize 2002

You write a winning entry, SCL will write a cheque!

We will soon be inviting entries for this year’s SCL Hudson Prize (closing date 31st December). A leaflet setting out the entry details is currently in production and copies of it will be sent to everyone.

EOT Protocol Update

We have had several requests for information as to the current status of the consultation and so this is a brief update.

At present the "May 2002 consultation version" is currently being refined by the drafting group to take account of the feedback received both at the May workshop and by email. At a recent SCL Council meeting it was also agreed that John Marrin QC would assist with the final review of the document on behalf of Council.

All members of SCL will be issued with a copy of the protocol when it is published. Once a firm publication date is announced we also plan to announce details of a launch event in the Autumn.

Contracted Mediation

King’s College London and University College London are collaborating in order to collect and analyse data on contracted mediation. Contracted mediation attempts to fuse team building, dispute avoidance and dispute resolution in one procedure. The impartial contracted mediation panel, consisting of one lawyer and one commercial expert who are both trained mediators, is appointed at the outset of the project. The panel attends site meetings and conducts workshops. The panel members should therefore have a working knowledge of the project and the individuals working on that project. This knowledge allows the panel to resolve contractual differences before they escalate, and provides an immediate medium for the confidential, mediated resolution of disputes.

However, experience of its actual use in practice is limited and evidence supporting the benefits of contracted mediation is anecdotal(1). For example, it could provide an economic dispute management technique for the majority of the industry’s projects that cannot justify the cost of a dispute review board. But is there a real demand for contracted mediation in the industry? In other words; does it offer real benefits, is there a need for contracted mediation and is there a willingness to pay for it?

Recently, some major players in the supply side of the industry have started to actively encourage the use of contracted mediation for future projects. Further, the Government’s “Dispute Resolution Guidance” pledges a commitment to ADR and states that its policy is to avoid disputes and “to ensure that the relationships between the client and supplier are non-adversarial… litigation should usually be treated as the dispute resolution method of last resort”.(2) It is therefore possible that we will see some use of this process on several new developments in the next few years.

The research project hopes to capture these developments, collect data on its implementation, and provide the first research on contracted mediation in practice. If you have any experience of contracted mediation, or would like to consider using it on a project or would just like further information then please contact Nicholas Gould (Senior Research Fellow, King’s College) on 020 7956 9354 or by email

(1) Contracted mediation was used on Jersey Airport, see “Stopping disputes before they start” Commercial Lawyer Special Report, February 2001.
(2) Office of Government Commerce, “Dispute Resolution Guidance” www.ogc.gov.uk
Tools and Tactics in International Commercial Arbitration

SCL members will be given a discount to a Seminar in Paris on September 30/October 1st. The seminar looks at tools and tactics under national laws, or with people from a particular country, particular sets of arbitration rules (UNCITRAL, ICC, AAA, LCIA), and particular contracts, with a FIDIC contract workshop. Details are available at www.hawksmere.com. If you would like to contribute to the tools and tactics theme, which will eventually be published as a book, please contact robertknutson@scl.org.uk

International initiative for the teaching of construction law

The University of London and King's College London have just approved a new degree programme - a two year part-time MSc in Construction Law & Arbitration to be taught jointly between the Centre of Construction Law and the Department of Building at the National University of Singapore. This will allow students already in professional practice in the SE Asia region to follow a taught MSc programme in Singapore, with input from King's staff as well as those of NUS and a three-week study visit to London between the two years of the programme. The new degree will start in July 2003 and is the first programme of its kind to involve the University of London and King's College.

Change the Face of International Turnkey Contracts

The ICC Commission on International Commercial Practices, based in Paris, is currently working on a draft of a new Major Projects Turnkey contract for international construction. The mandate of the group is to create a contract which is fair to all parties. If you are interested in taking part (at your own or your firm's expense!) contact robertknutson@scl.org.uk.

SCL Web Site: www.scl.org.uk

For those new to the Society and/or to the WWW our web site is a constant source of new information. Items which have arrived too late to be published in a Newsletter, or details of meetings which have been arranged after the seasonal Diary has gone to print, will be posted on the website. It contains details of our future programme and contact details for university book grants. Also, in addition to the papers mentioned in the separate article above, the website has a list of over 100 titles of past papers.

SCL Membership

Finally, we are pleased to welcome the following new members to the Society in July:

Regional Coordinators

Are you moving? Will your contact details change? Do we have your email address? Please tell Membership Administration so that we can keep our records up to date.

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