MỘT SỐ ĐIỂM NỔI BẬT VỀ HỢP ĐỒNG XÂY DỰNG TẠI ANH QUỐC CONSTRUCTION CONTRACTS HIGHLIGHTS FROM THE UK

MỘT SỐ ĐIỂM NỔI BẬT VỀ HỢP ĐỒNG XÂY DỰNG TẠI ANH QUỐC CONSTRUCTION CONTRACTS HIGHLIGHTS FROM THE UK MỘT SỐ ĐIỂM NỔI BẬT VỀ HỢP ĐỒNG XÂY DỰNG TẠI ANH QUỐC CONSTRUCTION CONTRACTS HIGHLIGHTS FROM THE UK MỘT SỐ ĐIỂM NỔI BẬT VỀ HỢP ĐỒNG XÂY DỰNG TẠI ANH QUỐC CONSTRUCTION CONTRACTS HIGHLIGHTS FROM THE UK MỘT SỐ ĐIỂM NỔI BẬT VỀ HỢP ĐỒNG XÂY DỰNG TẠI ANH QUỐC CONSTRUCTION CONTRACTS HIGHLIGHTS FROM THE UK

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MỘT SỐ ĐIỂM NỔI BẬT VỀ

HỢP ĐỒNG XÂY DỰNG TẠI ANH QUỐC

CONSTRUCTION CONTRACTS- HIGHLIGHTS FROM THE UK

HM Consul General, British Consulate-General HCMC Country Director for Trade in Vietnam,

Department of International Trade

Giám đốc toàn cầu về thương mại, pháp lý

và rủi ro số Công ty Buro Happold

Global Director of Commercial, Legal and Digital Risks, Buro Happold

Chuyên gia NEC, Tổng thư ký Hiệp hội người dùng Hợp đồng NEC Hòa giải viên và chuyên gia giải quyết tranh chấp

Senior NEC consultant, Secretary

of NEC Users’ Group Accredited Mediator and Dispute Resolution Adviser

Luật sư thành viên White & Case (London) Nguyên Chủ tịch Hội Pháp luật xây dụng Anh (2015-2016)

Partner at White & Case LLP (London) Former Chairman of the Society of Construction Law (UK) (2015-2016)

Chairman Alchemy BS Ltd Council member of UK Society

of Construction Law

Ông/Mr MATTHEW BROWNE

Phó Vụ trưởng, Vụ đấu thầu,

Văn phòng Chính phủ Anh

Deputy Director, Outsourcing

Programme, Cabinet Office

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Phát biểu khai mạc Opening speeches

Luật về cải tạo, xây dựng và trợ cấp nhà ở 1996

Housing Grants, Construction and Regeneration Act 1996

15:00-15:20 (VN) 8:00-8:20 (UTC)

15:20-15:35 (VN) 8:20-8:35 (UTC)

Ông/ Mr.Keith Kirkwood

Ông/ Mr Matthew Browne

Bộ hợp đồng Joint Contract Tribunal (JCT)

Joint Contract Tribunal (JCT) contracts

16:00-16:15 (VN) 9:00-9:15 (UTC)

Ông/ Mr.Robert Gerrard

Lịch sử và sự phát triển của bộ hợp đồng NEC

History and development of the NEC

The Construction Playbook 2020

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Development and implementation of the Construction Act 1996

Julian Bailey, Partner, White & Case LLP, London; Visiting Fellow, Dickson Poon School of Law, King’s College, London

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Great Britain in the early 20 th century…

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In the construction industry:

 Few laws concerning health & safety on site.

 Contractors had no legal right to interim payments (unless agreed).

 Construction disputes would be resolved by either court proceeding or (if agreed) arbitration -> time consuming and costly.

Great Britain in the 1980s…

 More health & safety laws -> but hard hats only compulsory from 1989.

 Contractors still did not have a legal right to interim payments -> but market practice was for contracts to include interim payment provisions.

 Construction disputes were (still) resolved by court proceedings or (if agreed) arbitration -> by now EVEN MORE time consuming and expensive.

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Great Britain in the 1990s…

 What does the Construction Act do?

– Creates a statutory right to interim payments for contractors (et al) who perform construction work -> no big change (interim payments commonly used).

– Requires construction contracts to contain provisions for statutory adjudication as a form of optional dispute resolution -> A BIG CHANGE!

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Money disputes

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An example:

 A contractor has performed £100,000 of work for an employer.

 It sends an interim payment claim to the employer for £100,000.

 The employer refuses to pay, or otherwise disputes the payment claim.

 What can the contractor do?

Money disputes

Before the Construction Act:

 Two main options:

– Commence court proceedings against the employer to claim the £100,000

– Commence an arbitration against the employer to claim the £100,000 (if arbitration is agreed)

– Either route would take a long time (e.g 2 years +) and cost substantial money, meaning there would be a risk of the contractor…

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Money disputes

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Pursuant to the Construction Act:

 The contractor may commence an “adjudication” against the employer

 Essentially a “fast track” form of arbitration

 Adjudicator required to reach a decision within 28 days of the dispute being referred to adjudication (or possibly a little longer)

 Decision of the adjudicator is “provisionally binding”, and is enforceable through the courts

 E.g adjudicator awards £100,000 to the contractor -> contractor takes the adjudicator’s decision to the court -> the court enforces the decision (quickly) to create a judgment debt against the employer for £100,000

Money disputes

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Pursuant to the Construction Act:

 But you’re thinking: “how can you satisfactorily decide a construction dispute in 28 days?!”.

 Answer: maybe you can’t do so.

 HOWEVER: the adjudicator’s decision is not a final determination -> it

is “provisionally binding”.

 If the employer pays the £100,000 to the contractor, and it believes the contractor is not really owed that amount -> it may start court or arbitration proceedings to reclaim the money.

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Statutory adjudication: the UK experience

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Statutory adjudication: the UK experience

Bresco Electrical Services Ltd (in liq) v Michael J Lonsdale (Electrical) Ltd [2020] UKSC 25 at [10], per Lord Briggs JSC:

“Introduced as a statutory regime by the 1996 Act, adjudication of construction disputes has been a conspicuously successful addition to the range of dispute resolution mechanisms available for use in what used to be an overadversarial, litigious environment.”

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Statutory adjudication: international up

take-13

Cám ơn vì đã lắng nghe!

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Alchemy BS

Construction Contracts Highlights from the UK

Joint Contract Tribunal

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Speaker – Keith Kirkwood BSc, FRICS, FCIArb, FCInstCES

Nearly 50 years’ experience in construction

Previously owned Schofield Lothian Ltd, Bennington Green Ltd, WB Ltd, Morsson Pyper Ltd Past NED of Driver Group & Commercial Director of C&N Started career with John LaingSat on drafting panel for 1stand 2ndEditions of the SCL Protocol on Delay and DisruptionGiven Expert Evidence in UK and Internationally in Adjudication, Arbitration and LitigationWorked throughout the UK and in over 20 countries around the globe

Alchemy BSWhat is the Joint Contracts Tribunal (JCT)

 Formed in 1931 by RIBA and NFB to produce a Standard Building Contract that balanced risk

 Originally known as Standard Form of Building Contract published by RIBA

 First referred to as JCT in 1977 and in 1998 the JCT formed specialist limited company to produce approved forms backed by its membership Turnover about £2m Balance sheet £8m

 Membership now includes the RIBA, RICS, British Property Federation, Construction Federation, Local Government Association, National Specialist Contractors Council, Scottish Building Contract Committee

 The JCT now produce a suite of consistent documents to enable different forms of procurement that attempts

to balance risk

 The latest version of the JCT is JCT 2016 but it is continually amended to reflect changes in UK legislation.

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Alchemy BSWhat is The JCT Suite of

JCT Main Contracts Family

Standard Building Contract

Intermediate Building Contract

Minor Works Building Contract

Design and Build contract

Construction Management Contract

Management Building Contract

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JCT Standard Contract

With Quantities

Without Quantities

With Approximate Quantities

With Contractor Design

With Subcontract Design Agreement

With named Subcontractors

Alchemy BSJCT Conditions 2016

A set of off-the-shelf contracts (On Line and hard copy)

The most used UK Contract

Building Contract (Not Civils or Services)

The JCT focuses on liabilities and risk in traditional way

Legislative requirements apply to UK law

Rights of third parties

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Alchemy BSDifferences between JCT, NEC and FIDIC

The NEC Contract requires and enables a more proactive and collaborative approach to managing the contract and is written in a less legalistic way It can

be used for both Engineering and Building works

The FIDIC contract is primarily an engineering contract but can be used for building works It is written to accommodate International law and makes allowances for such things as currency payments or advanced mobilization payments

Alchemy BS

What type of Contract is the JCT Standard Building

Allows subcontracting with approval

Can be used with Pre-Construction Agreements

Can be used with a framework agreement

For use by both Private and Public Sectors

Two parts – The Articles and the Conditions

Alchemy BS

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Articles of Agreement

Agreement Recitals Articles Contract Particulars Third party rights and collateral warranties Execution of agreeement

Alchemy BS

JCT Conditions

Section 1 - Definitions and InterpretationSection 2 - Carrying out the works

Section 3 - Control of the worksSection 4 - Payment

Section 5 - VariationsSection 6 - Injury Damage and insuranceSection 7 - Assignment, Third party rights and collateral warranties

Section 8 - TerminationSection 9 - Settlement of disputes

Alchemy BS

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Contractor’s Obligations (Section 2)

To carry out and complete the works

a) In proper workmanlike manorb) To the required standard of workmanship, materials, design c) Within the required time – By Completion date or adjusted date

Comply with instructions

Provide insurances as required

Alchemy BS

Alchemy BSPossession / Completion (Section 2)

No standard obligation to provide a programme at all

Obligation to proceed regularly and diligently

Notice of delays to progress (Not Condition Precedent)

Non completion certificate

Liquidated Damages if late

Alchemy BS

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Extensions of Time (Section 2)

If and when it becomes “reasonably apparent that the progress of the Works is being or is likely to be delayed” shall give notice of material circumstances including causes of delay

Contractor must use “best endeavors” to prevent delay or further delay

Employer to review and assess as soon as he is able during the currency of the Contract and give a fair and reasonable EoT

Employer to review overall position in relation to EOT immediately following PC

Alchemy BSDefects

Where there is work or materials that do not comply with the Contract standardsthat is a defect

Before Practical Completion - Remove; Rectify or Remain

Post Practical Completion - Instruct during Rectification Period and / or Issue Schedule of Defects up to 14 days after expiry of RP or Defects Remain

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• Clause 2.6 - Early use of site by Employer [either party]

• Clause 2.15 – Discrepancies [contractor]

• Clause 2.17 – Divergence from Stat Requirements [either party]

• Clause 2.18 - Emergency Compliance with Statutory Requirements [contractor]

• Clause 2.27 - Notice of delay to progress [contractor]

• Clause 2.32.1 - Employer deduct LAD’s [employer]

• Clause 3.3 - Employer’s Representative [employer]

• Clause 3.5 - Replacement of Arch or QS [employer]

• Clause 4.11 - Interim Payment Notice [contractor]

• Clause 4.13.1 - Payless Notice [employer]

• Clause 4.14.1 - Suspension Notice [contractor]

• Clause 4.15 - Final Payment Notice [contractor]

• Clause 8 - Notices in relation to Termination [either party]

• Parts 7A – 7E - Notices relating to Warranties [employer]

7 Loss and Expense

8 Final Statement and Final Payment

Alchemy BS

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Payment (Section 4)

Valid Payment Notices

 Must set out the sum due (‘Notified Sum’) within set timescale

 Basis of the calculation

 Notified Sum could be negative or zero – same requirements

The Employer must pay the sum due on or prior to the final date for payment; unless

1 The Employer gives notice of its intention to pay less than the sum due not later than 5days prior to the final date for payment

2 The sum due and basis of calculation is detailed and shown

Alchemy BS

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Payment Key Dates (Section 4)

Contractor’s Interim Application issued

On Interim Valuation Date

Due Date

Contractor’s Interim Application counts as notice in lieu

Employer’s Notice (JCT DB) not issued

Final Date for Payment (unchanged)

7 days

No later than 5 days after due date

From Day 6

Pay Less Notice

No later than

5 days before final date for payment

Alchemy BS

Suspension (From H.G.A.)

 Contractor can suspend part or all of the works for non payment

 The Employer is liable to pay the contractor a reasonable amount in respect of costs and expenses incurred both for demobilisation and re-mobilisation

 An extension of time will be given to cover the period of suspension and remobilisation

Alchemy BS

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Loss and Expense (Section 4 )

 Entitles the Contractor to make a written application for loss and expense where there the Contractor incurs or is likely to incur direct loss and/or expense as a result of any deferment of possession or where the regular progress of the works has been materially affected

by a Relevant Matter

 Relevant Matters listed in Contract

Variations (Section 5)

“The alteration or modification of the design, quality or quantity of the Works including the:

1 addition, omission or substitution of any work;

2 alteration of any of the materials or goods

3 removal from the site of any work not in accordance with Contract

Alchemy BS

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Variations (Section 5)

The imposition by the Employer of any obligations or restrictions or any addition to

or alteration or omission of any obligations or restrictions that are imposed in the Contract in regard to:

 Access to the site or use of any specific part of the site

 Limitations of working space

 Limitations of working hours

 The execution or completion of the work in any specific order

Alchemy BS

Value Variations (Section 5)

• Agreement between the Employer and the Contractor

• Traditional valuation based on the ‘Valuation Rules’ (Measurable work or Daywork.)

Alchemy BS

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Collateral Warranties & Bonds (Section 7)

Supporting the primary contract providing third party rights to claim direct

Provides protection for

• Funders

• Employers

• Tenants

Alchemy BSSettlement of disputes (Section 9)

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Alchemy BS

Any Questions

Alchemy BS

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History and development of the NEC

March 2022

Agenda

History - the NEC timeline

Development - NEC principles

So what do we end up with?

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The NEC Timeline

Consultative edition

ICE

Industry

Review

Latham Report

NEC2 NEC3

1995 2005

& 2013 1993

2017

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FM long and short

contract boxes need

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Tiêu đề	Construction Contracts - Highlights from the UK
Tác giả	Julian Bailey
Trường học	King’s College, London
Chuyên ngành	Law
Thể loại	workshop
Năm xuất bản	2022
Thành phố	London

Định dạng
Số trang	40
Dung lượng	5,92 MB