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English Construction Law Developments 2011: An International Perspective

United Kingdom
01/06/2011
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The effects of the global recession continue to make themselves felt, including in the disputes
affecting projects around the world. The developments we have identifi ed refl ect many
traditional battlegrounds: how time bar clauses deny entitlements that are otherwise due,
liquidated damages and bond calls. One recurrent theme, more than ever, is cash - getting it and
not giving it away. It is hard not to view other changes in the same light, with the postponed
Bribery Act requiring investment in anti-bribery measures by those who operate in the UK, if they
are to avoid becoming a high profi le test case. Good faith dealings are also at a premium; too
expensive perhaps for English law to afford a general doctrine. This fuels both “all reasonable
endeavours” and similar clauses as well as “contract/no contract” cases. While the latter category
gave us our fi rst construction law judgment from our new Supreme Court (which is already 18
months old), the key remains not to be one of the parties.

Perhaps the real common thread through these developments is not just money, but the price of
uncertainty. In that vein, the Jivraj case casts a shadow over arbitration clauses and arbitrations
with an English law connection, which may not be lifted for a while yet (especially if it is referred
to the European Court of Justice).

We hope that what follows forewarns and forearms you in uncertain times - without the expense.

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