Newsletter
Information for members
September 2002

Previous issue: August 2002
Next issue: October 2002

Programme

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

Society of Construction Law EOT Protocol Update

Following the final review of the document, Council has agreed to publish the revised Protocol on the 16th October and hard copies will be sent to all SCL members on (or shortly after) 16th October.

First copies of the Protocol will be available at the launch event, which will be held at the Institution of Civil Engineers, 1 Great George Street, Westminster, London, on Wednesday 16th October.

The protocol will also be put on the web on the 17th October. Members and non members will be able to download the Protocol from SCL's website free of charge, provided it is for their own personal use. Academic institutions that wish to make use of it for academic or educational purposes will also be able to download it free of charge. You may obtain additional hard copies for £10 including postage in the UK and £12.50 overseas (and may pre-order copies now at SCL's online shop). Commercial organisations may purchase hard copies, or download copies from the web upon payment of a licence fee of £5 per copy.

The launch event will be chaired by the Right Honourable Sir Philip Otton and comprise a brief 20 - 30 minute presentation by the drafting panel followed by a longer period for questions and discussion. Registration will commence at 3.30pm for a prompt start at 4.15pm, the event itself will end by 5.30pm at the latest.

There will be no charge made to SCL members wishing to attend the launch event, however it will be necessary to register in advance which you can do at the web site (http://www.eotprotocol.com/).

Any SCL members visiting London for the launch event may wish to support SCL by combining their visit with attendance at the SCL President’s reception in the evening (commencing 6.30pm). This is always a popular event with many senior representatives of the Judiciary and the Construction Industry being present. Further details of the President’s Reception including a booking form are found on our events page.

SCL Hudson Prize 2002

Are you interested in money and wine?

Enclosed with this newsletter is a card inviting you to enter the SCL 2002 Hudson Prize. It gives details of the prizes on offer and what you have to do to enter. The closing date for entries is 31st December.

Why not enter this year? If you don’t enter, you can’t win!

University Grants

At its meeting on 16th September Council agreed to give grants to three institutions. £1650 was granted to Oxford Brookes University to purchase construction law books and journals. A grant of £1500 was given to the University of Bristol for the same purpose. The Society also agreed to sponsor Teambuild 2003. This is a competition created by the Institution of Civil Engineers where teams of young professionals compete against each other to simulate the design and construction processes for the development of a real site. The Society has donated £500 to sponsor the prize for best contract strategy. The next competition will be held at the Institution of Civil Engineers in Spring 2003.

SCL Papers

As explained in the August Newsletter, a dozen papers from the 12th July international conference Delivering Infrastructure: International Best Practice will be published on SCL's website. Most of them are now there; the first four were detailed last month and the rest are:

1. Administered Arbitration by Denis Bensaude (counsel for the International Court of Arbitration of the International Chamber of Commerce in Paris) looking at the distinctive features of ICC administered arbitration.

2. Arbitration: Best Practice by Teresa Giovannini (a partner in Lalive & Partners in Geneva, with experience of arbitration as arbitrator, counsel and adviser) looking in particular at the Final Report published by the ICC's Forum on Arbitration in autumn 2001 (written under the joint leadership of Dr Nael Bunni and Judge Humphrey LLoyd QC).

3. FIDIC Contracts: A Developer's View by Mikael Wahlgren (senior legal counsel with Rolls-Royce Power Ventures Ltd in London) looking at the developer's view of the new FIDIC contracts, in particular the Yellow Book.

4. FIDIC Contracts: A Contractor's View by Corinna Osinski (senior legal counsel with mg engineering Stahlbau Plauren GmbH in Germany and chairman of the Legal Committee of the German Steel Construction Association), looking at the contractor's view of the new FIDIC contracts.

5. FIDIC's 1999 Rainbow: Best Practice? by Edward Corbett (senior partner of Corbett & Company, solicitors) looking at the new FIDIC contracts, in particular the Red and Yellow Books, from a lawyer's point of view.

6. Trends in China and Hong Kong by Teresa Cheng SC (a barrister, chartered engineer and chartered arbitrator who is the deputy chairman of the Hong Kong International Arbitration Centre), looking at some of the special features of the procurement process in China together with developments in contractual arrangements and administration.

7. Focus on Civil Law Africa by March Frilet (an avocat au barreau de Paris and chairman of the international section of the Business Lawyer Association in France) looking at the background to undertaking infrastructure projects in civil law Africa.

8. Mexico's Construction Industry by Roberto Hernandez Garcia (a partner of Corporacion Mexicana de Asesores en Derecho, a Mexican law firm), looking at aspects of undertaking infrastructure projects in Mexico.

Note for members who have no access to the web

If you do not have access to the web but would like to receive copies of the web only papers, then please contact Jackie Morris at the admin office who will arrange for hard copies to be sent to you.

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.

Institute of Structural Engineers

The Institute of Structural Engineers have announced a series of evening talks to be held at their offices at 11 Upper Belgrave Street, London SW1. The talks are free and no booking is necessary.

Thursday, 3 October, 5.30pm The Institution – who cares? Speaker: Bob McKittrick.

Thursday, 17 October, 6.00pm House for an Art Lover. Speaker Graham Roxburgh

Thursday, 7 November, 6.00pm Developments in Bi-Steel construction. Speakers: Hugh Bowerman, Neil Coyle and Jack Chapman.

Thursday, 5 December, 6.00pm The Ramspol storm surge barrier: A nylon reinforced rubber inflatable dam.
Speaker: Aad van der Horst.

Thursday, 12 December, 6.00pm Façade engineering – what’s behind the façade? Speaker: Dr Stephen Ledbetter.

Dinner (there is a charge of £40 + VAT for dinner) will follow the last four meetings listed. To make a reservation, or for any other details of the meetings, contact the IStructE directly on 020 7235 4535 or mail@istructe.org.uk

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

Notes:
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

TCC Users Group Meeting

Members are reminded that 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

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

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 that 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 August:

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.

Membership/Administration
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Wantage, Oxon., OX12 8DJ
Tel: 01235 770606
Fax: 01235 770580
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