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Law of Construction Disputes 3rd edition [Hardback]

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(Crown Office Chambers, UK)
  • Formāts: Hardback, 710 pages, height x width: 246x174 mm, weight: 1456 g
  • Sērija : Construction Practice Series
  • Izdošanas datums: 08-Oct-2019
  • Izdevniecība: CRC Press
  • ISBN-10: 0367135469
  • ISBN-13: 9780367135461
Citas grāmatas par šo tēmu:
Law of Construction Disputes 3rd editionPalielināt
  • Formāts: Hardback, 710 pages, height x width: 246x174 mm, weight: 1456 g
  • Sērija : Construction Practice Series
  • Izdošanas datums: 08-Oct-2019
  • Izdevniecība: CRC Press
  • ISBN-10: 0367135469
  • ISBN-13: 9780367135461
Citas grāmatas par šo tēmu:
Permanent link: https://www.kriso.lv/db/9780367135461.html
Keywords:
"Now in a fully updated third edition, The Law of Construction Disputes is a leading source of authoritative and detailed information on the whole area of construction law including contracts and their performance, third parties, pursuing claims and dispute resolution. It covers the construction dispute process by analysing the main areas from which disputes arise, up to date case law, and how to effectively deal with construction project disputes once they have arisen. Now including references to the new FIDIC contracts, which were released in 2017, this edition expands on advanced practitioner issues, as well as the emerging law of construction disputes on an international basis and gives the practitioner all the case law needed in one concise volume. The book examines the methods and methodology of construction law, not only for a common law context, but also under other legal systems. Readers will be guided through the various international contract formats governing construction, alongside applicable case law. Additionally, they will be shown the correct contract provisions and forms used to prevent disputes from escalating in order to reach successful conclusions without litigation. Including expert advice and many relevant reference materials, this book is an extremely helpful guide to legal practitioners and construction professionals"--

Now in a fully updated third edition, The Law of Construction Disputes is a leading source of authoritative and detailed information on the whole area of construction law including contracts and their performance, third parties, pursuing claims and dispute resolution. It covers the construction dispute process by analysing the main areas from which disputes arise, up to date case law, and how to effectively deal with construction project disputes once they have arisen. Now including references to the new FIDIC contracts, which were released in 2017, this edition expands on advanced practitioner issues, as well as the emerging law of construction disputes on an international basis and gives the practitioner all the case law needed in one concise volume.

The book examines the methods and methodology of construction law, not only for a common law context, but also under other legal systems. Readers will be guided through the various international contract formats governing construction, alongside applicable case law. Additionally, they will be shown the correct contract provisions and forms used to prevent disputes from escalating in order to reach successful conclusions without litigation.

Including expert advice and many relevant reference materials, this book is an extremely helpful guide to legal practitioners and construction professionals.

The author xv
Preface xvii
Acknowledgements xix
Table of cases xxi
Table of legislation xxxv
Chapter 1 Introduction To Construction Disputes 1(40)
Applicable principles of law
1(1)
Common law
1(5)
History
2(1)
Stare decisis
2(3)
Common law countries
5(1)
Civil law
6(3)
The Napoleonic Code
7(1)
Differences between common and civil law
8(1)
Civil law countries
9(1)
Sharia - Islamic law
9(8)
History
9(5)
Hanafi Islamic Sharia
10(1)
Shafi Islamic Sharia
10(1)
Hanbali Islamic Sharia
11(1)
Maliki Islamic Sharia
11(2)
ADR procedure
13(1)
Enforcement of adjudication decisions versus arbitration awards
14(5)
Dispute Review Board decisions
14(1)
Dispute Adjudication Board decisions
15(1)
The form of the Dispute Board decision
15(1)
Particulars as to the Kingdom of Saudi Arabia
15(2)
Particulars as to the Islamic Republic of Iran
17(1)
Dispute Boards under common, civil or Sharia law
17(1)
The historical development of dispute resolution in construction matters
17(2)
The legal development of other dispute resolution methods
19(5)
The engineer/arbitrator as judge
19(2)
The engineer as quasi-arbitrator
21(3)
The development of non-statutory adjudication
24(2)
The advent of Dispute Boards in England
26(4)
Extension to international cases
27(3)
Specific regional differences and methods
30(3)
Germany
30(1)
France
31(2)
Forms of standard construction contacts
33(2)
Use of form contracts
35(1)
Standard form provisions
35(1)
Methods of construction contracting
35(3)
The traditional method
36(1)
The design-build method
36(1)
The management contracting method
37(1)
The construction manager method
37(1)
Other methods
37(1)
Contractual operation and payment formats
38(3)
The traditional lump sum or fixed price contract
38(1)
The guaranteed maximum price contract
38(1)
The remeasurement type of contract
38(1)
The cost reimbursement or cost plus fee contract
39(1)
Target cost contracts
39(2)
Chapter 2 The Construction Contract 41(34)
Formation
41(10)
Defining a contract
41(1)
Offer and acceptance
42(2)
Implied agreements
44(1)
Capacity
44(1)
Consideration
44(3)
Intent to be legally bound
47(1)
Privity of contract
48(1)
Oral contracts
49(1)
Letters of intent
50(1)
Other contract issues - battle of the forms and related difficulties
51(3)
The construction tender
54(3)
Unilateral versus bilateral contracts
57(1)
Uncertainty
58(1)
Conditions as terms of a contract
58(1)
Implied terms
59(1)
Terms implied in fact
59(1)
Misrepresentation
59(16)
Distinctions
61(1)
Express false representations
62(1)
Implied misrepresentations
63(1)
Negligent misrepresentations
64(1)
Innocent misrepresentations
64(1)
Misstatements of the law versus fact
64(1)
Mistake
65(1)
Unilateral mistake
65(2)
Mutual mistake
67(1)
Common mistake
68(2)
Mistake versus frustration versus impossibility
70(5)
Chapter 3 Design Disputes And Liability 75(36)
Design professionals
75(21)
The design professional: architect/engineer's duty - tort versus contract
77(1)
Fitness for purpose liability
78(2)
Reasonable skill and care
80(3)
Concurrent negligence and contract duty
83(5)
Negligence generally
88(8)
Duty to warn of retrospective danger
96(11)
Duty to others
100(1)
Purely economic losses
100(2)
Miscellaneous matters: personal injury, latent defects and subsequent occupiers
102(2)
Other issues
104(2)
The knowledge of others
106(1)
Matters other than design
107(1)
New, novel and strict design standards
107(2)
Liability for design of others
109(2)
Chapter 4 Site Conditions 111(16)
The site
111(6)
Right to access
111(1)
Possession by whom?
112(1)
Does the contractor have a licence to enter the site?
112(5)
Access and possession
117(10)
Site access after completion
117(1)
Site conditions
118(1)
Unforeseen ground conditions
118(3)
Contract provisions for unexpected ground conditions
121(2)
Misrepresentation of the site conditions
123(1)
The site under the Housing Grants Act
124(2)
Employer responsibility regarding possession
126(1)
Chapter 5 The Subcontractor 127(14)
Types of subcontract
127(2)
Relations with the contractor
128(1)
Employer insolvency and payments
128(1)
Default by subcontractor
129(8)
Delay issues
129(2)
Defect issues
131(2)
Problems with nominated subcontractors
133(4)
Relations with employer
137(1)
No privity
137(1)
The Contracts (Rights of Third Parties) Act 1999
137(4)
Liability in tort
137(2)
Relations with architect and engineer
139(2)
Chapter 6 Defences To Construction Disputes 141(14)
Force majeure
141(8)
Is the contract terminated?
143(1)
Acts of God
144(1)
The purpose of force majeure clauses - historically and internationally
145(1)
Typical force majeure clause usage
146(1)
The necessary requirements for force majeure
147(1)
When does force majeure commence?
147(1)
The duration of the condition
148(1)
When should notice be given
148(1)
Force majeure's effect
149(1)
Frustration
149(6)
Chapter 7 Issues Regarding Contractors' Rights And Obligations Under Standard Form Agreements 155(32)
Design-build form contracts
156(12)
Particular provisions: contractor to scrutinise employer's requirements for errors
158(1)
Extension of time clauses
159(1)
EOT "sweeping-up" clauses
160(1)
The other major forms of contract
160(1)
The JCT forms of contract
160(2)
JCT 98 Standard Form of Building Contract (JCT 98 SFBC)
162(1)
The changes made in the SBC05
162(3)
Payment
165(1)
Insurance issues
166(1)
Commencement, progress and completion
166(1)
Warranties/third-party rights
167(1)
Termination
167(1)
Dispute resolution
168(1)
The ICE conditions of contract
168(7)
Measurement Version 7th Edition
168(1)
ICE Design and Construct contract
168(1)
ICE Minor Works contract
169(1)
Time and cost issues under the Measurement Version, Design and Construct, Minor Works
169(1)
The Measurement Version
169(1)
The Design and Construct Version
170(1)
The Minor Works Contract
170(1)
The NEC3 - the New Engineering Contract Engineering and Construction Contract - NEC ECC and the new NEC 4 changes
170(1)
Overview - NEC3
171(1)
Some important provisions
171(2)
Clarifications
171(1)
Adjudication
172(1)
Capping contractor liability
172(1)
The risk register
172(1)
Prevention Clause 19
173(1)
The concept of Key Dates
173(1)
Design liability
173(1)
Payment for defective work
174(1)
Overview - NEC4
174(1)
The FIDIC Forms of Contract
175(1)
The three main FIDIC Forms of Contract
175(1)
The proper form
176(1)
Employer design of the project
176(1)
Contractor design of the project
176(1)
Contractor designs and employer supervises
176(1)
Contractor designs, procures and builds
176(1)
Contractor designs, procures, builds and operates
177(1)
Who has the risk?
177(1)
Common issues between the forms
177(6)
The role of the engineer
177(1)
Contractor incentives
178(1)
Variations
178(1)
Contractor's rights and obligations
179(1)
Rights
179(1)
Obligations
180(1)
Additional obligations and issues
180(1)
Termination issues
181(1)
Termination for convenience
181(1)
Impossibility of performance
181(1)
Force majeure
181(1)
FIDIC 2017 edition changes
182(1)
The contractor
182(1)
The employer
182(1)
Unforeseen conditions
183(4)
The Red and Yellow Books
183(1)
The Silver Book
183(1)
Damages
184(3)
Delay/damage claims by the employer
184(1)
Damage claims by the contractor
184(3)
Chapter 8 Termination Of Contract 187(16)
Termination versus determination
187(16)
Common law repudiation versus determination
191(1)
Can suspension be repudiation?
192(2)
Anticipatory repudiation
194(1)
A repudiation need not be accepted
195(2)
Rescission
197(1)
Release
197(2)
Accord and satisfaction
199(1)
Waiver and promissory estoppel
200(3)
Chapter 9 The Certification Process 203(32)
Certificates
203(5)
Certificate requirements
205(1)
Errors
205(1)
Interim certificates
206(1)
Impartiality of the certifier
206(2)
Certifier liability
208(9)
History
208(9)
Variations
217(15)
Is it a variation or a separate contract?
218(4)
Implied variations
222(1)
Ordering variations
222(1)
Failure to order a variation
223(1)
Removing work
224(2)
What is the basis for payment and value of the variation?
226(2)
Value
228(2)
Standard methods of measurement
230(1)
Errors
231(1)
Final certificates
231(1)
Final Account Statements
232(3)
Chapter 10 Types Of Claim 235(48)
Claims for money
235(31)
The issue of causation
236(5)
Contribution
241(3)
Money damages but at what cost
244(3)
Reasonableness
247(2)
Contract versus tort damages
249(6)
Claims for performance
255(1)
Liquidated damages and claims for extensions of time
256(7)
Delay versus disruption
263(1)
Extensions of time
264(1)
The standard forms
265(1)
Who determines the extension
266(17)
Float
267(2)
Concurrent delay
269(2)
Diminution in value
271(8)
Abatement versus set-off
279(4)
Chapter 11 Collateral Warranties 283(8)
Collateral warranty provisions
284(4)
The Contracts (Rights of Third Parties) Act 1999
285(2)
Enforcing variation and rescission of contract
287(1)
Defences
288(1)
Defence 1
288(1)
Defence 2
288(1)
Defence 3
288(1)
The promisee's enforcement of the contract
288(1)
Opting out of the Act
289(2)
Chapter 12 Non-Contract Liability 291(34)
Negligence
291(34)
The "Threefold Test"
305(2)
The "Assumption of Responsibility Test"
307(2)
The "Incremental Test"
309(1)
The "Holistic Test"
309(1)
Vicarious liability
310(6)
Nuisance
316(2)
Limiting factors
318(1)
Strict liability in nuisance - the rule in Rylands v Fletcher
319(3)
Trespass versus nuisance
322(1)
Encroachment
323(2)
Chapter 13 Time At Large And Time-Bar Clauses 325(18)
Time at large
325(9)
Time-barred claims
334(9)
Chapter 14 Dispute Resolution 343(44)
Conventional model
343(4)
Litigation versus arbitration versus mediation
345(2)
Arbitration
347(1)
The Arbitration Act 1996
347(1)
The arbitration process
347(1)
The arbitrator
348(3)
The award
349(1)
Arbitration variations
350(1)
Mediation during the litigation/arbitration process
350(1)
Refusing to mediate
351(7)
Enforceability of ADR agreements and mediation settlement agreements
355(1)
Withdrawing from mediation
356(1)
Refusing to mediate - no cost consequences
356(1)
Adjudication
357(1)
Mandatory provisions
358(7)
The process under the Act
359(1)
The Scheme for Construction Contracts
359(1)
The Act's main areas - Is there a dispute?
360(3)
Does the dispute arise under a construction contract?
363(1)
Does a contract have to be in writing within the meaning of section 107?
363(2)
The process
365(7)
Procedures under the Scheme
368(1)
Notice of adjudication
368(1)
Appointment of an adjudicator
368(1)
The referral notice
369(1)
Adjudicator's powers and duties
369(1)
Changes to the Housing Grants Act
370(2)
Dispute Boards
372(5)
What is a Dispute Board?
372(2)
What makes a Dispute Board unique? What can be achieved by using a Dispute Board?
374(1)
Non-binding recommendations
374(1)
Interim-binding decisions
375(1)
History of Dispute Boards
376(1)
The World Bank
377(10)
Harmonised contract conditions
377(1)
Growth of Dispute Boards
378(1)
An overview - composition of Dispute Boards and their operation
379(1)
Appointment and membership
379(1)
The importance of early appointment and of regular site visits
380(1)
Routine operations
381(1)
Informal operations
382(1)
Dispute Board procedures
382(1)
Dispute Review Board costs
383(1)
Why Dispute Boards work
383(2)
International aspects
385(2)
Chapter 15 Key Issues In Dispute Resolution 387(48)
Agreements
387(10)
Disclosure
395(2)
E-disclosure
397(10)
The Chartered Institute of Arbitrators Protocol for E-disclosure in Arbitration
400(2)
Confidentiality
402(1)
Enforcement of foreign awards in the UK
403(4)
Serial adjudication decisions
407(11)
Adjudication conundrum
407(1)
Election
407(9)
Set-off
416(2)
Arbitration of Dispute Board decisions
418(1)
Notice of dissatisfaction
418(1)
Amicable settlement
419(1)
Arbitration
419(16)
New developments
419(3)
The award
422(2)
Recent developments
424(4)
The trend
428(2)
Persero No 2
430(1)
The 2011 arbitration
430
Appendices
Appendix 1: Glossary of Construction Terms
435(16)
Appendix 2: Housing Grants, Construction and Regeneration Act 1996
451(8)
Appendix 3: The Scheme for Construction Contracts (England and Wales) Regulations 1998
459(10)
Appendix 4: Contracts (Rights of Third Parties) Act 1999
469(6)
Appendix 5: Dispute Board Provisions Under the FIDIC Red Book 1999
475(12)
Appendix 5a: Dispute Board Provisions Under the FIDIC Red Book 2017
487(12)
Appendix 6: Dispute Board Provisions Under the FIDIC Yellow Book 1999
499(10)
Appendix 6a: Dispute Board Provisions Under the FIDIC Yellow Book 2017
509(12)
Appendix 7: Dispute Board Provisions Under the FIDIC Silver Book 1999
521(10)
Appendix 7a: Dispute Board Provisions Under the FIDIC Yellow Book 2017
531(10)
Appendix 8: ICC Dispute Board Rules
541(16)
Appendix 9: The Dispute Board Federation Dispute Adjudication Board Ad Hoc Rules for Use in Independently Administered Dispute Board Matters
557(10)
Appendix 10: The Defective Premises Act 1972
567(6)
Appendix 11: Unfair Contract Terms Act 1977
573(8)
Appendix 12: Torts (Interference with Goods) Act 1977
581(8)
Appendix 13: Sale of Goods Act 1979
589(20)
Appendix 14: Limitations Act 1980
609(28)
Appendix 15: Supply of Goods and Services Act 1982
637(18)
Appendix 16: Latent Damage Act 1986
655(6)
Links to useful websites 661(2)
Index 663
Dr Cyril Chern is a Barrister practising at 4 New Square Chambers, London. He has practised since 1972, specifically in the areas of engineering and construction disputes in the United Kingdom, the EU and internationally. Not only is he a highly praised and respected Barrister, he is also a Chartered Architect, Chartered Arbitrator, Accredited Mediator, Adjudicator, and Engineer and has written widely on Construction Disputes, Construction Law, Adjudication and Mediation. He also teaches Dispute Board and comprehensive advanced FIDIC contracts Courses for the World Bank/International Finance Corporation, ICC, FIDIC and the Dispute Board Federation (Geneva), as well as Adjudication and commercial mediation for the World Bank, the IFC, ICC, and the DBF.