I have been asked to speak by the Electrical and Mechanical Contractors’ Association who are one of the co-sponsors of this conference. They have asked me to address payment issues and in particular:

It is a great pleasure for me to share a platform with Humphrey LLoyd, particularly as I am speaking on behalf of the EMCA. Humphrey LLoyd and I were involved in a leading case in Hong Kong where we represented five electrical and mechanical nominated sub-contractors. This was the case of Jardine Corporation and Others v. Shimizu Corporation 1 , which provided a remedy for nominated sub-contractors seeking payment of loss and expense in the absence of a specific loss and expense clause in their sub-contracts. In that case, the Government was taking the rather unmeritorious position that the fact that the nominated sub-contract conditions were silent on payment of loss and expense for delay meant that nominated sub-contractors were not entitled to loss and expense, even if they had clearly been delayed by acts or omissions by the Government or its consultants. Mr Justice Kaplan found that a remedy did exist for the nominated sub-contractors by way of implied terms in the sub-contract. I will not go into this particular case now but suffice it to say that as a general rule courts and arbitrators will be looking to assist parties looking for a reasonable and equitable interpretation of their contractual provisions. I will come back to this later when looking at risk allocation.

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