CHANTAL-AIMÉE DOERRIES QC
PROFESSOR DOUGLAS S JONES AO
We start Part 2 of 2020 by remembering Jesse B Grove III, a distinguished colleague and long-time friend of many of us, who passed away in August 2019. He served on the ICLR’s Editorial Advisory Board for over three decades and will be greatly missed.
Concurrent delay occupies many of us, both during the life of a project when claims are made and in the world post project if claims are pursued. Abu-Manneh, Helm, Stone and Richter look at how concurrent delay is treated in four different jurisdictions, namely, Brazil, England, Germany and United Arab Emirates. An introductory section provides a thorough analysis of the different approaches taken by these four legal systems and sets out their respective approaches. The article, Concurrent Analysis of Concurrent Delay , delves into the real world, taking readers through three hypothetical scenarios involving the construction of three different plants. These are the vehicle for demonstrating on a practical level how the differences in the law and approach of the various courts can impact on entitlement and claims. Interestingly, although the authors comment that the approach of the English court stands apart from the other jurisdictions, the detailed and engaging comparison through these useful examples highlights the very different conclusions which would likely be reached across the relevant jurisdictions. The final conclusion, having travelled through these three exemplar projects, is that parties should seriously consider dealing with the allocation of risk in cases of concurrent delay at the outset, by expressly providing for it in their contracts.
Our next article, Triple Point Technology – Pointing to Confusion , addresses one of the two financial claims which usually fall out of delay, the employer’s claim for liquidated damages. Cheung considers what happens when a contractor not only culpably delays the work, but refuses to or is seemingly unable to finish the work at all, addressing, and providing a critique of, the recent English Court of Appeal decision in Triple Point Technology Inc v PTT Public Company Ltd in which the court considered the employer’s entitlement to claim liquidated damages in circumstances of abandonment. Against a backdrop of the contractor’s repudiatory breach, having suspended and abandoned the works, the Court of Appeal decided that the liquidated damages provision ceased to apply, such that only general damages were available. This decision is being appealed to the Supreme Court. Cheung’s article which was recognised earlier this year as the joint SCL Hudson Prize winner provides a detailed introduction to the case, engages with and challenges the court’s conclusions and offers some interesting proposals for reform in this area.
We did not foresee, at the time of identifying contributions for this part, that so much of the globe would be in some form of shutdown when we came
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