Directors risk being personally liable to contractor if their company orders additional work when there is no reasonable prospect of paying for it. Continue reading “RUNNING ON FUMES”
Blog
LOOK FORWARD AND LOOK BACK?
Does a tribunal have to undertake a prospective delay assessment, followed by a retrospective assessment, when reviewing the EOT decisions of a contract administrator? This may be an implication from the recent TCC case of Mace Construct.
The Reasonable Price of Disloyalty
Is actual loss still the true north in assessing what is reasonable compensation when section 75 of the Contracts Act 1950 is engaged, post-Cubic Electronics? The Court of Appeal recently had to consider such compensation for the disloyalty of a political party member. Continue reading “The Reasonable Price of Disloyalty”
WORD OF MOUTH
An oral arbitral award on liability? Continue reading “WORD OF MOUTH”
HALF PREGNANT
Can a party be regarded as having acceded to the jurisdiction of the arbitral tribunal for a particular application made in the arbitration, despite having objected to the jurisdiction of the tribunal over the arbitration as a whole? Apparently so. Continue reading “HALF PREGNANT”
SHADOW PLAY
“The dalang is more than a puppeteer. His skill makes us believe that we see a war between two great armies, but there is no war. There is only the dalang.” Grant Morrison: The Invisibles no. 5. Continue reading “SHADOW PLAY”
CONVERGENCE
Great minds think alike! A convergence of judicial opinion occurred in June 2024 – the Privy Council and the Malaysian Court of Appeal concurrently but independently arrived at common ground on what constitutes a “disputed” debt for winding-up proceedings when there is an arbitration clause in play. Continue reading “CONVERGENCE”
STOPPING TIME
An arbitration was commenced outside the limitation period, after a court action – which was filed in time – was stayed. Is the claimant time barred? That depends on when time stopped to run … Continue reading “STOPPING TIME”
Parallels
Is a contractor limited by the FIDIC Yellow Book (2nd Ed, 2017) to refer disputes only to the Dispute Avoidance Adjudication Board (“DAAB”)? Or does he have parallel rights under the Construction Industry Payment and Adjudication Act 2012 (“CIPAA”) which he can invoke to initiate statutory adjudication? Continue reading “Parallels”
BYPASS
The subcontractor wins an adjudication against the main contractor, and asks the employer to pay him the awarded amount. The employer says it does not owe money to the main contractor, because it has claims against the main contractor after terminating the main contract. The main contractor disputes the termination. Will the courts – in the subcontractor’s direct payment application – decide who is right and who is wrong in the main contract dispute in order to ascertain whether money is owed to the main contractor (and hence can be paid directly to the subcontractor)? The Court of Appeal dealt with this recently in JDI Buildtech (M) Sdn Bhd v Danga Jed Development Malaysia Sdn Bhd [2024] CLJU 373. Continue reading “BYPASS”