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Drafting a building contract/schedule of amendments—checklist

Drafting a building contract/schedule of amendments—checklist Once the procurement route and form of building contract has been selected (see Practice Note: Choosing the right procurement method—construction projects) the employer should consider the following matters and incorporate the appropriate drafting in the building contract particulars and schedule of amendments. This Checklist assumes that the parties are using a standard form of building contract, such as a JCT form, and that the employer is proposing the first draft including the completed contract particulars and a schedule of amendments, which amends the standard terms. This list is not exhaustive, however, and there may be other project specific matters/risks that need to be taken into account: Contractual matters • Carry out due diligence on the contractor The employer needs to carry out due diligence on the contractor at the outset to determine whether its financial position is acceptable. Confirm the contractor’s company number and name at Companies House. • Obtain consultants’ details Confirm the full details of the consultants engaged by the employer; some...

Ending a claim—checklist

Ending a claim—checklist How can litigation be brought to an end? There are a number of ways in which litigation can be ended. These include: Action Further guidance Admissions under CPR 14 which could effectively bring the dispute to an end Practice Note: Admissions Jurisdiction—the court may not have the jurisdiction to determine the matter, finding for example, that it should be determined by another country, by arbitration, etc Practice Note: Challenging court jurisdiction—overview, and then more detailed guidance on various aspects of this topic, including Practice Notes:Challenging court jurisdiction—general principlesChallenging court jurisdiction—has a party submitted to a jurisdiction?Challenging court jurisdiction—application under CPR 11 (timing and extensions of time)Challenging court jurisdiction—application under CPR 11 (general considerations)Also relevant Precedents, including: Draft order for an application to challenge English court jurisdiction, Witness statement in support of an application to challenge English court jurisdiction and Witness statement opposing an application to challenge English court jurisdiction The defendant failing to engage in the proceedings, which results in the court entering a judgment in...

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Arbitration—an introduction to the key features of arbitration

This Practice Note provides an introduction to arbitration and its key features, with a particular focus on arbitration under the law of England and Wales, including the Arbitration Act 1996 (AA 1996).Arbitration is a form of final and binding dispute resolution presided over by an appointed arbitral tribunal (one or three arbitrators, typically) acting in a quasi-judicial manner. Arbitration is, generally speaking, founded on party agreement (the arbitration agreement), and regulated and enforced by national law and national courts. In choosing arbitration, parties opt for a private dispute resolution procedure instead of litigating in court. The result of an arbitration is, usually, an arbitral award, which is a final, binding and enforceable (as against the losing party or parties) decision on the dispute submitted for determination (and akin to a court judgment). Arbitral awards are subject to limited rights of challenge or appeal on either standalone bases or as defences to recognition and enforcement.International commercial arbitration is considered by the international business community to be a true, and often preferable,...

Mediation-arbitration (med-arb)—an introduction

This Practice Note considers the use of mediation-arbitration (med-arb) to resolve commercial disputes.Med-arb is suitable for resolving a wide range of commercial disputes. It is appropriate, for example, for resolving international or cross-border disputes in the construction, energy and infrastructure sectors.What is med-arb?Med-arb is a hybrid, two-stage alternative dispute resolution (ADR) process. It usually involves the parties agreeing to grant a mediator power to convert automatically to being an arbitrator, and to make a legally binding arbitral award, if the mediation fails to result in a settlement of the relevant dispute. The arbitration phase of the process will be legally binding, and the arbitrator’s award will be enforceable like an award rendered in standard arbitration proceedings, which is usually advantageous.There is a range of possible variants to the med-arb process, including having both a mediator and arbitrator present for an opening session. The mediator then conducts a mediation and the arbitrator is only involved again if the mediation fails to reach a settlement. In this variant, the mediation and arbitration...

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Transport and Maritime Arbitration Rotterdam—Amsterdam (TAMARA) model arbitration clause

The Transport and Maritime Arbitration Rotterdam-Amsterdam (TAMARA) model arbitration clause is as follows.

Facility letter (term loan): single company borrower—bilateral—unsecured

Facility letter (term loan): single company borrower—bilateral—unsecured [TO BE PRINTED ON THE HEADED PAPER OF THE LENDER] [insert name and address of borrower] [insert date] Dear [insert full name of borrower] We offer to place at your disposal a Sterling loan facility in the aggregate principal amount of £[insert amount in figures] ([insert amount in words] Sterling) [for the purpose of [insert details]] on the following terms and conditions: 1 Definitions 1.1 In this letter, unless otherwise provided: Base Rate • means the base rate of [the Lender OR [insert name of Bank]] for the time being and from time to time; Borrower • means [insert name of company], a company incorporated in England and Wales with registered number [insert company number] whose registered office is at [insert address]; Business Day • means a day, other than a Saturday, Sunday or public holiday, on which banks are open for business in London; Commitment Expiry Date • means the earlier of the date falling [insert number]...

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What are the sanctions in English law and arbitration for a party that has destroyed documentary evidence?

What are the sanctions in English law and arbitration for a party that has destroyed documentary evidence? Sanctions under English law Disclosure under CPR 31—preservation of documents Documents that a party intends to rely on in litigation should be preserved as soon as litigation is contemplated. CPR PD 31B, para 7 expressly requires practitioners to advise their clients of the need to preserve disclosable documents as soon as litigation is contemplated. This obligation encompasses past, present and future information. In relation to the preservation of electronically stored information it is particularly important to ensure that nothing is altered, deleted, lost or destroyed. For more information, see Practice Note: Disclosure—preserving documents. If a party fails adequately to preserve disclosable information, it may face satellite litigation regarding the documents in question. The court may order the party to provide an explanation why documents have not been preserved (Glaxo Wellcome UK Ltd v Sandoz Ltd). If the court considers it appropriate, it may draw adverse inferences against a party which...

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Defra publishes response to sandeel Arbitration Tribunal final ruling

The Department for Environment, Food and Rural Affairs (Defra) has published its response to the sandeel Arbitration Tribunal's final ruling in the UK-Sandeel case (the European Union v the United Kingdom) Case No 2024-45, which concerned the decisions by the UK and Scottish governments to close North Sea waters to sandeel fishing in March 2024. The Tribunal found that the UK successfully demonstrated that its decision to close English and Scottish waters was based on sound science and had sufficient regard to the principle of non-discrimination. It also found that the Scottish measures had sufficient regard to the principle of proportionality and upheld the closure of Scottish waters. However, the Tribunal found that in deciding to close English waters, the UK did not sufficiently consider the principle of proportionality—particularly in relation to EU rights during the adjustment period, as required under the UK-EU Trade and Cooperation Agreement. Defra confirmed it will now begin a good-faith process to bring the UK into compliance with the ruling, while noting that the UK...

AAA updates consumer and employment arbitration rules for digital age

The American Arbitration Association (AAA) has announced comprehensive updates to its Consumer and Employment/Workplace Arbitration Rules. The revised rules establish virtual hearings as the default format, introduce new information exchange protocols and expand employment rules to cover independent contractors. The changes follow public consultation and aim to modernise dispute resolution processes. Key updates include clearer case administration standards, enhanced arbitrator authority for preliminary issues and integration of Consumer Mediation Procedures launched on 1 April 2025.