2019 is the centenary of the founding of the International Chamber of Commerce (ICC). Earlier this year the ICC issued a declaration on the next century of global business, which included a restatement of its commitment to innovation in arbitration. It therefore seems appropriate that we start this final edition of 2019 with the timely contribution from Nicholas A Brown and Yong Neng Chan, a review of “The ICC Commission Report, Construction Industry Arbitrations Recommended Tools and Techniques for Effective Management (2019 Update)”. As its title suggests, this updated ICC report focuses on highlighting techniques which can be used to address the perennial issues of speed and cost efficiency in construction arbitrations. The authors present a very thorough and useful overview of this substantial report, taking the reader through the review, highlighting the input on the various stages of the process, from the commencement of the process with the selection of the appropriate tribunal, moving onto the identification and resolution of issues in dispute, through to the management of the arbitral process, document control, witnesses and factual witness evidence, and expert evidence.
Design risk remains an important, and at times critical, aspect of contract drafting for large infrastructure projects and of contract management during the early stages of such projects. This risk allocation featured in Duncan and Hudson’s “Fitness for purpose obligations under international standard form contracts” and in Glover’s “Understanding and Managing Design Risk under Common Law Jurisdictions ‘Managing Legal Risk to Minimise Disputes’”, both published in 2018 in the ICLR. We return to this theme in the second contribution in this edition, “Design obligations in design-build contracts – recurring issues” in which Joanne Clarke and Andrew Tweeddale reflect on the common issues arising in complex design and build projects, doing so by reference to a trio of recent cases in which judges have had to grapple with contractor design liability, starting with the much written about UK Supreme Court case of MT Højgaard v E.ON , and then, covering the, relatively, less well known cases of SSE Generation Ltd v Hochtief Solutions AG and 125 OBS (Nominees 1) v Lend Lease . Frequently problems arise as a result of voluminous contracts often with various appendices and schedules which are not uncommon in large infrastructure projects. The avoidance of consistency and lack of alignment of the apportionment of risk across these documents is commended, as these are often factors driving disputes in this area. As is often the case, sometimes the most practical advice is the best, if not always the easiest to comply with. In a similar vein the authors highlight the need for parties to fully understand their respective obligations (such as they are) and contractors to check the specified design and the specified design criteria (whether this be design life or service life, which, as was explained in MT Højgaard can be an important distinction).
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