International Construction Law Review
REGIONAL REPORT – CERTAINTY VS EQUITY IN CONSTRUCTION DISPUTES: RECENT DEVELOPMENTS IN UK LAW IN 2024
MATHIAS CHEUNG1
Barrister, Atkin Chambers
CAROLINE GREENFIELD2
Barrister, Atkin Chambers
INTRODUCTION
English law has long been valued by parties for its virtues of certainty and predictability, both at home and abroad. Writing extra-judicially, Sir Kim Lewison (a current Lord Justice of Appeal) observed that “[t]he promotion of certainty is a theme that has run through English commercial law for centuries”.3 In large part, this has been the mainstay of the success of English law as a preferred choice of governing law for many international contracts and transactions, including (among others) building and engineering contracts within the construction, infrastructure and energy industries.
Modern judicial approval of legal and so commercial certainty rings through the English law reports of the highest appellate courts. In Golden Strait Corporation v Nippon Yusen Kubishika Kaisha (The Golden Victory),4 for instance, Lord Bingham stated that “[t]he importance of certainty and predictability in commercial transactions has been a constant theme of English commercial law”.5 More recently, in JTI Polska Sp Zoo and Others v Jakubowski
1 LLB (Hons), BCL (Oxon), barrister at Atkin Chambers, a member of Lincoln’s Inn, London.
2 BA in Jurisprudence, BCL (Oxon), barrister at Atkin Chambers, a member of Gray’s Inn, London.
3 Lewison, K, The Interpretation of Contracts, 8th Edition, (London, 2024), [2.26].
4 (HL) [2007] 2 Lloyd’s Rep 164; [2007] 2 AC 353; [2007] 2 WLR 691; [2007] 3 All ER 1.
5 See fn 4, paragraph 23, citing Vallejo v Wheeler (KB) (1774) 1 Cowp 143, 153, Scandinavian Trading Tanker Co AB v Flota Petrolera Ecuatoriana (The Scaptrade) (HL) [1983] 2 AC 694, 703–704, Homburg Houtimport BV v Agrosin Private Ltd (The Starsin) (HL) [2004] 1 AC 715, 738; [2003] 1 Lloyd’s Rep 571; [2003] 2 WLR 711; [2003] 2 All ER 785 and Jindal Iron and Steel Co Ltd v Islamic Solidarity Shipping Co Jordan Inc (The Jordan II) (HL) [2005] 1 WLR 1363, 1370; [2005] 1 All ER 175.
Pt 1] Regional Report Certainty vs Equity in Construction Disputes
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