Pre-construction activities

The traditional method of procuring a construction project where the employer and its design team finalise their requirements first and then send the documents out to contractors for them to submit tenders is being used less frequently. The rise in different forms of procurement and the need to reduce pre-construction timetables, combined with a realisation that early contractor involvement can be very useful, has resulted in the increasing use of forms of pre-construction agreements and two stage tendering. Two regularly used forms of agreement utilised before a building contract is entered into are letters of intent and 'Pre-Construction Services Agreements' (PCSAs).

Other issues of significance during the pre-construction stages of a project include demolition and ground conditions.

Letters of intent

A letter of intent is essentially a written expression of a party's intention to enter into a contract at a later stage. Traditionally, the advice given to employers has been not to enter into letters of intent if possible, ie to avoid entering into contractual relations, until all of the proposed contract terms are agreed. As letters of intent are by their nature very brief, litigation frequently arises

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One arbitration, two courts, multiple injunctions (MSA Global LLC (Oman) v Engineering Projects (India) Ltd)

Arbitration analysis: This dispute is a rare case of two competing court interventions in relation to an arbitration. A non-seat court in Delhi decided to exercise certain supervisory functions by issuing an anti-arbitration injunction. The seat court in Singapore disagreed that the non-seat court had the jurisdiction to do so, and also issued an anti-suit injunction. EPIL (the contractor) sought to set aside a Singapore-seated partial award in the Singapore High Court. The Singapore High Court (as the seat court) dismissed EPIL’s setting aside application, and its attempt to introduce apparent bias of an arbitrator as an additional ground for setting aside. While EPIL brought another challenge application against the same arbitrator in Singapore, it has commenced proceedings in the Delhi Court also to challenge the arbitrator, and to enjoin the counterparty (MSA, the sub-contractor) from continuing with the Arbitration. The Singapore Court first granted an interim anti-suit injunction for the Delhi Proceedings. But the Delhi Proceedings carried on, and led to an interim anti-arbitration injunction by the Delhi Proceedings. The Singapore Court in its judgment granted a permanent anti-suit injunction against EPIL in relation to the Delhi Proceedings, finding also that the Delhi Court had no power to intervene in the Arbitration. Written by Violet Huang, counsel at Colin Seow Chambers.

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