No false starts allowed (2015) 26 1 Cons.Law 23 [Archived]
No false starts allowed (2015) 26 1 Cons.Law 23 [Archived]

The following Construction guidance note provides comprehensive and up to date legal information covering:

  • No false starts allowed (2015) 26 1 Cons.Law 23 [Archived]
  • Facts
  • Questions
  • Decision

This article appears as originally published in Construction Law on 1 February 2015 and is not maintained.

Vijay Bange of Trowers & Hamlins examines a decision that shows the courts will support parties’ right to lay down in their contracts how they will resolve their disputes. The decision also provides useful guidance on drafting clauses relating to dispute resolution.

Key points:

  1. The referral of a dispute to the Dispute Adjudication Board (DAB) under the FIDIC Silver Book is mandatory and a condition precedent to the referral of a dispute to arbitration or litigation

  2. Sub-clause 20.8 of the FIDIC Silver Book does not confer a unilateral right to opt out of the adjudication process; save in a case where the parties had agreed at the outset to appoint a unilateral DAB which has ceased to be in place by the time the dispute arose

  3. The default position in the drafting of cl 20 may result in a ‘gap’, meaning contracts have to be amended in such a way as to ensure that litigation, not arbitration, is chosen as the forum for final determination

  4. A claim brought in the courts was stayed to allow a dispute to be determined by a DAB in accordance with the requirements of the parties’ contract

The decision in the Technology and Construction Court (TCC) in Peterborough City Council v Enterprise