INTRODUCTION
We are pleased to present our "Year in review" for 2017, a Clyde & Co guide which sets out legal developments in the construction and infrastructure sector globally over the past 12 months, as well as insights into what you need to be aware of in 2018. We hope that our guide will be a valuable reference in helping you respond to and understand legal and industry developments and how they will affect your business in 2018.
2017 - THE HEADLINES
JANUARY
UK
The Court of Appeal holds that applying extensions of time
contiguously remains the correct approach, despite acknowledging
the potentially unfair results in certain circumstances.
Canada
The Ontario Superior Court of Justice holds that construction liens
do not attach to land with diplomatic immunity.
Canada
The Manitoba Court of Queen's Bench finds that the Canadian
Revenue Agency has priority over sub-contractors and bonding
companies with respect to holdback funds held by the owner in trust
for the contractor.
Australia
The High Court of Australia considers the New South Wales security
of payment legislation for the first time, finding that the
existence of a reference date is an essential precondition to
making a payment claim and that payment claims do not generally
accrue following termination.
Australia
The Supreme Court of Western Australia provides clear procedures
for parties to make applications in relation to arbitration
agreements or proceedings by introducing the Supreme Court
(Arbitration) Rules 2016 (WA) (Arbitration Rules).
Tanzania
Electricity project in the pipeline.
FEBRUARY
Hong Kong
The Hong Kong Court upholds enforcement of an ICC award,
reinforcing its pro-arbitration stance.
Australia
The Commonwealth of Australia Parliament makes changes to national
building legislation relating to the requirements which must be met
by parties bidding for Commonwealth funded building work.
Tanzania
Signs MoU on railway project.
MARCH
UK
The Technology and Construction Court (TCC) provides insight into
the NEC obligation to act in a spirit of mutual trust and
cooperation.
UK
Theresa May formally invokes Article 50 and starts the Brexit
process.
Canada
The Canadian Government published its budget for 2017 revealing
that the Government and Infrastructure Bank will work to produce a
big data bank of information relating to the infrastructure
industry.
US
U.S. infrastructure receives a near-failing grade of D-plus from a
leading engineering association, adding further significance to
President Trump's vow of USD 1 trillion investment in the
sector.
APRIL
UK
The TCC finds a broad exclusion clause does not breach the Unfair
Contract Terms Act 1977, placing weight on the fact that the risk
was something that the excluding party would expect the other to
insure against.
UK
JCT completes the release of its 2016 suite of contracts.
Middle East
Saudi Arabia gives 12 months' notice for replacement of
combustible cladding.
MAY
UK
The Northern Irish High Court provides further guidance as to how
the NEC mutual trust and cooperation obligation should be
interpreted by parties administering the contract.
Canada
The Government enacts new legislation to facilitate disclosure of
wrongful conduct within the public sector and protect
whistle-blowers.
Canada
The Ontario Legislature gives first reading to a bill to bring
about a new Ontario Construction Act.
Australia
The High Court of Australia grants special leave to appeal two
decisions considering security of payment legislation, the outcome
of which will be significant for the industry, and for the efficacy
and application of security of payment legislation nationally.
JUNE
UK
NEC releases an updated suite of contracts in the form of NEC4,
along with some new additions to the suite: a Design, Build and
Operation Contract and consultation Alliance Contract.
Hong Kong
Hong Kong's Legislative Council passes the Arbitration and
Mediation Legislation (Third Party Funding) (Amendment) Bill 2016,
allowing third party funding of arbitration proceedings seated in
Hong Kong.
Hong Kong
The Court of First Instance (CFI) dismisses the contention that a
State-Owned Enterprise (SOE) is able to assert Crown immunity.
Unless there are exceptional circumstances, Chinese SOEs are
unlikely to be entitled to Crown immunity before Hong Kong
courts.
US
There is a push to establish a national infrastructure bank to give
state and local governments another tool for financing
infrastructure projects.
US
President Trump announces the creation of a new council to help
project managers navigate the permitting process, changing the
focus from "lack of money" to "speedier permit
approval".
South Africa
South Africa releases its contentious Mining Charter prescribing an
increase in the Black Economic Empowerment Shareholding for all
mines.
JULY
UK
The TCC holds that multiple design obligations in a contract may be
considered separate and additional obligations on the contractor,
provided that they do not operate inconsistently with each
other.
Canada
The Ministry of Municipal Affairs announces the replacement of the
Ontario Building Code, effective from 1 January 2019.
Australia
The Rail Safety National Law (South Australia) (Miscellaneous No 3)
Amendment Act 2017 comes into force, introducing a number of key
amendments to the South Australian state legal framework regarding
safety in new rail projects.
AUGUST
UK
The TCC confirms that unpaid parties in an adjudication cannot
recover their 'reasonable costs' of adjudication via
section 5A of the Late Payment of Commercial Debts (Interest) Act
1998.
US
President Trump signs a Presidential Executive Order on
Establishing Discipline and Accountability in the Environmental
Review and Permitting Process for Infrastructure.
Saudi Arabia
Saudi Arabia to allow full foreign ownership of engineering
companies
Australia
The Queensland Government proposes significant reforms to
Queensland's building and construction legislation. The reforms
aim to simplify existing legislation and improve security of
payment for downstream contractors on construction projects.
Tanzania
Tanzania starts the process of reclaiming sleeping industries.
SEPTEMBER
US
President Trump appears to row back on his own infrastructure plan,
which focused on PPPs. However, state activity in the PPP
initiatives showed little signs of slowing down.
Australia
The Australian Senate Economics References Committee issues its
Interim Report: Aluminium Composite Cladding – Nonconforming
building products.
OCTOBER
UK
The TCC holds that parties are free to allocate concurrency risk in
their construction contracts.
UK
The TCC finds that a firm of architects owed a duty of care to
advise their client in relation to the project budget and their
ability to work within this constraint.
Hong Kong
President Xi announces the importance of transitioning the Chinese
economy from a phase of rapid growth to one of high-quality
development.
Australia
The Supreme Court of Western Australia broadly applies the
principle of strict compliance to enforce the entitlement of
parties under performance and maintenance bonds.
NOVEMBER
US
US voters across the country approve state-developed infrastructure
investment ballot measures.
UAE
The draft UAE Executive Regulations provide two immediate action
points – register for VAT as soon as possible and review your
contractual position.
DECEMBER
UK
FIDIC releases its 2017 versions of the Yellow, Red and Silver
Books.
Australia
The Australian national review into Security of Payments
legislation in the building and construction industries was due to
be provided to the Minister for Employment by 31 December 2017.
To read this Review in full, please click here.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.