Archive: 2016

1
California Construction Risk Management Update: In Khosh v. Staples Construction Co., Court Further Defines Rule that Contractor Not Responsible for Sub’s Worksite Injury
2
Code Orange Moving to Green: New Building Code for Construction Sector
3
QATAR COURT OF CASSATION CONFIRMS CONDITIONS FOR THE ENFORCEMENT OF ICC AWARDS IN QATAR
4
Third-Party Funding of Construction Disputes: An Overview of Litigation and Arbitration Finance
5
Flintco Pacific, Inc. v. TEC Mgmt. Consultants, Inc.: “Reasonable Reliance” on Subcontractor’s Bid
6
Payment Applications – Strict Approach Regarding What Constitutes a Valid Payment Application and Pay Less Notice
7
Will construction companies have an easier way to reach settlements with public investors in Poland?
8
German Caselaw: When will warranty claims for rooftop solar power stations be time-barred?
9
Considerations for Construction Industry Employers as They Continue to Prepare for New Salary Thresholds Under White-Collar Overtime Exemptions
10
Proposed Security of Payment Legislation in Hong Kong

California Construction Risk Management Update: In Khosh v. Staples Construction Co., Court Further Defines Rule that Contractor Not Responsible for Sub’s Worksite Injury

By Timothy L. Pierce, Hector H. Espinosa, and Eric M. Khodadian, K&L Gates, Los Angeles

The Court’s decision in Khosh v. Staples Const. Co., Inc., Case No. 56-2014-00447304-CU-PO-VTA (Oct. 26, 2016) helps to further define the boundaries for whether a general contractor may be found responsible for worksite injuries suffered by an independent subcontractor’s employee.

In Khosh, the California Court of Appeal upheld the trial court’s decision that general contractor Staples Construction Company, Inc. (“Staples”) was not responsible for injuries sustained by an electrical subcontractor’s employee, who was severely electrocuted on the jobsite.

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Code Orange Moving to Green: New Building Code for Construction Sector

By Duncan Fletcher and Miriam Power, K&L Gates Perth

Background
The passing of the Registered Organisations Bill on by the Senate on Tuesday 22 November 2016 and the passage of the Building and Construction Industry (Improving Productivity) Bill (ABCC Bill) on 30 November 2016 following protracted negotiations between the government and the crossbench brings the two Bills the government used to trigger the double dissolution election earlier this year full circle.

Apart from re-establishing the construction regulator (the Australian Building and Construction Commissioner), the ABCC Bill, once enacted, will implement the Building and Construction Industry (Fair and Lawful Building Sites) Code (Code). The Code establishes an enforcement framework under which building industry participants may be excluded from tendering for or being awarded Commonwealth-funded building work if they are non-compliant.

To read the full alert on K&L Gates HUB, click here.

QATAR COURT OF CASSATION CONFIRMS CONDITIONS FOR THE ENFORCEMENT OF ICC AWARDS IN QATAR

By Matthew Walker and Leanie van de Merwe, K&L Gates, Doha

In Appeal No. 173/2016, the Qatar Court of Cassation considered an appeal against the Court of Appeal’s decision  dismissing an application for the enforcement of an International Chamber of Commerce (ICC) award.

SPEEDREAD

The Qatari Court of Cassation has clarified the position on enforcement of foreign arbitral awards in Qatar, by confirming that none of the domestic requirements relating to certification and authentication of foreign official documents apply to international awards, thanks to the New York Convention.

This judgment is a significant step in the right direction for arbitration in Qatar, especially where it concerns the hotly debated topic of  enforcement of foreign awards. Qatar, which has a mixed legal system (Civil Law based on overriding principles of the Shari’a), does not recognise the principle of legal precedent in the same way as a common law jurisdiction does. Judges are generally not strictly bound by the decisions made in previous cases or by superior courts. However, whilst this judgment may not be strictly binding on the lower courts in Qatar, it may be considered as highly persuasive, and is therefore not a case that the lower courts should overlook lightly.

It remains to be seen whether the French courts will uphold or dismiss the appeal in the parallel proceedings to annul the award. Until then, the Court of Cassation’s judgment stands and provides considerable clarity on the requirements for enforcement of an ICC award in Qatar. (Appeal No. 173/2016).

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Third-Party Funding of Construction Disputes: An Overview of Litigation and Arbitration Finance

By Ian Meredith, Benjamin T. Mackinnon, K&L Gates, London

Introduction

Over the last decade, financing for commercial and investor-state arbitration / litigation claims has grown into a significant industry in certain jurisdictions with hundreds of cases now being funded by specialist investment funds (known as ‘third-party funders’). The benefits of third-party funding go well beyond solely the provision of funds to claimants who may otherwise be unable to bring worthy claims, and many commercial parties now use third-party funding as a means of managing risk. The increased availability of third-party funding and the potential to negotiate tailored solutions means that it is now becoming a routine issue for consideration at the outset of disputes and often before they even exist.

Over the course of several articles, we will examine some of the specific issues relevant to determining whether third-party funding is appropriate for your dispute, how best to approach third-party funders, and some of the issues that can arise during the course of a claim being supported by a third-party funder.

This article will provide an overview of third-party funding and highlight why it is becoming increasingly relevant for in-house lawyers dealing with construction disputes. The next articles in the series will examine some of the specific issues that can arise in respect of third-party funding and how best to approach funders.

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Flintco Pacific, Inc. v. TEC Mgmt. Consultants, Inc.: “Reasonable Reliance” on Subcontractor’s Bid

By Timothy L. Pierce, Hector H. Espinosa, and Benjamin Kussman, K&L Gates, Los Angeles

In California, general contractors can “reasonably rely” on subcontractors’ bids when submitting their own bids to the owner.  In Flintco Pacific, Inc. v. TEC Mgmt. Consultants, Inc., Case No. B258353 (July 19, 2016), the California Court of Appeal addressed what constitutes “reasonable” reliance, holding that it was unreasonable for a general contractor to rely on a subcontractor bid based on price alone, while ignoring other, material conditions of the offer.

In Flintco, Flintco Pacific, Inc. (“Flintco”), a general contractor, received a bid from TEC Management Consultants (“TEC”) to perform subcontract work on a community college building project.  In addition to the bid price of $1,272,960, TEC’s bid included the following conditions: (1) a 35% up-front deposit; (2) the right to withdraw its bid if not accepted within 15 days; and (3) a minimum 3% price escalation, per quarter, after the 15-day acceptance period.  Flintco used TEC’s bid price in compiling its own bid and was awarded the contract in July 2011. Read More

Payment Applications – Strict Approach Regarding What Constitutes a Valid Payment Application and Pay Less Notice

By Nita Mistry, K&L Gates , London

In Jawaby Property Investment Ltd v The Interiors Group Ltd [2016] EWHC 557 (TCC), refurbishment works were carried out under a JCT Design and Build Contract, 2011 edition with amendments. The procedure followed for the first six payment applications involved the contractor (“TIG”) emailing a valuation to the employer’s (“JPIL”) agent with supporting documents specified in the contract. The agent would then assess the sum due and issue a payment certificate.

For the seventh payment application, a different approach was taken. TIG provided a valuation that it described as an “initial assessment”. This suggested that it was not firm and final. In addition, the valuation did not value the works beyond 5 January, whereas previous valuations went up to and included valuation of the works up to the due date (8 January). Nevertheless, JPIL’s agent assessed the sum due in the usual way and issued a payment certificate, this time with a negative sum. TIG requested some clarification, to which JPIL’s agent responded by attaching a record of the site visit and valuation assessment. The courts considered whether the “initial assessment” issued by TIG was a valid payment notice and whether the certificate for payment issued by JPIL was a valid pay less notice.

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Will construction companies have an easier way to reach settlements with public investors in Poland?

By Joanna Łagowska and Łukasz Gembiś, K&L Gates, Warsaw

In Poland, for years now we have seen a steady increase in the number of commercial disputes referred to the common courts. According to the information provided in April 2016 by Undersecretary of the Ministry of Infrastructure and Construction, Jerzy Szmit, the value of the claims that contractors brought to the court, or intend to bring, amounted to approximately €2.5 billion, covering 5000 cases (only regarding road construction disputes).

Although the efficiency of the Polish courts has improved in the last few years, the average duration of court proceedings in Poland is still very long. Amicable dispute resolution is one method to deal with the resulting delays (for example by way of conciliation or mediation procedures etc.). However, unfortunately, despite various initiatives to promote such methods by both the Ministry of Justice and the Ministry of Development, government bodies and state budgetary units only occasionally make use of procedures for the amicable settlement of disputes arising under civil law. It appears that the main factor preventing public investors from wider use of such amicable dispute resolution methods is a fear of incurring liability for breach of public finance discipline.

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German Caselaw: When will warranty claims for rooftop solar power stations be time-barred?

By Christoph Mank, K&L Gates, Berlin

The question of when warranty claims are time-barred according to the German Civil Code, may differ from contract to contract. Often, warranty claims are time-barred two or three years after transfer of risk; however, for construction works, longer periods of four or five years may be applicable, starting with the completion and acceptance of the works.

The civil division of the German Federal Supreme Court (“BGH“), which is ─ inter alia in charge of construction law, had to decide a case recently in which rooftop solar panels were installed subsequently on the roof of an indoor tennis center. Three years ago, another civil division of the BGH ─ which is in charge of the law related to sale and purchase agreements ─ had to decide a very similar case in which rooftop panels were installed on a barn. In the case of 2013, the BGH ruled that warranty claims for the solar panels, which were only delivered and not installed by the vendor, are time-barred two years after delivery. According to that decision, the rooftop solar power station is not a building or a “structure,” which it needs to be considered to qualify for the five-year warranty period. Only the barn is a building, and the solar power system is not relevant for the construction and the continued existence of the building; the solar power system is only used for generating electricity.

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Considerations for Construction Industry Employers as They Continue to Prepare for New Salary Thresholds Under White-Collar Overtime Exemptions

By Amy L. Groff, K&L Gates, Harrisburg and Matthew D. Duncan, K&L Gates, Raleigh

Employers in the U.S. construction industry should act now to address recent changes to the overtime exemptions for “white-collar” employees. On May 18, 2016, the U.S. Department of Labor (DOL) published its highly anticipated final rule, which more than doubles the salary threshold required for certain executive, administrative, and professional employees to qualify for an exemption from overtime pay under the Fair Labor Standards Act (FLSA). The new rule will take effect on December 1, 2016. In this relatively short time frame, employers must review their current practices, determine which positions should be reclassified and how they should be classified and paid, consider related policies that should be revised, and plan how to communicate changes to employees.

These changes to the overtime exemptions will touch almost every employer in the country, but they are likely to have a disproportionate impact on construction-related businesses, which are among the industries projected to have the most affected workers. The final rule makes it much more difficult to treat employees such as first-line construction supervisors as exempt from overtime pay, and employers are now required to make hard staffing and economic choices in their businesses.

To read the full alert on K&L Gates HUB, click here.

 

Proposed Security of Payment Legislation in Hong Kong

By Sacha M. Cheong and Dominic C. Lau, K&L Gates, Hong Kong

A prominent feature of the construction industry is its pyramid structure with long chains of contracts and sub-contracts from developers down to small sub-contractors and suppliers.

The inclusion of conditional payment terms (favorable to the paying party), frequent disputes at all stages of the projects, and cumbersome dispute resolution processes can often result in substantial delay in payments to the smaller sub-contractors and suppliers. On the one hand, these sub-contractors and suppliers are usually dependent on the parties higher up in the contracting hierarchy for new work, and they often lack the financial means and resources to engage in protracted disputes. On the other hand, delayed or nonpayment could adversely affect their cash flow, resulting in difficulties in ordering and securing goods and services, paying employee wages, and sometimes even the suspension of work.

To address these problems, the United Kingdom pioneered the statutory adjudication scheme for security of payment in 1996, which has since been followed (with slight variations) by several other countries, including Australia, New Zealand, Singapore, and Malaysia.

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