2017 – Page 2 – Construction Law

Pennsylvania’s New “State Construction Notices Directory” and the Implementation of Significant Changes to Pennsylvania’s Mechanics’ Lien Law

Mar 06 2017

Important changes to Pennsylvania’s Mechanics’ Lien Law recently took effect on December 31, 2016, with the launch of an online State Construction Notices Directory. These amendments to the Mechanics’ Lien Law (which were passed by the Pennsylvania legislature in 2014) modify the process and deadlines applicable to subcontractors, contractors and owners with respect to mechanics’ liens on projects costing over $1.5 million. In short, these amendments require subcontractors to comply with an earlier lien notice requirement by providing a “Notice of Furnishing” within 45 days of beginning work or providing materials if the owner has filed a “Notice of Commencement” to the online directory with respect to a “searchable project” prior to commencement of work on the project.

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

Dispelling the Myths of Lean Construction and IPD

Mar 02 2017

By Justin L. Weisberg, K&L Gates, Chicago

The text of this article first appeared in the December 2016 issue of SubStance, a publication by the Illinois Mechanical & Specialty Contractors Association.

Over the last year we have witnessed a successful Congress in Chicago by the Lean Construction Institute, a growing number of projects adopting Lean Construction Processes (“LCP”), in Illinois, and the recognition of the completion of at least one significant project in Illinois, which utilized Integrated Project Delivery (“IPD”). Nevertheless, I have perceived that there is confusion in the industry relative to LCP and IPD based upon comments made at presentations given by practitioners in the construction industry, who have not been involved with, or studied Lean Construction. The following article provides a brief overview and a comparison of LCP and IPD to address the myths created by some of these comments.

Time Waits for No-One When a Garnishee Order can be Obtained to Enforce an Adjudicator’s Determination

Feb 27 2017

By: Sandra Steele and Andrew Hales, K&L Gates, Sydney

The Supreme Court is often called upon by an aggrieved party to restrain enforcement of an adjudicator’s determination whilst that party seeks to have the determination set aside.

In an ex tempore decision in Atlas Construction Group Pty Limited v Fitz Jersey Pty Limited [2017] NSWSC 72, his Honour Justice McDougall held that Fitz Jersey Pty Limited was not entitled to an interim injunction requiring AUD11 million received by Atlas Construction Group Pty Ltd pursuant to a garnishee order to be paid into court whilst Fitz Jersey pursued its application to set aside an adjudicator’s determination.

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

Third Party Funding for Arbitration in Hong Kong

Feb 20 2017

By: Sacha Cheong and Dominic Lau, K&L Gates, Hong Kong

Given the highly technical and complex nature of the activities in the construction industry, to provide familiarity and certainty, and to save time and (legal and administrative) costs, standard form contracts are widely in use. Arbitration agreements are contained in most standard form contracts for similar reasons.

Unfair Contract Terms with Small Businesses: Implications for the Construction Industry

Jan 30 2017

By Sandra Steele and Andrew Hales, K&L Gates, Sydney

The unfair contract term prohibitions in the Competition and Consumer Act 2010 (Cth) were recently extended to cover standard form contracts with small businesses.

The new law provides for unfair contract terms to be declared void and unenforceable. The relevant contract will then only continue to bind the parties insofar as it can operate without the unfair terms.

New UAE Penal Law Allowing for the Imprisonment of Biased Arbitrators Leads to Widespread Concern and Uncertainty in International Arbitration Community

Jan 17 2017

By Michael P. Cotton

Through a recent amendment to Article 257 of the UAE Penal Code, any arbitrators, experts, or translators who issue biased decisions or opinions in UAE arbitration proceedings may now be subject to criminal liability. The new law has led to widespread concern and uncertainty in the international arbitration community.

New FIDIC Yellow Book 2017: Major Changes

Jan 09 2017

By Matthew E. Smith, Inga K. Hall, and Sarah A. Drinkwater, K&L Gates, London

Introduction

FIDIC has long been renowned for its flexible suite of standard forms of contract for use on international construction and engineering projects. FIDIC is the “contract of choice” for international infrastructure and process plant projects, particularly in Eastern Europe, Africa, the Middle East, and Asia.

Two of the key strengths, or attractions, of the FIDIC suite of contracts are, firstly, that they are capable of use across a diverse range of legal systems and, secondly, that they have been pro-actively updated and added to over time to respond to the needs of the industry.

By way of background to this last point, FIDIC produced a core ‘Rainbow Suite’ of 4 contracts in 1999: the Red Book (for Building and Engineering Works), the Yellow Book (Plant and Design-Build), the Silver Book (EPC/Turnkey Projects) and the Green Book (short form contract). Additional forms have subsequently been added to the Rainbow Suite, including the White Book consultant’s appointment in 2006 and the Design-Build-Operate Gold Book form in 2008. In early 2016, FIDIC formed a working group to focus on updating its existing suite of contracts and to add entirely new forms of contract (including sector-specific tunnelling and renewables forms); with intentions to release such new and updated contracts over the course of the next two years.

Following the FIDIC International Contract User’s Conference in December 2016, at which K&L Gates partners, Matthew Smith, Kirk Durrant and Rafal Morek, spoke on trends in amending FIDIC contracts, attendees were able to obtain a copy of the much anticipated “special pre-release version” of the 2nd Edition of the Yellow Book (2017) and the 5th Edition of the White Book (2017).

This Alert provides a high-level overview of the changes which will be made to the Yellow Book, its first update in over 15 years. The 2017 Yellow Book 2nd edition changes are likely to have wide-reaching impact as the Yellow Book remains the most commonly used contract in the Rainbow Suite. Some of these provisions reflect innovations introduced in the Gold Book 2008 which are now being integrated into the new versions of the ‘1999 suite’ (Red, Yellow and Silver) but many other changes are completely new.

One thing that is clear is that the changes are very extensive indeed, both in terms of length and effect, and whether you are an Employer or Contractor or an Engineer or another consultant, it is essential that you are fully aware of these changes when the final versions of the new contracts are issued this year.

In due course we will be releasing more detailed commentaries on the ‘new’ Yellow Book and the other forms which are due for release this year as well as conducting workshops on the use of the new forms. If you are not already on our mailing list and wish to be informed of these, please contact Matthew Smith (matthew.smith@klgates.com) or Rich Paciaroni (richard.paciaroni@klgates.com).

Drones in Construction: Legal Overview

Jan 05 2017

Chicago partner Gregory Andre recently presented the following legal overview regarding drones in the construction industry at a seminar sponsored by the Construction Owners Association of America.

To view the presentation materials, click here.

Archive:2017