ICE Alternative Dispute Resolution Workshop 2024 - NEC4 Option W1 v W2

Transcript

1. NEC – W1 v W2
2. William Brown BEng (Hons) LLB (Hons) MSc LLM FCInstCES Civil Engineer, Solicitor Advocate, Adjudicator William.Brown@FortfieldBrown.com What we do: ✓ Review contracts for commercial risks ✓ Draft contracts ✓ General advice on construction legal issues ✓ Party representation in Adjudication ✓ Training on contracts and administration
3. Agenda • Review of NEC January 2023 amendments • Helicopter view of W1 and W2 • Detailed comparison
4. January 2023 Amendments
5. NEC4 Amendments – January 2023 • Main change to W2 – “fixed” the two-week timetable for submissions DELETED
6. NEC4 Amendments – January 2023 • Main change to W2 – “fixed” the two-week timetable for submissions ADDED Still subject to W2.3(8) i.e. 28 days (+ extensions)
7. NEC4 Amendments – January 2023 • Further change to W2 – Relocated some of the Adjudicator’s powers DELETED ADDED This wording was previously in W2.3(4) – not new.
8. Helicopter View of W1 and W2
9. Helicopter View – W1 and W2 • Option W1 • Dispute referred to the Senior Representatives in the first instance • In accordance with the Dispute Reference Table • If dispute is not resolved, then referred to the Adjudicator • Then Tribunal, subject to notice • Option W2 • “If the parties agree” then dispute can be referred to the Senior Representatives • - • Dispute referred to the Adjudicator in the first instance • Then Tribunal, subject to notice In a nutshell, where disputes are referred and decided in the first instance is different
10. Helicopter View – W1 and W2 • Option W1 – Adjudication when HGCRA 1996 does NOT apply • Option W2 – Adjudication when HGCRA 1998 applies Perhaps slightly misleading?
11. Helicopter View – W1 and W2 • What if? This is a workshop after all! • What if the Parties selected W1, but the HGCRA 1996 did in fact apply? • i.e. selected W1, but the contract was a “construction contract” per s.104 HGCRA 1996? • What if the Parties selected W2, but the HGCRA 1996 did NOT in fact apply? • i.e. selected W2, but the contract was not a “construction contract” • Or… selected W2, it was a “construction contract”… but in Northern Ireland?
12. Detailed Comparison
13. W1.1 / W2.1 – Senior Representatives
14. Option W1 v W2 – Senior Representatives • W1.1 – Senior Representatives • (1) – Refer to SRs… in accordance with the Dispute Resolution Table Condition precedent? - 1st row, could cause issues - 2nd and 3rd, should be clear
15. Option W1 v W2 – Senior Representatives • W2.1 – Senior Representatives • (1) – Refer to SRs… if the parties agree “I do not agree with what you have to say, but I’ll defend to the death your right to say it” - Voltaire
16. Option W1 v W2 – Senior Representatives • W1.1 / W2.1 – Senior Representatives • (2) – Notification and statements of case • Referring party notifies Senior Representatives, other Party and Project Manager • Notification of “the nature of the dispute it wishes to resolve” • Statements of case to follow within one week of notification • Limited to 10 sides of A4 paper together with supporting evidence
17. Option W1 v W2 – Senior Representatives • W1.1 / W2.1 – Senior Representatives • (3) – Resolving the dispute • Senior Representatives have meetings and use any procedure necessary • No more than a 3-week period • At the end of 3-weeks, produce list of issues agreed and not agreed • Agreed – put in to effect by Project Manager and Contractor • Not agreed – can move on to adjudication under W1.3(1). WARNING! Notice of adjudication must be issued within 2 weeks under W1.
18. Option W1 v W2 – Senior Representatives • W1.1 / W2.1 – Senior Representatives • (4) – Without prejudice • Statement of case and discussions cannot disclosed, used or referred to • In proceedings before the Adjudicator or the tribunal
19. W1.2 / W2. – The Adjudicator
20. Option W1 v W2 – The Adjudicator • Bits that are the same • Adjudicator appointed under NEC Dispute Resolution Service Contract • Duty to act impartially • Power of replacement Adjudicator to determine disputes referred to predecessor • No liability unless acting in bad faith • Bits that are different • W2 – Time periods exclude Christmas Day, Good Friday and bank holidays • If Adjudicator resigns or cannot act, ANB must choose within 7 days (W1) or 4 days (W2) • W2 – A party does not refer a dispute which has already been decided
21. W1.3 / W2.3 – The adjudication
22. Option W1 v W2 – The adjudication • Notice of adjudication • W1.3(1) – Party disputing issues not agreed by SR must issue notice of adjudication within 2 weeks of when list of issues was (or should have) been produced – see W1.1(3) • W1.3(1) – Notice of adjudication issued to other Party and Project Manager • W1.3(2) – Times for notifying / referring a dispute can be extended by agreement • W1 – No express requirement for Adjudicator to inform Parties that they can act (3 days under W2)
23. Option W1 v W2 – The adjudication • Referral • W1.3(3) – All submissions to be provided within 4 weeks of the referral (Adjudicator decides this under W2*) • W1.3(4) / W1.3(3) – Joinder of subcontract disputes • W1.3(6) / W1.3(6) – Simultaneous communications *was previously 14 days, amended in January 2023
24. Option W1 v W2 – The adjudication • Powers of the Adjudicator • W1.3(5) / W2.3(4)(8)* – Same powers • Review and revise any action or inaction of the Project Manager or Supervisor… • Take the initiative in ascertaining the facts and the law… • Instruct a Party to provide further information… • Instruct a Party to take any action… • W2.3(7) – any additional amount due is payable 7 days after the date of the decision *these powers were split across two clauses in January 2023 amendments
25. Option W1 v W2 – The adjudication • The decision • W1.3(8) – decision due within 28 days of “the end of the period for receiving information” i.e. the four-week period under W1.3(3) • Can only be extended with agreement of BOTH Parties. • W2.3(8) – decision due within 28 days of referral • Can be extended by 14 days with permission of referring Party, or any other period with BOTH agreeing • W1.3(9) / W2.3(9) – Awaiting decision, Parties proceed as if the matter was not disputed • W1.3(10)/W2.3(11) – Decision is binding, unless and until revised by the tribunal • W2.3(10) – Parties can agree to extend date for decision if Adjudicator is late • W1.3(11)/W2.3(12) – Slip rule is 14 days in W1, and 5 days in W2
26. W1.4 / W2.4 – The tribunal
27. Option W1 v W2 – The tribunal • Bits that are the same • Need to adjudicate first • Requirement to issue notice of dissatisfaction as a condition precedent to the tribunal • Powers of the tribunal • Adjudicator cannot be called as a witness • Bits that are different • Under W2 – if Adjudicator fails to make decision, treated as having resigned, see clause W2.3(10). Therefore, requirement to start Adjudication again before going to the tribunal • Under W1 – if Adjudicator fails to make decision, this triggers a requirement to issue notice of dissatisfaction and may be taken to the tribunal
28. William Brown BEng (Hons) LLB (Hons) MSc LLM FCInstCES Civil Engineer, Solicitor Advocate, Adjudicator William.Brown@FortfieldBrown.com What we do: ✓ Review contracts for commercial risks ✓ Draft contracts ✓ General advice on construction legal issues ✓ Party representation in Adjudication ✓ Training on contracts and administration