Projects And Construction Law Update - May 6, 2015

Please see below Clyde & Co's latest projects and construction law update - a regular review aimed at providing up-to-date information for those in the construction and infrastructure industry.

We look at industry news as well as recent court decisions concerning:

a disputed call on a bond a refusal to imply a duty of good faith where there was no exercise of a contractual discretion the effect of an arbitration provision in a standard form in an insolvency set-off situation the 'modern approach' to penalty clauses Industry news

HSE publishes final CDM 2015 guidance The HSE has published the final version of its guidance on the Construction (Design and Management) Regulations 2015, which supersedes the draft guidance published in January. The Approved Code of Practice (ACOP) for the previous regulations has now been withdrawn and as yet no new ACOP has been published for CDM 2015.

Parties are therefore advised to refer to the guidance when interpreting CDM 2015. The HSE has stated that following the guidance is not mandatory, but parties who do so will normally be doing enough to comply with the law. A free copy may be downloaded here.

New practice note on the electronic working TCC pilot practice direction A pilot of a new electronic working system is to start on 11 May 2015 (postponed from 27 April 2015) in the Technology and Construction Courts (TCC) within the Rolls Building in London. A new practice direction, PD 51J, which came into force on 6 April 2015, prescribes the procedure to be followed when using the pilot for "Electronic Working" and was part of the 79th CPR update practice direction amendments. Proceedings may be started, and all subsequent steps taken, using Electronic Working.

The potential benefits of Electronic Working include the ability to file documents at court 24 hours a day, seven days a week, and to receive an automatic acknowledgment of the document's submission, although there is a 10MB limit on documents which may be filed. The TCC is anxious for practitioners to take part in the pilot, which it appears will run until the system is introduced in other Rolls Building courts from September 2015. There is an online survey to provide feedback.

Commission launches consultation on remedies in public procurement On 24 April 2015, the European Commission launched a consultation to evaluate the effectiveness of Directive 2007/66 on public procurement remedies. Directive 2007/66 substantially amended Directive 89/665...