MỘT SỐ ĐIỂM NỔI BẬT VỀ HỢP ĐỒNG XÂY DỰNG TẠI ANH QUỐC CONSTRUCTION CONTRACTS HIGHLIGHTS FROM THE UK

MỘT SỐ ĐIỂM NỔI BẬT VỀ HỢP ĐỒNG XÂY DỰNG TẠI ANH QUỐC CONSTRUCTION CONTRACTS HIGHLIGHTS FROM THE UK MỘT SỐ ĐIỂM NỔI BẬT VỀ HỢP ĐỒNG XÂY DỰNG TẠI ANH QUỐC CONSTRUCTION CONTRACTS HIGHLIGHTS FROM THE UK MỘT SỐ ĐIỂM NỔI BẬT VỀ HỢP ĐỒNG XÂY DỰNG TẠI ANH QUỐC CONSTRUCTION CONTRACTS HIGHLIGHTS FROM THE UK MỘT SỐ ĐIỂM NỔI BẬT VỀ HỢP ĐỒNG XÂY DỰNG TẠI ANH QUỐC CONSTRUCTION CONTRACTS HIGHLIGHTS FROM THE UK

UK Government WORKSHOP MỘT SỐ ĐIỂM NỔI BẬT VỀ HỢP ĐỒNG XÂY DỰNG TẠI ANH QUỐC CONSTRUCTION CONTRACTS- HIGHLIGHTS FROM THE UK Ông/Mr ĐÀM ĐỨC BIÊN Mar 3, 2022 15:00 - 17:00 (VN) 08:00 - 10:00 (UTC) Ông/Mr OLIVER TODD Bà/Ms.MAY WINFIELD Cục trưởng Cục kinh tế xây dựng, Bộ Xây dựng Tổng lãnh Anh TPHCM Trưởng đại diện thương mại Anh Việt Nam Giám đốc toàn cầu thương mại, pháp lý rủi ro số Công ty Buro Happold Director General of the State Authority of Construction Economics, Ministry of Construction HM Consul General, British Consulate-General HCMC Country Director for Trade in Vietnam, Department of International Trade Global Director of Commercial, Legal and Digital Risks, Buro Happold Ông/Mr MATTHEW BROWNE Ông/Mr.JULIAN BAILEY Ông/Mr KEITH KIRKWOOD Ơng/Mr.ROBERT GERRARD Phó Vụ trưởng, Vụ đấu thầu, Văn phịng Chính phủ Anh Luật sư thành viên White & Case (London) Nguyên Chủ tịch Hội Pháp luật xây dụng Anh (2015-2016) Chủ tịch Công ty Alchemy BS Thành viên Hội đồng điều hành Hội Pháp luật xây dựng Anh Quốc Chuyên gia NEC, Tổng thư ký Hiệp hội người dùng Hợp đồng NEC Hòa giải viên chuyên gia giải tranh chấp Deputy Director, Outsourcing Programme, Cabinet Office Partner at White & Case LLP (London) Former Chairman of the Society of Construction Law (UK) (2015-2016) Chairman Alchemy BS Ltd Council member of UK Society of Construction Law Senior NEC consultant, Secretary of NEC Users’ Group Accredited Mediator and Dispute Resolution Adviser Registration in here https://bit.ly/3pbJkIr Scan QR code MỘT SỐ ĐIỂM NỔI BẬT VỀ UK Government HỢP ĐỒNG XÂY DỰNG TẠI ANH QUỐC CONSTRUCTION CONTRACTS- HIGHLIGHTS FROM THE UK AGENDA 15:00-15:20 (VN) 8:00-8:20 (UTC) Ông/ Mr.Đàm Đức Biên Ông/Mr Oliver Todd 15:20-15:35 (VN) 8:20-8:35 (UTC) Phát biểu khai mạc Opening speeches Luật cải tạo, xây dựng trợ cấp nhà 1996 Housing Grants, Construction and Regeneration Act 1996 Ông/ Mr.Julian Bailey 15:35-15:50 (VN) 8:35-8:50 (UTC) Hợp đồng xây dựng Lộ trình Chính sách xây dựng 2020 The Construction Playbook 2020 Ông/ Mr Matthew Browne 15:50-16:00 (VN) 8:50-9:00 (UTC) Hỏi đáp 16:00-16:15 (VN) 9:00-9:15 (UTC) Bộ hợp đồng Joint Contract Tribunal (JCT) Joint Contract Tribunal (JCT) contracts Q&A Ông/ Mr.Keith Kirkwood 16:15-16:35 (VN) 9:15-9:35 (UTC) Lịch sử phát triển hợp đồng NEC History and development of the NEC Ông/ Mr.Robert Gerrard 16:35-16:45 (VN) 9:35-9:45 (UTC) Thỏa thuận thông tin hợp đồng UK BIM Framework UK BIM Framework's Contract Information Protocols Bà/ Ms.May Winfield 16:45-16:55 (VN) 9:45-9:55 (UTC) Hỏi đáp Q&A 16:55-17:00 (VN) 9:55-10:00 (UTC) Bế mạc Closing Remarks Mar 3, 2022 15:00 - 17:00 (VN) 08:00 - 10:00 (UTC) Registration in here https://bit.ly/3pbJkIr Scan QR code Construction Contracts - Highlights from the UK 03.03.2022 Development and implementation of the Construction Act 1996 Julian Bailey, Partner, White & Case LLP, London; Visiting Fellow, Dickson Poon School of Law, King’s College, London Great Britain in the early 20th century… 2 The Construction Act 1996 (Julian Bailey) Construction Contracts - Highlights from the UK 03.03.2022 Great Britain in the early 20th century… In the construction industry:  Few laws concerning health & safety on site  Contractors had no legal right to interim payments (unless agreed)  Construction disputes would be resolved by either court proceeding or (if agreed) arbitration -> time consuming and costly 3 Great Britain in the 1980s…  More health & safety laws -> but hard hats only compulsory from 1989  Contractors still did not have a legal right to interim payments -> but market practice was for contracts to include interim payment provisions  Construction disputes were (still) resolved by court proceedings or (if agreed) arbitration -> by now EVEN MORE time consuming and expensive 4 The Construction Act 1996 (Julian Bailey) Construction Contracts - Highlights from the UK 03.03.2022 Great Britain in the 1990s… 5 The response  Housing Grants, Construction and Regeneration Act 1996 (effective May 1998) -> the “Construction Act” for short  What does the Construction Act do? – Creates a statutory right to interim payments for contractors (et al) who perform construction work -> no big change (interim payments commonly used) – Requires construction contracts to contain provisions for statutory adjudication as a form of optional dispute resolution -> A BIG CHANGE! 6 The Construction Act 1996 (Julian Bailey) Construction Contracts - Highlights from the UK 03.03.2022 Money disputes An example:  A contractor has performed £100,000 of work for an employer  It sends an interim payment claim to the employer for £100,000  The employer refuses to pay, or otherwise disputes the payment claim  What can the contractor do? 7 Money disputes Before the Construction Act:  Two main options: – Commence court proceedings against the employer to claim the £100,000 – Commence an arbitration against the employer to claim the £100,000 (if arbitration is agreed) – Either route would take a long time (e.g years +) and cost substantial money, meaning there would be a risk of the contractor… 8 The Construction Act 1996 (Julian Bailey) Construction Contracts - Highlights from the UK 03.03.2022 Money disputes Pursuant to the Construction Act:  The contractor may commence an “adjudication” against the employer  Essentially a “fast track” form of arbitration  Adjudicator required to reach a decision within 28 days of the dispute being referred to adjudication (or possibly a little longer)  Decision of the adjudicator is “provisionally binding”, and is enforceable through the courts  E.g adjudicator awards £100,000 to the contractor -> contractor takes the adjudicator’s decision to the court -> the court enforces the decision (quickly) to create a judgment debt against the employer for £100,000 9 Money disputes Pursuant to the Construction Act:  But you’re thinking: “how can you satisfactorily decide a construction dispute in 28 days?!”  Answer: maybe you can’t so  HOWEVER: the adjudicator’s decision is not a final determination -> it is “provisionally binding”  If the employer pays the £100,000 to the contractor, and it believes the contractor is not really owed that amount -> it may start court or arbitration proceedings to reclaim the money 10 10 The Construction Act 1996 (Julian Bailey) Construction Contracts - Highlights from the UK 03.03.2022 Statutory adjudication: the UK experience 11 11 Statutory adjudication: the UK experience Bresco Electrical Services Ltd (in liq) v Michael J Lonsdale (Electrical) Ltd [2020] UKSC 25 at [10], per Lord Briggs JSC: “Introduced as a statutory regime by the 1996 Act, adjudication of construction disputes has been a conspicuously successful addition to the range of dispute resolution mechanisms available for use in what used to be an overadversarial, litigious environment.” 12 12 The Construction Act 1996 (Julian Bailey) Construction Contracts - Highlights from the UK 03.03.2022 Statutory adjudication: international takeup 13 13 Cám ơn lắng nghe! 14 14 The Construction Act 1996 (Julian Bailey) Construction Contracts - Highlights from the UK 03/03/2022 Alchemy BS Construction Contracts Highlights from the UK Joint Contract Tribunal Keith Kirkwood Alchemy BS Construction Contracts Highlights from the UK Joint Contract Tribunal (JCT) Contracts 3- JCT Contracts (Keith Kirkwood) 03/03/2022 History The NEC Timeline 1985 ICE Industry Review 1991 1993 Consultative edition 1994 1995 2005 & 2013 NEC2 NEC3 2017 Latham Report NEC1 NEC4 FM long and short contract boxes need to be below TSC/TSSC ones in both categories Colours to match new colours 4 03/03/2022 Other NEC4 documents Principles NEC4 characteristics Stimulates good management • Each procedure designed to contribute • Up-to-date programme • Early warning – common sense risk management • Compensation events • Reasons for decisions stated • Allocate risks to suit 03/03/2022 Principles NEC4 characteristics Stimulates good management Can be used in wide variety of commercial situations, for wide variety of types of work and in any location • NOT a contract ‘for the bottom drawer’! • Responsibility for design by either party • Choice of pricing mechanisms from lump sum to cost plus • Bolt on secondary Options that allow a Client to build up the contract to suit • For international use Principles NEC4 characteristics Stimulates good management Can be used in wide variety of commercial situations, for wide variety of types of work and in any location A clear and simple document • Clear division of roles • Ordinary language • Minimal legalistic phrases • Minimised subjective phrases such as ‘fair’, ‘reasonable’ and ‘opinion’ • User friendly structure 03/03/2022 So what we end up with? Financial risk of main Options E Client F C D Depends on pain / gain mechanism B A Contractor So what we end up with? ECC secondary Option clauses, such as…… X1 - Price adjustment for inflation X3 - Multiple currencies X6 - Bonus for early Completion X10 - Information modelling X12 - Multiparty collaboration X14 - Advanced payment to the Contractor X20 - Key Performance Indicators X21 - Whole life cost X22 - Early Contractor involvement New X clause coming soon on incentivising net zero emissions Y clauses (covering international jurisdictions) – eg PBA 10 03/03/2022 So what we end up with? Key features and clauses Mutual Trust and Collaboration (10) The Parties, the Project Manager and the Supervisor shall act as stated in this contract (10.1) The Parties, the Project Manager and the Supervisor act in a spirit of mutual trust and co-operation (10.2) Roles such as Project Manager and Supervisor will vary with contracts TSC, PSC and DBOC use Service Manager and have no Supervisor The obligation however remains constant 11 So what we end up with? Key features and clauses Early warning (15) • duty to warn of events that may affect key project objectives • requirement to discuss and agree • best way forward • sanctions if early warning not given • encourages proactive risk management • talk to each other, it’s a good thing! 12 03/03/2022 So what we end up with? Key features and clauses Time control – programme/ plan (Section 3) • clear and objective requirement for a detailed programme with statement of resources • regular updates which provide an essential tool for the parties to manage the project and to notify and manage the effect of any problems, delays, etc 13 So what we end up with? Key features and clauses Management of change (Section 6) Compensation events only way to change price time all in one place (almost!) and treated in the same way • cost: assessed at forecast change in cost • time: forecast delay based on latest Accepted Programme 14 all to tight and defined timescales 03/03/2022 Summary • • • • • • • • • • • Very different in style and content to traditional forms Readable/understandable language Societies have changed – so must our contracts Challenge who you are about to contract with Clients also need to change, become ‘intelligent’ Use the contract to get people doing the right thing – to meet needs and interests of both parties Be collaborative, be ethical, create the right environment to allow people to flourish Take contract management seriously Invest in your people and your processes Set out to create better outcomes Keep away from conflict 15 NEC Users’ Group - Affiliate • This is a complimentary membership designed for professional bodies and government departments to further their understanding of NEC contracts • Benefits include: • Presentation by senior NEC advisor on the Introduction to NEC4 Contracts • Introduction to NEC4 eLearning module • One hard copy of the NEC4 ECC contract bundle, with User Guides • month e-Corporate license of the NEC4 box set of documents (Review purposes only) • Complimentary places to the NEC Users’ Group events programme 16 16 03/03/2022 Thank you for listening Robert Gerrard robert.gerrard@neccontract.com www.neccontract.com 17 Construction Contracts - Highlights from the UK 3.3.2022 Information Protocol and the UK BIM Framework Presented by: May Winfield, Global Director of Commercial, Legal and Digital Risks May Winfield Buro Happold Global Director of Commercial, Legal and Digital Risks Senior construction lawyer qualified over 17+ years Specialist in BIM and construction technology Spoken on construction technology worldwide Member of ISO 19650 UK Transition Guidance Working Group Led drafting teams of BS EN ISO19650compliant BIM Protocol and JCT BIM Practice Note Chair of BIM4Legal Member of CDBB Digital Twin Roadmap Working Group Member of CDBB Digital Twin Toolkit Working Group UK BIM Alliance Ambassador Twitter: Buildlaw_Arttea COPYRIGHT © 1976-2021 BURO HAPPOLD ALL RIGHTS RESERVED 5- Information Protocols by BIM UK Frameworks (May Winfield) Construction Contracts - Highlights from the UK Image courtesy of UK BIM Alliance 3.3.2022 It’s been a long journey! UK BIM Framework • The overarching approach to implementing BIM in the UK • Mandated and endorsed by UK government • Source of guidance and standard documents 5- Information Protocols by BIM UK Frameworks (May Winfield) Construction Contracts - Highlights from the UK 3.3.2022 Embedding digital technologies including the UK BIM Framework and digital twins will improve the performance, sustainability and value for money of projects and programmes… Construction Playbook 2020 COPYRIGHT © 1976-2021 BURO HAPPOLD ALL RIGHTS RESERVED 5 ISO19650compliant Information Protocol https://ukbimframework.org/ standards-guidance/ 5- Information Protocols by BIM UK Frameworks (May Winfield) Construction Contracts - Highlights from the UK Appointer - Appointee Lead Appointed Party (eg project manager) Lead Appointed Party (eg architect) Appointing Party (Client) Lead Appointed Party (eg Tier contractor) Appointed Party (eg Subcontractor/ supplier) Appointed Party (eg subconsultant) 05/03/2022 3.3.2022 BIM needs a collaborative contract Information Protocol included in all contracts ‘Sub’ Appointed Party (eg Subsubcontractor / supplier) 7 Information Particulars Who and What All documents relevant to the Parties Some may not be relevant (e.g TIDP) Update/Complete over time 5- Information Protocols by BIM UK Frameworks (May Winfield) Construction Contracts - Highlights from the UK 3.3.2022 Parties Terminology: Are You A or B AND Are you C, D or E A Appointor (doing the appointing/paying) B Appointee (getting appointed/paid) C Appointing Party D Lead Appointed Party E Appointed Party Appointment-agnostic Good for standard forms, bespoke, two-party, alliancing and multi-party See Guidance: One simple clause to ensure clarity if used for a multi-party appointment 10 5- Information Protocols by BIM UK Frameworks (May Winfield) Construction Contracts - Highlights from the UK 3.3.2022 Reminders: This is a template! Different Protocols for Design/ Construct and Operational phases Incorporation clause and include as part of appointment docs Get professional advice 11 Read available Guidance https://ukbimframework.org/standards-guidance/ #InformationProtocol Note: This presentation is not legal advice & specialist advice should be obtained on any matters 12 5- Information Protocols by BIM UK Frameworks (May Winfield) Construction Contracts - Highlights from the UK 3.3.2022 Useful Links • UK BIM Framework: https://www.ukbimframework.org/ • ISO19650 basics (videos): https://www.youtube.com/c/UKBIMAlliance/videos • Winfield Rock Report: https://www.ukbimalliance.org/wp-content/uploads/2018/11/TheWinfield-Rock-Report.pdf • BIM news and views: https://www.bimplus.co.uk/ • Interesting BIM videos: https://www.theb1m.com/ 13 Thank You & Questions Contact: May Winfield may.winfield@burohappold.com https://www.linkedin.com/in/maywinfield/ This presentation is for general information only and does not amount to advice on which you should rely You should obtain professional advice before taking, or refraining from taking, any action of the basis of this presentation 14 5- Information Protocols by BIM UK Frameworks (May Winfield) ...MỘT SỐ ĐIỂM NỔI BẬT VỀ UK Government HỢP ĐỒNG XÂY DỰNG TẠI ANH QUỐC CONSTRUCTION CONTRACTS- HIGHLIGHTS FROM THE UK AGENDA 15:00-15:20 (VN) 8:00-8:20 (UTC)... Bailey) Construction Contracts - Highlights from the UK 03/03/2022 Alchemy BS Construction Contracts Highlights from the UK Joint Contract Tribunal Keith Kirkwood Alchemy BS Construction Contracts Highlights. .. meaning there would be a risk of the contractor… 8 The Construction Act 1996 (Julian Bailey) Construction Contracts - Highlights from the UK 03.03.2022 Money disputes Pursuant to the Construction