Last week, I delivered a paper for the South Australian Bar Association on Extra-Contractual Recoveries. It was an adaption from the paper I delivered to the Society of Construction Law in London in December, put in context of South Australian law rather than English law.[1]

For technical reasons[2], the paper had to be delivered without the PowerPoint that I had prepared to go with it. In a sense, that was a challenge, because what I had prepared to say was built around that PowerPoint. But in another sense, it was rather refreshing to just talk to an audience any backdrop of charts, pictures, bullet lists or extracts from authorities.

One of the things that I address in the paper is what I see as the current obsession with the black letter of lengthy bespoke contracts, as though the express words contain a complete code on the legal relationship between the parties. The scenario that I present illustrates, I hope, that the express words of the contract are never more than a starting point; they are not holy writ, but are frequently  rendered irrelevant or inoperative by other aspects of the law.

Meanwhile, my book Extra-Contractual Recoveries for Construction & Engineering Work is continuing to sell around the world. It has got good reviews and those who use it say nice things about it. Hopefully, it will continue to sell for a while to come. I reckon it is little short of professional negligence for commercial litigators in the common law world not to have access to a copy.

This Australian version of the paper, as delivered last week, is Continue reading →

The presentation to the Law Society of South Australia yesterday afternoon went well.[1] A delegate has since asked this:

“I am assuming that unlike a mediation where parties are precluded from referring to anything said or done during a mediation, there is no confidentiality/settlement privilege over any documents/proceedings in a pendulum arbitration since it is more like a trial and is meant to be a final judgment?  Is this correct?”

The answer is “Yes and no”.

“Yes” in the sense that a pendulum arbitration is likely to be confidential in the same way as every other arbitration. That confidentially prevents publication of either the proceedings or the result to the public.

But “no” in the sense that in the unlikely event of the pendulum arbitrator doing something really stupid, it is open to the parties to challenge his/her misconduct in court, just like in any other arbitration.  In practice, there is likely to be little or no opportunity for such challenge in cases where the pendulum arbitrator understands the process.

Continue reading →

Today is the last day to register for the LSSA CPD Webinar tomorrow, either personally (best) or via video link (better than nothing).  The deadline for registration is 4.00 pm. (Now see Stop Press 2 below)

It is on pendulum arbitration, which is the most promising dispute resolution technique around today, albeit that it is still in its infancy in Australia. Experience from the USA (where it originated, at least in its modern form) indicates that it really does deliver dispute resolution which:

• • Is final and binding, with precious little opportunity for appeal,

• • Is fast and cheap, comparable to a mediation,

• • Is simple to understand, and free from excessive the procedural complexity which plagues security of payment processes,

• • Is regarded as fair by parties who have been through the process,

• • Is free from much of the acrimony which so often plagues litigation and conventional arbitration.

I urge as many lawyers as possible to at least find out about it. Indeed, not to know anything about it and, in appropriate cases, to offer it as an option to clients, seems to me to something of a dereliction of duty. Certainly dispute lawyers, whose job includes advising clients about the most efficient way of resolving existing disputes, but also front-end lawyers, who might well be putting pendulum arbitration clauses into contracts. The session is based on a session I did for the SABAR, which was well received.

Continue reading →