Nuclear Power Plant Development: Contract Issues, Claims and Disputes

Description

Nuclear Power Plant Development covers the intricacies of developing a nuclear power plant project from a construction and legal standpoint. It deals with structuring, drafting, and negotiating a wide range of standard and specialised contracts relating to the development of nuclear power-generation projects and also covers the other forms of power-generating facilities. It covers the forms of contract, the law involved internationally, and potential areas of pitfalls and how to avoid them in a systematic format covering various forms of projects. It is suitable for solicitors and barristers involved in the contracting for such facilities and the handling of litigation related to them, government officials involved in the commissioning and development of nuclear facilities for regional governments, and engineers and contractors involved in the actual work of design and contract administration and dispute resolution. Cover Half Title Series Title Copyright Contents Detailed Contents Preface Acknowledgements Table of Cases Table of UK Legislation Table of International Legislation Chapter 1 The underlying basics: Nuclear energy and reactors Nuclear Power Reactor Types and Designs Nuclear Reactor Systems Different Types of Systems – Advantages and Disadvantages The Future Chapter 2 Nuclear energy engineering and contracts overview Preliminary steps Risk Measurement Who owns Risk? Risk Management Adverse Physical Conditions or Obstructions Delay and Disruption Defective Materials or Workmanship of Contractor Direction and Supervision by the Employer or the Engineer Damage and Injury to Persons and Property Shortage of Resources Government Policy and Change of Legislation Conflicts and war Labour Demands and Unrest Inflation Arbitration and Law Lump sum contracts Measurement Contracts Cost Reimbursement Contracts Cost plus percentage fee Design and build procurement For management procurement Management contracts Construction management Design, manage, construct and in some instances maintain The Joint Contracts Tribunal (JCT) Forms Main Forms The Main Contracts Smaller project contracts The Main Features Format and structure Main Provisions Design and Build Contract (DB) Standard Building Contract (SBC) Major Project Construction (MP) Main JCT contracts The Government Conditions of Contract, Gc Works The New Engineering Contract Documents (NEC3 and NEC4) The Engineering and Construction Contract (ECC) The Engineering and Construction Subcontract Contract (ECS) The Engineering and Construction Short Contract (ECSC) The Engineering and Construction Short Subcontract (ECSS) The Professional Services Contract (PSC) The Professional Services Short Contract (PSSC) Framework Contract (FC) Term Service Contract (TSC) Supply Contract/Short Supply Contract (SC/SSC) Adjudicator’s Contract (AC) Guidance Notes and Flowcharts Specific Risks Adverse Ground or Physical Obstructions or Conditions on the Site Delay, Disruption of the Works Extensions of Time Summary Chapter 3 NPP contract issues at inception, standard form contract provisions: Regarding NPP risk, delay and potential for disruption EPC Contracts Forms of Standard Construction Contract The Guaranteed Maximum Price Contract The Remeasurement Type of Contract The Cost Reimbursement or Cost Plus Fee Contract Target Cost Contracts The ICE Conditions of Contract Measurement Version 7th Edition ICE Design and Construct Contract ICE Minor Works Contract Time and Cost Issues Under the Measurement Version, Design and Construct, Minor Works The NEC3 – The New Engineering Contract Engineering and Construction Contract – NEC ECC Overview Some Important Provisions Prevention Clause 19 The Concept of Key Dates Design Liability Payment for Defective Work Contractor Incentives Variations Contractor’s Rights and Obligations Additional Obligations and Issues Termination Issues Force Majeure The Silver Book Damages Sub-Clause 1.1.4.3 Sub-Clause 1.1.6.9 Sub-Clause 1.3 (Communications) Sub-Clause 1.9 (Delayed Drawings or Instructions) Sub-Clause 2.1 (Right of Access to the Site) Sub-Clause 3.3 (Instructions of the Engineer) Sub-Clause 3.5 (Determinations) Sub-Clause 4.7 (Setting Out) Sub-Clause 4.12 (Unforeseeable Physical Conditions) Sub-Clause 4.24 (Fossils) Sub-Clause 7.4 (Testing) Sub-Clause 8.1 (Commencement of Works) Sub-Clause 8.2 (Time for Completion) Sub-Clause 8.3 (Programme) Sub-Clause 8.4 (Extension of Time for Completion) Sub-Clause 8.5 (Delays Caused by Authorities) Sub-Clause 8.7 (Delay Damages) Sub-Clause 10.1 (Taking Over of the Works and Sections) Sub-Clause 10.3 (Interference with Tests on Completion) Sub-Clause 13.1 (Right to Vary) Sub-Clause 13.3 (Variation Procedure) Sub-Clause 13.7 (Adjustments for Changes in Legislation) Sub-Clause 16.1 (Contractor’s Entitlement to Suspend Work) Sub-Clause 17.4 (Consequences of Employer’s Risks) Sub-Clauses 19.1 (Definition of Force Majeure) and 19.4 (Consequences of Force Majeure) Sub-Clause 20.1 (Contractor’s Claims) The Other Form Contracts Delaying with Delay The JCT Form Contract Extensions of time Clause 2.3.1.1 Delay events Clause 2.3.1.2 Delay notices 2.3.1.3 Assessment 2.3.1.4 Delay avoidance NEC3 Form of Contact 2013 (and the NEC4 2017) NEC3 terminology Delay events Delay notices Assessment ICE Conditions of Contract, 7th Edition Chapter 4 Bespoke NPP agreement terms and conditions Sample Nuclear Power Plant Agreement Clause 1 – Definitions Clause 2 – Basis for the Plant Contract Clause 3 – Scope of the Plant Contract Clause 4 – Documents Clause 5 – General Conditions Clause 6 – Risks, Liabilities and Title Clause 7 – Insurances Clause 8 – Licensability and Licensing Clause 9 – Training of Plant Personnel Clause 10 – Pre-Operational Testing, Commissioning (including performance testing), Demonstration Run and Provisional Takeover Clause 11 – Plant Contract Schedules Clause 12 – Technical Guarantees Clause 13 – Availability Guarantees Clause 14 – Intellectual Property Rights Clause 15 – Owner’s Acceptance and Final Takeover Clause 16 – Contractual Price Clause 17 – Price Revisions for the Contractual Price Clause 18 – Terms of Payment Clause 19 – Execution of Payments Clause 20 – Force Majeure Clause 21 – Rejection of Plant and Termination of Plant Contract Clause 22 – Applicable Law Clause 23 – Jurisdiction, and Dispute Resolution Clause 24 – Miscellaneous Conditions Clause 25 – Availability of Spare Parts Clause 26 – Severability Clause 27 – Survival of Obligations; Non-Waiver Clause 28 – Relationship of the Parties Clause 29 – Entire Agreement and Amendments Clause 30 – Transfer Chapter 5 Delay – an overview But what is complete and at what cost? Due Diligence Progression to Completion Complying with the Programme Standard Form Contract and Programming Delay – Who Is at Fault? Force Majeure Is the Contract Terminated? Acts of God The Purpose of Force Majeure Clauses – Historically and Internationally Typical Force Majeure Clause Usage Excusing Delay The Necessary Requirements for Force Majeure When Does Force Majeure Commence? The Duration of the Condition When Should Notice Be Given? Force Majeure’s Effect Frustration Extension of Time Standard Forms – Relevant Events and/or Compensation Events Concurrent Delay Issues Other Related Delay Issues Time Is of the Essence Provisions JCT, NEC3 and Others Delay Analysis –Methods and Types As-planned versus as-built Impacted as-planned Collapsed as-built Time impact analysis Critical Path “Float” of non-critical works Disruption Chapter 6 Delay analysis tools Delay and Disruption Claims Complexity Lack of a Uniform Approach Practical Considerations Delay Categories Delay Classifications Concurrent Delay Synopsis Float The Issue of Float Contractor’s Right to Finish Early Net Effect Method Notification of Claim But Which Method? The Problem Information Deficiencies in Contractors’ Programmes Reluctance Baseline Programme Problems Deficiencies in the Planning and Programming Process The Difference between Delay and Disruption The Methods The Methodologies Delay Analysis Methods Simplified Which Method Is Best? Disruption Analysis Methodologies The Measured Mile Technique Industry Studies and Guidelines Total Cost Method Modified total cost approach Time and Motion Studies System Dynamics Modelling Approach Earned Value Management (EVM) Final Overview Chapter 7 Construction delay analysis Summary diagram Foresight (forward-looking) Hindsight (backward-looking) Contemporaneous Delay Log Where the Problems start Requests for Information Typical Reasons and Costs – the real world Critical Path Real-World of Delay Float Summary Chapter 8 Forensic schedule analysis and discretionary logic Time of performance Legal entitlement Technical entitlement – Delay Analysis Techniques and analysis methods The Observational/Static/Gross (MIP 3.1) The Observational/Static/Periodic (MIP 3.2) The Observational/Dynamic/Contemporaneous As-Is (MIP 3.3) The Observational/ Dynamic/Contemporaneous Split (MIP 3.4) The Observational/Dynamic/Modified or Recreated (MIP 3.5) The Modelled/Additive/Single Base (MIP 3.6) The Modelled/Additive/Multiple Base (MIP 3.7) The Modelled/Subtractive/Single Simulation (MIP 3.8) The Modelled/Subtractive/Multiple Base (MIP 3.9) Critical path method logic The advantage of forensic schedule analysis in the context of the management of arbitration/adjudication procedures Conclusion Chapter 9 Distortion of delay analysis Where to start Scenario 1 Calendars Diagram Grouping and Sorting Constraints and Negative Total Float Labour Resources Other Areas for Deception Longest Path or Critical Path? Chapter 10 Unforeseen ground conditions The USA Contractor’s Duty? Employer’s Duty? Is Silence a Basis for a Claim? History Type 1 and Type 2 conditions Type 1 Type 2 Type 3 Materiality Chapter 11 Claims for extensions of time The Risk Register in the Notice process Risk identification Risk analysis Warnings and Risk resolutions The Final Step – Allocating Responsibility No Reply Needed The risk reduction meeting Difference between Early warnings, RFIs and TQs Preparing and Proving an EOT claim Creating a Systematic Approach to EOT Claims Documentation The Baseline Programme Planning Pre-planning tasks at the start Who Owns the Float? Who Owns the Float – Standard Form Contracts JCT contracts NEC3 contracts ICE contracts Baseline Programme Checklist Programme updates Changes to the Baseline Programme – Revisions Identifying and Quantifying the delays to the programme updates Categorisation of Delay Risk Events versus Delay Documenting delays Concurrent Delay Records The Approval Process Chapter 12 Constructive acceleration The Requirements Constructive Acceleration The Courts in the UK and the USA Chapter 13 Notice requirements When Exactly does the 28-Day Notice Period Commence? Who Exactly at the Contractor is Supposed to Acquire Knowledge of the Event or Circumstance? Type of Records and Claim The Need for Proper Records as Part of the Claim Submission Has the Dispute Crystallised and can it be Enforced? Is There a Dispute to Enforce? The Standard Forms Prevention But When Does the Delay Impact the Critical Path? Chapter 14 Legal systems The Common Law History Common Law Countries Civil Law The Napoleonic Code Differences Between Common and Civil Law Sharia – Islamic Law History Enforcement of Adjudication Decisions versus arbitration awards Dispute Resolution in Delay and Construction Matters Other Dispute Resolution Methods The Engineer/Arbitrator as Judge The Engineer as Quasi-Arbitrator Non-Statutory Adjudication The Advent of Dispute Boards in England Extension to International Cases Specific Regional Differences and Methods Chapter 15 Dispute resolution methods The Dispute Board Concept Mediation Arbitration Litigation Dispute Board What is a dispute board? What makes a dispute board unique? What can be achieved by using a dispute board? Recommendations versus Binding Decisions Non-binding recommendations Interim-binding decisions Differences between dispute boards and arbitration, mediation, adjudication and alternative dispute resolution (ADR) Mediation Ancient Cultures Early China Qing Dynasty – Three Steps of Mediation The First Step The Second Step The Third Step USA Change of Direction United Kingdom Islamic Tradition Global Reach The Development of Commercial Construction Mediation in the United Kingdom Woolf Reforms CPR Rules Building and Construction Disputes Halsey Failure to Mediate Justified Limited Circumstances Enforcing Mediation The Continuum of Dispute resolution Index