International Journal of Law in The Built Environment最新文献

{"title":"Adjudication enforcement: partial final determinations and insolvency","authors":"Heath Marshall","doi":"10.1108/17561451211211741","DOIUrl":"https://doi.org/10.1108/17561451211211741","url":null,"abstract":"Purpose – The purpose of this paper is to examine two specific circumstances where UK courts may stay the execution of a judgment to enforce a statutory adjudication decision; where a final decision is sought on a discrete point; and where the winning party is insolvent. In this context, there is consideration of what a “binding” decision means for the purposes of Part II of the Housing Grants Construction and Regeneration Act 1996.Design/methodology/approach – A black letter, doctrinal approach is adopted, using two High Court decisions as a focus for wider critical reflection.Findings – The cases where a final determination on part of an adjudication decision is successful are rare and will depend on the facts. Despite some unorthodox recent decisions, the likelihood remains that parties will struggle to challenge part only of an adjudication decision. The leading case authorities support the underlying principle of the Construction Act insofar as adjudication decisions are binding and should be enforce...","PeriodicalId":158465,"journal":{"name":"International Journal of Law in The Built Environment","volume":"30 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-04-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127681437","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The challenge of self‐regulation in commercial property leasing: a study of lease codes in the UK","authors":"C. Hughes, N. Crosby","doi":"10.1108/17561451211211723","DOIUrl":"https://doi.org/10.1108/17561451211211723","url":null,"abstract":"Purpose – UK Government policy to address perceived market failure in commercial property leasing has largely been pursued through industry self‐regulation. Yet, it is proving difficult to assess whether self‐regulation on leasing has been a “success”, or even to determine how to evaluate this. The purpose of this paper is to provide a framework for this and a clearer understanding of self‐regulation in commercial leasing.Design/methodology/approach – A literature review suggests key criteria to explain the (in)effectiveness of self‐regulation. UK lease codes are analysed in the light of this literature, drawing on previous research carried out by the authors on the operation of these codes.Findings – Lease codes appear to be failing as an effective system of self‐regulation. While there are influential market actors championing them, the fragmentation of the leasing process lessens this influence. The structures are not there to ensure implementation, monitor compliance and record views of affected stake...","PeriodicalId":158465,"journal":{"name":"International Journal of Law in The Built Environment","volume":"48 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-04-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131908458","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A broad church","authors":"P. Chynoweth","doi":"10.1108/IJLBE.2012.41104AAA.001","DOIUrl":"https://doi.org/10.1108/IJLBE.2012.41104AAA.001","url":null,"abstract":"","PeriodicalId":158465,"journal":{"name":"International Journal of Law in The Built Environment","volume":"60 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-04-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116338792","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Cost benefit analysis approach to global claims","authors":"Wayne Lord, Thomas Gray","doi":"10.1108/17561451111178434","DOIUrl":"https://doi.org/10.1108/17561451111178434","url":null,"abstract":"Purpose – The purpose of this paper is to examine relevant case law governing the failure and/or success of global or rolled‐up claims, where it is said to be impractical or impossible to demonstrate the links between certain causes of action and the monetary value to be attached to each. The paper proposes a theoretical framework to improve a claimant's prospects of success in advancing a global claim, not only in circumstances where it may be impractical or impossible to provide a breakdown but also where a cost benefit analysis concludes it is reasonable to do so.Design/methodology/approach – The paper uses traditional doctrinal legal methodology to evaluate judicial statements on the merits of global claims from a number of jurisdictions. The paper also draws on key authorities from the realms of health and safety and professional negligence.Findings – The cases demonstrate attempts by the court to recognise the problems faced by claimants at the end of a construction contract where their total costs ...","PeriodicalId":158465,"journal":{"name":"International Journal of Law in The Built Environment","volume":"65 2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-10-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125951474","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Proposal for a “Dual Scheme” model of statutory adjudication for the Australian building and construction industry","authors":"M. Brand, P. Davenport","doi":"10.1108/17561451111178452","DOIUrl":"https://doi.org/10.1108/17561451111178452","url":null,"abstract":"Purpose – The purpose of this paper is to outline a proposal for a Dual Scheme model of statutory adjudication for the Australian building and construction industry.Design/methodology/approach – The paper deals with the security of payment problem in the Australian construction industry and the legislative response to that problem in New South Wales and elsewhere more generally. The paper highlights deficiencies in current adjudication schemes in Australia and proposes a revised methodology of adjudication by means of the proposed Dual Scheme model. The Dual Scheme is explained in detail and examples are given showing how the Dual Scheme would work in practice.Findings – The Dual Scheme of adjudication allows for adjudication of “progress claims” (just as they are adjudicated now under the “Defined Scheme”), but also provides for separately adjudicated “money claims” in a similar way to that done under the “Non‐specific Scheme”. Both parties to a construction contract can take advantage of adjudication un...","PeriodicalId":158465,"journal":{"name":"International Journal of Law in The Built Environment","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-10-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129959514","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A consideration of recovery of prolongation costs in a construction context","authors":"R. Champion","doi":"10.1108/17561451111178443","DOIUrl":"https://doi.org/10.1108/17561451111178443","url":null,"abstract":"Purpose – The purpose of this paper is to review the principles for valuation and proof of contractor's claims for additional site overheads arising from delays to completion of construction projects.Design/methodology/approach – An overview of prolongation costs and established principles for recovery is provided. Aspects of recent decisions are analysed critically with respect to proof of delay claims, site overheads and claims for winter working losses. Findings are compared with the established principles.Findings – Some statements in the judgment in Costain v. Haswell [2010] TCLR 1 with respect to requirements for proof of delay claims and for recovery of site overheads depart from established principles. Other elements of the judgment confirm existing principles. The need to distinguish between time‐ and volume‐related costs emerges as critical in valuation of delay‐related losses.Practical implications – The need for a claimant to establish proof of delays to completion, and proof of loss, particul...","PeriodicalId":158465,"journal":{"name":"International Journal of Law in The Built Environment","volume":"22 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-10-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127442205","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Contract interpretation: potential for relaxing the exclusionary rule","authors":"Andrew Milner","doi":"10.1108/17561451111178425","DOIUrl":"https://doi.org/10.1108/17561451111178425","url":null,"abstract":"Purpose – The purpose of this paper is to analyse the practical policy arguments that support the exclusion of pre‐contractual negotiations in the interpretation of written contracts, and the more principled arguments for allowing such evidence to be admitted. This paper proposes that the exclusionary rule be relaxed in certain limited circumstances.Design/methodology/approach – The paper adopts a black‐letter law approach focusing heavily upon the principles of law itself. It analyses the arguments for and against admitting pre‐contractual negotiations in the interpretation of written contracts through examining key court judgments, key journal articles and leading text under English law and other common law jurisdictions.Findings – The findings show that the arguments advanced in support of the exclusionary rule, whilst of great significance, are not that convincing. The arguments for relaxing the exclusionary rule in certain limited circumstances are very strong.Research limitations/implications – Empi...","PeriodicalId":158465,"journal":{"name":"International Journal of Law in The Built Environment","volume":"50 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-10-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115651453","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"New homes and consumer rights: England and Australia compared","authors":"P. Britton, J. Bailey","doi":"10.1108/17561451111178461","DOIUrl":"https://doi.org/10.1108/17561451111178461","url":null,"abstract":"Purpose – The purpose of this paper is to contrast consumer laws in England and Australia in relation to residential building projects, and considers how the laws of England may be improved in light of the Australian laws.Design/methodology/approach – The paper reviews consumer laws in both England and Australia, and examines the measures that are in place (or not) to protect consumers who engage builders or purchase a home that contains latent defects.Findings – After comparing the laws of the two countries, the conclusion is made that English law could be improved by imposing regulations on builders, including by mandating the use of written contracts for building work which are required to contain particular terms, requiring builders to be licensed and insured, and by introducing a consumer‐friendly form of dispute resolution for home building disputes.Practical implications – The paper recommends that there be law reform in England.Originality/value – The paper provides (so far as the authors are awar...","PeriodicalId":158465,"journal":{"name":"International Journal of Law in The Built Environment","volume":"os-9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-10-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127973104","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Guest Editorial: Comparative Research at the Frontier of Planning Law: The Case of Compensation Rights for Land Use Regulations","authors":"R. Alterman","doi":"10.1108/17561451111148220","DOIUrl":"https://doi.org/10.1108/17561451111148220","url":null,"abstract":"Purpose – This paper aims to present the merits of cross-national comparative research as a method for pushing the frontier of knowledge about planning laws. Since in every country there is usually some dissatisfaction with its present planning laws or certain aspects of them, cross-national research can open an arena of alternatives based on real-life experiences. To demonstrate this argument the paper focuses on a shared dilemma – how should the law handle the negative effects of some planning decisions on land values. This case is used to demonstrate both the comparative method and the usefulness of comparative findings. The conclusions point out theopportunities for cross-learning. Design/methodology/approach – The overall argument about the comparative research draws on the author’s extensive experience in conducting cross-national research on a variety of issues in planning laws. The research on compensation rights reported here draws on the author’s recent book which analyses the laws and practices in 13 countries. To ensure a “common platform” for comparison, the author developed a method based on a set of factual scenarios and a shared framework of topics. A team of country-based researchers conducted the legal analysis, and the team leader conducted the comparative analysis.Findings – The 13-country analysis shows that there is a great variety of approaches to compensation rights around the world and a broad range of degrees, from no compensation at all to extensive compensation rights. There is no “consensual approach”. The search for similarities based on region in the world, legal family, cultural background, density or demography, shows that the differences cannot be “explained” on the basis of these variables. The degree of political controversy on this issue also varies greatly. The breadth of laws and practices offer a range of alternative models to enrich local debates.Research limitations/implications – Any comparative research on a new topic is bound to be exploratory. There are not yet any established theories in planning law (or in comparative research) from which hypotheses can be derived and tested. However, the large sample of countries, covering 40 per cent of the OECD countries (at the time), and the careful shared method have likely produced reliable findings. Originality/value – Most of the comparative research that the author has conducted over the years charted new grounds in both its topics and its comparative breadth. The paper reports in brief on cross-national comparative research on compensation rights. The full research, on which this paper draws (published as a book in 2010), is the first to look at this specific issue globally with a large 13-country sample of OECD countries.","PeriodicalId":158465,"journal":{"name":"International Journal of Law in The Built Environment","volume":"86 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-07-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124358030","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"An investigation into lawyer attitudes towards the use of mediation in commercial property disputes in England and Wales","authors":"Julian Sidoli del Ceno","doi":"10.1108/17561451111148275","DOIUrl":"https://doi.org/10.1108/17561451111148275","url":null,"abstract":"Purpose – The paper seeks to examine empirically the attitudes of English lawyers towards mediation in commercial landlord and tenant disputes. Despite much support from numerous sources there has been very little actual take‐up in this sector. It is premised that the future growth of mediation in commercial property disputes is hindered by the negative or sceptical perspectives held by some lawyers towards mediation.Design/methodology/approach – The paper is based on data from questionnaires and a series of qualitative interviews with a variety of landlord and tenant lawyers combined with a thorough examination of existing literature.Findings – Many lawyers were not keen to recommend the use of mediation. This was partly because of unfamiliarity as well as concerns that mediation is not a genuine legal process and that consequently it lacked status. Legal culture was identified as a problem here. Lawyers also felt that mediation was inappropriate in many cases. Education was suggested as having an import...","PeriodicalId":158465,"journal":{"name":"International Journal of Law in The Built Environment","volume":"40 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-07-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127577127","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}