Is the TCC ideal for international construction disputes?

Laura Lintott is Of Counsel at the law firm Watson Farley & Williams LLP

The UK Technology and Construction Court (TCC) will celebrate its 150th anniversary next year. Its origin in, and evolution from, the office of Official Referees into its current incarnation is remarkable. It is a court with specialist judges focusing on (the clue is in the name) construction, engineering and technology disputes, both domestic and international.

The TCC has become a global hub of legal expertise. London is already a leading centre for dealing with international disputes. It is no coincidence that over the past quarter of a century, the number of international cases brought in the TCC has increased rapidly. It has become more common for parties to international construction and engineering contracts to specify the TCC as their court of choice to resolve any disputes that may arise in relation to their contracts – a trend that is expected to continue with greater speed in the near future.

Advantages of the TCC internationally

There are a number of reasons why contractual parties have made the TCC their court of choice for disputes under international construction and engineering contracts, including:

  • the practical approach of TCC judges;
  • having judges with expertise in construction and engineering disputes provides a unique and professionally acclaimed standard, benefitting all parties to a dispute;
  • the speed with which the TCC deals with cases is also beneficial to all parties involved in construction and engineering disputes, saving both time and costs;
  • the integrity and independence of the UK judiciary and legal representation ensures all parties to a dispute are treated fairly; and
  • the TCC is always open to innovation, which is vital given the challenge of fast-evolving technology, and allows the judiciary to keep up to date with all relevant changes.

All of these reasons (and likely others) make the TCC stand out when parties are deciding which jurisdiction and court to choose in an international construction contract.

“It is an exciting time for the TCC, with the number of international cases steadily rising”

Recruitment and retention at the TCC has changed substantially. Best-practice recruitment standards and diversity, as well as open discussions about historical gender and social inequality, are just some of the ways in which the TCC is trying to keep up with societal changes. The independence of the judiciary from the government ensures that the TCC is not swayed by political will – a fact that will be of significant interest to parties from jurisdictions with differing governmental and legal structures, and will no doubt be viewed as a significant reason to choose the TCC for international construction and engineering contracts.

The TCC’s ongoing willingness to innovate puts it in the spotlight. It is well-resourced, case management is dealt with efficiently and there is gender parity among its full-time London judges. In addition, the Business and Property Courts, of which the TCC is an important member, benefit from shorter and more flexible processes, having a market test-case procedure, a Lawtech Delivery Panel, effective e-filing, the use of coding to aid the disclosure process quickly and at lesser cost, and an advisory panel supporting the head of the judiciary with an AI to assist settlement and decision-making.

Litigation v arbitration

One could argue that litigation before the TCC may be more accessible than arbitration. Well-known, experienced arbitrators are popular, which can lead to delays when trying to get them appointed to one’s case. Equally, where there is an arbitration tribunal (as opposed to a sole arbitrator), the tribunal’s availability may be a problem. On the contrary, the availability of experienced TCC judges to address urgent interlocutory matters means swift progress. The TCC’s team of judges ensures that hearing dates are set with time-efficiency as a priority. The provisions within an arbitration for the appointment of emergency arbitrators can rarely compete with the TCC courts when it comes to urgent remedies.

As for costs, the stages in a litigation case and arbitration matter are largely similar, therefore party costs in a TCC litigation are generally no higher than in an arbitration. In addition, at the TCC, the parties have the advantage of not having to pay for an arbitrator or arbitration tribunal. Finally, fees that are paid to institutes or to arbitrators are much higher than the £10,000 cap to commence a TCC litigation.

Cost and time are arguably the primary reasons for the TCC being more accessible than international arbitration, although we have highlighted others in this article. The TCC has embraced modernisation, innovation and pragmatism, thus aiding all parties involved in litigation.

While international arbitration will not disappear, it will be interesting to see how the trend develops when parties to international construction and engineering contracts decide on whether to opt for arbitration or TCC litigation. It is an exciting time for the TCC, with the number of international cases steadily rising over the past 25 years. And, at the ripe old age of 150, the TCC shows no sign of slowing down. Watch this space.

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