One of the reasons for project owners’ choice of the NEC3 Engineering and Construction Contract (ECC) is the avoidance of the risk of claims and disputes long after project completion. In a number of cases the court has been presented with difficult questions concerning adjudication after project completion and delayed reference of adjudicated disputes to the applicable final tribunal. The cases have not been from projects procured with NEC contracts. This paper critically examines these questions, the court’s answers to them and their implications for the NEC3 ECC family of contracts. It concludes that, in the drafting of future editions of the contract, the promoters of the contract should consider provisions targeted at: ensuring that the test of awareness for the purposes of the Clause 61.3 time-bar is on an objective basis; conclusive evidence clauses that impose a disincentive against seriously delayed challenges to assessment of compensation events and payment; and providing that the decision of an adjudicator becomes finally binding if the dispute decided is not referred to the tribunal within a stated period.
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