Construction Super Conference 2018

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S18 Liquidated Damages: The Evolving Landscape (Room Encore Ballroom 4)

11 Dec 18
2:30 PM - 3:45 PM

Tracks: Business, Business, Business, Business, Business, Business, Business, Digital Decorating, Digital Decorating, Digital Decorating, Digital Decorating, Digital Decorating, Embroidery, Embroidery, Embroidery, Embroidery, Embroidery, Embroidery, Embroidery, Embroidery, Embroidery, Embroidery, Screen Printing, Screen Printing, Screen Printing, Screen Printing, Screen Printing

The common law world is currently in the midst of an evolution in the treatment of liquidated damages. After 100 years, the United Kingdom Supreme Court has reformulated the test for determining when liquidated damages provisions will be determined to be unenforceable. Similarly, the Australian courts in 2012 reformulated their approach, which formulation the UK Supreme Court rejected. Both the UK approach and the Australian approach differ from the current regimes in the United States and Canada.

This session will discuss the current treatment of liquidated damages in the United States and Canada and outline strategies for drafting robust liquidated damages provisions and disputes relating to the enforceability of liquidated damages provisions. The panel will also discuss the new approach taken by the UK and Australian courts, their application, and the possible impacts of the UK and Australian reformulations on the treatment of liquidated damages provisions in American and Canadian law.

Upon completion of this session, participants will be able to:

  • Outline, with reference to case law, the current test in use in the United States and Canada for determining when liquidated damages are a penalty and therefore unenforceable and what practitioners in the United States and Canada can expect.
  • Outline, through a case study of the leading UK and Australian decisions, the reformulation of the tests for determining when liquidated damages clause will be interpreted as penalty clause and therefore unenforceable in the United Kingdom and Australia and how those new tests may impact the current treatment of liquidated damages in the United States and Canada.
  • Discuss strategies for drafting liquidated damages clause so that they are enforceable in all such jurisdictions and to provide strategies for litigating the enforceability or unenforceability of liquidated damages clauses with the use of examples.