It is apparent from the decision that the divestitures provisions, as contemplated in this case, constitute significant exposure to the principal contractors in the event of termination of the contract. These parties may consider amendments that only authorize the transfer of future rights or take the FIDIC position allowing the employer to order only reasonable orders. MW submitted that it was entitled to additional time for the completion of the work and that EWHL was not entitled to terminate the contract due to infringement and that, for convenience reasons, the termination had come into effect as a termination. However, the termination resulted in MW being required to assign its subcontracting to Outotec, which it duly did by notification. As a general rule, work contracts provide for the outsourcing of an employer in the event of termination due to delay. All important standard forms contain such rights. For example, in the JCT Design – Build 2016 edition, it states in point 8.7.2.3 that the contractor must „, at the employer`s request, „give the employer free of charge the benefit of an agreement to supply equipment or goods and/or for the performance of work for contractual benefits within 14 days of the termination period (to the extent that it is legally transferred) to the employer.“ This is an important decision that will probably be of great importance. As noted above, the provisions requiring subcontracting in the event of late payment are common in the sector and it is difficult to distinguish the text from the national versions of JCT and NEC from the text that the Tribunal takes into account in this case. Given the existence of a requirement for adequacy, the decision may be less easily applied to the FIDIC form: it could be argued, for example, that the distinction between the transfer of future benefit rights and the rights acquired by MW in this case is a fair balance between the employer`s interests in guaranteeing the future benefit of the subcontractors after termination and the interests of the prime contractor in preserving the rights of the supply chain with respect to the termination of the employer.

MW tried to transfer outotec any liability it might have for EWHL. Outotec disputed the fact that the contract with MW had been awarded to EWHL. In response, MW submitted that (i) the assignment of the subcontracting was merely an assignment of future rights (not past or accrued rights) or (ii) that in the event of such rights and fees due, MW could claim a contribution from Outotec under the Civil Liability Act 1978 (the Contribution Act). The decision may also result in the inclusion of non-sale clauses in partial contracts. These provisions render the assignment of the subcontractor beyond the contractor`s reach and may circumvent the contractor`s position in this case. Whether contractors are free to propose such restrictions themselves depends on the terms of the applicable main contract, as some will require the contractor to guarantee, as far as possible, subcontracting. In considering whether accrued and future rights had been awarded, the CBT emphasized the use of the term „subcontracting“ and followed previous jurisprudence, which had characterized the term as the transfer of accrued and future rights. The Tribunal found that while it is possible to limit the transfer to future rights, this would require clear words.

Despite the ubiquity of these provisions, their scope and operation have rarely been tested. A particular point of ambiguity concerns the impact of these assignments on the contracting contractor`s legal relations with its subcontractors.