Construction law quarterly

Welcome to the first edition of Construction Law Quarterly for 2026. As we begin a new year, we extend our best wishes to all our readers and contributors. The year ahead promises continued developments across the construction and infrastructure sectors, accompanied by emerging regulatory frameworks and complex legal challenges. In this edition, we present a selection of articles that address some of the most significant and fast-moving areas of construction law practice, providing analysis intended to support informed decision making as the industry enters another period of considerable change.The first paper examines one of the most rapidly developing frontiers for construction law: the space sector. As both state agencies and private operators pursue projects involving satellite constellations, space infrastructure, and emerging off-planet construction activity, the legal landscape is becoming increasingly international, technically specialised, and commercially sensitive. The authors analyse the types of disputes that arise throughout the project lifecycle, including procurement challenges, manufacturing defects, launch delays, and in-orbit damage. They also assess the suitability of international arbitration as the primary dispute resolution mechanism, highlighting its neutrality, enforceability, procedural flexibility, and capacity to accommodate public and private sector interests. The paper demonstrates that, as space construction moves from experimental activity to critical infrastructure, robust dispute resolution processes will play an essential role in providing legal certainty.The second paper considers another sector currently experiencing significant renewal: nuclear development in Canada and the UK. Both jurisdictions are advancing major programmes involving large-scale refurbishment, new build, and the commercialisation of small modular reactors. The authors outline the key legal, regulatory, and financing structures underpinning these developments, including provincial and federal support in Canada, the UK’s centralised policy framework and the increasing use of innovative financing mechanisms such as the regulated asset base (RAB) model. The analysis provides valuable guidance for contractors, investors, and developers seeking to engage with the nuclear sector, particularly in relation to procurement processes, risk allocation, regulatory compliance, and the management of first-of-a-kind technologies.The third paper addresses the recent decision of the Upper Tribunal in Almacantar Centre Point Nominee No. 1 Ltd v Penelope de Valk and Others, which represents a significant development in the interpretation of key provisions of the Building Safety Act 2022. The Tribunal adopted the widest interpretation to date of the terms ‘cladding’, ‘cladding remediation’, and ‘unsafe’ in Schedule 8 and held that leaseholder protections are not confined to the remediation of relevant defects. The article traces the Tribunal’s statutory interpretation and the practical implications of the decision for landlords, developers, and leaseholders. At a time when the remediation of unsafe cladding remains a prominent policy objective, the judgement provides important clarity and confirms the courts’ willingness to give full effect to Parliament’s intention that qualifying leaseholders should not be required to fund such works.The fourth and final paper considers the Technology and Construction Court’s decision in RBH Building Contractors Ltd v James, which revisits the residential occupier exception under section 106 of the Housing Grants, Construction and Regeneration Act 1996 and the requirements for a valid payless notice. The judgement offers helpful guidance on how the intention to occupy is assessed at the time of contracting and confirms the courts’ consistent approach to construing payless notices in a broad and practical manner. The article also reiterates the limited grounds upon which the courts will interfere with an adjudicator’s determination on fees, reflecting the established principle that such determinations are generally treated as ancillary and not susceptible to review.As ever, should you have a short article or legal update that you would be interested in submitting for inclusion in a future issue please contact the journal editor at journals@icepublishing.com.The content and the opinions expressed have been provided for information purposes only. It should not be relied on as a substitute for specific legal advice on any particular topic.NASA’s recent announcement of plans to build a nuclear reactor on the Moon by 2030 marks a turning point in the evolution of the space sector. This milestone signifies more than scientific progress – it underscores the emergence of space as a serious commercial frontier. Once dominated by state-led exploration, the industry is increasingly characterised by rapid commercialisation, multinational collaboration, and the construction of complex infrastructure projects both on Earth and beyond.Construction in the space sector is uniquely complex. Projects often involve stakeholders across the globe, nascent technologies, a nexus of domestic and international laws and regulations, as well as high-value contracts. With this complexity comes an increased risk of disputes, ranging from procurement delays to in-orbit damage. Legal practitioners are increasingly called upon to work alongside key players, such as engineers, contractors and space agencies, to navigate these challenges.This article explores the types of construction disputes commonly arising in the space sector and the role of arbitration in their effective resolution.Procurement: Procurement in the space sector is governed by an array of domestic regulations, international treaties, and bespoke contractual frameworks. Factors such as the highly specialised nature of components and the limited pool of qualified suppliers make procurement particularly vulnerable to disputes, including those arising from supply chain disruptions, export controls, and competitive tendering disputes.Manufacturing and technical defects: Rigorous testing and quality assurance prior to launch are essential, but not foolproof. Similarly to other construction projects, defects can arise from design flaws, manufacturing errors or integration failures, leading to disputes.Given the extreme conditions of space, however, construction defects have the potential for catastrophic consequences, particularly if they manifest post-launch. Unlike terrestrial projects, where defects can often be repaired on-site, remediation in space is far more complex and costly. Latent defects will typically only become apparent after launch, when options for correction may be limited or not feasible.Delay: Construction delays on space projects may arise from various causes, such as:Notably, the James Webb Space Telescope was delayed by over a decade for various reasons including technical issues and Covid-19, while a recent SpaceX Starship test was postponed pending regulatory approval.Damage:Yet, the financial impact of such damage can be significant. As orbital traffic increases so will the frequency and complexity of such disputes.Although these disputes are varied in nature, they share key characteristics: they tend to involve international parties, highly technical issues and significant financial stakes. This makes arbitration particularly well-suited to their resolution.Even the best-drafted construction contracts are not free from all risks. If or when disputes occur, the choice of forum for resolving disputes is critical. This is particularly the case in a sector that is characterised by the use of first-of-a-kind proprietary technologies, and multinational stakeholders. Arbitration can offer a confidential forum that is neutral and adaptable and provides binding and enforceable outcomes. While it is typically used by parties with a pre-existing contractual relationship, disputes can also be referred to arbitration by agreement after they have arisen.Space activities were once the exclusive domain of states and state agencies, with disputes resolved through diplomacy or international treaties. But with the growing involvement of commercial actors in space, there is an increasing need for binding, reliable dispute resolution mechanisms.Given the national importance of space-related infrastructure projects, contracts often still involve states or state-owned entities on one side, and private contractors on the other. Arbitration is well-suited to these relationships, offering a forum that accommodates both public and private interests.Different mechanisms and institutions have evolved to respond to this shift. Notably, the Permanent Court of Arbitration developed Optional Rules for Arbitration of Disputes Relating to Outer Space Activities. Though not yet tested, these rules provide a framework for disputes involving both public and private entities. As public-private partnerships in space continue to grow, particularly in areas like lunar construction and satellite constellations, these rules – and similar instruments that might follow – are likely to become increasingly relevant. They offer procedural guidance for disputes involving state actors, international organisations, and commercial entities, and may help bridge the gap between diplomatic and commercial dispute resolution.Reflecting this broader industry trend, states, intergovernmental organisations, as well as international private companies increasingly favour arbitration as their default dispute resolution mechanism. The European Space Agency, for example, routinely includes arbitration clauses in its standard contracts. These clauses should specify the seat of arbitration, governing law, and procedural rules, providing clarity and consistency across projects.Construction disputes in the space sector typically involve numerous parties and it is not uncommon for contractors, launch providers, and satellite operators all to be from different jurisdictions. In this regard, selecting a neutral seat of arbitration that is free from any perceived biases of national courts, together with a reputable arbitral institution, can help to ensure fairness between the parties. Arbitral awards are also enforceable in over 170 countries under the New York Convention, providing a level of certainty and reliability that domestic judgements can often lack.Construction disputes in the space sector often involve highly technical issues, ranging from aerospace engineering to orbital mechanics. Arbitration allows parties the freedom to appoint arbitrators of their choice with sector-specific expertise, ensuring that decisions are informed by a deep understanding of the subject matter.Given the strategic and proprietary nature of space technologies, confidentiality is paramount. For example, disputes between satellite manufacturers and launch providers may involve evidence encompassing trade secrets, proprietary designs or national security-sensitive data. Unlike court proceedings, which are typically public, arbitration offers a private dispute resolution process. This protects sensitive commercial information and intellectual property that is critical in a sector where innovation is a competitive advantage.Confidentiality is, of course, subject to the usual limitations. It may be affected when arbitration-related matters are brought before the court – typically through enforcement proceedings, challenges to the award, or appeals – in which case the resulting judgements are usually published. Courts do, however, have discretion to protect sensitive information, including through anonymisation or limited disclosure, where justified. In exercising this discretion, courts may consider factors such as the sensitivity of the subject matter, the public interest, and broader public policy considerations; and in the space sector, where disputes may involve novel technologies or defence-related issues, courts may be particularly receptive to confidentiality concerns.Confidentiality also helps preserve commercial relationships which, in an industry with relatively limited players, tend to be formed on a long-term and collaborative basis.Arbitration allows parties to tailor procedures to suit the specific requirements of construction disputes arising on space projects. This includes:Such flexibility is invaluable in a sector where time-sensitive launches and international collaboration are the norm.In addition, the procedural and party-driven flexibility of arbitration means that, compared to litigation, parties can more easily combine arbitration with alternative dispute resolution methods, such as mediation or expert determination, which could be particularly valuable in the context of construction disputes in the space sector where parties will be keen to preserve commercial relationships and the issues in dispute can be highly specialised and technical.Arbitration’s adaptability makes it ideal in a sector where innovation often outpaces regulation. For example, parties may agree to arbitrate disputes arising from lunar construction, asteroid mining or satellite servicing – activities that are not yet fully regulated under international law. In the absence of an established body of laws, regulations and legal precedents, arbitral tribunals will pave the way in decision They are likely to so by the contractual in of the provisions of the governing law, alongside of international law, commercial public The of these subject matters also means tribunals are likely to on to provide evidence on technical and emerging disputes in the space sector are as complex and critical as the they – from procurement and integration to launch and in-orbit – legal and technical arbitration provides a dispute resolution that is and enforceable across It is uniquely to support the space continued by flexibility and commercial certainty in an characterised by innovation and international and to the of national nuclear is a For to in and strategic infrastructure, nuclear offers a particularly in Canada and the are leading a new of nuclear through large-scale refurbishment, new build, and small modular makes is not only but the legal and frameworks private sector With major nuclear projects, understanding how these are and is key to article explores key for construction stakeholders and providers or the and nuclear Canada, the nuclear sector is uniquely by provincial in and an increasingly federal the federal Canada is nuclear through mechanisms and support increased is provincial federal and growing private including and infrastructure a is the project for of the nuclear with private sector and suppliers increasingly as particularly in public support with growing financial In the space offers UK’s nuclear sector is more with significant public-private partnerships and financing for collaboration are contractors, developers, and the ahead is full of potential but not regulatory to procurement and risk allocation, in this new nuclear will deep legal and strategic companies or in these the are Upper Tribunal an by the in favour of the leaseholders. It the widest interpretation to the of ‘cladding’, ‘cladding and provided guidance on is by an unsafe cladding under the Building Safety Act This decision the Centre Point in Court The judgement the Upper Tribunal’s to that leaseholder in their will the of unsafe effect of the decision is cladding remediation can extend to cladding more than Point was between and It is by the that the the before the Tribunal and the Upper Tribunal was the of the remediation could be as a from the leaseholders to their or the leaseholder protections by and Schedule 8 of the protections those the at Centre Point was an unsafe cladding the of 8 of Schedule 8 of the not have to the of the This was on the that to of Schedule 8 of the the leaseholders were to qualifying the decision on the with to on grounds by the and the Upper Tribunal to on 1 – the in that 8 of Schedule 8 of the to the – the was to 8 of Schedule 8 of the to the the not to the remediation of – the in of the 8 of Schedule – the was to the at Centre Point was a cladding which the of an which is unsafe required by 8 of Schedule – its the was to the at Centre Point was unsafe and to were in of the from the leaseholders qualifying – The was to that the leaseholders from the that they held qualifying The this point on the that it the an of The Upper Tribunal 8 of Schedule 8 was not confined to relevant 8 of Schedule 8 relevant is a which a risk and as a of or in with relevant are in the prior to or any after this date to a relevant The that the not involve relevant defects and 8 of Schedule 8 not It that the qualifying leaseholders not from the leaseholder protections under the The to that the of and Schedule 8 of the only to relevant defects and 8 of Schedule 8 should not be from that Upper Tribunal 8 of Schedule 8 not use the and to that effect should be its The were in this and the used in 8 of Schedule 8 of the were and on New – New to the In is to the Centre Point Court 8 of Schedule 8 is where there is a cladding that the of an which is expert evidence was before the Upper the expert evidence before it there was cladding at Centre Point This was a key issue before the and the Upper Tribunal the not is by Both the and Upper Tribunal were keen to that there are of cladding cladding and case will on its expert is also of cladding but the Upper Tribunal the that a cladding required – a cladding and an The Upper Tribunal was not to the interpretation of cladding in this it on the used in 8 of Schedule 8 which not that the cladding of the of any The Upper Tribunal the used is was by ‘unsafe’ the to this would only which to a the of interpretation as the Upper Tribunal there was need to the interpretation in this way and the was The of unsafe should be when the cladding the of Schedule 8 of the it was between that the at Centre Point In the of the to the The Upper Tribunal with the in the was point is all are to be qualifying to of Schedule 8 of the if they the test in qualifying are protections by of the provisions Schedule including but not limited to 8 of Schedule the under the all and to a leaseholder of and such is provided to the the date on which the the the not any to the leaseholder of and it that the in of Schedule 8 this decision on the that the was to that the of the leaseholders would have to as a the of the This was it not any evidence from of the leaseholders to if they the test in of the Upper Tribunal was not by this and the It the not any of but it the the any to the leaseholder of The been to the decision of the Upper Tribunal to the Court of is to be in case is important as it at key of was by ‘cladding’, ‘cladding remediation’, and It provides guidance on how the leaseholder protections when a an unsafe cladding which It reiterates that cladding remediation will be treated to relevant defects which will be time limited to the a of statutory interpretation this decision provides a helpful that it is important to at the used in to was intended by the If the are and there is need to or guidance from be this decision and recent Court of that the Court and Tribunal will their to Parliament’s to protect leaseholders from of remediation of cladding and which they and developers will from the decision it provides clarity on the of remediation and from The been to the decision of the Upper Tribunal to the Court of is to be in the recent case of RBH Building Contractors Ltd v James the case some the and provides some guidance to practitioners on an by the case a construction dispute between a and and James, RBH to and the construction of a in The was in and the in with RBH work and submitting a final – which the a and seeking on the that valid payless been and the in The not the to so RBH judgement to the enforcement on the that the and with their 8 proceedings, seeking that the payless was The Court both section 106 of the Construction the statutory to not to a construction with a residential which the Act as which one of the parties to the or to occupy as the it was that the the at the time of the intention of it and were in the of to the that, at the time the was key point which we will to it was their intention to occupy the and that they their The brought evidence of their a from the the for their use and other factors such as on the and with to to their intention to occupy the RBH to a commercial including that the not to use the property as a and which the property was for purposes – a more commercial They also the intention to the property for some of the year as the property was in a for to the on the the Court that the key was the intention at the time the was The that they their was It was a of the the that this was an for as to a full to have been a This that the only to that they a of with their residential occupier While the Court that the commercial required it that the on likely to occupy the at to the test of a of As RBH in its to the the relatively novel over a residential the 8 some the in to was a valid for the purposes of the Construction from the the to of and to make of by a of reasons which where they of from RBH to be in evidence or by RBH and not under their Court this to be any with of the would have the and reasons a full was not The payless was to be valid and were to The 8 in The Courts have a that they will not an of a valid payless not of the impact on the It is to the that the Court for the on this is not a new or novel and it is to the that the were for and in the of The Court was not by the to the adjudicator’s decision on fees, on the case also reiterates the that the Court will not an adjudicator’s decision on fees, as an ancillary decision not affected by the adjudicator’s in the subject of the The is that their are not subject to the to the limited of decisions on this point and how the for Construction was in this the adjudicator’s to of in this and the legal is in relation to the from the should be that the intention to occupy a property as a at the time of contracting can the statutory if that intention the of the the potential parties would be well to ensure that their are at the case also as an that the Court will a broad interpretation of a payless technical challenges to such notices are to if the is