Energy Infrastructure and Disputes (1): When is power generation, a waste process?

In the first of a three-part series, Juan Lopez considers some important questions which are increasingly arising for energy generation infrastructure – and in particular, the energy-from-waste sector – in the context of construction disputes and adjudication.

 The Technology and Construction Court has not infrequently been invited to consider how specific infrastructure projects – including energy generation facilities – fall to be statutorily characterised, on given facts. The trial in Engie Fabricom (UK) Ltd. V MW High Tech Projects UK Ltd [2020] EWHC 1626 offers one such interesting example, in which Mrs. Justice O'Farrell considered whether the "primary" (as opposed to ancillary) onsite operation – framed interchangeably under relevant statute as an "activity" – of an energy-from-waste (EfW) facility (being the Energy Works Hull facility, for processing and gasifying 'refuse derived fuel' and combusting syngas byproduct, for electricity generation) was "power generation" rather than "waste processing". The outcome of this conundrum would, in turn, answer the main issue at trial as to whether the facility's operation would be excluded from adjudication (by s.105(2)(c)(i) of the Housing Grants, Construction and Regeneration Act 1996 (the 1996 Act)) and so render two existing adjudications unenforceable for want of adjudicator jurisdiction.

You can read the full post on our Commercial, Construction & International Arbitration Blog here.