ADJUDICATION
Alleged bias in nomination
Makers UK Ltd v Camden London Borough Council [2008] CILL 2618 TCC
Camden sought to challenge the adjudicator's jurisdiction on the ground that he had been improperly appointed by RIBA. Makers had contacted RIBA to request the appointment of the adjudicator actually appointed. The court rejected the existence of an implied term that neither party should seek to influence the appointment, since the nominating body was under no obligation to accede to the representations. There was no appearance of bias in appointing an adjudicator previously requested by one of the parties.
Construction Law Vol. 19 Issue 7 August/September
2008
contains the following articles:
Deduction of LADs under withholding notices
by Anna Rabin, Jeffrey Green Russell
(on Reinwood v L Brown) (John
Marrin QC and Stephen Furst QC)
Adjudication must comply with justice
by Sean Brannigan, 4 Pump Court
Extension of time for service of response
CJP Builders Ltd v William Verry Ltd [2008]
CILL 2609 TCC
Contractors Verry engaged subcontractors CJP on a DOM/2
sub-contract. CJP referred a withholding notice dispute to
adjudication. Verry requested an extension of time beyond the 7
days in the DOM conditions and was over 5 hours beyond the extended
deadline in serving its response. The adjudicator held that he
could not consider the response and found in favour of CJP. In an
action for enforcement, the court held that the adjudicator had the
power to set the timetable and that his failure to consider the
response was a breach of natural justice.
Public law perspective
Public law and statutory adjudication
by Julian Bailey, CMS Cameron McKenna
Construction Law Journal 2008 Vol. 24 No. 6 461
The article is based on the first prize-winning essay in
the SCL Hudson Prize competition 2007. It considers whether public
law is applicable to HGCR Act adjudication, how the courts have
considered public law issues in relation to statutory adjudication
and how this affects enforceability of adjudicators' decisions.
The author's conclusion is that HGCR Act adjudications are
amenable to challenge on public law grounds. If this is correct,
the grounds for challenge would be broader than recognised
hitherto. The two main cases analysed are London and
Amsterdam Properties v Waterman Partnership and
Carillion v Devonport Royal Dockyard.
(Stephen Furst QC and Louise Randall)
Insolvency
Construction Act Review
by Peter Sheridan and Dominic Helps
Shadholt & Co
Construction Law Journal 2008 Vol. 24 No. 6 p.506
The regular Con LJ column considers the following topics:
the use of statutory demand/winding-up procedure as an alternative
to adjudication of a debt dispute, or as a means of enforcing an
adjudicator's decision, stay of execution and particular
considerations in relation to liquidation, receivership and
administration.
See VGC Construction v Jackson Civil Engineering under Keating Chambers Reported Cases on attempt to resist enforcement of adjudicator's decision on grounds that claim was nebulous and ill-defined or had been withdrawn.
ARBITRATION AND DISPUTE RESOLUTION
Journal of International Arbitration Vol. 25 No. 4
August 2008
contains the following articles:
Challenges to international arbitration awards: The
French approach
by Robert Kovacs
Pathological arbitration clauses and Indian courts
by Alok Jain
The private dimension of the international customary
nature of commercial arbitration
by Illias Bantekas, Brunel University
Arbitration and crime
by Dragor Hibert and Vladimir Pavic, University of
Belgrade
Integrating mediation into arbitration: why it works in
China?
by Gabrielle Kaufmann-Kohler and Fan Kun, University of
Geneva
The CMS case: a lesson for the future?
by Jose Rossell, Hughes Hubbard & Reed
(on the ICSID arbitration CMS Gas Transmission Co. v
Argentine Republic)
Arbitration Law Monthly Vol. 8 No. 7 August 2008
contains the following articles:
Enforcement of arbitration awards
on Gater Assets Ltd v Nak Nafrogaz
Ukrainiy
(refusal of enforcement on public policy grounds)
Jurisdiction
on Sumukan v Commonwealth Secretariat (No.
2) (validity of appointment of arbitrators)
Appeals from arbitration awards
on Gulf Import & Export Co. v Bunge
SA
(grounds of appeal under ss67-69).
Enforcement of foreign arbitration awards
on IPCO (Nigeria) Ltd v Nigerian National
Petroleum Corporation (No. 2)
See Owen Pell v Bindi (London) under Keating Chambers Reported Cases on natural justice in an expert determination.
Arbitration Law Monthly Vol. 8 No. 9 October 2008
contains the following articles:
Jurisdiction
on Czech Republic v European Media Ventures
SA
(Bilateral investment treaties).
Conflict of laws
on Musawi v RF International
(law applicable to disputes and to arbitration
clauses).
Validity of the arbitration clause
on Heifer International Inc. v
Christiansen
(formation and formalities).
Note: effect of Unfair Terms in Consumer Contracts Regulations 1999
on arbitration clauses.
Anti-suit injunctions
on Verity Shipping v Chartworld Shipping
Corporation The Skier Star
(criteria for grant).
Confidentiality in the arbitration
on Emmott v Michael Wilson & Partners
Ltd
(the scope of the confidentiality obligation).
Arbitration: the international journal of arbitration,
mediation and dispute management (CIArb) Vol. 74 No. 3 August
2008
contains the following articles:
The new world of unilateral offers to arbitrate:
investment arbitration and EC Merger Control
by Gordon Blanke, SJ Berwin and Borzu Sabahi, Fulbright
& Jaworski
Obtaining discovery in international arbitral
proceedings: the European v American mentality
by Oliver Bolthausen, Bridgehouse Law Rueckel &
Bolthausen, Atlanta and Peter Acker
Settling international commercial disputes in Ukraine;
participants, legal framework, arbitration: practice and
enforcement of awards
by Vasil Marmazov, Yuris Law Offices and Pavlo Pushkar
The Jewish contribution to the English Legal
System
by Sir Bernard Rix
Stop-or go? Injunctions and arbitration
by Graham Dunning QC, Essex Court Chambers
Practice Guidelines on Mediation
(approved January 2008)
Guidance on Confidentiality in Mediation.
International Arbitration Law Review 2008 Vol. 11 Issue
4
contains the following articles:
With the globalisation of arbitral disputes, is it time
for a new convention?
by Mark Mangan, Freshfields Bruckhaus Deringer, London
Disputes in the fast lane: fast-track arbitration in
merger and acquisition disputes
by Alice Broichmann, P&P Pöliath, Munich
Arbitration and private international law
by Giuditta Cordero Moss
No costs for invalid arbitration
Crest Nicholson (Eastern) Ltd v Western [2008] CILL 2599; [2008] BLM Vol. 25 No. 8; [2008] BLR 426 [2008] TCLR 9 TCC
In a dispute over the NHBC Buildmark scheme, the court held that an arbitrator who had heard submissions from both parties had no jurisdiction, because there was no arbitration clause in the Buildmark policy. This gave rise to the question as to whether the court could award costs in respect of the invalid arbitration. It was held that there was no clear statutory power to do so, and so the court could not make such an award.
ICC's International Court of Arbitration Bulletin
2008 Vol. 19 No. 1
contains the following information on ICC arbitrations in
2007.
Geographical origins of parties shows:
|
Americas |
22.1% (356) |
|
Africa |
3.5% (57) |
|
Asia |
17.9% (288) |
|
Europe |
55.3% (891) |
Languages of award top 5
English (70%)
French
Spanish
German
Italian
Awards in 2007 349 approved by Court
Modifications in 317 (including 35 resubmission required)
32 approved without comment
Arbitration International 2008 Vol. 24 No. 3
contains the following articles:
Treaty and contract in investment arbitration
by James Crawford, Matrix Chambers
Towards a new paradigm in international arbitration: the
'Town Elder' model
by David Rivkin, Debevoise & Plimpton
The set-off paradox in international arbitration
by Alexis Mourre
New Zealand's arbitration law receives a
tune-up
by Amokura Kawkaru, University of Auckland
Investment arbitration in Brazil
by Jean Kalicki and Suzana Medeiros, Arnold & Porter,
Washington DC
The Most Favoured Nation clause in BITs as a basis for
jurisdiction in foreign investor-host state arbitration
by Mara Valenti, University degli Studi di Milano
Agora: thoughts on Fiona Trust
Jurisdiction: the validity and width of arbitration
agreements and the House of Lords' decision in Premium
Nafta Products v Fili Shipping
by Steven Gee QC
The doctrine of separability and consent to
arbitrate
by Mark McNeill, Shearman & Sterling, Paris and Ben
Juratowitch, Freshfields Bruckhaus Deringer, Paris
Separability and construing arbitration clauses: the
House of Lords' decision in Premium Nafta and
Fiona Trust
by Adam Samuel
Fiona Trust: 10 years on, the Fresh Start
entrenched
by Christopher Style QC and Matthew Knowles, Linklaters,
London
Global Arbitration Review 2008 Vol. 3 Issue
contains the following articles (Russia Special
Issue):
Russians think old duopoly is eroding
by Sarah Dookhun (on Russia's MKAS and Sweden's
SCC)
Who's who of arbitration in Russia
Perspective on MKSAS
(from Western arbitrators with experience of the Russian
Centre)
Particularities of Russia-led international
arbitration
by Richard Chlup, Mannheimer Swartling, Moscow
The effect of parallel litigation under Russian
law
by Vladimir Khvalei, Baker & McKenzie, Moscow
Public policy, arbitrability and enforcement
by Eugeny Raschevsky, Yukov, Khrenov & Partners,
Moscow
Problems with optional arbitration clauses
by Alexey Barnashov, White & Case, Moscow
Russian and the ECT: the unplumbed depths of provisional
application
by Sophie Nappert, 3 Verulam Buildings
A rare breed of relief
by Alex Bevan, Shearman & Sterling, London
A critique of Desert Line
by Meriam Al Rashid, George Washington University
Construction Law Vol. 19 Issue 7 August/September
2008
contains the following articles:
The dangers of being positive
by Paul Newman, 3 Paper Buildings
(on settlements and mediation)
Mediation goes on tour
by John Sheils, Shadbolt & Co
(on the EU Mediation Directive)
Arbitration Law Monthly Vol. 8 No. 8 September
2008
contains the following articles:
Mediation
(on the European Union Directive 2008/52/EC)
Anti-arbitration injunctions
on Republic of Kazakhstan v Istil Group Inc.
(No. 3)
(jurisdiction and discretion of the English
courts)
Jurisdiction
on (El Nasharty v J Sainsbury Plc (No.
2)
(validity of the arbitration clause)
The law applicable to arbitration proceedings
on C v D
(significance of the seat)
Global Arbitration Review 2008 Vol. 3 Issue 3
contains the following articles:
A closer look at the proposed 'New New York Convention'
Australian court opts for archaic, rather than
Arkansas
by Tim Griffiths, HWL Ebsworth, Sydney
Insolvency and arbitration
by Marina Mendes Costa
Taking appropriate intervening measures
Lessons from the Indian Arbitration Act
by Joseph Tirado and Daniel Perera, Norton Rose
Statistics from arbitral institutions for 2007
CONTRACT AND PROCUREMENT LAW
Risks in Tunnelling
Tunnel vision
by Gordon Anderson and Cecily Davis, DLA Piper
Construction Law Journal 2008 Vol. 24 No. 6 p.494
The authors consider risk management in tunnelling,
particularly in past major projects like the Heathrow Express, and
Channel Tunnel Rail Link and future ones such as Crossrail and
Thames Tideway. They examine inherent risks in tunnelling, such as
support, water leakage, contamination and unforeseen ground
conditions and look at risk sharing. There is some comparison of
relevant provisions in ICE 7th, IChemE, NEC and FIDIC
contracts.
Construction Newsletter August 2008
contains the following articles:
PR v profitability? Industry's reaction to
sustainability in the current economic climate
by Katie Graham, Stephenson Harwood
If we don't cover everything
(on letters of intent and adjudication)
by Paul Newman, 3 Paper Buildings
The International Construction Law Review Vol. 25 Part 4
October 2008
contains the following articles:
Joint and several liability in construction contract
law
by Monika Chao-Duivis, Delft University of Technology
The avoidance of disputes by contractors in design and
construct contracts
by Donald Charrett, Victoria
On-demand performance bonds: is fraud the only ground
for restraining unfair calls?
by John Lurie, Dechert
Some thoughts on NEC3
by His Honour Humphrey LLoyd QC, Atkin Chambers
Allocation of construction risks on a mega-BOT: the
Taiwan High Speed Rail project
by Paul Tobin, Clayton Utz
The rise and rise of two-stage tendering
by Cecily Davis and Peter Dornan, DLA Piper, London
The right law for construction? Choice of law and
European reform: update
by Philip Britton, King's College, London
Construction Law Vol. 19 Issue 7 August/September
2008
contains the following articles:
No regrets over demise of 22D insurance
by Michael Phipps, Thurston Consultants
(on JCT 2005)
Compensation for collusion – how to get
it
by James Jamison, Lawrence Graham
Contract drafters beware insurance clauses
by Hamish Lal and Emily Busby, Dundas & Wilson
Employer's liability – a problem for
insurers
by John D Wright, JD Risk Associates
See Diamond Build v Clapham Park Homes under Keating Chambers Reported Cases on the contractual effect of a letter of intent.
CONSTRUCTION AND ENGINEERING CONTRACT DISPUTES LAW
Minimum order provision
Port Tilbury (London) Ltd v Stora Enso Transport
& Distribution [2008] BLM Vol. 25 No. No. 8 TCC
The claimant had entered into a 15 year contract with the
defendant for the provision of paper handling facilities and
services. The defendant was obliged to make a minimum order in the
course of a year and make a payment if the order fell below the
minimum. The order did fall below the minimum and the claimant
invoiced for the payment, but the defendant refused to pay, arguing
that the claimant's default in providing services had limited
the order. The claimant obtained summary judgment before a master,
but the TCC held that the defendants had a reasonable prospect of
success in arguing for a set-off and so summary judgment should not
be allowed.
Contract administration disputes
The value is whatever I say it is: determinations by the
Principal under construction contracts by Trevor Thomas, Clayton
Utz, Melbourne Construction Law Journal 2008 Vol. 24 No. 6
p.481
The article is based on a Highly Commended entry in the
2007 SCL Hudson Prize Essay competition. The author reviews
principally Australian case law on the issue of whether the
decisions of the contract administrator are final and binding on
the parties to the contract.
He concludes that the answer depends on consideration of the contract as a whole and in its commercial context.
GENERAL AND PROFESSIONAL NEGLIGENCE
Personal injury in nuisance
Claimants appearing on the Register of the Corby
Group Litigation v Corby Borough Council [2008] CILL 2597 and
[2008] BLR 411 CA
The claimants, born with physical deformities, brought a
group action pleaded in negligence and public nuisance against the
Council, which had acquired and used 680 acres of heavily
contaminated land from British Steel. The allegation was that
exposure to toxic materials during the reclamation and
decontamination programme had affected the pregnancies of the
claimants' mothers. The Council applied to strike out the
nuisance claim on the ground that it could only affect rights over
land, but the Master and then the Court of Appeal dismissed the
application, on the grounds that it was at least arguable that a
personal injury claim could be brought in public nuisance.
Valuer's breach of duty
Platform Funding Ltd v Bank of Scotland plc
[2008] Times Law Reports October 6th CA
The lending institution succeeded in having upheld
judgment in its favour against valuers retained to value a house
under construction. The plot inspected was the wrong one and the
lenders argued successfully that this was breach of an unqualified
obligation to inspect the particular property being valued. The
Court of Appeal upheld the judge's decision, despite a
dissenting judgment from the Master of the Rolls.
See Galliford Try Infrastructure v Mott MacDonald under Keating Chambers Reported Cases on alleged negligent misstatements in tort by client's engineer to design and build contractor.
PRACTICE AND PROCEDURE
Anti-suit injunction
Masri v Consolidated Contractors International Co.
SAL [2008] BLR 391 CA
The claimant succeeded in getting upheld a Commercial
Court judgment in his favour granting an anti-suit injunction
against the defendants. The case is unusual in that the defendants
were based in Lebanon and Greece and the contract in dispute
concerned oil concessions in the Yemen. The CA made a number of
findings on the nature of anti-suit injunctions, which are
discretionary and must be exercised in accordance with
international law and comity. While the English courts are normally
"circumspect" (in the words of the BLR Editors) in
accepting jurisdiction over matters outside the UK involving
foreign parties, here they had submitted themselves already to
hearings before UK courts.
Costs for failure to comply with Protocol
TJ Brent Ltd v Black & Veatch Consulting
Ltd [2008] BLM Vol. 25 No. 8 TCC
A claim had been made by the employers against the
claimant contractors and the contractors had commenced proceedings
against the defendant engineers, who denied all liability and
refused to attend meetings to discuss the matter. The
employer's claim was settled by the claimant, who now sought a
contribution from the defendant under the Civil Liability
Contribution Act. The defendant made an application for costs
against the claimant for non-compliance with the Pre-Action
Protocol. The application was refused; any non-compliance was
technical and the application was intended to secure a tactical
advantage.
Late payments as repudiatory breach
Alan Auld Associates Ltd v Rick Pollard
Associates [2008] BLR 419 TCC
Under a contract for professional services, the defendant
agreed to provide advisory work on removal of radioactive waste on
behalf of the claimant, to the UK Atomic Energy Authority. The
claimant frequently delayed payment to the defendant. The issue for
the court was whether this repeated late payment constituted
repudiatory breach by the claimant, entitling the defendant to
terminate the contract. The judge found that time was of the
essence in the payment obligation and that the defendant had been
justified in terminating the contract. The claimant's appeal
was dismissed by the CA, whose members noted that the
claimant's late payments had been persistent and cynical and
that the defendant, while not an employee, was dependent on the
payments as its only source of income in an analogous way and had
made repeated complaints.
Unilateral Mistake
The 'drastic' remedy of rectification for
unilateral mistake
by David McLauchlan, Victoria University of Wellington, Law
Quarterly Review October 2008 Vol. 124
This is an area of law recently applied to construction
and development in such cases as Chartbrook v Persimmon
Homes and especially George Wimpey v VI
Construction. It is a more controversial and
difficult version of the doctrine of common mistake. It is seen as
drastic because, if granted, it imposes on the defendant a contract
which he did not, and did not intend, to make. The author contends
against these received truths, arguing that in principle
rectification for unilateral mistake ought not to be regarded as
drastic or unusual as a means of remedying unconscionable behaviour
by a contracting party, and should be seen as no more problematic
than common mistake.
The Commercial Litigation Journal No. 20 July/August
2008
contains the following articles:
Shareholders remedies: a new landscape
by Jemima Fearnside and Kate Grayling, Nabarro
Unfair contract terms: reasonable limits
by Andrew Horrocks and Jonathan Isaacs, Barlow Lyde &
Gilbert
Competition law: clarity begins at home
by Scott Campbell, Cohen Milstein Hausfield & Toll
Forum: swinging on a gate
by Andrew Hearn and Edward Allen, Dechert
Advertising: EU rules seek harmony and discipline
by Helen Swaffield, University of Wolverhampton
Securities: collateral damage
by Donald Stewart and Stephen Llewellyn, Faegre &
Benson
Electronic disclosure: total recall – but only
partial precision
by Chris Paley – Menzies, RGL
KEATING CHAMBERS REPORTED CASES
VGC Construction Ltd v Jackson Civil Engineering
Ltd [2008] EWHC 2082 LAWTEL TCC
The respondent main contractors, Jackson, sought to resist
enforcement of an adjudication decision in favour of the applicant
sub-contractor VGC. The court, granting VGC's application,
rejected Jackson's arguments that there had been a binding
agreement to withdraw the claim or that it had been so nebulous and
ill-defined as to be incapable of giving rise to a dispute.
Sarah Hannaford QC, Alexander Nissen QC, Samuel
Townend
Diamond Build Ltd v Clapham Park Homes Ltd
[2008] CILL 2601 and [2008] BLM Vol. 25 No. 8 TCC
A letter of intent for a refurbishment project was held to
have given rise to a simple contract with all the necessary
elements, to cover the period until a formal contract could be
entered into. The claimant successfully contended that the contract
was based upon the standard form referred to in the
specification.
Marc Rowlands
Owen Pell Ltd v Bindi (London) Ltd [2008] CILL
2605 and [2008] BLR 436 TCC
The court granted summary judgment for the enforcement of
a RICS-appointed expert determination. There was considered to be
no need for the expert to follow the rules of natural justice in
his procedure and there was no implied term in the agreement to
submit to this effect.
Charlotte Ellis
Galliford Try Infrastructure Ltd v Mott MacDonald
Ltd [2008] CILL 2612 TCC
The claimant design and build contractors claimed
substantial damages from the client's consulting engineers in
relation to the conversion of a building into a commercial and
residential complex. It had been expected that the client's
engineers would be novated to the contractors, but this had not
happened. The contractors maintained that they had been misled as
to the amount of work remaining to be done. However, the engineers
successfully argued that the requirements for negligent
misstatement were not met on the facts, due to absence of reliance
and the presence of a valid disclaimer.
Stephen Furst QC
The articles and papers published by Keating Chambers are for the purpose of raising general awareness of issues and stimulating discussion. The contents must not be relied upon or applied in any given situation. There is no substitute for taking appropriate professional advice.
