Case Law Review - Construction, Property & Real Estate (April 2009)

ADJUDICATION

Adjudicator's Fees

Linnett v Halliwells LLP [2009] BLM Vol. 26 No.4

Halliwells, the client, as respondent in an adjudication,

invited the RICS-nominated adjudicator to withdraw for lack of

jurisdiction and denied liability for his fees and expenses.

Drawing an analogy with arbitration, the court held that a person

appointed as adjudicator is entitled to fees and expenses from the

parties and the respondent was liable for the fees, even though it

objected to the adjudicator's jurisdiction. If it had refused

to participate, the position may have been different.

No Apparent Bias From Mediation Role

Andrew Wallace Ltd v Noon [2009] BLR 158 TCC

The defendant, Noon, sought to resist summary enforcement of the

adjudicator's decision in favour of the claimant on the ground

that the adjudicator had acted in matters involving the claimant.

These included an adjudication and a mediation to which the

claimant was a party. The court held that complaints of breach of

natural justice will only be upheld in the plainest of cases. In

this case, a fair-minded impartial observer would have found no

such indication. Relevant circumstances were that the adjudicator

had no personal knowledge of either party, nor current relationship

with either. He was professionally qualified as an arbitrator and

appointed by RIBA, not by the parties.

TeCSA Rules

The TeCSA Adjudication Rules

by Peter Sheridan and Dominic Helps

Shadbolts, Construction Law Journal 2009 Vol. 25 No. 3 p.221

The regular Construction Act Review concentrates on the current

i.e. 2002 edition of the TeCSA Rules; Dominic Helps was involved in

drafting them and both authors are TeCSA members. Noting that some

of the features of the Rules are unusual, the authors consider some

of the content to be statements rather than rules. There are

sections on the powers of TeCSA, the adjudicator's

jurisdiction, and some other provisions. There is a special focus

on the Scots case of Deko Scotland v Edinburugh Royal

JV and extended reference to Shimizu

Europe v LBJ

Fabrications (Adam Constable), and

Farebrother Building Services v Frogmore (Paul Darling

QC).

See Dalkia Energy & Technical Services v Bell

Group under Keating Chambers Reported Cases on jurisdiction to

rule on incorporation of standard terms in Part 8

proceedings.

See Bovis Lend Lease v Trustees of the London

Clinic under Keating Chambers Reported Cases on

crystallisation of a dispute.

See Euro Construction Scaffolding v SLLB

Construction under Keating Chambers Reported Cases on

adjudicator's jurisdiction to decide on his jurisdiction.

See The Dorchester Hotel v Vivid

Interiors under Keating Chambers Reported Cases on

timetable for adjudication in complex case.

See OSC Building Services v Interior Dimensions

Contracts under Keating Chambers Reported Cases on

scope of jurisdiction.

See YCMS v Grabiner under Keating

Chambers Reported Cases on exceeding slip rule by recalculations,

invalidating adjudicator's decision.

No Stay For CVA

Mead General Building Ltd v Dartmoor Properties

Ltd [2009] CILL 2686 TCC

In enforcement proceedings by Mead, Dartmoor took the point

that it ought not to have to pay because Mead was subject to a

company voluntary arrangement and so would be unable to repay the

money paid should that be the outcome of arbitration. It was held

that a CVA could not prevent judgment being entered. It is a

relevant factor in deciding whether a stay of execution should be

granted but a stay is not automatic just on the existence of a

CVA.

ARBITRATION AND DISPUTE RESOLUTION

Alleged Economic Duress In Mediation; Confidentiality Lost

Farm Assist Ltd (in liquidation) v The Secretary of

State for the Environment, Food and Rural Affairs (No.2)

[2009] EWHC 1102 (TCC)

This case concerns the question whether a mediator can be

called as a witness in court proceedings to give evidence of what

happened during the mediation. The dispute between the parties

concerned an allegation that a settlement was entered into under

economic duress. The settlement was entered into as a result of the

mediation. In a Case Management Conference, the parties agreed by

way of a direction that they could take witness statements from the

mediator and put questions to her about matters which would

otherwise be the subject of privilege. The mediator sought to have

the witness summons served by DEFRA set aside on the basis of the

terms of the mediation agreement, confidentiality and

privilege.

The judge held that the mediator should give evidence. Any

without prejudice privilege in the mediation proceedings existed

between the parties only and had been waived by the agreed

direction to permit witness statements from the mediator.

In respect of confidentiality of the mediation, the judge held

that there was a duty of confidentiality of information between the

parties and the mediator which could be enforced by the mediator

(in this case this confidentiality was expressly provided in the

Mediation Agreement, but the judge stated that the court would

impose it in any event). However, although the court would

generally uphold that confidentiality, it was subject to an

exception where the evidence was necessary in the interests of

justice. In this case, the allegation of economic duress concerned

what was said and done in the mediation and therefore it was in the

interests of justice for the mediator to give evidence.

Staying An Action Under Scots Law

Norwest Developments Ltd v Carfin Developments

Ltd [2009] BLR 167 Court of Session Outer House

The court refused the defenders (defendants) a motion to

sist the cause (stay the action) pending reference to the Engineer

for decision under Clause 66. The BLR commentary deals generally

with the relationship between English and Scots construction law,

concluding that in some defined areas they are becoming

indistinguishable. The judgment also considered the need for a

withholding notice under the HGCR Act.

Construction Law Vol. 20 Issue 3 April 2009

contains the following articles:

An opportunity missed?

by Hamish Lal and Emily Busby, Dundas & Wilson (on

HGCR Act reform)

Dragon's feathers

by John Sheils, Shadbolt & Co

ICC International Court Of Arbitration Bulletin 2008

Vol.19 No.2

notes the opening of the Hong Kong branch of the Court's

Secretariat. It also contains the following articles:

ICC Arbitration Clause for trust disputes

French court decisions on arbitration 2007-2008

by Bernard Audit, Paris II University

Arbitration in China: practice, legal obstacles and

reforms

by Fan Kur, ICC

International construction contract disputes: second

commentary on ICC awards dealing primarily with FIDIC

contracts

by Christopher Seppälä, White & Case,

Paris

Extracts From ICC Arbitral Awards In International Construction

Disputes

Journal Of International Arbitration Vol. 26 No. 1 2009

contains the following articles:

'Investment' and 'Investor' in Energy

Charter Treaty arbitration: uncertain jurisdiction

by Anna Turinou, Federal Court of Appeal, Ottawa

'Back to the future' for investor-state

arbitrations: revising rules in Australia and Japan to meet public

interests

by Luke Nottage and Kate Miles, Sydney Law School

Overcoming immunity-based objections to the recognition

and enforcement in Canada of investor-state awards

by Frederic Bachand, McGill University

Hybrid efficiency in arbitration: waiving potential

conflicts for dual role arbitrators in Med-Arb and Arb-Med

proceedings

by Jacob Rosoff, Stockholm University

Public policy considerations in international

arbitration: costs and other issues: a view from Singapore

by Locknie Hsu, Singapore Management University

Public policy under the Indian Arbitration Act

by Sidharth Sharma, National University of Juridicial

Science, Kolkata

Appellate jurisdiction and equitable estoppel

by Jennifer Kirby, Herbert Smith, Paris

Principles of treaty interpretation in the NAFTA

arbitral award on Canadian Cattlemen

by Alexander Orakhelashvili

Journal of International Arbitration Vol. 26 No. 2 2009

contains the following articles:

European law and investment treaties

by Markus Burgstaller, Lovells, London

Definition of investment in bilateral investment

treaties of South Asian counties and regulatory discretion

by Prabhash Ranjan, National University of Juridicial

Sciences, Kolkata

Setting aside foreign-related arbitral awards under

Chinese Law

by Lanfang Fei, University of Hong Kong

What weight should be given to the annulment of an award

under the lex arbitri? The Austrian and German perspectives

by Gűnther Horvath, Freshfields Bruckhaus

Deringer, Vienna

The enforcement of awards annulled in their place of

origin

The French and US Experience

by Christopher Koch, Geneva

Arbitration in employment relationships in France

by Beatrice Castellane, Paris

International commercial arbitrations in Ukraine:

details do matter

by Yuliya Chernykh, Astapov Lawyers

...