Case Law Review

Adjudication

No signature of award needed

Treasure & Son Ltd v Dawes [2008] BLR 24 TCC

Already reported in CILL, the defendant owner failed in an attempt to argue that an adjudicator's decision was invalid because it had not been signed. There was no such implied term; it was neither reasonable nor necessary to imply a term that the decision had to be signed. The decision was also made on the question whether an oral variation of the contract affected its status as a written agreement; it was held that it did not; provided the contract was in writing, oral variations would not undermine enforceability.

Interim payment provisions

PC Harrington Contractors Ltd v Multiplex Constructions (UK) Ltd [2008] BLR 16 TCC

A sub-contract on the Wembley Stadium project contained provisions for interim payments. Following a dispute between main contractor Multiplex and concrete sub-contractor Harrington, Multiplex referred the matter to adjudication. Harrington argued that on the figures which it claimed were established, it should start the adjudication with £2.3 million in hand and issued proceedings claiming a declaration to that effect. Refusing the declaration, the court held that the provisions comprised a scheme for making interim payments, not for establishing the ultimate position as between the parties.

See Pierce Design International v Johnson under Keating Chambers Reported Cases on failure to make payment without withholding notice, following Melville Dundas v George Wimpey.

See RC Pillar v The Camber under Keating Chambers Reported Cases on parties' agreement to increase the ad hoc jurisdiction of the adjudicator.

See Ringway Infrastructure Services v Vauxhall Motors under Keating Chambers Reported Cases on interest claimable for failure to honour adjudicator's award.

Agreement in writing

Hatmet Ltd v Herbert [2008] 115 Con LR 95 TCC

The defendant in adjudication proceedings argued that there could not be a contract for the purposes of s.107(2) HGCR Act because there was no agreement as to price. However, the court held that there was a written agreement and that the implication of a term as to price by s.15 of the Sale of Goods and Supply of Services Act was sufficient to make this an enforceable contract and thus a construction contract under which the adjudicator had jurisdiction.

See Ringway Infrastructure Services v Vauxhall Motors under Keating Chambers Reported Cases on interest claimable for failure to honour adjudicator's award.

Food production exclusion

Hortimax Ltd v Hedon Salads Ltd [2008] Construction Law Journal Vol. 24 No. 1 p.47 TCC

Commercial growing of cucumbers was held to be production of food and thus covered by the s.105(2)(c)(ii) exception to the scope of ?construction operations'. However, power had been expressly conferred on the adjudicator to rule on his own jurisdiction and so the right to challenge adjudication had been waived.

Late decisions

Lateness of adjudicators' decisions: still a hot topic

by Peter Sheridan and Dominic Helps, Shadbolts, Construction Law Journal 2008 Vol. 24 No. 1 p.30

The regular Construction Act Review revisits a subject last treated by the authors two years previously. It refers to a ?flurry' of cases during that period, which are reviewed in the article. They are Hart Investments v Fidler, Cubitt Building & Interiors v Fleetglade (Alan Steynor), Epping Electrical v Briggs & Forrester (David Thomas QC), Aveat Heating Jerram Falkus Construction (William Webb), Mott MacDonald Ltd v London & Regional Properties (Alexander Nissen QC) and AC Yule & Son v Speedwell Roofing & Cladding.

The authors conclude that the cases do not cast doubt on the principle that adjudicators' decisions must be reached within the statutory or extended time limits. They highlight uncertainty as to the meaning of ?reaching' a decision and ?communicating' it.

Natural justice

Cantillon Ltd v Uravsco Ltd [2008] All ER (D) 406 TCC

In a piling dispute referred to adjudication, the defendant refused to meet a decision against it and the claimant brought enforcement proceedings. The defendant argued unsuccessfully that the adjudicator had breached the rules of natural justice; the court held that if one party argued a point and the other failed to address it that was not the adjudicator's fault. In ascertaining what the dispute comprised, the claimant was not limited to matters raised before it crystallised.

See Reinwood v L. Brown under Keating Chambers Reported Cases on the employer's right to deduct LADs where a certificate of non-completion had been cancelled.

Arbitration And Dispute Resolution

Injunction against arbitration

Republic of Kazakhstan v Istil Group Inc [2008] BLR 37 Commercial Court

The claimant state succeeded in its action for an injunction to stop the defendants' pursuit of its claim in arbitration. The defendants had failed to appeal against the findings of a supervisory court on jurisdiction and so the court would not allow the matter to go back to the tribunal, which might unacceptably prefer its own view on jurisdiction to that of the court, leading to its award being set aside. It was therefore just and convenient to prevent the arbitration from proceeding.

Arbitrator wrong to ignore enforcement decision

Michael John Construction Ltd v St Peters Rugby Football Club [2008] 115 Con LR 134 TCC

A challenge under s.67 of the Arbitration Act was successful. The arbitrator had been wrong in law to ignore a judgment in enforcement of an adjudication and whether further evidence could be adduced. The adjudication decision, on the proper responding parties, was reported in 2006. Only in exceptional circumstances should a party be allowed to re-open in an arbitration matters already decided by a Court.

Judicial challenge

Arbitration update ? the limit of the courts' interference

by Nicholas Dennys QC, Atkin Chambers, Construction Law Journal 2008 Vol. 24 No. 1 p.3

Based on an early 2007 paper, the article therefore does not deal with Fiona Trust v Privalov in the House of Lords, as is acknowledged, although the CA decision is included. There is some discussion of West Tankers v RAS Riunione Adriatica di Sicurta and also of Sumukan v Commonwealth Secretariat. Two domestic cases are referred to: Kershaw Mechanical Services v Kendrick and Taylor Woodrow Holdings v Barnes & Elliott, (Richard Fernyhough QC and Elizabeth Repper).

Journal of International Arbitration Vol. 25 No. 1 February 2008

contains the following articles:

Antitrust/Competition arbitration in EU versus US law

by Georgios Zekos

New keys to arbitration in Latin America

by Paul Mason and Mauricio Gomm-Santos

Denunciation of the Washington Convention and non-contractual investment arbitration: ?manufacturing consent' to ICSID Arbitration?

by Julien Fouret, Salans, Paris

The most-favoured-nation clause in international investment agreements

by Alejandro Faya Rodriguez

Chorzow's standard rejuvenated: assessing damages in investment treaty arbitrations

by Manuel Abdala and Pablo Spiller

The China-style closed panel system in an arbitral tribunal formation

by Weixia Gu, University of Hong Kong

Enforcement regimes and grounds for foreign judgments and awards in Russia

by Diana Tapola

The decision-making mechanism of the arbitrator vis-à-vis the judge

by Mauro Rubino-Sammartano

Discovery, judicial assistance and arbitration: a new tool for cases involving US entities?

by Peter Rutledge, Columbus Law School

A procedural road map for the recognition and enforcement of foreign arbitral awards in Romania

by Irina Pongracz and Illeana Smeureanu

Construction...