Case Law Update - Issue 4, 2008

ADJUDICATION

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.

Interim payment

provisions

PC Harrington

Contractors Ltd v Multiplex Constructions (UK) Ltd [2008]

CILL 2544 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 claimed 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.

Pierce

Design

Section 111 and Melville Dundas revisited:

the Pierce Design case by Peter Sheridan and Dominic

Helps, Shadbolt & Co, Construction Law Journal 2008 Vol.24

No.2 p.95

The regular Construction Act review concentrates on

the application of Melville Dundas by

the TCC in Pierce Design International v

Johnston (Lucy Garrett and Richard Coplin) on the

issue of withholding of sums payable without a withholding

notice under HGCR Act s.111. The authors suggest means by which

contractors can seek protection against the effect of these

decisions and point out that it benefits them in setting off

losses under sub-contracts; it is not wholly an anti-contractor

decision.

Indemnity

costs

Harris Calnan

Construction Co. Ltd v Ridgewood (Kensington) Ltd [2008]

BLR 132 TCC

The court awarded indemnity costs in enforcement

proceedings where the defendant had known or should have known

that it had no defence and no basis for challenging the award

on lack of jurisdiction. The challenger had not reserved its

position on jurisdiction in the adjudication and so would be

taken to have agreed to be bound by the adjudicator's

decision.

See Edenbooth Ltd v

Cre8 Developments Ltd under Keating Chambers

Reported Cases on the residential occupier exception and

natural justice.

Natural

justice

Cantillon Ltd v

Urvasco Ltd [2008] CILL 2504 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.

Estates Gazette No. 0812

/ 29 Mar 2008

contains the following article:

No place for a weak

hand

by Hamish Lal, Dundas & Wilson LLP

Adjudications are only the first step in the process of

resolving contract disputes. They can be challenged, but any

party that does so must have a strong case.

No written agreement

BSF Consulting Engineers v MacDonald Crosbie [2008]

All ER (D) 171 TCC

In a dispute between the claimant civil engineers and

the defendant contractors for whom they had been working, the

claimants sought to enforce an adjudication award in their

favour. The defendants took the point that the scope of the

works and claimants fees were not expressly agreed and could

only be implied, so that there was no sufficient contract in

writing for s.107 HGCR Act. The court held that the Scheme, and

thus the right to adjudication, could only be implied where

there was a written contract for the purposes of the Act.

Accordingly, leave to defend was granted, since it was arguable

that the adjudicator had no jurisdiction.

ARBITRATION AND DISPUTE RESOLUTION

Arbitration

International Vol.24 No.1 2008

contains the following articles:

Birth of ICSID

case

(Transcript of 17th Annual Workshop of

Institute for Transnational Arbitration)

E-disclosure in

international arbitration

by Robert Smit and Tyler Robinson, Simpson Thacher

& Bartlett

Party appointed expert

witnesses in international arbitration: a protocol at

last

by Doug Jones, Clayton Utz, Melbourne

An umbrella just for

two? BIT obligations observance clauses and the parties to a

contract

by Nick Gallus, Queens University, Canada

Albon v Naza Motor

Trading: necessity for a court to find that there is an

arbitration agreement before determining that it is null and

void

by Nicholas Pengelley

Arbitration Law Monthly

Vol.8 No.4 April 2008

contains the following articles:

Serious

irregularity

on OAO Northern Shipping Co v Remolcadores De

Marin

(deciding the dispute on issues not argued).

Anti-suit

injunctions

On Starlight

Shipping Co v Tai Ping Insurance Co.

(on the scope of the court's power to grant relief).

Stay of juridical

proceedings

on Loon Energy Inc v Integra Mining

(existence of a dispute).

Judicial support for

arbitrations

on Pacific Maritime (Asia) v Holystone

Overseas

(freezing injunctions)

Enforcement of

arbitration awards

on ED & F Sugar v Lendoudis

(enforcement mechanisms).

ADR study

Encouraged, pushed or

forced the order of the day? by Aaron Hudson-Tyreman,

King's College, London, Construction Law Journal (2008)

Vol.24 No.2 p.79

The author provides an interim report on an ongoing

survey of the use of mediation in construction disputes being

carried out at King's College London in co-operation with

the TCC judges. The research considers: in what circumstances

mediation is an efficacious alternative to litigation, whether

and at what stage a court should encourage mediation and which

mediation techniques are particularly useful. This interim

report gives details of response rate and the questions put;

there are statistics given on types of case mediated and the

stages at which particular outcomes were achieved. The results

to date provide evidence of "a healthy desire by the

parties to seek mediation." The study is due to be

concluded in the summer of 2008, after which a further, more

detailed report is promised.

International

Construction Law Review 2008 Vol.25 Part 2

contains the following articles:

Chinese arbitration

requirements a trap for FIDIC ICC arbitration?

by Gotz-Sebastian Hk, Stieglmeier &

Collegen, Berlin

Obtaining the right

international arbitral tribunal: a practitioner's

view

by Christopher Seppala, White & Case, Paris

The power to grant

Mareva injunctions in aid of foreign proceedings: principles,

recent developments, and the Civil Justice (Miscellaneous

Amendments) Bill in Hong Kong

by Henry Suen and Sai On Cheung, City University of

Hong Kong

Governing

Law

Braes of Doune Wind

Farm (Scotland) Ltd v Alfred McAlpine Business Services

Ltd [2008] LAWTEL TCC

The applicant employer under an EPC contract applied

for leave to challenge an arbitration award on a point of law.

The contract was under English law and the CIMAR regime, with a

seat in Glasgow for the arbitration. The project was a wind

farm in Scotland. The contractor argued that the English court

had no jurisdiction to hear the application. This argument was

unsuccessful: the parties had agreed to exclusive'

jurisdiction for the English courts. However, on the facts, the

application was unsuccessful and the contractor could enforce

the arbitrator's award.

Journal of International

Arbitration April 2008 Vol. 25 No. 2

contains the following articles:

Arbitration in the Arab

world: an interview with Professor Ahmed Sadek El-Kosheri,

ICC

The DIAC Rules and the

new UAE Arbitration Law

by Essam Al Tamimi and Emma van Son, Al Tamimi &

Co, Dubai.

Arbitration in Jordan:

from old to new

by Omar Aljazy, Amman.

ICC Arbitration in the

Arab world

by Lara Hammoud and Sami Houerbi, ICC.

Enforcement of foreign

arbitral awards in Maghceb countries

by Ahmed Ouerfel, Tunisia.

How Bilateral Investment

Treaties can protect foreign investors abroad

by Robert Greig, Claudia Annacker and Roland Ziade,

Cleary Gottlieb Steen & Hamilton, Paris.

Arab Arbitration v

International Arbitration? The case for a reconciliation

by Jalal El Ahdab, Orrick Herrington & Sutcliffe

and Ruth Stackpool-Moore, Debevoise and Plimpton.

Towards a reflexive

sociology of the arbitration...