Case Law Update - September 2011

ADJUDICATION

Construction Law Journal Vol. 27 Issue 4 2011

contains the following article:

Pay-when-paid and the Insolvency Exception by Peter Sheridan.

Construction Law Vol. 22 Issue 4 May 2011 contains the following articles:

Challenges in adjudication by Shona Frame and Fritha Wheeler-Ozanne, Macroberts.

The Scheme for Construction Contracts by Fiona Rossetter, Dundas & Wilson.

A measure of success by Ed Freeman, Clyde & Co (on Redwing Construction v Wishart Samuel Townend: conditional fees).

Supplementary agreements

Compromise, supplemental and side agreements by Peter Sheridan, Construction Law Journal, Vol 27 Issue 5 2011.

The article in the regular Construction Act Review slot considers whether further agreements of several different kinds, affect an adjudicator's jurisdiction, since it may not be clear whether, for example, a settlement agreement is a dispute.

The cases reviewed include:

Shepherd v Mecright: Paul Darling QC Westminster Building v Beckingham: Gaynor Chambers and Simon Hughes QC L Brown & Sons v Crosby Homes: Simon Hargreaves QC and Alexander Nissen QC GPS Marine v Ringway Infrastructure: Justin Mort and Samuel Townend

The conclusion summarises the current position of the law on compromise agreements in particular.

Waiver of jurisdiction and writing

Durham County Council v Jeremy Kendall CILL 3017 May 2011 TCC

The result of the case turned on the finding that there was a single binding contract evidenced in writing for the purposes of s.107 HGCR Act, rather than three separate agreements as the defendant argued. However, more important (since such cases are set to become of chiefly historical importance) is the obiter discussion of waiver or jurisdictional objections. The court focussed on the distinction between 'specific' and 'general' reservations and particularly GPS Marine v Ringway (Samuel Townend and Justin Mort).

See CN Associates v Holbeton under Keating Chambers Reported Cases on reservation of position on jurisdiction and conditional leave to defend.

See Redwing Construction v Wishart under Keating Chambers Reported Cases on effect of obiter dicta in previous adjudication and use of slip rule powers.

ARBITRATION AND DISPUTE RESOLUTION

Journal of International Arbitration Vol. 28 No. 3 June 2011

contains the following articles:

Arbitration agreements and a national law: a question of intent?

Impartiality and the issue of repeat arbitrators by Raphael de Vietri and Kanaga Dharmananda, Francis Burt Chambers, Perth.

International arbitration and the duty to know the law by Jeff Waincymer, Monash University.

Nurdin Jivraj v Sadruddin Hashwani: the English Court of Appeal erects a regulatory barrier to appointment of arbitrators in the name of anti-discrimination by Inae Yang, Tulane University.

International arbitration and Shari'a Law: context, scope and intersections by Ahmad Al Khamees.

Polimaster v RAE Systems: My place or yours? But not both by Erica Stein, Hanotiau & van den Berg, Brussels.

Are arbitrators not human? Are they from Mars? Why should arbitrators be a separate species? by Sarosh Zaiwalla, Zaiwalla & Co. London.

The mediated settlement agreement – the Ecuadorian experience by Ximena Bustamante Vásconez.

Construction Law Vol. 22 Issue 5 June 2011

contains the following articles:

Cross border mediation by Jane Fender-Allison, Dundas & Wilson.

Expert shopping: try before you buy? by Suzanne Seaman and Jane Hughes, Collyer Bristow.

Arbitrators rescue from the Italian Torpedo by Alexander Whyatt, Clyde & Co (on party to English arbitration bringing court proceedings in other jurisdictions).

Construction Law Vol. 22 Issue 4 May 2011

contains the following articles:

Part 36 – where are we now? by David Lloyd Jones, Gateley Wareing.

The scope of a consultant's duty of care by James Doe, Herbert Smith.

Construction Law Vol. 22 Issue 6 July 2011

contains the following articles:

Choosing your adjudicator by David Lloyd Jones, Gateley.

Hired guns bite the dust? by Ian Cocking, Clyde & Co (on Jones v Kaney).

A cautionary tale by Rachel Chaplin, Clyde & Co (on costs consequences of refusing mediation).

Arbitration Law Monthly Vol. 11 No. 6 June/July 2011

contains the following articles:

Undisclosed principal on Novasen v Alimenta (on the doctrine of an undisclosed principal in a contract).

Anti-arbitration injunctions on Claxton Engineering Services v TXM (on courts' power to restrain participation in arbitration proceedings).

Admissible evidence on Dolphin Tanker v Westport Petroleum (first decision on Practice Direction 62 on admissibility of evidence for s.69 Arbitration Act challenge).

Interim relief on Telenor East Holding v Altimo Holdings (on whether court should intervene where a party wishes to preserve contractual status quo pending arbitration outcome).

Declaratory awards on West Tankers v Allianz: a further hearing (on the enforceability of a declaratory award by judgment).

Global Arbitration Review Vol. 6 Issue 2 2011

contains the following articles:

Revolution and arbitration (on arbitration in North Africa and Middle East).

Quantum mechanics by Sebastian Perry (on the role of damages experts in international arbitration).

It's getting easier in Indonesia by Nicholas Peacock, Herbert Smith, Singapore (on arbitration in Indonesia)

Arbitration Vol 77 No 3 August 2011

(Journal of the Chartered Institute of Arbitrators)

contains the following articles:

Religious arbitration: a study of legal safeguards by Farrah Ahmed, Queen's...