Case Law Review - Construction, Property & Real Estate (September 2008)

ADJUDICATION

Natural Justice

Cantillon Ltd v Urvasco Ltd [2008] 117 Con

LR 1 TCC

Already reported in BLR, in a piling dispute referred

to adjudication, 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. The court

had to consider the severability, or separate enforceability,

of different parts of the decision.

Construction Law Journal 2008 Vol.24 No.5

contains the following articles:

Adjudication - the New Zealand position

by Tómas Kennedy-Grant QC, Auckland

Construction Act Review

by Peter Sheridan and Dominic Helps, Shadbolt &

Co. comprises two papers from the Association of Independent

Adjudicators Conference, London, April 2008:

Adjudication Case Law Update

by Sean Brannigan, 4 Pump Court

on Cantillon v Urvasco

and Reflections on Alternative Dispute Resolution

- think A or D

by Sir Anthony Evans QC

See Avoncroft Construction v Charba

Homes under Keating Chambers Reported Cases on

contractual defence to liquidated damages based on partial

possession, set-off and validity of withholding notice.

ARBITRATION AND DISPUTE RESOLUTION

NHBC Conciliation

Holloway v Chancery Mead Ltd [2008] 117 Con

LR 30 TCC

The claimants sought to refer to the NHBC Arbitration

Scheme financial disputes relating to defects in a newly built

house. The defendants argued that it was a condition precedent

for the dispute to be referred to conciliation with the NHBC

Resolution Service. The court held that NHBC Resolution was not

applicable to seller-buyer disputes of this kind, so it was not

a condition precedent to arbitration. It was held per curiam

that the reference to the NHBC Resolution Service would have

been sufficiently certain to identify it.

See Cubitt Building and Interiors v Richardson

Roofing (Industrial) under Keating Chambers

Reported Cases on refusal of stay of arbitration pending

adjudication and incorporation of contract terms.

Arbitration International 2008 Vol. 24 No.

2 contains the following articles:

W(h)ither international commercial

arbitration?

by Charles Brower, 20 Essex Street

Arbitral jurisdiction and the dimensions of

'consent'

by Alan Scott Rau, University of Texas at Austin

The settlement privilege

by Klaus Peter Berger, University of Cologne

The status of vacated awards in France: the Cour de

Cassation decision in Putrabali

by Philippe Pinsolle, Shearman & Sterling,

Paris

Prudent anticipation? The arbitration of public

company shareholder disputes

by Perry Herzfeld, Allens Arthur Robinson,

Melbourne

International Arbitration Law Review 2008 Vol. 11

Issue 3 contains the following articles:

When is an arbitration agreement

'inoperative'?

by Max Bonnell, Mallesons Stephen Jaques, Sydney

International commercial arbitration and

Constitutional Court review: contemporary trends and national

policies

by Mohamed S. Abdel Wahab, Shalakany Law Office,

Egypt

Independence and impartiality of arbitrators

by Shivani Singhal, National Law School of India,

Bangalore

Extension of time for challenge refused

Colliers International Property Consultants v

Colliers Jordan Lee Jefaar Sdn Bhd [2008] All ER (D)

50

In a dispute between members of the international

property consultancy, Colliers, and a former member of the

group, the defendant, the latter applied for an extension of

time to challenge the award under s.68 of the Arbitration Act

for serious irregularity and also to set aside the order that

the award be entered as a judgment. The grounds were procedural

flaws but the court held that they were properly corrected by

giving the claimants seven days to remedy the (minor)

deficiencies. The defendant's application was

dismissed.

No costs for invalid arbitration

Crest Nicholson (Eastern) Ltd v Western

[2008] All ER (D) 249 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.

See Cubitt Building & Interiors v Richardson

Roofing (Industrial) under Keating Chambers

Reported Cases on refusal of stay of arbitration pending

adjudication.

See L Brown & Sons v Crosby Homes (North

West) under Keating Chambers Reported Cases on an

application to extend time limit for challenge to award and

serious irregularity based on fraud/breach of public

policy.

See Taylor Woodrow v RMD Kwikform

under Keating Chambers Reported Cases on whether arbitration

had been validly commenced by a letter from the claimant.

Construction Law Journal 2008 Vol.24 No.5

contains the following articles:

Arbitration and ADR in the German construction

industry

by Dr. Susanne Kratzch, Thümmel, Shütze and

Partners, Stuttgart

International commercial arbitrations in the United

Kingdom: the Scottish dimension

by Richard Anderson, Arbitration Chambers

Dispute Resolution Magazine Vol.14 No.3 and 4

Spring/Summer 2008 contains the following

articles:

The future of ADR

by David Hoffman, Boston Law Collaborative

Dispute resolution and the quest for justice

by Jean Sternlight, University of Nevada

Looking forward in mediation

by Linda Singer and Michael Lewis, Washington DC

Business arbitration can and should be improved in

the United States

by Kathy Bryan and Helena Tavares, CPR Institute, New

York

Reflections on institutionalizing mediation

by Geetha Ravindra

ADR and Family Law

by Gregg Herman, Loeb & Herman, Milwaukee

The ADR Case Evaluator's role in contemplated

and pending litigation

by the Hon Allen van Gestel, Boston

Doing the best mediation you can

by John Lande, University of Missouri

Improving mediation training and regulation through

collaborative assessment

by Ansley Barton

Dispute Resolution Magazine Vol.14 No.2 Winter

2008 contains the following articles:

Consent in mediation

by Jacqueline Nolan-Haley, Fordham University

Achieving meaningful threshold consent to mediator

style(s)

by Frank Sander, Harvard Law School

Midstream mediator evaluations and informed

consent

by John Cooley, Northwestern University and Lela

Love, Yeshiva University

Informed consent in public sector dispute

resolution

by Patrick Field, University of Montana

Consent in international mediation

by Melanie Greenberg

The (new) ethics of collaborative law

by Scott Peppet, University of Colorado

CONTRACT AND PROCUREMENT LAW

Letter of intent and formation of contract

RTS Flexible Systems Ltd v Molkerei Alois Muller

GmbH & Co [2008] BLM Vol. 25 No. 6 TCC

The defendant dairy manufacturer wished to retain the

claimant to supply services for automation of processes and

equipment. After providing some quotations, the claimant was

awarded the contract and a letter of intent was issued by the

defendant, confirming its wish to proceed with the project

'as set out in the offer' subject to finalisation of

price and completion date and stating that it would be using an

amended version of the MF/1 form of contract, to be executed

within 4 weeks. The claimant started work and negotiations

proceeded, during which the letter of intent was extended for

some three months. A final draft contract was produced but

never signed and disputes arose, leading the claimant to

commence proceedings. The court held that the letter of intent

had constituted...

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