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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