Construction, Property & Real Estate (Case Law Review, Issue 6, 2007)

Nerys Jefford has been elected as Chairman of the Society of Construction Law

ADJUDICATION

See HG Construction v Ashwell Homes under Keating Chambers Reported Cases on the binding effect of an earlier adjudication on a dispute referred to a subsequent adjudication.

Injunctions

Equitable remedies in connection with adjudication: Injunctions by Peter Sheridan and Dominic Helps, Shadbolts, Construction Law Journal 2007 Vol. 23 No. 4 p. 292

The regular Construction Act Review concentrates on the use of injunctions in conjunction with adjudication in three main situations: enforcement of an adjudicator's decision, freezing orders and restraint of continuation of an invalid adjudication. Particular attention is given to Workplace Technologies v E. Squared (Paul Darling QC). The authors doubt whether an injunction should be granted to restrain an invalid adjudication once a declaration of its invalidity has been granted, on the ground that there is no interest to be protected. The correct course would be rather to resist enforcement, they conclude.

Payment provisions in the Lords

Melville Dundas Ltd v George Wimpey UK Ltd [2002] CILL June 2469 House of Lords

Already reported in WLR. This is the first decision by the House of Lords on the payment provisions of the HGCR Act. By a majority of 3-2, the appeal of the defendant employer succeeded; the contractor had previously been successful in the Court of Session. The contractor had gone into receivership, entitling the employer to terminate the (JCT 1998) contract, but the contractor claimed interim payments due in the absence of a withholding notice. It had been conceded in the lower courts that interim payments were not contractually payable after determination and the House of Lords held that this was not inconsistent with the payment provisions of the Act. There was a requirement that the contractor should be entitled to payment by instalments, but this did not mean that that entitlement had to be maintained after the contractor had become insolvent, giving a benefit to the contractor's creditors against the employer, which was never intended by the Act.

ARBITRATION AND DISPUTE RESOLUTION

Certainty and privilege in mediation

Brown v Rice CILL June 2007 2467 Ch. Div.

Following a failed property transaction, the parties and their representatives met for mediation. Offers were made by both sides, one rejected, the other, accepted. The court had to decide whether the whole matter was the subject of mediation privilege and so not open for decision by the court. The idea of special mediation privilege was rejected, at least on these facts. On the facts, the agreement reached was insufficiently certain to be binding and did not comply with Clause 1.4 of the mediation agreement, which required any settlement to be in writing and signed by both sides.

Stay of execution on overpayment refused

G. Middleton Ltd v Berry Creek Overseas Development Ltd (2007) TCLR 4 TCC

The defendant client sought a stay of execution on arbitration awards in favour of its contractor, arguing that the arbitrator's basis of calculation had been incorrect and that it was entitled to a separate refund. The court, applying Wimbledon Construction v Vago (Simon Hughes) refused the stay, holding that the arbitrator's methods could not be analysed on an application for a stay and that an alleged entitlement to a refund should not ground a stay of enforcement on the balance of convenience.

Exclusion of right to s.69 challenge

Essex County Council v Premier Recycling Ltd [2007] BLR 233 TCC

In the context of a contract for management of amenity and recycling centres, the use of the words 'final and binding' in an arbitration agreement was not sufficient to exclude the possibility of a challenge under s.69 Arbitration Act 1996. Clear words would be necessary to do so, indicating an intention by the parties to exclude a process of challenge in the courts; the words did not clearly show this intention, because of the context.

Arbitration under non-existent contract

Arbitration under a contract alleged not to exist by Alan Berg, Law Quarterly Review Vol. 123 July 2007 p. 352

The article, an extended case note, concerns the Court of Appeal's decision in Fiona Trust & Holding Corp. v Privalov, in which the court had to consider whether, where contracts had been rescinded on discovery of bribery, disputes concerning the contracts and their rescission could be determined under the arbitration clause. The owners had sought injunctions in the Commercial Court restraining arbitration initiated by the charterers (a shipping case), arguing that the arbitration clause was not wide enough to cover rescission of the contract for bribery and that the arbitration clause had gone with the rescission. The Court of Appeal rejected both arguments and discharged the stay of the arbitration.

See also the report of the case in 2007 Construction Law Journal Vol. 23 No. 4 p. 307.

Global Arbitration Review Vol. 2 Issue 2 contains the following articles:

Power surge

by David Samuels

(on the increase in claims under the Energy Charter Treaty).

Gateways to the Energy Charter Treaty

by Stephen Jagusch and Anthony Sinclair, Allen & Overy.

Calculating damages under the ECT: the early awards

by Kaj Hobr, Mannheimer Swartling.

Strategic choices under the ECT

by David Herlihy and Bruce Macaulay, Skadden Arps Slate Meagher & Flom.

Comparing ICSID and ad hoc treaty arbitration

by Barry Appleton, Appleton & Associates.

Anti-suit relief - an imperfect world

by Paul Mitchard, Skadden Arps Slate Meagher & Flom.

Arbitration International Vol. 23 No. 2 2007 contains the following articles:

Transcript of the 16th Annual Workshop of the Institute for Transnational Arbitration

containing sessions on:

Constitution of the tribunal

The preliminary hearing

Applications for interim measures

The hearing on the merits

Reflections of an international arbitrator

by Gerald Aksen

New Rules of the Arbitration Institute of the Stockholm Chamber of Commerce

by Kaj Hobr and William McKechnie, Mannheimer Swartling, Stockholm

'The claim is time barred': the proper limitation regime for international sales contracts in international commercial arbitration

by Ingeborg Schwenzer and Simon Manner, University of Basle

Articles 16 and 18 of the PRC Arbitration Law: the Great Wall of China for foreign...