Case Law Review - Construction, Property & Real Estate (January 2009)

ADJUDICATION

Case Law Index

Construction Act Review

by Peter Sheridan and Dominic Helps, Shadbolt & Co,

Construction Law Journal (2008) Vol. 24 No. 8 p.698

The authors provide their 8th Annual review of the existing body

of HGCR Act Case Law. It contains an alphabetical list of nearly

320 cases (if one includes appeals and a few relevant non-Act

cases).

The case law subject matter index now has over 120 categories. A

commendable effort has been made to provide sub-categories, which

makes the latter index far more useful. A large category like

Enforcement has 9 sub-categories, ranging from 'stay of

execution' to costs.

See Balfour Beatty Construction Northern v Modus

Corovest (Blackpool) under Keating Chambers Reported

Cases on enforcement of adjudication and attempts to set-off a

cross-claim.

See Air Design (Kent) v Deerglen

(Jersey) under Keating Chambers Reported Cases on an

adjudicator's jurisdiction to decide how many contracts the

parties had made.

Alleged bias in nomination

Makers UK Ltd v Camden London Borough Council

[2008] BLM Vol. 25 No. 10 TCC

Already reported in BLR, Camden sought to challenge the

adjudicator's jurisdiction on the ground that he had been

improperly appointed by RIBA. Makers had contacted RIBA to request

the appointment of the adjudicator who was actually appointed. The

court rejected the existence of an implied term that neither party

should seek to influence the appointment. Since the nominating body

was under no obligation to accede to the representations, there was

no appearance of bias in appointing an adjudicator previously

requested by one of the parties.

See Birmingham City Council v Padison

Construction under Keating Chambers Reported Cases on

lack of jurisdiction to hear second adjudication of same

dispute.

See Kier Regional v City and General

Holborn under Keating Chambers Reported Cases on an

attempt to use a third party debt order to enforce an adjudication

award.

See Benfield Construction v Trudson

(Hatton) under Keating Chambers Reported Cases on the

jurisdiction of a third adjudicator over the same dispute.

ARBITRATION AND DISPUTE RESOLUTION

Arbitrability

The law governing arbitrability under the Arbitration

Act 1996

by Mihail Danov, Brunel University, Lloyds Maritime and Commercial

Law Quarterly 2008 Part 4 November p.536

Noting that the English legislation does not provide the

means to test for arbitrability, nor even to define it, the author

finds that there is no definitive answer to the question as to

which system of law would decide the point. There is, however,

extensive discussion by scholars as to how arbitrability should be

approached. The choice is between the law of the forum, the law of

the tribunal's seat or the law of the place of enforcement of

the award. The author argues for the law of the seat of the

tribunal.

Global Arbitration Review Vol. 3 Issue 6

2008

Derailment and delay tactics: some possible

solutions

by Wolfgang Peter, Python & Peter, Geneva

Dissents, concurrences and a necessary divide between

investment and commercial arbitration

by Laurence Shore and Kennth Juan Figueora, Gibson Dunn

& Crutcher, New York

Arbitration International Vol. 24 No. 4 2008

contains the following articles:

Parallel proceedings in international arbitration

by Bernardo Cremades and Ignacio Madalena, B Cremades y

Asociados, Madrid

Class action arbitrations – the challenge for

the business community

by Philip Allen Lacovara, Mayer Brown

Drafting arbitration agreements

by Prof. Aldo Frignani, University of Turin

Amicus submissions in investor-state arbitration after

Suez v Argentina

by Epaminontas Triantafilou, White & Case,

Washington DC

Current use of the UNCITRAL Arbitration Rules in the

context of investment arbitration

by Norbert Horn, University of Cologne

CIETAC Arbitration Clause revisited

by Howard Yinghao Yang, Morgan Lewis, New York

Decoding Singapore's International Arbitration Act

Section 12(7)

by Jean Ho, National University of Singapore

Global Arbitration Review

(Special Issue: European and Middle Eastern Arbitration Review

2009)

contains the following articles:

Ethics in European arbitration

by Paul Mitchard QC, Skadden Arps Slate Meagher &

Flom

The effects of insolvency on arbitration

proceedings

by David Foster and Simon Walsh, O'Melveny &

Myers

The future of investment treaty protection in Eastern

Europe

by Stanimir Alexandrov, Marinn Carlson and Joshua Robbins,

Sidley Austin

Lex Mercatoria revisited

by Antonio Hierro and Miguel Angel Melo, Cuatrecasas

State of necessity in investment arbitration

by Domenico di Pietro, Chiomenti Studio Legale

Worldwide freezing orders in disputes between states and

commercial parties

by Andrew Hutcheon, Watson Farley & Williams

Austria

by Franz Schwarz, Wilmer Cutler Pickering Hale and

Dorr

Czech Republic

by Vit Horacek, Glatzova & Co

Denmark: the boundaries between arbitration and civil

proceedings

by Niels Schiersing, Nordia Law

Finland: recent development

by Petteri Voti and Eva Stosrskubb, Dittmar &

Indrenius

France: is international arbitration at risk of being

nationalised?

by Tim Portwood, Bredin Prat

Arbitration in Germany

by Daniel Busse, Robert Hunter and Karl Pörnbacher,

Lovells

Greece

by Prokopis Dimitriadis and Konstantinos Rokas,

Lambadarios Law Offices

Arbitration in Ireland: a time of change

by John Doyle, Dillon Eustace

Lebanon

by Chawkat Houlla, Adib & Houalla Law Office

Netherlands

by Bommel van der Bend and Eelco Meerdink, De Brauw

Blackstone Westbroek

Modernising the Portuguese arbitration law

by Tania Cascais and Antonia Teixeira Duarte, Miranda

Correia Amendoeira & Associados

Romania

by Crenguta Leaua, Tanasescu Leaua Cadar

Russia

by Andrew Yukov and Alexander Khrenov, Yukov Khrenov &

Partners

Slovakia

by Robert Pruzinsky, Malata Pruzinsky Hegedus &

Partners and Vit Horacek, Glatzova & Co

Arbitration in Spain

by Felix Montero, Perez-Llorca

Sweden

by Eric Runesson and Simon Arvmyren, Sandart &

Partners

Switzerland: new procedure for the challenge of

international awards

by Michael Stepek and Oliver Ciric, Hogan &

Hartson

Turkey

by Urku Cosar, Cosar

Ukraine

by Marta Khomyak, Magisters

A review of English arbitration law in 2008

by Audley Sheppard and Leigh Crestohl, Clifford Chance

Arbitration Law Monthly December 2008/ January 2009 Vol.

9 Issue 1

contains the following articles:

Jurisdiction

on (Tsavliris Salvage (International) v Grain

Board of Iraq (state immunity in resisting

enforcement of an award)

Commencing on arbitration

on Taylor Woodrow Construction v RMD

Kwikform (David Thomas QC)

(time limits for commencement)

Challenging an award

on Sheltam Rail Co v Mirambo Holdings

(setting aside a notice of discontinuance)

Extension of time for arbitration appeals

on L Brown & Sons v Crosby Homes (North

West) (Marc Rowlands and Nerys Jefford QC)

(principles for extending time limits)

Interest

on Gater Assets v NAK Naftogaz Ukrainity (No.

2) (on the court's power to award interest up to

payment date)

Global Arbitration Review

(Special Report Arbitration Review 2009)

contains the following articles:

International arbitration in South and East Asia

– opportunities, challenges and the ICC experience

by Jason Fry and James Morrison, ICc

'The worst of times, the best of times'

by Adrian Winstanley, LCIA

International arbitration: past, present and

future

by Jun Bautista, International Centre for Dispute

Resolution

The arbitration landscape in Hong Kong

by Gary Soo, HKIAC

International arbitration in Asia

by Michael Moser, O'Melveny & Myers

FDI growth in Asia: the potential for treaty-based

investment protection

by Stanimir Alexandrov, Amelia Porges and Meredith

Moroney, Sidley Austin

Arbitration in Australia

by Doug Jones & Björn Gehle, Clayton Utz

Is CIETAC leading arbitration in Asia into a new era of

transparency?

by Paul Mitchard QC, Skadden Arps Slate Meagher and

Flom

Hong Kong

by Kathryn Sanger, Clifford Chance

Arbitration in Singapore 2008

by Justyn Jagger & Jeremy Choo, DLA Piper

Singapore

Arbitration clause unfair

Mylcrist Builders Ltd v Buck [2008] BLR 611

TCC

Already reported in CILL, the builders'...

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