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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