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

ADJUDICATION

Oral Contract And Interest

Allen Wilson Joinery Ltd v Privetgrange Construction

Ltd [2009] TCLR 1 TCC

A sub-contractor failed to obtain summary judgment to enforce an

adjudicator's decision, since the court could not summarily

resolve the issues as to whether there was an oral agreement for

the design which would not comply with s.107 HGCR Act. Following

Carillion Construction & Devonport Royal

Dockyard (Stephen Furst QC and Louise Randall), the

adjudicator had no power to award interest.

See Kier Regional v City and General (Holborn) (No

2) under Keating Chambers Reported Cases on an

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

award.

See Westwood Structural Services v Blyth Wood

Park under Keating Chambers Reported Cases on summary

enforcement of adjudication decision for sums alleged not to be due

at termination.

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.

See Balfour Beatty Construction Northern v Modus

Corovest under Keating Chambers Reported Cases on

enforcement of adjudication and attempts to set-off a

cross-claim.

See Quartzelec v Honeywell Control

Systems under Keating Chambers Reported Cases on an

adjudicator's failure to take into account a defence

raised.

See YCMS v Grabiner under Keating

Chambers Reported Cases on exceeding slip rule by recalculation,

invalidating adjudicator's decision.

See Bovis Lend Lease v Trustees of the London

Clinic under Keating Chambers Reported Cases on

crystallisation of a dispute.

Company Voluntary Arrangement

Mead General Building Ltd v Dartmoor Properties

[2009] BLM Vol. 26 No. 3 TCC

The defendant client sought to resist enforcement of an

adjudicator's decision on the ground that the claimant

contractor was subject to a CVA and so might be unable to repay

money in arbitration. The TCC held that, while a CVA was a relevant

factor to be considered, it was also relevant that the CVA was a

result of the defendant client's failure to pay the contractor

sums owed. The CVA supervisor took the view that the contractor was

a viable concern which could trade its way out of trouble, which

was also relevant. On the facts, no stay should be granted and

summary judgment was confirmed.

See VGC Construction v Jackson Civil

Engineering under Keating Chambers Reported Cases on

attempt to resist enforcement of adjudicator's decision on

grounds that claim was nebulous and ill-defined or had been

withdrawn.

Alleged Bias In Nomination

Makers UK Ltd v Camden London Borough Council

[2009] 120 Con LR IGI TCC

Already reported in CILL, 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 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.

Adjudication And The CPR

Walter Lilly & Co. Ltd v DMW Developments

Ltd [2009] TCLR 3 TCC

This case considers the extent to which the TCC can be used

under CPR Part 8 for a declaration as to what constituted a breach

of contract. The judge granted a declaration as to whether the

fading of wood was capable of constituting a breach as the

adjudicator found. A CPR Part 8 application was not suitable for

arguing whether such fading had taken place, as this would amount

to an appeal against the adjudicator's decision.

ARBITRATION AND DISPUTE RESOLUTION

Arbitration Law Monthly Vol. 9 No 2 February

2009

contains the following articles:

Judicial Support

Steamship Mutual Underwriting Association v Sulpicio

Lines on anti-suit injunctions.

Stay Of Proceedings

Ardentia v British Telecommunications on tiered

dispute resolution clauses.

Jurisdiction

Crest Nicholson (Eastern) v Western on scope of

agreement and costs under NHBC scheme.

Party compliance with arbitral procedures

TAG Wealth Management v West on dismissal of a

claim for non-compliance.

Enforcement Of Award

RvV public policy ground for challenge of

award.

Insolvency and arbitration

Syska v Vivendi Universal on the effect of

insolvency proceedings.

Arbitration Law Monthly Vol. 9 No 3 March

2009

contains the following articles:

Arbitration: Enforcing On English Award

on Colliers International Property Consultants

v Colliers Jordan Lee Jafaal

Supporting Foreign Arbitrations

on IETI Euro Telecom International v Republic

of Bolivia

(freezing injunction in support of foreign

arbitration).

Enforcement of arbitration awards

on Orascom Telecom Holding v Republic of

Chad (state immunity)

The Agreement To Arbitrate

on Ace Capital v CMS Energy Corporation

(effect of service of suit clause).

Serious Irregularity

on O'Donoghue v Enterprise Inns

(failure to hold an oral hearing)

Arbitration Law Monthly Vol. 9 No. April

2009

contains the following articles:

Anti-Suit Injunctions

on the major ECJ decision in Allianz v West

Tankers.

Breach Of Arbitration Clause

on CMA CGM v Hyundai Mipo Dockyard

(effect of foreign judgment on arbitrators).

International Arbitration Law Review Vol. 12 Issue 1

2009

contains the following articles:

Arbitration In The Dubai International Financial Centre:

A Promising Law, But Will It Travel Well?

by Mark Beeley, Vinson & Elkins

Global Arbitration Review Vol. 4 Issue 1 2009

contains the following articles:

2008 – The Year In Figures

gives statistics for years 2006, 2007, 2008 for

arbitrations in Austria, Germany, Hong Kong, ICC, ICDR, ICSID,

LCIA, Singapore, Stockholm and Switzerland.

Bursting The Ragan Myth: Things It's No Longer Fair

To Believe About Japan

by Peter Godwin, Herbert Smith, Tokyo.

Arbitration Vol. 75 No 1 February 2009

The Chartered Institute Of Arbitrators Journal

contains the following articles:

Confidentiality And Integrity In International

Commercial Arbitration Practice

by Vijay Bhatia, Christopher Candlin and Rajesh Sharma,

City University of Hong Kong.

Recommendations On Public Policy In The Enforcement Of

Arbitral Awards

by Winnie Ma, Bond University.

The Process From Void To Valid For Agreements To

Mediate

by Erich Suter, Park Chambers.

The Nature And Enforceability Of ICSID Provisional

Measures

by Zannis Mavrogordato and Gabriel Sidere, CMS Cameron

McKenna, Bucharest.

Arbitration And Insolvency: English And Swiss

Perspectives

by James Hargrove and Vanessa Liborio, Hogan &

Hartson.

Competence – Competence

by Doug Jones, Clayton Utz, Sydney.

Lloyd's Maritime And Commercial Law Quarterly Part 1

February 2009

contains the following case commentary:

The Limits Of Confidentiality In Arbitration

by Amokura Kawsharu, University of Auckland (on

Emmott v Michael Wilson &

Partners).

Construction Law Journal 2009 Vol. 25 No 1

contains the following notes:

ADR Clauses In Irish Government Public Works

Contracts

by Nicola White

Hong Kong Arbitration Law Reform

ICC To Open New Offices In Asia

(Hong Kong and Singapore).

Construction Law Journal 2009 Vol. 25 No 1

contains the following articles:

Arbitrators Taking Procedural Control – A Good

Idea Or Not?

by His Honour Judge Toulmin, Technology and Construction

Court

Dispute Avoidance In International Construction

Projects: The Use Of Outside Counsel As Contract Manager

by Elliott Geisinger, Schellenberg Wittmer, Geneva.

Techniques For Handling Cross-Cultural Tribunal

by Mark Raeside QC, Atkin Chambers.

These papers were delivered at the Chartered Institute of

Arbitrators European Conference, Istanbul, May 2008.

s.103 Challenge To ICC Award

Dallah Real Estate v Ministry of Religious Affairs,

Government of Pakistan [2009] 121 Con LR 138 Commercial

Court

The Commercial Court refused leave to the Saudi Arabian claimant

to enforce an ICC arbitration made in Paris against the Government

of Pakistan. The law of the contract was Saudi law, but under

s.103(2)(b) of the Arbitration Act 1996 enforcement of an award may

be refused under the New York Convention if the arbitration

agreement is not valid under the law to which the parties subjected

it, or under the law of the country where the arbitration was made.

Under French law, because the position under the Constitution of

Pakistan on making of government contracts without the

President's name was uncertain, it was not clear that the

Government of Pakistan was bound by the arbitration clause.

Accordingly, the English court refused to enforce the award.

Partial Enforcement Of Award

Nigerian National Petroleum Corporation v IPCO

(Nigeria) Ltd [2009] BLR 71. CA

The Court of Appeal upheld the Commercial Court's decision

that there is no objection in principle to enforcement of part of

an arbitral award, provided the part to be enforced can be

ascertained from the face of the award, and judgment given in the

same terms as in the award.

See Owen Pell v Bindi (London) under

Keating Chambers Reported Cases on natural justice in an expert

determination.

CONTRACT AND PROCUREMENT LAW

Challenge To Contract Award

McLaughlin & Harvey Ltd v Department of Finance

and Personnel [2009] TCLR 2 (NI QB)

The full trials in this and the Henry Bros case have

now taken place, resulting in success for the contractors in their

respective challenges to the award of Government contracts. This

TCLR report covers only the contractor's application for an

interim order suspending the tender procedure. The application

failed because the court was not satisfied that damages would be an

inadequate remedy. Subsequently, it was held that the award was

invalid because the client's tender panel, not selected at the

tender stage, had drawn up an evaluation sheet with additional

weightings for sub-categories. Crucially, these had not been

previously disclosed to the tenderers, nor were they predictable.

This was a breach of the transparency requirements of the Public

...