Case Law Review - Construction, Property & Real Estate (October 2008)

ADJUDICATION

Alleged bias in nomination

Makers UK Ltd v Camden London Borough Council

[2008] CILL 2618 TCC

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.

Construction Law Vol. 19 Issue 7 August/September

2008

contains the following articles:

Deduction of LADs under withholding notices

by Anna Rabin, Jeffrey Green Russell

(on Reinwood v L Brown) (John

Marrin QC and Stephen Furst QC)

Adjudication must comply with justice

by Sean Brannigan, 4 Pump Court

Extension of time for service of response

CJP Builders Ltd v William Verry Ltd [2008]

CILL 2609 TCC

Contractors Verry engaged subcontractors CJP on a DOM/2

sub-contract. CJP referred a withholding notice dispute to

adjudication. Verry requested an extension of time beyond the 7

days in the DOM conditions and was over 5 hours beyond the extended

deadline in serving its response. The adjudicator held that he

could not consider the response and found in favour of CJP. In an

action for enforcement, the court held that the adjudicator had the

power to set the timetable and that his failure to consider the

response was a breach of natural justice.

Public law perspective

Public law and statutory adjudication

by Julian Bailey, CMS Cameron McKenna

Construction Law Journal 2008 Vol. 24 No. 6 461

The article is based on the first prize-winning essay in

the SCL Hudson Prize competition 2007. It considers whether public

law is applicable to HGCR Act adjudication, how the courts have

considered public law issues in relation to statutory adjudication

and how this affects enforceability of adjudicators' decisions.

The author's conclusion is that HGCR Act adjudications are

amenable to challenge on public law grounds. If this is correct,

the grounds for challenge would be broader than recognised

hitherto. The two main cases analysed are London and

Amsterdam Properties v Waterman Partnership and

Carillion v Devonport Royal Dockyard.

(Stephen Furst QC and Louise Randall)

Insolvency

Construction Act Review

by Peter Sheridan and Dominic Helps

Shadholt & Co

Construction Law Journal 2008 Vol. 24 No. 6 p.506

The regular Con LJ column considers the following topics:

the use of statutory demand/winding-up procedure as an alternative

to adjudication of a debt dispute, or as a means of enforcing an

adjudicator's decision, stay of execution and particular

considerations in relation to liquidation, receivership and

administration.

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.

ARBITRATION AND DISPUTE RESOLUTION

Journal of International Arbitration Vol. 25 No. 4

August 2008

contains the following articles:

Challenges to international arbitration awards: The

French approach

by Robert Kovacs

Pathological arbitration clauses and Indian courts

by Alok Jain

The private dimension of the international customary

nature of commercial arbitration

by Illias Bantekas, Brunel University

Arbitration and crime

by Dragor Hibert and Vladimir Pavic, University of

Belgrade

Integrating mediation into arbitration: why it works in

China?

by Gabrielle Kaufmann-Kohler and Fan Kun, University of

Geneva

The CMS case: a lesson for the future?

by Jose Rossell, Hughes Hubbard & Reed

(on the ICSID arbitration CMS Gas Transmission Co. v

Argentine Republic)

Arbitration Law Monthly Vol. 8 No. 7 August 2008

contains the following articles:

Enforcement of arbitration awards

on Gater Assets Ltd v Nak Nafrogaz

Ukrainiy

(refusal of enforcement on public policy grounds)

Jurisdiction

on Sumukan v Commonwealth Secretariat (No.

2) (validity of appointment of arbitrators)

Appeals from arbitration awards

on Gulf Import & Export Co. v Bunge

SA

(grounds of appeal under ss67-69).

Enforcement of foreign arbitration awards

on IPCO (Nigeria) Ltd v Nigerian National

Petroleum Corporation (No. 2)

See Owen Pell v Bindi (London) under

Keating Chambers Reported Cases on natural justice in an expert

determination.

Arbitration Law Monthly Vol. 8 No. 9 October 2008

contains the following articles:

Jurisdiction

on Czech Republic v European Media Ventures

SA

(Bilateral investment treaties).

Conflict of laws

on Musawi v RF International

(law applicable to disputes and to arbitration

clauses).

Validity of the arbitration clause

on Heifer International Inc. v

Christiansen

(formation and formalities).

Note: effect of Unfair Terms in Consumer Contracts Regulations 1999

on arbitration clauses.

Anti-suit injunctions

on Verity Shipping v Chartworld Shipping

Corporation The Skier Star

(criteria for grant).

Confidentiality in the arbitration

on Emmott v Michael Wilson & Partners

Ltd

(the scope of the confidentiality obligation).

Arbitration: the international journal of arbitration,

mediation and dispute management (CIArb) Vol. 74 No. 3 August

2008

contains the following articles:

The new world of unilateral offers to arbitrate:

investment arbitration and EC Merger Control

by Gordon Blanke, SJ Berwin and Borzu Sabahi, Fulbright

& Jaworski

Obtaining discovery in international arbitral

proceedings: the European v American mentality

by Oliver Bolthausen, Bridgehouse Law Rueckel &

Bolthausen, Atlanta and Peter Acker

Settling international commercial disputes in Ukraine;

participants, legal framework, arbitration: practice and

enforcement of awards

by Vasil Marmazov, Yuris Law Offices and Pavlo Pushkar

The Jewish contribution to the English Legal

System

by Sir Bernard Rix

Stop-or go? Injunctions and arbitration

by Graham Dunning QC, Essex Court Chambers

Practice Guidelines on Mediation

(approved January 2008)

Guidance on Confidentiality in Mediation.

International Arbitration Law Review 2008 Vol. 11 Issue

4

contains the following articles:

With the globalisation of arbitral disputes, is it time

for a new convention?

by Mark Mangan, Freshfields Bruckhaus Deringer, London

Disputes in the fast lane: fast-track arbitration in

merger and acquisition disputes

by Alice Broichmann, P&P Pöliath, Munich

Arbitration and private international law

by Giuditta Cordero Moss

No costs for invalid arbitration

Crest Nicholson (Eastern) Ltd v Western [2008]

CILL 2599; [2008] BLM Vol. 25 No. 8; [2008] BLR 426 [2008] TCLR 9

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...