Case Law Update - Construction, Property & Real Estate (Issue 1 - 2010)

ADJUDICATION

See Workspace Management v YJL London under Keating Chambers Reported Cases on enforceability of adjudicator's finding of overpayment as a set-off against an arbitration award.

Timing Of Nomination And Certainty

Vision Homes Ltd v Lancsville Construction Ltd [2009] BLR 525 TCC Reported in CILL principally on timing of nomination. Under the HGCR Act Scheme, if the application for nomination of the adjudicator by the RICS had been made before service of the Notice of Intention to Refer a Dispute to adjudication, the effect would be to deprive the adjudicator of jurisdiction to hear the dispute. The BLR report deals with the full list of issues, including the certainty of the decision and its consistency with the parties' agreement and the dispute referred to him and whether it was unfair for the adjudicator to fail to give the parties notice of his intended conclusion.

See North Midland Construction v AE & E Lentjes under Keating Chambers Reported Cases on the 'broad' and 'narrow' approaches to s.105 HGCR Act on exclusion of activities relating to power generation.

Novation Challenge Fails

Camillin Denny Architects Ltd v Adelaid Jones & Co Ltd [2009] BLR 606 TCC Already reported in BLM, the applicant architects sought summary judgment enforcing an adjudicator's decision in their favour against the Respondent project manager. The respondents argued that a novation had taken place so that there was no contract between the parties. However, the court held that the project managers could not have been replaced by a party which was never incorporated and never in a position to place or enter into contracts. Therefore the novation argument could not succeed and summary judgment should be granted.

No Written Contract

Adonis Construction v O'Keefe Soil Remediation [2009] CILL 2784 TCC The fact that the sub-contractor had never signed the order for works and that the draft order did not amount to an offer meant that there was no written contract for the purposes of the HGCR Act 1996 and thus no jurisdiction for the adjudicator. The letter of intent from the main contractor, Adonis, had been followed by a draft order to soil remediation sub-contractor O'Keefe, but the draft order stated that the official order would be issued subsequently. It could not therefore be part of a written contract, since it lacked the necessary intention to be an offer.

Subsequent Adjudications

Barr Ltd v Klin Investment UK Ltd [2009] CILL 2787 Court of Session Outer House. Klin, the client, had engaged Barr, the contractor, for the design and construction of flats under the Scottish Building Contract which provided for the resignation of an adjudicator where a dispute was the same/ substantially the same as under a previous decision. Following two adjudications, a third was commenced, the decision on which Klin sought to challenge on enforcement. The court held that the first two disputes had been on narrow technical issues, while the third was on the substantive merits of Barr's entitlement. There were also challenges based on bias, failure to put to the parties the adjudicator's proposed factual conclusions, which also failed.

See SG South v King's Head Cirencester under Keating Chambers Reported Cases on fraud by the claimant as a ground for resisting enforcement of an adjudicator's decision.

Nature Of Adjudicator's Decision

Rok Building Ltd v Celtic Composting Systems Ltd BLM Dec 2009/Jan 2010 TCC The defendant main contractor failed in its argument that the adjudicator's decision was merely declaratory of the position between the parties which could be reflected in future certification and payment procedures. The court held that the adjudication decision was by its nature directory, not declaratory, thus requiring the defendant to make a payment. However, whether a particular decision is directory or declaratory will depend upon the words used and the context in which the dispute was referred to adjudication. See now Rok v Celtic (No. 2) on further enforcement proceedings.

ARBITRATION AND DISPUTE RESOLUTION

Jurisdiction And Choice Of Law

Agreements on jurisdiction and choice of law: where next? by Jonathan Harris, Serle Court, Lloyd's Maritime and Commercial Law Quarterly [2009] Part 4 537 The focal point of the article is the recent book by Adrian Briggs 'Agreements on jurisdiction and choice of law'. Professor Harris largely accepts Professor Briggs' arguments regarding the separable nature of jurisdiction and choice of law clauses as dispute resolution provisions. However, he is more cautious on the 'dual function' of these clauses as provisions which confer jurisdiction and determine law yet are also private contractual obligations. He is also cautious on the relationship between rules of private international law as agreed by the parties and those applying by default.

International Arbitration Law Review 2009 Vol. 12 Issue 6 contains the following articles:

Anti-suit injunctions in aid of international arbitration: the American approach by Carolyn Lamm, Eckhard Hellbeck and Joseph Brubaker, White & Case, Washington DC

Cross-border insolvency and international commercial arbitration: characterisation and choice of law issues in light of Elektrim SA v Vivendi SA and analysis of the European Insolvency Regulation by Mark Robertson, New Zealand

The Company as institutional arbitrator in Italian law – setting an international trend? by Emanuele Cusa, University of Trento

Funding international arbitrations by Matthew Amey, The Judge

Multi-party disputes and referral to arbitration under Chinese law by Fei Lan Fang, University of Hong Kong

How to protect business secrets in international commercial arbitration by Lukas Wyss, Bratschi, Wiederkehr & Buob, Bern

See you in court! Respondent's failure to pay the advance on arbitration costs by James Eamon QC and Geoffrey Holub, Gowling Lafleur Henderson, Calgary

Arbitration Law Monthly Vol. 10 No. 1 December 2009/January 2010 contains the following articles:

Mediation: confidentiality (on Farm Assist v Secretary of State for DEFRA (No. 2))

Arbitrators: qualifications (on Jivraj v Hashwani - alleged need for religious qualification).

Insolvency and arbitration (on Syska v Vivendi Universal – effect of insolvency proceedings).

Challenging an award (on Konig v Zwiebel – notification of appeal within time limit).

Serious irregularity (on Compania Sud-Americana Da Vapores v Nippon Yusen Kaisha – party not allowed to raise argument).

Construction Law Vol. 20 Issue 10 December 2009 contains the following...