Case Law Update 2012 - Issue 5

ADJUDICATION

Berry Piling Systems Ltd v Sheer Projects Ltd [2012] BLM Vol 29 No 3 TCC

Following an adjudication that decided upon entitlement to work done by a sub-contractor, the court rejected the sub-contractor's case that the adjudicator had breached the principles of natural justice because he had referred to a fact which had not been raised with the parties. It was also held that the defendants had failed to make out a case for a stay of enforcement on grounds relating to the financial state of the claimants. As such, the claimants were entitled to enforce the decision of the adjudicator.

R and C Electrical Engineers Ltd v Shaylor Construction Ltd - [2012] CILL 3184 TCC

R & C issued a Part 8 application seeking a declaration for forthwith payment of an amount determined by the Adjudicator. The sum was to be paid when it fell due, pursuant to pay-when-certified provisions in the 'Main Contract'. R & C contended that the provisions in the Main Contract for certification had broken down, so that the condition placed on payment by the Adjudicator was invalid. The court held that there was a difference between circumstances which prevent the contractual machinery being operated and those in which one party refuses to operate it. There was nothing to prevent Shaylor from setting off against the sum found due by the Adjudicator any sum that it would have been entitled to set-off against either the Final Sub-Contract sum or the Final Payment itself.

Highlands and Islands Airports Limited v Shetland Islands Council [2012] BLM Vol 29 No 5 CSOH

In this case, an adjudicator sought informal legal advice from senior counsel in respect of a contractual clause without advising either of the contracting parties. The court held that failure to consult on a point or issue that is either decisive or of considerable potential importance to the outcome of a decision, and not peripheral or irrelevant, amounts to a material breach. The adjudicator's question to counsel was central to the quantification of the largest part of the award and was therefore vitiated by a material breach of natural justice. Further, the dispute which was the subject of that decision was a single issue dispute, and could not be severed from the rest of the decision.

Specialist Insulation Ltd v Pro-Duct (Fife) Ltd - [2012] BLM Vol 29 No 6 CSOH

The central issue in this case was whether the parties had agreed for any dispute to be settled by adjudication. Specialist referred a dispute to adjudication relying on a clause contained in Pro-Ducts's documents, which Pro-Duct disputed on the basis that its own standard terms had not formed part of the contract (an argument not originally run during the adjudication). The court held that Pro-Duct had failed to incorporate its own terms into the contract and as such there was no entitlement to adjudicate. Lord Malcolm agreed with the English Court of Appeal's decision in Tekdata Interconnections Ltd v Amphenol Ltd, that in any battle of the forms-type case what is required is an objective assessment of what the parties must be taken to have intended. The court further rejected Specialist's argument that Pro-Duct had waived its right to challenge the validity of the adjudication by participating in it. Pro-Duct's position had been consistent throughout, even if the legal ground of challenge had changed.

ARBITRATION AND DISPUTE RESOLUTION

Mediation figures show increase

On the up Law Society Gazette 17 May 2012

CEDR's 'Mediation Audit 2012' shows the number of civil and commercial mediations increasing by one third and value by almost a half, over the last 2 years.

The survey covered 238 mediators and there was a separate survey of lawyers. The annual number of mediations is said to have risen from 6,000 to 8,000 in these categories and the value is up 47% from £5.1 billion to £7.5 billion. Annual fee income from mediation is put at £20 million and the settlement rate at 90%.

The market according to CEDR is dominated by about 100 mediators including some 70 lawyers, who are appointed to some 85% of commercial mediations outside of formal schemes.

The most successful mediator reported an average of £8,500 fees per case and an annual workload of 80 cases. The average for experienced mediators is £4,279 per case, up 24% over 2 years.

Newer mediators find it hard to get work, mainly averaging 4 per year, with average fees at £1,517 per case, up 9% over 2 years.

Mealeys International Arbitration Report Vol. 27 Issue 5 May 2012

contains the following articles:

Spanish court denies recognition of Italian title of nobility

by Calvin Hamilton and Gabriela Torres, Hamilton, Madrid

Swings and roundabouts: developments in arbitration in Australia

by AA de Fina

Role of natural justice in making of an additional award

by Darius Chan, Wilmer Cutler Pickering Hale & Dorr, London

The character of international arbitration under the Swiss Ruler, June 2012 Edition

by Philip Landolt, Landolt & Koch, Geneva

Separability and the 'Russian Nesting Dolls" effect: Mortenson v Saunders Concrete

by Colm McInerney, Skadden Arps State Meagher & Flom, New York

SGS: the saga continues (on umbrella clauses in BITs)

by Richard Allen and Ekaterina Finkel

Global Arbitration Review

Vol. 7 Issue 2

contains the following articles:

Children of the revolution

(on the Iran-United States Claims Tribunal)

by Sebastian Perry

Arbitrating's no breeze in Belize

by Alison Ross

The State of arbitration

by Charles Adams, Akin Gump, Geneva

Global Arbitration Review

Vol. 7 Issue 3

contains the following articles:

Greece: a new Argentina?

by Kyriaki Karadelis

A spotlight on Brazil

by Alison Ross

Belle of the ball

by Clare Bolton (on arbitration in Brazil)

ICC Bulletin Vol. 22 No. 2

contains the following articles:

Achieving efficiency in international arbitration: some strategic suggestions for arbitral tribunals in ICC proceedings

by Mads Bryde Anderson, University of Copenhagen, Anders Ryssdal, Wiersholm and Stefan Lindskog, Swedish Supreme Court

Arbitration in Turkey: an analysis of Turkish arbitration legislation in the light of the UNCITRAL Model Law

by Ergun Özsunay, University of Istanbul and Murat

Özsunay

The impact of the EU 'Rome 1' Regulation on international litigation and arbitration, A-National Law, mandatory and overriding rules

by Guido Carducci, University of Paris Est.

Adverse inferences in international arbitration practice

by Simon Greenberg, Clifford Chance, Paris and Felix Lautenschlager

Mealey's International Arbitration Report Vol. 27 Issue

contains the following articles:

Partial annulment due to lack of guarantor's signature and scope of arbitration agreement in a distribution contract

by Calvin Hamilton and Alina Bondarenko, Hamilton, Madrid

Annulment of Swiss International Arbitration Awards for incompatibility with substantive public policy: first annulment in over twenty years

by Phillip Landbolt, Landbolt & Koch, Geneva

You can only smoke 'em if you got 'em: attempts to extinguish the Tobacco BIT claims

by Andy Moody and Cameron Forsaith, Eversheds, London

Analysis of and comments on two cases of pre-arbitration proceedings

by Yanming Yuang, Guangdong International Law Firm

Construction Law Journal

Vol. 28 Issue 1 2012

contains the following articles:

Compliance with and enforceability of a Dispute Board decision: recommendations by the International Beau-Rivage Palace Forum Working Group

by Pierre Genton and Paul Gélinas

Force majeure clauses

by Emma Kratochvilova, Herbert Smith, Tokyo

and Michael Mendelblat, Herbert Smith, London

Construction Act Review:

The new Construction Act:

Life after Part 8 of the LDEDC Act 2011

by Dominic Helps

Consequences of the omission of pre-arbitral mechanisms in Switzerland

by Jean-Pierre Morand and Sophie Roud, Carrard, Lausanne

CONSTRUCTION AND ENGINEERING CONTRACT DISPUTES LAW

Lim Chin San v LW Infrastructure [2012] Part 1 BLR 1 SGHC

Following the settlement of a dispute between a contractor and subcontractor by arbitration, both parties submitted appeals to the High Court of Singapore. In the first appeal made by LCS, Prakash J upheld principles from English Common Law that time will only be put at large if there are acts of prevention which cause overall delay, and not when there...

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