Case Law Update December 2011


Lessons of DB for adjudication

'Everybody has won and all must have prizes' How the Dispute Board process could improve UK adjudication by Murray Armes, Construction Law Journal 2011 Vol 27 No 7.

The author examines the use of dispute boards in international contracts, and advocates their increased use in domestic contracts to enable attempts at dispute avoidance to be succeeded by a binding decision. He concludes that this is desirable because adjudication has become distant from the original Latham intentions.

Tolent Clauses

Outlawing Tolent clauses and the LDEDC Act 2009: the denouement of section 108 by Dominic Helps, Construction Law Journal 2011 Vol. 27 No. 7

The regular Construction Act Review column considers the LDEDC Act attempt to prevent pre-allocation of costs as a means of inhibiting reference to adjudication by the use of Tolent clauses. The roles of the Construction Umbrella Bodies Adjudicator Task Group and John Riches in pointing out ongoing lacunae in the legislation are acknowledged and the author concludes that an appellate decision will probably be required to see whether Tolent clauses have or have not been banished successfully.

Construction Law Vol. 22 Issue 9 November 2011

contains the following articles:

Adjudication under the 'new' Construction Act by Vijay Bange, Trowers & Hamlins

The specialist contractor view by Marion Rich, British Steelwork Association (on the LDEDC Act)

11th Annual Case Law Index Case Law Index by Peter Sheridan Construction Law Journal 2011 Vol. 27 Issue 8 p.649 This is the 11th annual case law index published in the regular Construction Act Review column. It contains over 400 cases with references in alphabetical order (although this includes some reports of appeals). The second part of the index is a classification of the cases under over 130 subject headings, ranging from sections of the Act and provisions of Scheme to topics such as the JCT contracts, procedural issues like declaratory relief and adjudicators' decisions.

More than one dispute? Witney Town Council v Beam Construction (Cheltenham) Ltd [2011] TCLR 8 TCC

The Council, as employer, sought to resist enforcement of the adjudicator's decision on the ground that Beam, the contractor, had referred 4 disputes to adjudication: the first relating to the draft final account, the second to the final account, the third being interest on retention and the fourth for payment of retention, so that the adjudicator lacked jurisdiction. The court held that these were all aspects of the same dispute, namely what was due and owing to the contractor and that the adjudicator had therefore had jurisdiction. Summary judgment was given in favour of the contractor. Fastrack Contractors v Morrison (Simon Hargreaves) applied.

See Lanes Group v Galliford Try Infrastructure under Keating Chambers Reported Cases on second adjudication on same dispute and refusal of enforcement for appearance of bias.

ARBITRATION AND DISPUTE RESOLUTION International Arbitration Law Review 2011 Vol. 14 Issue 5 contains the following articles:

The new ICC Rules of Arbitration: a brief overview of the main changes by Thierry Berger and Mark Roberts, Eversheds, London

How far can party autonomy be stretched in setting the grounds for the refusal of arbitral awards? by Hong-Lin Yu, University of Stirling

'Other international obligations' as the applicable law in investment arbitration by Charles Kotuby Jr, Jones Day, Washington DC

Contractual claims in treaty-based arbitration – with or without umbrella and forum selection clauses by Sanja Djajic

China's CIETAC Arbitration – New Rules under review by Judy Zhu, Mayer Brown

Jivraj v Hashwani – the UK Supreme Court overturns a controversial Court of Appeal ruling on arbitration clauses by Richard Smith, Angeline Welsh and Manish Aggarwal, Allen & Overy

Mandatory ICC provision in Guatemala's Arbitration Law is declared unconstitutional by the Constitutional Court of Guatemala by Luis Fernando Bermejo, Guatemala

Mealey's International Arbitration Report Vol. 26 Issue 9 September 2011 contains the following articles:

Arbitration panel impasse results in majority decision award and subsequent set aside in Spanish court by Calvin Hamilton and Gabriela Torres, Hamilton, Madrid

The new Arbitration legislation in Hong Kong and France, a comparative study by Alfred Wu, Sidley Austin, Hong Kong

Witness preparation in international arbitration – a cross cultural minefield by Ian Meredith and Hussain Khan, K&L Gates, London

District Court rejects use of Section 1782 in aid of ICC arbitration by Mark Beckett, Marc Suskin and Jennifer Glasser, Latham & Watkins, New York

Arbitration Vol. 77 No. 4 November 2011 the journal of the Chartered Institute of Arbitrators contains the following articles:

The influence of the delocalisation and seat theories upon judicial attitudes towards international commercial arbitration by Masood Ahmed, Birmingham City University

Scott v Avery clauses: o'er judges fingers who straight dream on fees by Andrew Tweeddale, Corbett & Co and Keren Tweeddale, South Bank University

International arbitration in London: a view from outside by Kaj Hobér, Mannheimer Swartling, Stockholm

The rise, fall and rise of international arbitration: a view from 2030 by Lucy Greenwood, Fulbright & Jaworski, Houston

Enforcement of a foreign award under Ghana's new Alternative Dispute Resolution Act 2010 by Funmi Iyayi, Accra

Practice Guideline 16: the interviewing of prospective arbitrators by the Practice and Standards Committee of the CI Arb

The enforcement of adjudicators' awards under the HGCR Act 1996 by Kenneth Salmon, Weightmans, Manchester

The return of normality: the UK Supreme Court decides Jivraj by Hew Dundas, Centro International de Arbitraje e Mediacion, Quito

Sword of US class arbitration beaten to ploughshares by Stephen Caplow, Davis Wright Tremain, Seattle

Expert witness immunity swept away by Michael O'Reilly

Two connected contracts, one with an arbitration clause, one without by Patrick Taylor

The Journal of International Arbitration Vol. 28 No. 5 October 2011 contains the following articles:

Shifting the burden of proof in the practice of the Iran-United States Claims Tribunal by Ali Marossi

Harmonization and delocalization of international commercial...

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