Case Law Update - February 2012

ADJUDICATION More than one dispute? Witney Town Council v Beam Construction (Cheltenham) Ltd [2011] BLR 709 TCC

The Council, as employer, sought to resist enforcement of the adjudicator's decision on the ground that Beam, the contractor, had referred four 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 on retention, so that the adjudicator lacked jurisdiction on the last. 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. Fastrack Contractors v Morrison (Simon Hargreaves QC) was applied. See Jerram Falkus v Fenice Investments under Keating Chambers Reported Cases on time limit for challenge of adjudicator's decision.

Natural justice as a defence to enforcement and stay NAP Anglia Ltd v Sun-Land Development Co Ltd [2012] BLM Vol. 29 No. 1 TCC

The court rejected criticisms by the defendant of the adjudicator's timetable, which gave the claimant first and last word and more time than the defendant received and also rejected complaints that the adjudicator had not understood or had not had regard to some of the defendant's arguments. There is not necessarily a breach of natural justice in failure to address particular aspects of a case or evidence, although failure to consider a substantive defence could be different. The court would not grant a full stay on the facts on grounds of the claimant's financial status, but reduced the amount payable immediately by one third for this reason.

See Lanes Group v Galliford Try under Keating Chambers Reported Cases on jurisdiction of adjudicator on lapse and apparent bias.

See Sprunt v London Borough of Camden under Keating Chambers Reported Cases on agreement in writing under s.107 and adjudicator nominating body.

See Partner Projects v Corinthian Nominees under Keating Chambers Reported Cases on adjudicator's powers to award interest and financial status of defendant as ground for resisting summary enforcement.

ARBITRATION AND DISPUTE RESOLUTION 2012 ICC Rules in force 1st January 2012 was the date for the new ICC Rules of Arbitration to come into effect. They apply to arbitrations commenced on or after that date, subject to express contrary agreement by the parties.

The 2012 Rules replace the 1998 Rules.

They contain important new provisions to encourage the tribunal and the parties to proceed in a cost-effective and efficient manner, both by emphasising their obligations in this respect and by providing for case management conferences. Failures in this regard can be the subject of cost sanctions. Arbitrators' obligations are impartiality and independence, rather than just the latter.

There are a number of other significant changes, notably relating to multiple parties, joinder and consolidation of arbitrations and to emergency arbitrator appointments.

Global Arbitration Review European and Middle Eastern Arbitration Review Special Issue 2012 contains the following articles:

Lost in translation? The independence of experts under the 2010 IBA Rules by James Barratt, O'Melveny and Myers

Calculating pre-judgment interest by James Nicholson, Noel Matthews and Alexandre Riviére, FTI Consulting

If all else fails: putting post-award remedies in perspective by Jean-Pierre Harb, Edward Poulton and Matthias Wittinghofer, Baker & McKenzie

Recent developments in the jurisprudence of investment arbitration tribunals by Charles Claypoole, Latham & Watkins

Sports arbitration by Antonio Rigozzi and William McAuliffe, Lévy Kaufman

The remainder of the special issue is devoted to country updates:

Austria by...