Case Law Update - Issue 6 (2010)

ADJUDICATION

Reservation of Position on Jurisdiction

Aedifice Partnership Ltd v Ashwin Shah [2010] CILL 2905 TCC

In a dispute over professional fees which the claimant surveyors referred to adjudication, the respondent client submitted that there was no adjudication agreement and that the adjudicator had no jurisdiction. The adjudicator indicated that he thought that he had jurisdiction and the respondent asked for his reasons. In enforcement proceedings by the claimant, the respondent successfully argued that he had reserved his position on jurisdiction and that his request for reasons did not constitute an agreement that the adjudicator had the power to decide his own jurisdiction.

Apparent Bias Allegation Fails

Fileturn Ltd v Royal Garden Hotel Ltd [2010 BLM August/September [2010] CILL 2912 and [2010] 131 Con LR 118.

The defendant failed to prevent enforcement of the adjudicator's decision on the grounds of bias by the adjudicator. The allegation was based on a pre-existing relationship between him and the claimant's claim consultants, of which the adjudicator had been a director between 2001 and 2004. The court found on the evidence that the reasonably fair-minded and informed observer would not conclude that an involvement more than 5 years previously would create an apparent bias.

Nature of Adjudicator's Decision

Rok Building Ltd v Celtic Composting Systems Ltd (No. 1) [2010] 130 Con LR 61 TCC

The defendant main contractor, Celtic, 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 in the words of the Con LR Editors "roundly dismissed this contention". The court held that the adjudicator's decision was by its nature directory, not declaratory, thus requiring the defendant to make a payment, even though there had been no stated obligation to pay within a specified time.

Natural Justice and Slip Rule

Rok Building Ltd v Celtic Composting Systems Ltd ((No 2) [2010] 130 Con LR 74 TCC

In a second adjudication in the above project, Celtic tried to resist enforcement proceedings on the ground that the adjudicator had failed to hold a meeting to test the parties' evidence, allowing Rok to misrepresent the financial position, comprising a breach of natural justice. The court held that it was not seriously arguable that it was a breach of natural justice not to hold a meeting. Neither was the adjudicator wrong in refusing to use the slip rule to correct alleged 'manifest errors'.

See Cleveland Bridge v Whessoe-Volker Stevin under Keating Chambers Reported Cases on the interpretation of the s.105(2)(c) exception to the HGCR Act adjudication provisions and refusal of enforcement of whole decision where exception partly applied.

Adjudicator's Finding on Jurisdiction Not Binding

Pilon Ltd v Breyer Group plc [2010] BLR 452 and [2010] 130 Con LR 90 TCC.

The adjudicator held that he had no jurisdiction to hear a set-off defence which derived from batches 1-25 of the project when the dispute referred to arbitration referred to batches 26-62. He therefore did not consider it. The judge, dismissing Pilon's application for summary judgment, held that the parties had not made an express or implied agreement to be bound by the adjudicator's ruling on his own jurisdiction. The adjudicator had breached the rules of natural justice by failing to consider a defence submitted and his decision would not be enforced.

See Yuanda (UK) v WW Gear under Keating Chambers Reported Cases on disapproval of Tolent clauses under s108 HGCR Act.

See William Hare v Shepherd Construction under Keating Chambers Reported Cases on the insolvency exception to the pay when paid provisions of the HGCR Act.

ARBITRATION AND DISPUTE RESOLUTION

Global Arbitration Review 2010 Vol. 5 Issue 4 contains the articles:

South Africa – is it time? by Alison Ross

Russia – you have an award, but now what? by Victor Dumler, Egorov Puginsky Afanasiev, St. Petersburg

Journal of International Arbitration August 2010 Vol. 27 No. 4 contains the articles:

Pre-arbitral Urgent Relief: the new SCC Emergency Arbitrator Rules by Patricia Shaughnessy

Too many forums for investment disputes? ICSID illustrations of parallel proceedings and analysis by Jamie Shookman

Is this a Great Leap Forward? A Comparative Review of the Investor-State Arbitration Clause in the ASEAN-China Investment Treaty: from BIT jurisprudential and practical perspectives by Wei Shin, City University of Hong Kong

Challenge to arbitrators: where a counsel and an arbitrator share the same office – the Italian perspective by Pietro Ferrario

Learned lawyers attest: it is advantageous to be right in (an Austrian) court? by Barbara Helene Steindl, Brauneis Klauser Prändl, Vienna

Arbitration Law Monthly Vol. 10 No. 8 September 2010 contains the following:

Anti-suit injunctions: Conditions for grant on Midgulf International v Groupe Chimique

Contractual time limits: extension of time on SOS Corporacion Alimentaria v Inerco...