Case Law Update - October 2011

ADJUDICATION

Costs of adjudication in Scotland

Profile Projects Ltd v Elmwood (Glasgow) Ltd [2011] BLM Vol. 28 No. 6 (Court of Session Outer House)

The Scottish courts have taken a different approach from the English decision of Yuanda v WW Gear (Gideon Scott Holland) in holding that a Tolent-style clause would have to do more than act as a 'discouragement' or 'disincentive' to adjudication by pre-allocating costs to the referring party, in order to be non-compliant with the HGCR Act. It would actually have to 'disable' a party from reference. Lord Menzies also took the view that non-compliance did not bring in the entire Scheme for Construction Contracts, just the provisions necessary to put right the non-compliance.

See now s.141 of Local Democracy Economic Development and Construction Act 2009 which inserts new provisions (s.108A) into the legislation regarding pre-allocation of costs.

Construction Newsletter July/August 2011 contains the following article:

Change is coming by Chris Hoar, Foot Anstey (on the LDEDC Act).

See Lanes Group v Galliford Try under Keating Chambers Reported Cases on ability of party to discontinue reference and re-commence with a different adjudicator.

Waiver of jurisdiction and writing

Durham County Council v Jeremy Kendall [2011] BLR 425 TCC The result of the case turned on the finding that there was a single binding contract evidenced in writing for the purposes of s.107 HGCR Act, rather than three separate agreements as the defendant argued.

See now, applying to contracts after 1 October, s.139 LDEDC Act 2009. which repeals s.107 on the requirements for writing.

There is also obiter discussion of waiver of jurisdictional objections, focusing on the distinction between 'specific' and 'general' reservations and particularly CPS Marine v Ringway. (Samuel Townend and Justin Mort).

ARBITRATION AND DISPUTE RESOLUTION

Global Arbitration Review 2011 Vol. 6 Issue 3 contains the following articles:

The 'chilling effect' of Jivraj by Alison Ross and David Elward.

The rebirth of arbitration in central and eastern Europe by Matthew Hodgson, Allen & Overy.

ICCA at 50 by Alison Ross (on the International Committee for Commercial Arbitration).

Dallah v Pakistan: vive la difference by Patrick Heneghan and Jonathan Egerton-Peters Skadden Arps Slate Meagher & Flom.

Arbitration, Sharia and the modern Middle East by Paul Turner and Robert Karrar-Lewsley, Al Tamimi & Co, Dubai.

Journal of International Arbitration Vol. 28 No. 4 August 2011 contains the following articles:

Language truth and arbitral accuracy by Nicolas Ulmer, Budin et Associés, Geneva.

Who is afraid of Nottebohm? – reconciling the ICSID nationality requirement for natural persons with Nottebohm's 'Effective Nationality' test? by Cornel Marian, Stockholm Arbitration and Litigation Centre.

Using an event study methodology to compute damages in international arbitration cases by Rosa Abrantes-Metz, AFE Consulting, and Santiago Dellepiane, Compass Lexecon, New York.

Prospects of foreign arbitration institutions administering arbitration in China by Fan Kun, Chinese University of Hong Kong.

Confidentially speaking: commercial arbitration in Canada's Open Courts by Nicholas Pengelley.

The new French Law on International Arbitration by Beatrice Tastellane, Paris Bar.

Clues to construing the new French Arbitration Law – an ICC perspective on procedural efficiency, good faith and independence by Nadia Darwazeh, ICC, and Baptiste Rigaudeau.

Witness preparation: memory and story telling by Jennifer Kirby, Paris.

Dallah: conflicting judgments from the UK Supreme Court and the Paris Court d'Appel by Jacob Grierson, Jones Day, Paris and Mireille Taok, Reed Smith, Paris.

The International Construction Law Review Vol. 28 Part 4 October 2011 contains the following articles:

Enforcement of DAB decisions under the 1999 FIDIC Conditions of Contract: CRW Joint Operation v PT Perusahaan Gas Negara (Persero) TBK by Frederic Gillion, Fenwick Elliott.

Dispute adjudication in civil law countries – phantom or effective dispute resolution method? by Götz-Sebastian Hök, Hök Stieglmeier & Kollegen, Berlin.

Arbitration in Ghana – the Alternative Dispute Resolution Act 2010 by Kwadwo Sarkodie, Mayer Brown, London.

Mealey's International Arbitration Report contains the following...