Case Law Review - Construction, Property & Real Estate (November 2008)

ADJUDICATION

Alleged bias in nomination

Makers UK Ltd v Camden London Borough Council [2008]

BLR 470 TCC

Already reported in CILL, Camden sought to challenge the

adjudicator's decision on the ground that he had been

improperly appointed by RIBA. Makers had contacted RIBA to request

the appointment of the adjudicator actually appointed. The court

rejected the existence of an implied term that neither party should

seek to influence the appointment, since the nominating body was

under no obligation to accede to the representations. There was no

appearance of bias in appointing an adjudicator previously

requested by one of the parties.

Construction Contracts Bill

Construction Act Review by Peter Sheridan and Dominic

Helps Construction Law Journal 2008 Vol. 24 No. 7 p. 572

The regular column from Shadbolt & Co. provides an

overview of the proposals contained in the draft legislation the

purpose of which is to reform the HGCR Act. The principal reforms

covered in the commentary are the repeat of the s.107 requirement

that the Construction Contract must be in writing to be covered,

provision in contracts for adjudication costs, the

adjudicator's fees and expenses, pay when certified provisions,

stage payments and payment notices and withholding notices.

Extension of time for service of response

CJP Builders Ltd v William Verry Ltd [2008]

TCLR 10 TCC

Already reported in CILL, contractors Verry engaged

subcontractors CJP under a DOM/2 sub-contract. CJP referred a

withholding notice dispute to adjudication. Verry requested an

extension of time beyond the seven days in the DOM Conditions and

was over five hours beyond the extended deadline in serving its

response. The adjudicator held that he could not consider the

response and found in favour of CJP. In an action for enforcement,

the court held that the adjudicator had the power to set the

timetable and that his failure to consider the response was a

breach of natural justice.

See VGC Construction v Jackson Civil

Engineering under Keating Chambers Reported Cases on

attempt to resist enforcement of adjudicator's decision on

grounds that claim was nebulous and ill-defined or had been

withdrawn.

Extension of time for service of response

CJP Builders Ltd v William Verry Ltd [2008] BLR

545 TCC

Already reported in CILL, contractors Verry engaged subcontractors

CJP on a DOM/2 sub-contract. CJP referred a withholding notice

dispute to adjudication. Verry requested an extension of time

beyond the seven days in the DOM conditions and was over five hours

beyond the extended deadline in serving its response. The

adjudicator held that he could not consider the response and found

in favour of CJP. In an action for enforcement, the court held that

the adjudicator had the power to set the timetable and that his

failure to consider the response was a breach of natural

justice.

ARBITRATION AND DISPUTE RESOLUTION

See The Coal Authority v Davidson

under Keating Chambers Reported Cases on challenge to arbitration

award on compensation under Coal Mining Subsidence Act.

Arbitration clause unfair

Mylcrist Builders Ltd v Buck [2008] CILL 2624

TCC

The builder's standard terms of contract contained an

arbitration clause and they proposed to refer a payment dispute to

arbitration. The client, an individual owner-occupier, succeeded in

her argument (appearing in person) that the clause was unfair

pursuant to the Unfair Terms in Consumer Contracts Regulations

1999. The builders failed in their argument that they had achieved

a valid appointment of an arbitrator under s.17 Arbitration Act

when the other party refused to appoint; this was held only to

apply to parties each appointing an arbitrator and not to a sole

arbitrator.

Construction Law Vol. 19 Issue 9 November 2008

contains the following articles:

Arbitration (Scotland) Bill – myth or

reality?

by Lindy Patterson, Dundas & Wilson

Judges as mediators

by John Sheils, Shadbolt & Co

Arbitration Law Monthly Vol. 8 No. 10 November

2008 contains the following articles:

Seat of the arbitration

on Braes of Doune Wind Farm (Scotland) v

Alfred McAlpine Business Services (identification of

seat).

Separability

on Entico Corporation v UNESCO (on

existence of arbitration agreement)

Supporting foreign arbitrations

on Mobil Cerro Negro v Petroleos de

Venezuela

(interim relief in favour of foreign proceedings)

Appeal on point of law

on Royal & Sun Alliance Insurance v BAE

Systems

(s.69 challenge)

Journal of International Arbitration Vol. 25 No. 5

2008 contains the following articles:

Party autonomy in international commercial arbitration:

popular fallacy or proven fact?

by Mia Louise Livingstone, Baker & McKenzie,

Melbourne

Party autonomy in Mainland Chinese international

arbitration

by Graeme Johnston, Herbert Smith, Shanghai

State responsibility and investment arbitration

by Kaj Hobér, Mannheimer Swartling, Stockholm

Arbitration in equity and amiable composition under

Portuguese law

by Antonio Sampaio Caramelo, Morais Leitao

Section 37h of the German Securities Trading Act and its

non-compliance with European law

by Roman Jordans, CMS Hasche Sigle, Cologne

The need for speed in international arbitration

by Klaus Peter Berger, University of Cologne

Finality over choice

by Timothy Tyler and Archis Parasharami, Mayer Brown

A Pro Domo pleading of in-house Counsel and their

necessary participation in international commercial

arbitration

by Jean-Claude Najar

Recent arbitration-related developments in the UAE

by Roza Mohtashami

International Arbitration Law Review 2008 Vol.11 Issue

5 contains the following articles:

50th Anniversary of the New York Convention:

any progress in recognition and enforcement of foreign arbitral

awards in Ukraine?

by Tetiana Bersheda Vucurovic, Levy Kaufmann-Kholer,

Geneva

Complex dispute resolution clauses: has the desire to

control the dispute process led to increased uncertainty?

by Catherine Bellsham-Revell, Olswang, London

Confidentiality and public access in arbitration

– the Norwegian approach

by Ola Nisja, Attorney-General: Office, Oslo

Disclosure and confidentiality

Emmott v Michael Wilson & Partners Ltd

[2008] BLR 515 CA

This is not a construction case; it concerns a dispute between a

British Virgin Islands law firm and a former employee accused of

poaching its business, which was legal advice in Kazakhstan. The

importance of the case is the extensive discussion by the court of

the principles of confidentiality and privacy in arbitration,

arising when the firm undertook litigation in BVI and other

jurisdictions as well as London arbitration. The issue was whether

documents in the arbitration proceedings should have been made

available to the foreign courts, (and whether the appeal was

academic given that they already had been). The CA considered the

implied obligation of privacy in arbitration and the exception

based on public interest, which was applicable here, since

otherwise the foreign courts might be misled.

CONTRACT AND PROCUREMENT LAW

Challenges to framework agreement and contract awards

Construction Industry Law Letter October 2008

2630-2632

CILL featured short notes of three procurement cases

recently decided by the Northern Ireland High Court.

Henry Brothers (Magherafelt) Ltd v Dept for

Education for Northern Ireland

McLaughlin & Harvey Ltd v Dept of Finance and

Personnel

...