Construction, Property & Real Estate (Case Law Review, Issue 2 – February 2007)

We are pleased to announce that Miss Krista Lee has joined Keating Chambers in February 2007. Miss Lee was called to the Bar in 1996 and she specialises in construction, company, insolvency law and other commercial litigation.

ADJUDICATION

Settlement not a construction contract

Melville Dundas Ltd v Hotel Corporation of Edinburgh Ltd [2006] BLR 474 Court of Session Outer House

A settlement agreement was reached by which the value of the final account was agreed with the retention adjusted and a list of defects to be remedied by the contractor. The Outer House held that this was not a construction contract for the purposes of s.111 of the HGCR Act.

The case also includes important discussion of the extent to which rights of set-off can be excluded by express provision and whether they can be excluded by implication.

Agreement in writing in deed

Lead Technical Services Ltd v CMS Medical Ltd [2007] All ER (D) 270 CA

The Court of Appeal allowed the defendant client's appeal against summary judgment enforcing an adjudicator's decision in favour of the claimant engineers. The judge had agreed with the adjudicator in finding a deed entered into between the parties as fatally flawed, but the CA held that there was a real prospect of proving that the parties' agreement was contained within the deed for s.107 purposes and so summary judgment should not have been granted.

See Quietfield v Vascroft under Keating Chambers Reported Cases on failure to consider new evidence in subsequent adjudication.

See McConnell Dowell Constructors (Aust) v National Grid Gas Plc under Keating Chambers Reported Cases on adjudicator's jurisdiction over supplemental agreement.

See Nageh v Richard Giddings under Keating Chambers Reported Cases on claims to be unaware of adjudication proceedings as a ground for resisting enforcement.

See Epping Electrical v Briggs & Forrester under Keating Chambers Reported Cases on effect of adjudication time-limits which are non-HGCR Act compliant.

See HG Construction v Ashwell Homes under Keating Chambers Reported Cases on the binding effect of an earlier adjudication on a dispute referred to a subsequent adjudication.

See Multiplex Constructions v Mott MacDonald under Keating Chambers Reported Cases on an adjudicator's entitlement to determine the meaning of "pertinent records".

See Aveat Heating & Jerram Falkus Construction under Keating Chambers Reported Cases on implication of scheme provisions where contract time-limits were non-HGCR Act compliant.

See Cubbitt Building & Interiors v Fleetglade under Keating Chambers Reported Cases on deadline for issue of adjudicator's decision.

ARBITRATION AND DISPUTE RESOLUTION

International Arbitration Law Review Vol. 9 Issue 6 December 2006 contains the following articles:

'Necessity knows no law!': LG&E v Argentina

by David Foster, Watson Farley & Williams, London

Impartiality of arbitrators: English and Irish law contrasted

by Gearid Carey, Matheson Ormsby Prentice, Dublin and Norah Gallagher, Herbert Smith, London

China: The Supreme People's Court's new interpretation on the application of PRC arbitration law

by Lillian Lian and Stewart Shackleton

Reconciling the public interest: third-party participation, confidentiality and privacy in NAFTA Chapter II arbitrations

by Asha Kaushal, Appleton & Associates, Toronto

The China-style 'Commission-oriented' competence on arbitral jurisdiction: analysis of Chinese adaptation into globalisation

by Weixia Gu and Xianchu Zhang, University of Hong Kong

Arbitration International 2006 Vol. 22 No. 4 contains the following articles:

The proliferation of disputes, dispute settlement procedures and respect for the rule of law

by Judge Thomas Buergenthal, International Court of Justice

Evidentiary privileges: best practice standards versus/and arbitral discretion

by Klaus Peter Berger, University of Cologne

Defining investment and investor: who is entitled to claim?

by Barton Legum, Debevoise Plimpton, Paris

International investment treaty protection of NGOs

by Nick Gallus, Appleton and Luke Peterson

Drawing adverse inferences from the non-production of evidence

by Jeremy Sharpe, White & Case, Washington DC

The Spanish application of the UNCITRAL Model Law on International Commercial Arbitration

by David Cairns, B Cremades y Asociados, Madrid

Dealing with Pandora: the concept of 'merits' in international commercial arbitration

by Veijo Heiskanen, Lalive, Geneva

Limitation periods for the enforcement of arbitral awards in Nigeria

by Adebayo Adaralegbe, Babalakin & Co, Nigeria

Global Arbitration Review Vol. 1 Issue 6 December 2006 contains the following articles:

Stockholm comes in from the cold

(on the Stockholm Chamber of Commerce Arbitration Institute)

Sweden's arbitration powers:

The SCC's new rules

by Kaj Hober and William McKenzie, Mannheimer Swartling

Partiality and issue conflicts

by Matt Gearing and Anthony Sinclair, Allen & Overy

Challenges: theirs is to reason why

By Lord Hacking, Littleton Chambers (on reasons for challenges to arbitral appointments)

Indian arbitration at a crossroads

by Aloke Ray and Dipen Sabharwal, White & Case

Investment rights in Southeast Asia: ASEAN arbitration

by Barry Garfinkel and Timothy Nelson, Skadden Arps, New York

Finance agreements: a practical approach to options to arbitrate

by Philip Clifford and Oliver Browne, Latham & Watkins, London

International Construction Law Review Vol. 24 Part 1 January 2007 contains the following articles:

Appealing arbitrators' decisions - the Nema guidelines revisited

by Henry Suen and Sai On Cheung, City University, Hong Kong

The rise and rise of 'time-bar' clauses: the 'real issue' for construction arbitrators

by Hamish Lal, Dundas & Wilson, London

Arbitration Law Monthly Vol. 7 No. 2 February 2007 contains the following articles:

Appeals against arbitration awards on Bulk Trading v Moeller (costs of the appeal).

Appeal on point of law on CGU International Insurance v AstraZeneca Insurance (permission to appeal to the Court of Appeal).

Serious irregularity on ASM Shipping of India v TTMI of England (a permission to appeal to the Court of Appeal).

Adjudication Jurisdiction: writing and timing on Hart Investments v Fidler (requirement of writing under HGCR Act).

Arbitration Vol. 73 No. 1 February 2007

Note that this journal, the official publication of the Chartered Institute of Arbitrators has been given a new (significant) sub-title:

The International Journal of Arbitration, Mediation and Dispute Management

Articles (special Mediation Issue):

Mediation and its future prospects

by Sir Brian Neill

From private mediation to public engagement

by Andrew Acland

Commercial mediation: the impact of the courts

by David Cornes

The role of the mediation advocate: a user's guide to mediation

by Craig Pollack, SJ Berwin

Judges as mediators: retaining neutrality and avoiding the trap of social engineering

by Steven Certilman

The role of arbitrators and arbitration institutions in the use of alternatives for the settlement of disputes

by Philip Naughton QC, 3 Serjeant's Inn

Evaluative mediation

By David Richbell

The 'Everywhen Mediator': the virtues of inconsistency and paradox: the strengths, skills, attributes and behaviour of excellent and effective mediators

by Amanda Bucklow

The pursuit of harmony: the art of mediating, the art of singing

by Mercedes Tarrazon

From mediation to settlement and from settlement to final offer arbitration: an analysis of transnational business dispute mediation

by Mordehai Mironi, University of Haifa

The European Directive scuppered

by Michel Kallipetis QC

An Australian perspective on some topical issues in mediation

by Alan Limbury

Overview of ADR in Nigeria

by Paul Obo Idornigie, Nigerian Law School

Reflections on commercial mediation in Scotland

by John Sturrock

Some insights into mediation in Central and Eastern Europe

by Bill Marsh

A note on ADR in Colombia

by Philip Naughton QC, 3 Serjeant's Inn

ADR possibilities in investor-state disputes

by Harris Bor, Brick Court Chambers

The myth of modern mediation

by Derek Roebuck, University of London

The Turkish peacemaker

by Sarah Rainsford, BBC

Journal of International Arbitration Vol. 24 No. 1 February 2007 contains the following articles:

Reflections on transnational public policy

by Michael Pryles...

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