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.
Settlement not a construction contract
Melville Dundas Ltd v Hotel Corporation of Edinburgh Ltd  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  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
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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