UK: Case Law Update 2012 - Issue 4

ADJUDICATION

See Lanes v Galliford Try under Keating Chambers Reported Cases on apparent bias and jurisdiction of adjudicator.

See Herbosh-Kiere Marine Contractors v Dover Harbour Board under Keating Chambers Reported Cases on adjudicator exceeding jurisdiction by utilising method of assessment which was not part of dispute referred.

ARBITRATION AND DISPUTE RESOLUTION

Arbitration Law Monthly Vol. 12 No. 3 April 2012

contains the following articles:

Enforcement of awards
on Mobile Telesystems Finance v Nomihold Securities
(freezing orders)

Stay of proceedings
on Deutsche Bank v Tong Kah Harbour
(scope of reference to arbitration)

Removal of arbitrator
on A v B
(removal of QC for 'unconscious bias')

Public policy
on AJT v AJU in the Singapore CA
(refusal to recognise award)

Evidence in the arbitration
on A Lloyd's Syndicate v X
(confidential or privileged information)

Arbitration Law Monthly Vol. 12 No. 4 April 2012

contains the following articles:

Permission to appeal for error of law
on Navios International v Sangamon Transportation
(seeking additional reasons for award)

Arbitration awards
by Edward Yang, Reed Smith, Richards Butler, Hong Kong
on Re Petro China International (Hong Kong) Corp
(issue of supplementary awards)

Serious irregularity
on Soeximex v Agrocorp International
(failure to consider all the issues)

Construction of award: serious irregularity and error of law
on AK Kablo Imalat San v Intamex
(presumption that arbitrator has acted correctly)

Enforcement of arbitration awards
on African Fertilisers and Chemicals v BD Shipsnaro
(jurisdiction to issue declaratory award)

CIETA Rules 2012
Great changes by Anthony Connerty, Lamb Chambers
New Law Journal 4 May 2012, p.622

This is an outline of the significant changes made by the 2012 revision of the Arbitration Rules of the China International Economic and Trade Arbitration Committee (CIETAC). The revisions considered relate to place of arbitration language, applicable law, consolidation, conservatory and interim measures and combination of conciliation with arbitration.

International Arbitration Report (Mealey's) January 2012 Vol. 27 Issue 1

contains the following articles:

Set aside application based on arbitrator partiality
by Calvin Hamilton and Alina Bondarenko, Hamilton, Madrid

Enforcement of an award rendered following Arb-Med proceedings
by Zhuang-Hui Wu, King & Spalding

Selecting ICC arbitrators: What's new under the revised Rules?
by Axel Benjamin Herzberg, Baker & McKenzie, Berlin

ICC Bulletin 2011 Vol. 22 No. 1

contains the following articles:

2010 statistical report
providing detailed statistics or the use and operation of ICC's dispute resolution services in 2010

Assessment of damages for repudiatory breach of a charter party – latest developments in English law
by Jonathan Lux and Reema Shour, Ince & Co

Maritime arbitration under the ICC Rules of Arbitration
by Oliver Cachard, University of Nancy

International Arbitration Report (Mealey's) February 2012 Vol. 27 Issue 2

contains the following articles:

Remedy of appeal: lower courts' decisions to deny award enforcement overturned
by Calvin Hamilton and Gabriela Torres, Hamilton, Madrid

CompuCredit: Pro-arbitration policy continued

by Ekaterina Apostolova, Cleary Gottlieb and Benjamin Jones, O'Melveny & Myers

The Bribery Act 2010: adequate procedures
by Philipp Kurek, Kirkland & Ellis, London

The Swedish appeal process of court judgments related to arbitration: five basic facts that every foreign lawyer should know
by Bertil Hübinette and Cornel Marian, SALC, Stockholm

Enforcing declaratory awards as a judgment of the English courts: an effective weapon if fighting in multiple jurisdictions?
by Andy Smith and Cameron Forsaith, Eversheds, London

International Arbitration Report (Mealey's) March 2012 Vol. 27 Issue 3

contains the following articles:

Spanish courts and Regulation 44/2001 (Brussels 1)
by Calvin Hamilton and Gabriela Torres, Hamilton, Madrid

Vienna perspective – 2012
by Christian Dorda and Veit Öhlberger, Dorda Brugger Jordis, Vienna

Singapore's International Arbitration Act 2012 v Hong Kong's Arbitration Ordinance 2011
by Darius Chan, Wilmer Cutler Pickering Hale & Dorr, London

CONSTRUCTION AND ENGINEERING CONTRACT DISPUTES LAW

International Construction Law
Review Vol 29 Part 2 April 2012

contains the following articles:

A limited review of published Chinese court cases on construction contracts
by Rico Chan, Baker & McKenzie, Hong Kong

A comparative review of international construction industry payment legislation and observations from the Australian experience
by Jeremy Coggins, University of Adelaide and Steve Donohoe, University of Plymouth.

Construction Law Vol. 23 Issue 3 April 2012

contains the following articles:

Adjudicators' decisions and natural justice
by Gurbinder Grewal, SNR Denton

(focuses on Herbosh-Kiere Marine v Dover Harbour Board)(Sam Townend and Jessica Stephens)and Lanes Group v Galliford Try (John Marrin QC)

Progress cannot be implied
by Ruth Van Dreumel and Andrew Outram, Wragge & Co focus on Leander Construction v Mulalley (Sam Townend and Jessica Stephens)

Pay attention to pay less notices
by Kim Teichmann, Thomas Eggar

Misrepresentation minefield
by Paul Morgan and Tristan Thompson, Clyde & Co

CONTRACT AND PROCUREMENT LAW

See Leander Construction v Mulalley under Keating Chambers Reported Cases on alleged implied term as to regular and diligent progress.

Construction Newsletter January/ February 2012

contains the following articles:

Modernising the public procurement rules
by Richard Pike, Stephenson Harwood

Insurance in construction contracts
by Catherine Davis, Foot Anstey

International Construction Law Review Vol 29 Parr 2 April 2012

contains the following articles:

FIDIC Subcontract, First Edition
by Emma Kratochvilova and Michael Mendeblat, Herbert Smith

Employer's Requirements in Design-Build Contracts under FIDIC – A Comparative Study
by Götz-Sebastian Hök. Kanzle; Dr Hök. Stieglmeier, Berlin

Exclusion of consequential damages: write what you mean
by Gregory Odry, IPR-GDF Suez

Procurement regulation and the Uniplex effect
by Dee Davenport, University of Central Lancashire

Construction Law Vol. 23 Issue 3 April 2012

contains the following articles:

User-centred contracts needed
by Michael Phipps, Thurston Consultants (on the JCT with Quantities 2011 edition.)

NEC3 and Option X12
by Vijay Bange, Trowers & Hamlins
(on partnering under NEC3)

Market practice reflected in new insurance clauses
by John Wright, JD Risk Associates

GENERAL AND PROFESSIONAL NEGLIGENCE

See Shepherd Construction v Pinsent Masons under Keating Chambers Reported Cases on alleged liability of LLP for advice given by former partnership and alleged implied obligation to review previous advice by partnership.

PRACTICE AND PROCEDURE

The Commercial Litigation Journal March/April 2012 No. 42

contains the following articles:

Privilege: Prudential and privilege: a re-match
by Julian Copeman and Heather Gething, Herbert Smith

Experts: Manchester 'hot-tubbing' pilot: evidence so far
by Dame Hazel Genn, University College, London

Intellectual property: spicy, fruity but not confidential
by Austin Flynn and Paul Flynn, Morton Fraser

Norwich Pharmacal orders: converting a try
by Louise Millington-Roberts, Kerman & Co
(on RFU v Viagogo – action against ticket touts)

Pass the soap
by Peter McHugh, Challinors
(on hot-tubbing)

Parties behaving badly
by Luke Pearce, 20 Essex Street
(on Star Reefers v JFC: anti-suit injunctions and vexatious conduct)

Who paid the ferryman? Damned if you do, damned if you might have done
by Mark Surguy, Eversheds
(on Germany v Flatman: non-party costs orders)

Pitch perfect
by Michael Morton, Edwin Coe on CPR Part 36

Silence is golden
by Claire Stewart, Pannone
(on Jones v Kernott: constructive trusts of property)

Lloyds Maritime and Commercial Law Quarterly Part 1, February 2012

contains the following articles:

Unjust enrichment in Australia: high dives into shallow pools
by Brian Mason, Mallesons Stephen Jaques, Melbourne

Interpreting commercial contracts: a case of ambiguity
by Paul Davies, Gonville & Caius College, Cambridge

How the courts develop commercial law by looking outside the trial record into the external world
by The Hon. Justice JD Heydon, High Court of Australia

Termination as a response to unjust enrichment
by Christopher Langley and Rebecca Loveridge

Contractual remoteness, 'scope of duty' and intention
by Mark Stiggelbout

Litigation Letter Vol. 31 No. 3 March 2012

contains the following articles:

Docketing: completing case management's unfinished revolution
comprises extracts from Lord Neuberger's address to the IBC Solicitors' Costs Conference

Small claims but not fast track increase
on the Government's publication of its response to the consultation exercise 'Solving disputes in the County Courts'

Fees in the High Court and Court of Appeal, Civil Division
on the response of the Civil Justice Council to the Ministry of Justice Consultation on court fees.

Costs of claims consultants

Nap Anglia v Sun-land Development [2012] EWHC 51 (TCC)

The defendant failed in its contention that costs incurred by claims consultants (Henry Cooper) were irrecoverable as a matter of principle. The court held that sums paid to a third party to advance or assist with claim or defence are recoverable, provided it is not work that only a solicitor can do. This is so even if the work is done by non-practising barristers or solicitors. The reasonableness of the necessity and amount of the sums can be assessed by the court.

Quia timet injunction

Islington London Borough Council v Elliott [2012] EWCA Civ. 56

The Court of Appeal held that the trial judge ought not to have granted a quia timet injunction against the local authority on the grounds that the roots of its tree might become a nuisance unless action was taken. The Council's commitment to carry out the necessary work was a complete answer to the claim for an injunction.

KEATING CHAMBERS REPORTED CASES

Herbosh-Kiere Marine Contractors Ltd v Dover Harbour Board [2012] BLR 177 Technology and Construction Court

Enforcement of the adjudicator's decision was refused because the adjudicator had exceeded his jurisdiction by finding and addressing a method of assessment which formed no part of the dispute referred to him. The dispute between the employer, the Board, and the specialist marine contractor, HKM, concerned the removal of a wreck from the entrance to Dover Harbour. The adjudication was conducted under the ICE Rules.
Samuel Townend
Jessica Stephens

Shepherd Construction Ltd v Pinsent Masons LLP [2012] BLR 213 Technology and Construction Court

Pinsent Masons LLP was held not to be liable for legal advice given by members of the dissolved partnership of Masons, nor was the LLP under an implied obligation to review legal advice given by the former partnership. Parts of the draft Particulars of Claim were accordingly struck out and permission to amend in these respects refused, on the basis of having no realistic prospect of success.
Paul Darling QC
Simon Hughes QC

Lanes Group v Galliford Try [2012] BLR 121 Court of Appeal

Galliford successfully appealed against the first instance finding of apparent bias against the adjudicator, the court using the same test for bias in adjudicators as for judges applying AMEC Capital Projects v White Friars (Stephen Furst QC and Jane Lemon and David Thomas QC) Lanes' appeals against the finding that the adjudicator had jurisdiction were unsuccessful.
John Marrin QC

Leander Construction Ltd v Mulalley and Co. Ltd [2012] BLR 152 Technology and Construction Court

Contractor Mulalley failed to demonstrate the need for the implication of a term as to regular and diligent progress as a matter of business efficacy. The withholding notices served on sub-contractor Leander were based on alleged failure to comply with the activity schedule.
Richard Coplin

The articles and papers published by Keating Chambers are for the purpose of raising general awareness of issues and stimulating discussion. The contents must not be relied upon or applied in any given situation. There is no substitute for taking appropriate professional advice.

This material is prepared for Chambers by our Director of Research and Professional Development, Professor Anthony Lavers (LL.B. M.Phil Ph.D. D.Litt MCI.Arb FRICS Barrister) Visiting Professor of Law, Oxford Brookes University.

For further information on how our members can assist you, please contact:

Nick M Child
Senior Clerk
nchild@keatingchambers.com
DDI: +44 (0)20 7544 2619
Reception:
Tel: +44 (0)20 7544 2600
Fax: +44 (0)20 7544 2700

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