UK: 100-Day Arbitration: Is The Construction Industry Ready For It?

Last Updated: 19 May 2005

Article by Prof. John Uff CBE QC 1

Originally published in Construction Law Journal [Vol. 21 No.1 January 2005].

This article describes the background and features of a new fast-track Arbitration procedure which draws on new possibilities for dispute resolution revealed by Statutory Adjudication. Arbitration retains many advantages over alternative forms of dispute resolution and its perceived disadvantages are now more readily surmounted.

Introduction

Arbitration has been written off many times in its history, always on account of its currently perceived shortcomings, judged against the latest dispute resolution methods. In the construction industry these have included mediation, contractual Adjudication and dispute resolution boards (DRBs). With the passage of time, all such methods have been found to have both advantages and limitations. In some cases the limitations have even led parties to revert to litigation, with the benefit of various reforms of the court system. The latest dispute resolution method to impact on the construction field is Statutory Adjudication. In the five years it has been in operation, Adjudication has without doubt had a dramatic impact on the conduct of most types of dispute. Yet it too has proved to have its limitations and, unsurprisingly, parties and their advisers are again re-assessing the merits of Arbitration and its ability to overcome the problems of Adjudication. But Arbitration has also moved on and, as part of the re-assessment, consideration must be given to new fast-track procedures developed both in the fields of domestic Adjudication and International Arbitration. As a result, there is now available a 100-day procedure, recently launched by the Society of Construction Arbitrators, representing the fruits of current experience of dispute resolution. The procedure is available on the SCA website at www.arbitrators-society.org.

The Impact of Adjudication

While every dispute resolution procedure has its current following in the Construction Industry, there can be no doubt that Statutory Adjudication is the predominant procedure currently in use for domestic disputes, whether measured in terms of numbers of referrals or reported cases. There can be few in the UK Construction Industry who have not had some contact with the process, whether directly or through seeing its impact on disputes. Any other form of dispute resolution must, therefore, match itself against Statutory Adjudication in terms of its appeal to the parties. It is also significant that, whatever may be provided in the contract between the parties, the right to refer a dispute initially to Statutory Adjudication can always trump any other method of dispute resolution, even when already embarked upon2. Arbitration in any form must, therefore, be truly consensual in that, unless employed after Adjudication, the parties must effectively forego their statutory rights. This applies also to the 100-Day Arbitration procedure, which will normally need express consent as an addition to an existing Arbitration argument. The question to be addressed by prospective users is what has 100-Day Arbitration to offer that Adjudication cannot provide?

A significant drawback of Statutory Adjudication is the "one size fits all" approach. It may be that the draftsmen assumed that disputes would be tailored to fit the time limit but this has not happened. The result is that Statutory Adjudication is not suitable for all the disputes which are currently being referred, as revealed by the enforcement cases. 100-Day Arbitration can undoubtedly offer a range of advantages for the more substantial disputes which are currently being dealt with by Statutory Adjudication. The advantages are to be seen in terms of flexibility of procedure, finality of the result and a greater ability to achieve equality of treatment of the parties. Most of the technicalities to which Adjudication can become subject are readily avoidable through Arbitration and the longer time available will usually result in a decision commanding more respect and acceptance from the parties. The award will be enforceable without undue technicality. Statutory Adjudication has so far produced some dozens of significant Court decisions dealing with various aspects of enforcement. With a few exceptions (such as in the definition of contracts falling within the Statute), the jurisprudence now being created as a by-product of the Construction Act already exists in Arbitration and does not require further expensive legal proceedings to establish ground rules.

It should be remembered that Adjudication was intended to be cheap and informal. In the recently reported decision of the Court of Appeal in Pegram Shopfitters v Tally Weijl3 re-emphasis was given to the policy of the Act of "pay now, argue later". Despite this, Claimant parties continue to demand Adjudication of disputes which are anything but informal, and the proceedings often prove to be increasingly costly. Many will have experienced the inefficiencies of preparing Adjudication cases in response or in reply under very short time limits with consequences in costs. Short-form Arbitration can reasonably claim that it will not be significantly more expensive that Adjudication. In some cases at least it is likely that arbitration will prove to be cheaper

What is 100-day Arbitration?

The original proposal is to be credited to Paul Darling QC who, as current Chairman of TECBAR, can be regarded as even-handed as between different forms of non-TCC dispute resolution. The proposal for an effective short-form Arbitration procedure has subsequently been debated on various platforms4, and there have been a number of ad hoc procedures devised falling between 28-day Adjudication and conventional Arbitration. It must be remembered, however, that any decision which is intended to be enforceable, must either be binding as a matter of contract (as in the case of Adjudication) or comprise an Award. Only the latter confers the benefits available under the Arbitration Act 1996. The task of producing a standardised 100-day procedure was taken up by the Society of Construction Arbitrators as part of the CIMAR initiative. The current procedure is the product, which still adheres to the originally proposed timescale. While the number 100 does not hold the significance for Arbitrators that it holds for cricketers, it nevertheless represents a reasonable period for "short" Arbitration. It is to be contrasted on one hand to the 28 or 42-day limit for Adjudication and, on the other, to various short forms of Arbitration. These include the ICC Rules which require Awards to be delivered within six months (183 days) of the signing of the Terms of Reference and the same period of six months under various contemporary versions of the GC Works Contracts, but including the exchange of pleadings. Bearing in mind the obvious attraction of expedition, 100 days seemed not only feasible but appropriate.

There is no doubt that the impetus for proposing a viable Arbitration procedure limited to 100 days is to be credited to the introduction of Statutory 28-day Adjudication. The Construction Industry and the legal industry that it supports have learned a number of valuable lessons from the experience. First, Adjudication has established or re-established that serious disputes can be resolved in days rather than years. The ability to do so was seemingly lost to English Arbitration during the last half century, although surviving in other jurisdictions. Secondly, Adjudication has re-established the credentials of the "trade" or professional Arbitrator or Adjudicator. The use of non-legal arbitrators is a tradition largely confined to Common Law countries and one which was fast declining during the 1980s and 1990s as Arbitration procedure became more technical and the proceedings were taken over by Lawyers. While parties perhaps reasonably concluded that only a Lawyer Arbitrator could control the proceedings, this represented a great loss not only of tradition but of the ability to make proper use of the Tribunal’s own expertise. Adjudication has established that trade or professional Arbitrators can operate effectively, making full use of their expertise so as to comply with tight time limits. It is not to be forgotten that the power of the Statutory Adjudicator to use his or her initiative to ascertain the facts and the law was one of several provisions lifted from the Arbitration Act 1996 and inserted into the Scheme for Adjudication.

It is relevant that the question frequently raised in 1996 "what is Adjudication" generally received no answer. Neither Adjudication nor Arbitration has any statutory definition. It is now clear that Adjudication is not sui generis and that there is no conceptual difference between Adjudication and Arbitration other than through the particular powers and constraints to which each process is subject. It is the powers and constraints that call for comment, not the process itself.

Features of 100-Day Arbitration

Most time-limited procedures simply leave the details to the Arbitrator or Adjudicator to work out, implicitly requiring him or her also to determine what steps are to be covered within the procedure to be ordered. The 100-Day Arbitration Procedure, which owes its parentage to the CIMAR Rules, adopts a more structured approach setting out a series of steps to be followed adding up to 100 days. The arithmetic is not itself the problem. What is required is a proper apportionment of the available time and this is dealt with by a series of "not more than" directions contained in Rule 4 covering:

  • Service of outstanding pleadings, witness statements and Expert reports
  • Service of further documents relied on and Reply statements or reports
  • Service of documents requested for disclosure
  • An oral hearing not exceeding ten working days
  • Final written submissions
  • Award within 30 days of the end of the oral hearing

Rule 6 sets out a number of express powers which the Arbitrator may adopt which have been refined from various rules and procedures available elsewhere and which have been found to be useful and workable. Among these may be mentioned the calling of witnesses to give evidence together ("back-to-back") which is now commonly adopted between experts of like discipline, and can be equally effective as between opposed witnesses of fact. Rule 6(7) includes the express power to require two or more witnesses and/or experts to give their evidence together. This rule permits the use of witness "conferencing", a relatively new procedure by which, in lieu of calling witnesses separately to give their evidence, The Arbitrator examines all the witnesses together. The process has been described in a paper given by Dr Wolfgang Peter to the London Branch of the Chartered Institute of Arbitrators in September 2004. The process has the capability of greatly reducing the time taken to adduce evidence with the added advantage that rebuttal testimony is immediately available with in the hearing room. Dr Peter reported that both clients and lawyers had expressed satisfaction that the process allowed them adequate opportunity to present their cases within a much shorter time than is conventionally required.

A major departure from Adjudication is that the 100-Day Arbitration timescale does not commence until both parties (not simply the Referring party) have served a pleading. Where the Respondent to the Arbitration serves a Counterclaim, the 100-day period does not start until a defence to the Counterclaim is delivered. The purpose of adopting this approach is to establish the principle of equality of the parties, seemingly lost in Adjudication. The right to initiate proceedings with little or no warning is one of the less attractive features of Adjudication. As HH Judge Wilcox accepted in London & Amsterdam5 "mere ambush, however unattractive, does not necessarily amount to procedural unfairness". It is plainly permitted if not encouraged by the legislation. To extend the period of 28 days to 100 days would do nothing to avoid the same possibility. Indeed the likelihood that 100-Day Arbitration would be used for more substantial cases would make it more likely that Respondents would suffer the consequence of ambush. The solution adopted is to give both parties the same opportunity to present their cases initially and to apply the time limit to the subsequent proceedings. This brings the procedure more in line with the ICC Rules, where the Terms of Reference will usually be preceded by a relatively full exchange of pleadings from the parties.

The procedure deals expressly with the award of costs, which will be subject to supportive provisions of the Arbitration Act 1996. There is a perceived dichotomy of view as to whether Adjudicators should be empowered to award costs, the general rule being that no such power is to available. It will be recalled that one of the worst abuses permitted by the Construction Act is a contractual provision binding the Referring party to pay the costs in any event. It may also be recalled, although now becoming a matter of history, that during the debate on the Arbitration Bill in 1995 there was a majority against repealing what is now Section 60 of the Arbitration Act 1996, which renders invalid any agreement that a party is to pay the whole or part of the costs of the Arbitration in any event, unless made after the dispute has arisen. It follows that the parties, upon contracting into the 100-Day Procedure can agree to pay their own costs (or one party can agree to pay all the costs) but the default position remains the conventional one by which the Tribunal is empowered to award costs. Perhaps the more important point is to encourage the parties to minimise their costs or at least to observe proportionality.

Advantages in more detail

The points summarised above include finality and flexibility. There will be some cases in which finality is not of any advantage, being typically those concerning disputes about interim payments. Adjudication (whether contractual or statutory) is particularly suitable for such disputes, allowing the parties to leave over Final Account issues to be resolved at a later stage. Statutory Adjudication is, however, also regularly used for disputes where finality is of the essence. The reported enforcement cases include some dealing with issues of professional negligence and at least one dealing with an issue of termination. In all such cases it is difficult to see how the real interests of the parties will be served by a decision, often involving a substantial investment of resources by the parties, which is immediately open to rehearing. One of the material advantages of Arbitration is the knowledge that the decision will be relatively final. To this may be added the ability, under English Law, to contract either into or out of a right of appeal on issues of law, so that the parties can, in effect, choose the level of finality that they wish to give to the decision. As regards flexibility, Adjudication often leaves little choice in the procedure to be adopted. The longer period available for 100-day Arbitration will plainly give the Tribunal more scope for adopting the best procedure for the dispute. In addition, while the Arbitrator (like the Adjudicator) has no power himself to extend the period, Section 50 of the Arbitration Act 1996 empowers the Court, in an appropriate case, to extend the time, thus removing the absolute bar which an intransigent party is entitled to insist upon in Adjudication.

A further suggested advantage of Arbitration is the avoidance of technicalities. Regrettably some types of Adjudication are beset with particular jurisdictional issues concerning whether or not the "dispute" has crystallised and whether, given the nature of the dispute, a procedure complying with the demands of Natural Justice is possible. The issues are raised before the Adjudicator as a prelude to the dispute on enforcement. These principles continue to develop through case law and it may be that the final ground rules are still to emerge. It must be remembered that Adjudication issues have reached the Court of Appeal on only a handful of occasions and no issue has yet emerged suitable for the opinion of the House of Lords. The impact of the Human Rights Act 1998 remains in the wings and could ultimately play a significant part in determining what can properly be Adjudicated. The point to be made is that Arbitration has substantially overcome problems of this sort, and has already developed well-established ground rules. While jurisdictional points are not uncommon in Arbitration, they can now be dealt with under the Arbitration Act 1996 in a flexible manner, allowing the Tribunal to take decisions where appropriate. Procedural objections are necessarily more disruptive in Statutory Adjudication given the 28 or 42-day time limit by which the Adjudicator remains bound.

Among the other advantages of Arbitration already mentioned is ease of enforcement. This is dealt with expressly under Arbitration legislation with the added advantage of a considerable volume of existing case law, so that parties are not regularly forced into expensive enforcement actions. A further problem in some reported Adjudication cases has been the quality of decision-making. No doubt a major factor is the time available to the Adjudicator to reach his decision. Where parties forego rights of appeal on most grounds, they should be entitled to expect a reasonably competent decision reflecting the merits of the dispute. This is only likely to be achieved when the Tribunal has sufficient time in which to reach its decision.

Implementation of the 100-Day Procedure

The published version of the Procedure contains a simple adoption clause that may be incorporated into a contract at the initial stage or at any later stage. The procedure may be incorporated leaving Statutory Adjudication as a further option, where it applies; or alternatively the procedure may be adopted after one of the parties has already initiated Adjudication proceedings, having the effect of turning the Adjudication into an Arbitration. The adoption clause thus covers (i) a dispute arising in the future or (ii) a dispute which has already arisen, as well as (iii) a cross-claim arising out of such a dispute. Alternatively the clause may cover (iv) a dispute which has already been referred to Adjudication or (v) a cross-claim arising out of such a dispute. Implementation requires the agreement of the parties as well as the Arbitrator. The printed form itself provides for signatures and may be adopted as a freestanding Arbitration agreement.

Thus the ways in which the 100-Day Arbitration Procedure may be used are the following:

  1. The adoption of alternative (i) will operate as a severable Arbitration Agreement in relation to an identified contract in respect of future disputes. The 100-Day Procedure cuts in either at the date of service of the Statement of Defence (or Defence to Counterclaim) or when the Arbitrator gives the 100-day directions. Prior to that point the Arbitrator will have all the powers deriving from the Arbitration Act 1996 to direct appropriate dates for service of the pleadings antecedent to the 100-Day Procedure.
  2. The Procedure may be adopted ad hoc for an existing identified dispute as alternative (ii) and optionally for any cross-claim (iii) arising out of that dispute. This may cover the situation in which there is no pre-existing Arbitration Agreement or Arbitrator, or a situation in which there is an existing Arbitrator and in which some or all the pleadings have already been served. The 100-Day Procedure again cuts in either when the pleadings are complete or when the Arbitrator gives his directions.
  3. The Procedure may be adopted for a dispute already set out in a Notice of Adjudication where the parties wish to adopt short-form Arbitration instead. The reference covers the original Adjudication dispute as alternative (iv) and optionally a cross-claim (v) arising out of that dispute. The parties will normally want to re-appoint the Adjudicator as an Arbitrator and the procedure will cut in in the same manner as above.

International Disputes

The 100-Day Procedure is capable of adoption in any jurisdiction, subject to the effect of any mandatory legal rules. In practice the total span of the proceedings (including preparation of responsive pleadings) could exceed six months, in which case the procedure would operate as an agreed extension in countries which require the award to be delivered within six months. Rule 7 of the Procedure refers to the power of the Court to extend the time for making the award. Whether or not such power exists depends on the Law of the State having supervisory jurisdiction over the proceedings.

There is no reason why the Procedure should not be adapted so as to operate under the supervisory rules of any selected institution. The LCIA Rules, 1998, so provide in the following terms:

"Where any agreement, submission or reference provides in writing and in whatsoever manner for arbitration under the Rules of the LCIA or by the Court of the LCIA, the parties shall be taken to have agreed in writing that the Arbitration shall be conducted in accordance with [the LCIA Rules]"

A supervising institution would be available to deal with matters such as determination of the seat of the Arbitration (in the absence of Agreement), the holding of deposits or a challenge to the Tribunal.

International Arbitration remains important to the UK Construction Industry and its legal industry at a number of levels. A significant proportion of UK trade in construction, as in other fields, is international, a large proportion of that being with the European Union which continues to expand. While a number of foreign jurisdictions are experimenting with the use of Adjudication, Arbitration remains the predominant means of dispute resolution internationally and is usually the only alternative to submitting to the jurisdiction of a foreign National Court. It is therefore important for the Construction Industry to maintain its expertise in Arbitration and for the UK to be seen to make its contribution to the development of International Arbitration. The 100-Day Procedure will contribute to the maintenance of Arbitration expertise within the UK and may be adopted elsewhere as a new and viable procedure for International Arbitrations.

Alternative Procedures

The 100-Day Procedure uses some but by no means all of the powers available under the Arbitration Act 1996. Of particular note is Section 39 (power to make provisional award). A provisional award can include an order for the payment of money or any other relief and will be binding on the parties in exactly the same way as an Adjudication decision. Section 39 in fact provides a close analogy to Adjudication but with greater flexibility: the Arbitrator is empowered but not obliged to give a provisional decision and the timing is a matter of discretion. These matters could readily be provided for by further rules. The significant difference between the powers under Section 39 of the Arbitration Act and Adjudication is that an order or award given under Section 39 is subject to the final decision of the same Tribunal. The parties therefore have the option of reconvening the hearing before the same Tribunal to review the provisional decision. Section 39 was seen as a valuable adjunct to existing Arbitration law and of great potential use to the Construction Industry in particular. As a result of the simultaneous passing of the Housing Grants, Construction and Regeneration Act 1996 those powers remain largely untested in the Construction field. Section 39 has, however, been successfully used in a construction-related case concerning ship building and the Provisional Award issued by the Tribunal after a hearing lasting only a matter of days was approved by the Court of Appeal6.

Despite the opportunities presented by Section 39 it is not included within the 100-Day Procedure. This step was considered at the drafting stage but not adopted for a number of reasons. First it introduced more complexity to an otherwise simple procedure. Secondly, the parties remain free to contract into (or out of) Section 39. Thirdly, the ability to give a provisional award capable of being reopened (whether by the same or a different Tribunal) would put the Arbitrator into a virtually identical position to an Adjudicator, but with some additional advantages. Such a procedure would not necessarily require 100 days and should in any event be seen as a separate alternative procedure suitable for some but not all types of case. A separate "provisional Arbitration" procedure remains a future option.

Conclusion

The 100-Day Arbitration Procedure presents an alternative to Adjudication, comprising a single stage process which is likely to be found more suitable for both disputes of moderate complexity and those disputes which call for a final and binding decision. The Procedure set out in the Rules represents best practice in fast-track dispute resolution. Given the need for agreement of the parties, 100-day Arbitration should not be subject to the type of procedural or jurisdictional objection which currently hampers many Adjudications.

100-day Arbitration is available in a variety of situations including adoption after an initial reference to Adjudication. The adoption provision contained in the Rules incorporates a waiver of the Right to Adjudicate. This will have contractual force only but it is unlikely that the parties, having agreed upon the 100-Day Procedure, would have any reason to revert to Statutory Adjudication rights.

A significant feature of the 100-Day Procedure is that it reinstates the principle of party autonomy, which was the keynote of the Arbitration Act 1996. Instead of non-waivable statutory rights, the parties are free to amend and adapt the 100-Day procedure in any way they wish. Thus, in appropriate cases it may become the "28-day Arbitration Procedure" or equally the "200-day Arbitration Procedure". The procedure is intended to be kept under regular review.

100 Day Arbitration Procedure

1. Where the parties and the appointed arbitrator agree to adopt this procedure the arbitrator shall have an overriding duty to make his Award deciding all matters submitted (excluding liability for costs) within 100 days from either;

  1. the date on which the statement of defence (or defence to counterclaim, if there is one) is delivered to him or to the other party (whichever is later); or
  2. if the statement of defence (or defence to counterclaim) has already been delivered); from the date on which the arbitrator gives his directions.

2. Reference to days are calendar days unless otherwise noted. Any period set by this procedure that would end on a Saturday, Sunday or any public holiday at the seat of the arbitration will be deemed to end on the following working day.

3. The arbitrator shall, as soon as he is appointed or on the adoption of this procedure if later, contact the parties’ representatives by the most rapid and practical means (such as email or fax) to give them the opportunity to comment on the periods and dates to be ordered for the procedural steps in Rule 4.

4. Within 7 days of his appointment or of the adoption of this procedure if later, the arbitrator shall by directions establish a procedural timetable to include an overall period of no longer than 100 days to run from the service of the statement of defence (or defence to counterclaim, if there is one) or from the date that the arbitrator gives his directions (whichever is later) that shall provide for:

  1. service of any outstanding pleadings (including replies if considered necessary) and statements of witnesses and experts’ reports, if not already served with the pleadings, within 7 days;
  2. service of all further documents relied on by a party, replies to statements of witnesses and experts’ reports and service of any requests for disclosure of specific documents by the other party, within 14 days thereafter;
  3. subject to any ruling by the arbitrator on any issue as to disclosure of documents, service of copies of documents specifically so requested within 7 days of the request;
  4. no further documents or other evidence to be served by either party unless requested or permitted by the arbitrator;
  5. a date for an oral hearing or hearings not exceeding 10 working days, to commence not more than 28 days after conclusion of the foregoing steps;
  6. final written submissions (if ordered by the arbitrator) to be served simultaneously within 7 days from the end of the hearing;
  7. the arbitrator to make his Award within 30 days of the end of the oral hearing.

The arbitrator may, if so agreed by the parties, direct shorter periods for any of the foregoing steps (and the period in Rule 8) and the period of 100 days may be reduced accordingly.

5. For the purpose of achieving the foregoing maximum time periods, the parties agree to cooperate and to take every opportunity to save time where possible.

6. The arbitrator, for the purpose of achieving the foregoing time limits, may do any of the following at any time:

  1. order any submission or other material to be delivered in writing or electronically;
  2. take the initiative in ascertaining the facts and the law;
  3. direct the manner in which the time at the hearing is to be used;
  4. limit or specify the number of witnesses and/or experts to be heard orally;
  5. order questions to witnesses or experts to be put and answered in writing;
  6. conduct the questioning of witnesses or experts himself;
  7. require two or more witnesses and/or experts to give their evidence together.

7. The parties may agree to extend the period of 100 days. The arbitrator has no such power save that the arbitrator or any party may apply to the Court under Section 50 of the Arbitration Act 1996 (Extension of time for making award) or under other powers available at the seat of the arbitration.

8. Not later than 14 days before the Award is due, the arbitrator shall send to the parties his reasonable estimate of the total fees and expenses incurred and likely to be incurred up to the making of the Award (including VAT if applicable). Provided the parties have paid this sum to a stakeholder acceptable to the arbitrator with the monies held to the arbitrator’s account (or to the arbitrator himself) the arbitrator shall have no lien over the Award.

9. Unless they agree otherwise the parties shall make simultaneous submissions on costs to the arbitrator within 14 days of the date that the Award is published and the arbitrator shall make his Award on costs within 14 days of receipt by the arbitrator of the submissions.

********************

100 DAY ARBITRATION PROCEDURE

Standard Option Clause

Arbitration between

Claimant

and

Respondant

(1) The parties hereby agree to adopt the Society of Construction Arbitrators’ 100 Day Arbitration Procedure for the following:

* (i) any dispute which may arise out of or in connection with the Contract between the parties dated

* (ii) the dispute referred to in correspondence dated

* (iii) any cross-claim arising out of the dispute referred to in (ii)

* (iv) the dispute referred to in Notice of Adjudication dated

* (v) any cross-claim arising out of the dispute referred to in (iv)

(2) The parties by entering into this Agreement further agree not to refer or continue to refer to Adjudication any dispute falling within the matters to be referred to Arbitration above until the Arbitrator has delivered his Award on the matters referred to him.

(3) Where there is no other mechanism for appointment and the parties are unable to agree, the arbitrator shall be appointed on the application of either party by the President of the Society of Construction Arbitrators.

Signed by:_______________Claimant Date_____

__________________Respondent Date______

† The Arbitrator must also agree to adopt the 100 Day Arbitration Procedure

* Delete where inapplicable

Footnotes

1. Keating Chambers, Emeritus Professor of Engineering Law, King’s College London. President, Society of Construction Arbitrators

2. Herschel Engineering v. Breen Property [2000] BLR 272

3. [2004] 1 WLR 2082, BLR 65

4. See Arbitration with the benefit of the Construction Act, paper given to meeting of SCL and TECBAR 12 November 2002.

5. [2004] BLR 179

6. BMBF v. Harland & Wolff Shipbuilding CA (unrep.) Judgement 8 June 2001

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions