UK: Reserving The Position

In the recent case of ZVI Construction v The University of Notre Dame (USA) the English High Court, Technology & Construction Court ("TCC"), held that a party cannot simply rely on the terms of its contract with another if, by its words and/or conduct, it is clear that it has agreed to a variation to, or waiver of, those terms. Accordingly, to the extent that words or conduct may be ambiguous or indicate an intention contrary to that expressed in the contract, parties should be careful to expressly reserve their position at the outset.

  • Facts
  • Consent to jurisdiction
  • Estoppel
  • No oral variations clauses
  • Issue estoppel
  • Conclusion


In summary, the facts of this case are as follows:

  • TJAC Waterloo LLC ("TJAC") agreed to sell a property known as Conway Hall to The University of Notre Dame (USA) in England ("UND") pursuant to a Development Agreement dated 25 October 2010 ("Development Agreement"). Completion of the sale was conditional upon certain building works being carried out by ZVI Construction ("ZVI"). ZVI was also a party to the Development Agreement.
  • The Development Agreement contained an expert determination clause.
  • The Development Agreement also contained a 'no oral variations' clause which stated that no modification, alteration, or waiver of any provision of the Development Agreement could be made unless it was in writing.
  • UND alleged that the work carried out by ZVI was defective and requested that the dispute be referred to expert determination. Ultimately, the expert determined that TJAC / ZVI was liable for many of the workmanship defects, however the expert's determination as to quantum was postponed by TJAC / ZVI due to illness.
  • To protect its position until the issue of quantum could be determined, UND obtained an order from a US Court that TJAC and ZVI be restrained from dissipating, encumbering, or transferring assets.
  • ZVI sought an injunction restraining UND from taking any steps to enforce the expert's determination, together with declarations that it did not owe UND any substantive obligations under the Development Agreement because the expert determination clause was limited to disputes arising between TJAC and UND.

Consent to jurisdiction

The first issue for the TCC to consider was whether the expert had jurisdiction to determine ZVI's obligations to UND under the Development Agreement.

The TCC held that a contracting party could, expressly or impliedly, by words or conduct, confer jurisdiction on an expert. It was a question of fact whether there had been a clear submission to the jurisdiction.

The TCC inferred from ZVI's conduct that ZVI had impliedly agreed that the expert should decide whether and to what extent ZVI (and TJAC) were liable for the defects and the remedial costs of those defects. ZVI's conduct included:

  • Failing to challenge UND's suggestion that the expert determination procedure be used to resolve the dispute with ZVI.
  • Serving submissions (including in response) without any reservation.
  • Exchanging correspondence in circumstances when it might reasonably have been anticipated that if there was any question as to jurisdiction it would have been raised.

On that basis, the TCC held that:

"Having impliedly agreed to submit the dispute as to whether there were defects for which ZVI (and TJAC) were responsible under the Development Agreement, ZVI is now bound by [the expert determination clause] which renders the expert's determination final and binding on it."


The TCC then considered estoppel by convention and waiver. Put simply, estoppel by convention occurs when parties share a common assumption of fact or law which the party alleging the estoppel has relied on to its detriment. In such cases, a party will be precluded from denying those assumed facts or law.

ZVI argued that UND had failed to demonstrate reliance on the assumption that the expert had jurisdiction, or that it had suffered detriment as a result. However, the TCC disagreed and held that reliance and detriment could be inferred from the fact that:

"UND continued with the expert determination and indeed took proceedings in the US courts on the clear assumption that ZVI accepted that it owed UND substantive obligations under the Development Agreement and that the expert had jurisdiction to determine the disputes as to the nature and extent of the alleged defects and the damages to which UND were entitled."

Accordingly, ZVI was estopped from contending that the expert determination as to liability, or the future determination as to quantum, was outside the jurisdiction of the expert. Furthermore, the TCC held that precisely the same analysis would support a waiver i.e. ZVI must be taken to have waived any rights it might have had or might still have to object to the jurisdiction of the expert.

'No oral variations' clause

The TCC held that the existence of a 'no oral variations' clause did not modify the burden of proof required to show that the parties had agreed to a variation or waiver, nor was it necessary to show that the parties intended to modify the no oral variations clause. Rather, in order to determine whether there had in fact been a variation, a court will look at the words and conduct of the parties:

"What must be determined by the Court is whether, by their actions, words or conduct they must be taken to have intended to modify or alter or waive a term of the Development Agreement, bearing in mind that they agreed to the terms of the [no oral variations clause] in the first place."

Issue estoppel

Issue estoppel prevents a party from taking a contrary position to one which has already been finally determined by a court or tribunal.

UND claimed that the TCC was prevented from re-opening the US Court's decision on the expert's jurisdiction. The TCC agreed that the US Court had determined the issue of the expert's jurisdiction but because the decision was an order and was not final, the TCC held that there was no issue estoppel.


This case highlights the importance of parties thinking before they act. Parties should consider whether they are bound by the dispute resolution process, or any other contractual obligations, before taking any steps which may be viewed as being consistent with those processes or obligations. To the extent that there is any doubt regarding their applicability, parties would be well advised to reserve their position before taking any steps.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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

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

In association with
Related Video
Up-coming Events Search
Font Size:
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
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.