UK: Case Law Update - Construction, Property & Real Estate (Issue 1 - 2010)

Last Updated: 19 March 2010
Article by Keating Chambers

ADJUDICATION

See Workspace Management v YJL London under Keating Chambers Reported Cases on enforceability of adjudicator's finding of overpayment as a set-off against an arbitration award.

Timing Of Nomination And Certainty

Vision Homes Ltd v Lancsville Construction Ltd [2009] BLR 525 TCC
Reported in CILL principally on timing of nomination. Under the HGCR Act Scheme, if the application for nomination of the adjudicator by the RICS had been made before service of the Notice of Intention to Refer a Dispute to adjudication, the effect would be to deprive the adjudicator of jurisdiction to hear the dispute. The BLR report deals with the full list of issues, including the certainty of the decision and its consistency with the parties' agreement and the dispute referred to him and whether it was unfair for the adjudicator to fail to give the parties notice of his intended conclusion.

See North Midland Construction v AE & E Lentjes under Keating Chambers Reported Cases on the 'broad' and 'narrow' approaches to s.105 HGCR Act on exclusion of activities relating to power generation.

Novation Challenge Fails

Camillin Denny Architects Ltd v Adelaid Jones & Co Ltd [2009] BLR 606 TCC
Already reported in BLM, the applicant architects sought summary judgment enforcing an adjudicator's decision in their favour against the Respondent project manager. The respondents argued that a novation had taken place so that there was no contract between the parties. However, the court held that the project managers could not have been replaced by a party which was never incorporated and never in a position to place or enter into contracts. Therefore the novation argument could not succeed and summary judgment should be granted.

No Written Contract

Adonis Construction v O'Keefe Soil Remediation [2009] CILL 2784 TCC
The fact that the sub-contractor had never signed the order for works and that the draft order did not amount to an offer meant that there was no written contract for the purposes of the HGCR Act 1996 and thus no jurisdiction for the adjudicator. The letter of intent from the main contractor, Adonis, had been followed by a draft order to soil remediation sub-contractor O'Keefe, but the draft order stated that the official order would be issued subsequently. It could not therefore be part of a written contract, since it lacked the necessary intention to be an offer.

Subsequent Adjudications

Barr Ltd v Klin Investment UK Ltd [2009] CILL 2787 Court of Session Outer House.
Klin, the client, had engaged Barr, the contractor, for the design and construction of flats under the Scottish Building Contract which provided for the resignation of an adjudicator where a dispute was the same/ substantially the same as under a previous decision. Following two adjudications, a third was commenced, the decision on which Klin sought to challenge on enforcement. The court held that the first two disputes had been on narrow technical issues, while the third was on the substantive merits of Barr's entitlement. There were also challenges based on bias, failure to put to the parties the adjudicator's proposed factual conclusions, which also failed.

See SG South v King's Head Cirencester under Keating Chambers Reported Cases on fraud by the claimant as a ground for resisting enforcement of an adjudicator's decision.

Nature Of Adjudicator's Decision

Rok Building Ltd v Celtic Composting Systems Ltd BLM Dec 2009/Jan 2010 TCC
The defendant main contractor failed in its argument that the adjudicator's decision was merely declaratory of the position between the parties which could be reflected in future certification and payment procedures. The court held that the adjudication decision was by its nature directory, not declaratory, thus requiring the defendant to make a payment. However, whether a particular decision is directory or declaratory will depend upon the words used and the context in which the dispute was referred to adjudication. See now Rok v Celtic (No. 2) on further enforcement proceedings.

ARBITRATION AND DISPUTE RESOLUTION

Jurisdiction And Choice Of Law

Agreements on jurisdiction and choice of law: where next?
by Jonathan Harris, Serle Court, Lloyd's Maritime and Commercial Law Quarterly [2009] Part 4 537
The focal point of the article is the recent book by Adrian Briggs 'Agreements on jurisdiction and choice of law'. Professor Harris largely accepts Professor Briggs' arguments regarding the separable nature of jurisdiction and choice of law clauses as dispute resolution provisions. However, he is more cautious on the 'dual function' of these clauses as provisions which confer jurisdiction and determine law yet are also private contractual obligations. He is also cautious on the relationship between rules of private international law as agreed by the parties and those applying by default.

International Arbitration Law Review 2009 Vol. 12 Issue 6
contains the following articles:

Anti-suit injunctions in aid of international arbitration: the American approach
by Carolyn Lamm, Eckhard Hellbeck and Joseph Brubaker, White & Case, Washington DC

Cross-border insolvency and international commercial arbitration: characterisation and choice of law issues in light of Elektrim SA v Vivendi SA and analysis of the European Insolvency Regulation
by Mark Robertson, New Zealand

The Company as institutional arbitrator in Italian law – setting an international trend?
by Emanuele Cusa, University of Trento

Funding international arbitrations
by Matthew Amey, The Judge

Multi-party disputes and referral to arbitration under Chinese law
by Fei Lan Fang, University of Hong Kong

How to protect business secrets in international commercial arbitration
by Lukas Wyss, Bratschi, Wiederkehr & Buob, Bern

See you in court! Respondent's failure to pay the advance on arbitration costs
by James Eamon QC and Geoffrey Holub, Gowling Lafleur Henderson, Calgary

Arbitration Law Monthly Vol. 10
No. 1 December 2009/January 2010
contains the following articles:

Mediation: confidentiality
(on Farm Assist v Secretary of State for DEFRA (No. 2))

Arbitrators: qualifications
(on Jivraj v Hashwani - alleged need for religious qualification).

Insolvency and arbitration
(on Syska v Vivendi Universal – effect of insolvency proceedings).

Challenging an award
(on Konig v Zwiebel – notification of appeal within time limit).

Serious irregularity
(on Compania Sud-Americana Da Vapores v Nippon Yusen Kaisha – party not allowed to raise argument).

Construction Law Vol. 20 Issue 10 December 2009
contains the following articles:

Disputes: how to get the best result
by James Doe, Herbert Smith

The role of dispute boards in dispute avoidance
by Simon Delves, Shadbolts

Journal of International Arbitration Vole 26 No 6 December 2009
contains the following articles:

Issues relevant to the termination of Bilateral Investment Treaties
by Andrea Carska-Sheppard

Anatomy of the law and practice of interim protective measures in international investment arbitration
by Regis Bismuth, Université de Paris 1 Panthéon-Sorbonne

Privilege in international arbitration: is it time to recognise the consensus?
by Craig Tevendale and Ula Cartwright-Finch, Herbert Smith

Enforcement of arbitral awards in Indochina
by Alastair Henderson, Herbert Smith, Singapore.

Waiver of Sovereign immunity from execution: arbitration is not enough
by Nicholas Pengelley

Sweden court decisions on arbitration 1999-2008
by Sigvard Jarvin, Jones Day, Paris.

Comment on West Tankers In v RAs Riunione Adriatica
by Jacob Grierson, Jones Day, Paris.

Comment on Dallah v Pakistan: refusal of enforcement of an ICC Arbitration award against a non-signatory
by Jacob Grierson, Jones Day, Paris and Mireille Taok, Reed Smith, Paris.

Global Arbitration Review 2009 Vole 4 Issue 6
Is a special issue on arbitration in Brazil and contains the following articles:

Crisis, what crisis? (an overview of the arbitration scene in Brazil).

Brazil as a seat: should companies go there?
notes that 121 cases were handled by Brazil's five centres 2004-2009, with a year-on-year increase of 53% in 2007-2008.

Brazil's BIT dilemma
on the dispute resolution significance of large scale foreign direct investment to Brazil.

Wanted – more lusophones reviews the pool of 14 Portuguese-speaking international arbitrators.

Arbitration and Brazilian state entities, at peace – at last
on use of arbitration clauses by state bodies

Judicial attitudes ... the essentials: Brazilian court decisions.

Enforcing a foreign award in Brazil ... the essentials

CONTRACT AND PROCUREMENT LAW

Construction Law Vol. 20
Issue 10 December 2009
contains the following articles:

A stitch in time
by Michael Phipps, Thurston Consultants
(on changes made by JCT's Revisions 1 and 2)

Something's gone wrong with my contract
by Christopher Nugee QC, Wilberforce Chambers
(on Chartbrook v Persimmon Homes)

Taking the 'P' out of PFI
by Lisa Calderwood, Maxwell Winward

Professional indemnity and fitness for purpose
by John D. Wright, JD Associates

Who owns materials on site?
by Alexandra Price, Mills & Reeve

Under pressure
by Shy Jackson, Pinsent Masons

Construction Newsletter November/ December 2009
contains the following article:

Greater opportunity to challenge contract awards
by Rachel Robinson, Foot Anstey

Public Procurement Law Review 2009 No. 5
contains the following articles:

Forum for review by suppliers in public procurement; an analysis and assessment of the models in international instruments
by Zhang Xinglin, University of Nottingham

Control over In-House Providing Organisations
by Roberto Cavallo Perin and Dario Casalini, University of Turin

The Community Procurement Early Warning System
by Bernard O'Connor

European Court of Justice/Sweden: Selection and Award Criteria in Swedish Public Procurement Law
JB Leadbitter & Co Ltd v Devon CC

Formalities and time-limits for legal proceedings in public procurement: Amaryllis Ltd v HM Treasury
(Sarah Hannaford QC)

Public Procurement Law Review
2009 No 6
contains the following articles:

Self-cleaning as a defence to exclusions for misconduct: an emerging concept in EC Public Procurement law
by Sue Arrowsmith, University of Nottingham, Hans-Joachim Priess and Pascal Friton, Freshfields Bruckhaus Deringer, Berlin.

Prohibiting Linked Undertakings from tendering separately in the same procedure

Commission of the European Communities v Hellenic Republic C-250/07
(on failure to publish prior call for completion and lateness in response to request for reasons).

Co-operative arrangements between public authorities in the pursuit of a public interest task.

Whether German Sickness Insurance Funds are Contracting Authorities and the categorisation of a Fund's contract for the supply of orthopaedic footwear.

A French provision breaches Remedies Directives 89/665 and 92/13 by jeopardising the effect of the Standstill Period between notification of the award decision and conclusion of the Contract.

Construction Law Vol 21 Issue 1 Jan/February 2009
contains the following articles:

Adjudication the more speedy option
by Michael Draper, Shadbolt.

Invalid instructions a valid issue
by Michael Phipps, Thurston Consultants (on JCT contracts)

Early involvement trumps partnering
by David Mosey, Trowers & Hamlins.

Health and safety burden grows
by Ashley Viertag, Maxwell Winward.

Guidance on agreements falls short
by Lesley Davey, Reed Smith
(on OGC Guidance on development agreements as public works contracts)

Is Project Co cash flow safe?
by Emelita Robbins, Herbert Smith
(on pay when certified clauses under the amended HGCR Act)

Is possession nine-tenths of the law?
by Jane Hughes and Amy Bradbury, Collyer Bristow
(on ownership of goods delivered but not paid for)

Consumers gain as insurance law changes
By John D Wright, JD Risk Associates

Adjudication the more speedy option
by Michael Draper, Shadbolt

On-demand guarantees

Enka Insaat VE Sanayi AS v Banco Popolare Dell' Alto Adige SpA [2009] CILL 2777 Commercial Court
Advance Payment Guarantees and Performance Guarantees were issued by Italian banks under English law to support sub-contracts for the design and construction of a retail office building in Moscow. When the owner terminated the main contract, the main contractor, Enka, made demands on the guarantees from the banks and applied for summary judgment when these were not met. The banks argued that the demands were made fraudulently. However, the court gave weight to the on-demand nature of the bonds and to the authority of Edward Owen Engineering v Barclays Bank. The test to resist summary judgment was for the banks to show a real prospect of successfully defending Enka's claims based on fraud. However, an on-demand guarantee was held to be more in the nature of a promissory note and the claiming party would not be required to explain or justify the right to be paid by reference to any actual loss, provided the demands were in the correct form.

Letter Of Intent

Subject To Contract

Whittle Movers Ltd v Hollywood Express Ltd BLM Dec 2009/Jan 2010 CA
This (non-construction) case concerns a letter of intent issued after an invitation to tender expressed to be 'subject to contract'. The letter of intent was followed by an 'interim agreement' but the defendant clients gave notice to terminate this. The claimant suppliers argued that a long term contract had resulted, but the Court of Appeal rejected this on the basis of the 'subject to contract' provision which meant that no contract arose until a formal document was signed. The claimant's only remedy, if any, would be in restitution; the judgment considers the differences between restitution and contract.

On Demand Guarantees

Rainy Sky SA v Kookmin Bank BLM Dec 2009/Jan 2010 Commercial Court
The defendant bank in this (shipbuilding) case was held to be obliged to pay the claimants under the terms of an 'advance payment bond', which was expressed as giving rise to an obligation to pay on 'first written demand'. The defendant would not be allowed to defend the claim on the basis of absence of breach of the underlying contract. The court would not allow the defendant to refer to the terms of the underlying contract, since this would be contrary to legal principle and would deprive the bond of its commercial utility.

GENERAL AND PROFESSIONAL NEGLIGENCE

See Fitzroy Robinson v Mentmore Towers under Keating Chambers Reported Cases on misrepresentation to client as to availability of team leader and amounts payable for services, including lead consultancy.

PRACTICE AND PROCEDURE

No Extension Of Time For Service Of Claim

City & General (Holborn) Ltd v Structure Tone Ltd [2009] BLR 541 TCC
Already reported in TCLR, the claimant employer had sought extensions of time for service of the claim forms for a negligence/nuisance claim against sub-contractors and insurers, at first on the basis of a relevant pending arbitration. Subsequently, the TCC case administration unit advised the claimant's solicitors that the mid-term break would delay the assigned judge's deliberation on the applications and so service of the claim forms was delayed. The TCC discharged the order to extend time and set aside the claim forms. Permission should not have been given to extend time just because it was more convenient for case management, nor did a delay in consideration by the assigned judge. Ex parte orders, like these, should be regarded as vulnerable to being set aside.

The Commercial Litigation Journal
November/December 2009
contains the following articles:

Injunctions: how far can a freezing order stretch?
by Catharine Orron-Goulder QC, Brick Court Chambers

The Supreme Court: radical reform or cosmetic change?
by Edward Allen, Dechert

Interest: getting the best return
by Sam Coulthard, Denton Wilde Sapte
(on claims for interest).

Choice of law: the rebirth of Rome
by Alan Gourgey QC and Philip Hinks, 11 Stone Buildings

Implied terms: defining a reasonable notice period
by Phillip Carnell, CMS Cameron McKenna

Jurisdiction: setting sail once more
by Gautam Bhattacharyya and Victoria Walker, Reed Smith
(on West Tankers)

Disclosure: enforced exposure
by Melanie Ryan and Jehan-Philippe Wood, Fulbright & Jaworski
(on Barr v Biffa Waste)

The Law Quarterly Review Vol. 126
January 2010
contains the following articles:

Unjust enrichment and the assessment of quantum meruit awards
by Andrew Lodder, Magdalen College, Oxford

See Austria v Tokio Marine Europe Insurance under Keating Chambers Reported Cases on barring of new case arising from amendment of particulars of claim.

Requirements And Purpose Of Pleadings

K/S Lincoln v CB Richard Ellis Hotels Ltd [2009] BLR 591 TCC
In a negligent valuation claim regarding a portfolio of hotel properties, the claimants applied to strike out part of the defence, which sought to refer to illegal tax evasion without pleading it, but reserving the right to raise it. The court rejected the idea of a 'half-way house' between making a positive averment and not making one, which would not conform with the CPR. It was necessary to make a proportionate order in relation to costs, so the claimants would be given 14 days to decide whether to pursue the part of their claim which the defence wished to challenge as disclosing illegality. If they did, the defence could raise illegality. If they did not, they could seek an interim costs order against the defendant.

Pre-Contract Evidence In Negotiation

Chartbrook Ltd v Persimmon Homes Ltd [2009] BLR 551 House of Lords
Already reported in ConLR, this is a case on property development and concerned the agreement by which Persimmon would develop Chartbrooks' site, paying Chartbrook a stated price. This price became the subject of a dispute between the parties and the issue for the House of Lords was the correct interpretation of the contract provisions. Lord Hoffman's judgment and a number of (obiter) comments attracted much attention the role of evidence of pre-contract negotiations. The basic rule that such evidence should be excluded was upheld, but Lord Hoffman emphasises both limitations and exceptions to the rule. Pre-contract evidence could be used to give contextual background. It could also be used to support a claim for rectification or estoppel.

See Tai Ping Carpets v Arora Heathrow TS under Keating Chambers Reported Cases on the criteria for transfer of a case from the Birmingham District Registry to the TCC in London or Birmingham.

The 'Loser Pays' Principle In Costs

Dawes v Treasure and Son Ltd [2009] CILL 2781
Following reported litigation on signature of an adjudicator's decision, the parties contested the award on costs of the arbitrator. The contractor, Treasure, the successful party in the adjudication, unusually, had commenced arbitration under the CIMAR provision in the contract. Treasure had to pay the client, Dawes £618,000, but the court upheld the arbitration's decision on costs, based on the overall position between the parties, on which Treasure was to be regarded as the successful party. Under the CIMNA Rules, where a claim and counterclaim are closely connected, the costs of each can be dealt with together.

The Commercial Litigation Journal Jan/Feb 2010 No. 29
contains the following articles:

Burning your books by Peter Hibbert, College of Law (on pre-action destruction of evidence)

Ill-gotten gains by Jonathan Thorpe and Rob Morris, CMS Cameron McKenna (on the illegality defence in civil claims)

Ordering online by Nyree Applegarth, Higgs & Sons

The best-kept secret in commercial litigation by Richard Aird, Murray Stable (on forum-dipping into Scotland)

Meaning is use by Andrew Francis and Matthew Morrison, Serle Court (on the relevance of context in contract interpretation)

Reform and repair by Jan Walaski and Jae Park, Venner Shipley (on the Unified Patent Litigation System)

In the money by James Corbett QC and Phillip Marshall QC, Serle Court

Wake-up call by Isabelle Rahman, Dechert (on EC intervention in the pharmaceutical sector)

KEATING CHAMBERS REPORTED CASES

Workspace Management Ltd v YJL London Ltd [2009] BLR 497 TCC
Although an adjudicator did not require the repayment of a sum overpaid, in finding that there had been an overpayment, the requirement followed logically by reasonable inference, if not expressly. The argument that the adjudicator had no jurisdiction to consider whether an overpayment had been made failed. Although the reference was to consider sums claimed by the claimant from the defendant, the adjudicator was not required to stop his valuation without reaching a final result. The defendant was entitled to use the sum overpaid as a set-off against an arbitration award against it because it was not a mere counterclaim but a decision binding on the claimant.
Alan Steynor

Fitzroy Robinson Ltd v Mentmore Towers [2009] BLR 505 TCC
Already reported in Con LR, the claimant architects sued for unpaid fees on work carried out for the defendant clients. The clients established that the architects had knowingly misrepresented the availability of a named individual to act as team leader. The court also found that the amounts payable could be adjusted to reflect work actually done by the architects, rather than being simply the contractual sums. There is extensive discussion of the proper role of a lead consultant. There was no finding of negligent leadership by the architects. The court criticised the defendants' use of its expert, by which his preparation was hampered by restrictions imposed on him and also the claimant's witness.
Paul Darling QC
Marc Rowlands

Seele Austria GmBH v Tokio Marine Europe Insurance Ltd [2009] BLR 481
In the long-running litigation concerning recover-ability of cost of access damage and other costs of repairing defective windows under an insurance policy, the claimant served amended particulars of claim. The defendant insurer successfully argued that these constituted a new case, which differed substantially from the original claim. It was at least arguably caught by the limitation provisions and the court would not, within its judicial discretion, allow the amended particulars of claim to be used to plead a new case.
Adrian Williamson QC

North Midland Construction Plc v AE&E Lentjes UK Ltd [2009] BLR 574 TCC
Already reported in CILL, Lentjes were turnkey contractors for gas desulphurisation units on power stations, with NMC as their sub-contractors. Before adjudication of final account disputes, the issue arose as to whether the sub-contract works might be excluded from the definition of 'construction operations' under s.105 HGCR Act, as relating to power generation. Although Lentjes argued for the 'broad' approach, by which all construction works necessary to achieve the aims of the owner/main contractor would be excluded, the court preferred the 'narrow' approach, meaning that the Act would apply. Construction works for use with the plant would not come within the exclusion.
Stephen Furst QC

Tai Ping Carpets UK Ltd v Arora Heathrow T5 Ltd [2009] BLR 601 TCC
The Technology and Construction Court had to consider the criteria for the transfer of a case from Birmingham District Registry to TCC. The defendant client sought transfer to the London TCC, the claimant supplier wished for transfer to the Birmingham TCC. The case was a £620,000 claim for supply of carpets to a Terminal 5 hotel. The court found the relevant factors on balance of convenience of venues to be neutral, so the proceedings would continue in Birmingham, as that was where they had been started.
Piers Stansfield

SG South Ltd v King's Head Cirencester LLP BLM Dec 2009/Jan 2010 TCC
The court held that, in principle, fraud or deceit on the part of a party seeking to enforce an adjudicator's decision can be used to resist enforcement. However, a distinction would be drawn between fraud impacting upon the subject matter of the decision and fraud independent of it. On the facts, the judge was not satisfied that the defendants could prove fraud by the claimant and he refused a stay of execution of his judgment for the claimant.
Thomas Lazur

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.

RECENT SEMINARS AUTUMN 2009 / WINTER 2010

Introduction to International Arbitration
London: 15 February 2010
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Variations
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Payment for contract works
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Termination
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London: 24 February 2010
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London: 4 March 2010
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Leeds: 5 March 2010
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London: 15 April 2010
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London: 19 May 2010
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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.

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