ADJUDICATION
More than one dispute?
Witney Town Council v Beam Construction (Cheltenham) Ltd [2011] BLR 709 TCC
The Council, as employer, sought to resist enforcement of the
adjudicator's decision on the ground that Beam, the contractor,
had referred four disputes to adjudication, the first relating to
the draft final account, the second to the final account, the third
being interest on retention and the fourth for payment on
retention, so that the adjudicator lacked jurisdiction on the
last. The court held that these were all aspects of the same
dispute, namely what was due and owing to the contractor and that
the adjudicator had therefore had jurisdiction.
Fastrack Contractors v Morrison
(Simon Hargreaves QC) was applied.
See Jerram Falkus v Fenice Investments
under Keating Chambers Reported Cases on time limit for challenge
of adjudicator's decision.
Natural justice as a defence to enforcement and stay
NAP Anglia Ltd v Sun-Land Development Co Ltd [2012] BLM Vol. 29 No. 1 TCC
The court rejected criticisms by the defendant of the adjudicator's timetable, which gave the claimant first and last word and more time than the defendant received and also rejected complaints that the adjudicator had not understood or had not had regard to some of the defendant's arguments. There is not necessarily a breach of natural justice in failure to address particular aspects of a case or evidence, although failure to consider a substantive defence could be different. The court would not grant a full stay on the facts on grounds of the claimant's financial status, but reduced the amount payable immediately by one third for this reason.
See Lanes Group v Galliford Try under Keating Chambers Reported Cases on jurisdiction of adjudicator on lapse and apparent bias.
See Sprunt v London Borough of Camden under Keating Chambers Reported Cases on agreement in writing under s.107 and adjudicator nominating body.
See Partner Projects v Corinthian Nominees under Keating Chambers Reported Cases on adjudicator's powers to award interest and financial status of defendant as ground for resisting summary enforcement.
ARBITRATION AND DISPUTE RESOLUTION
2012 ICC Rules in force
1st January 2012 was the date for the new ICC Rules of Arbitration to come into effect. They apply to arbitrations commenced on or after that date, subject to express contrary agreement by the parties.
The 2012 Rules replace the 1998 Rules.
They contain important new provisions to encourage the tribunal and the parties to proceed in a cost-effective and efficient manner, both by emphasising their obligations in this respect and by providing for case management conferences. Failures in this regard can be the subject of cost sanctions. Arbitrators' obligations are impartiality and independence, rather than just the latter.
There are a number of other significant changes, notably relating to multiple parties, joinder and consolidation of arbitrations and to emergency arbitrator appointments.
Global Arbitration Review
European and Middle Eastern Arbitration Review
Special Issue 2012
contains the following articles:
Lost in translation? The independence of experts under
the 2010 IBA Rules
by James Barratt, O'Melveny and Myers
Calculating pre-judgment interest
by James Nicholson, Noel Matthews and Alexandre
Riviére, FTI Consulting
If all else fails: putting post-award remedies in
perspective
by Jean-Pierre Harb, Edward Poulton and Matthias
Wittinghofer, Baker & McKenzie
Recent developments in the jurisprudence of investment
arbitration tribunals
by Charles Claypoole, Latham & Watkins
Sports arbitration
by Antonio Rigozzi and William McAuliffe, Lévy
Kaufman
The remainder of the special issue is devoted to country updates:
Austria by Barbara Helene Steindl, Brauneis Klauser Prändl
Belgium by Johan Billiet and Dilyara Nigmatullina, Association for International Arbitration
Czech Republic by Miloa Olik, Rowan Legal
Finland by Jussi Lehrinen and Heidi Yildiz, Dittmar & Indrenius
France by Tim Portwood, Bredin Prat
Italy by Ferdinando Emanuele and Milo Molfa, Cleary Gottlieb Steen & Hamilton
Netherlands by Bommel van der Bend and Kirstin Nijburg, De Brauw Blackstone Westbroek
Oman by Abdelrahman El Nafie, SNR Denton
Poland by Maciej Jamka and Agnieszka Wojeiechowska, K&I Gates Jamka
Romania by Crenguta Leaua, Leaua & Associatii
Russia by Alexander Khrenov and Andrey Yukov, Yukov, Khrenov & Partners
Spain by Félix Montero Muriel, Pérez-Llorca
Switzerland by Elliott Geisinger and Angelina Petti, Schellenberg Wittmer
Turkey by Coşar Avukatlik Bürosu
Ukraine by Markiyan Kliuchkovskyi, Kseniia Koriukalova and Serhi Uvarov
UK by Audley Sheppard, Clifford Chance
Journal of International Arbitration Vol. 28 No. 6 December 2011
contains the following articles:
The arbitrator as mediator and mediator as
arbitrator
by Paul Mason, Veirano Advogados
Judicial review of arbitral awards in international
arbitration: a case for an efficient system of judicial
review
by Hossein Abedian, Iran – US Claims
Tribunal
Keeping the golden goose alive: could Alternative Fee
Arrangements reduce the cost of international arbitration?
by Lucy Greenwood, Fulbright & Jaworski
Recent developments in arbitration in Australia
by Justice Clyde Croft, Victoria
Enforcement of arbitral awards annulled in Russia
by Albert Jan Van Den Berg
Big trouble in 'Little China': could a
constitutional dilemma concerning state immunity threaten Hong
Kong's position as a pre-eminent arbitration seat?
by Ashley Bell, O'Melveny & Myers, Singapore
Global Arbitration Review 2011 Vol. 6 Issue 6
contains the following articles:
Islam and arbitration
by Alison Ross
Don't bury your head in the sand
by Toby Landau QC
(on investor-state proceedings)
Disposing of the problem of meritless claims
by Adam Radiv, Wilmer Cutler Pickering Hale & Dorr,
Washington DC
CONTRACT AND PROCUREMENT LAW
See Alstom Transport v Eurostar International under Keating Chambers Reported Cases on the criteria for the applicability of the utilities and public contracts regimes.
GENERAL AND PROFESSIONAL NEGLIGENCE
Negligence as a component of nuisance
Barr v Biffa Waste Services Ltd [2012] BLM Vol. 29 No. 1 TCC
The nuisance claim by local residents against operators of a landfill site was dismissed by Coulson J, since the operators were operating within the detailed terms of their permit and without negligence. Despite the odours emanating, the use of the site amounted to a reasonable user and not a nuisance, although statutory authority could not be relied on. The most interesting element of the decision may be the role of negligence in establishing nuisance: the BLM Editors note that "The finding that negligence is a necessary ingredient of these claims may prove to be controversial given that the relationship between negligence and nuisance has proved to be a vexed one".
PRACTICE AND PROCEDURE
See Hackney Empire v Aviva Insurance under Keating Chambers Reported Cases on effect of on-demand bond and obligations under side agreement.
See RBIL v Ryhurst under Keating Chambers Reported Cases on security for costs.
Extension of time following consent
Pannone LLP v Aardvark Digital Ltd [2011] BLR 695 Court of Appeal
Aardvark, a company represented by two directors, failed in its appeal against a decision that Pannone should receive a small extension of time in its service of reply and defence to counterclaim. Pannone had agreed to a very rigorous time schedule which it narrowly failed to meet. The court held that it still had the power to extend time even when the parties had agreed the order. It is inherent in the CPR that the court can relieve parties from sanctions in respect of all orders, including those expressed as consent orders.
'Conclusive evidence' clause in bond
North Shore Ventures Ltd v Anstead Holdings Inc [2011] BLR 757 Court of Appeal
This non-construction case is included in BLR, according to the Editors, because of the 'conclusive evidence' clause in the load agreement. The Court of Appeal allowed (in part) the appeal by the Guarantor, since the simple enforcement of the clause could have had "the effect of transforming a straightforward guarantee, which is not phrased in terms of a performance bond payable simply on demand without proof of default, into something analogous thereto." The certificate of breach in this case contained a "manifest error."
Exclusion clause and deliberate breach
Astra Zeneca UK Ltd v Albemarle International Corporation p2012] BLM No. 1 29 No. 1 Commercial Court
The law, in the view of the BLM Editors, is in "some disarray" as to whether an exclusion/limitation clause covers a deliberate repudiatory breach of contract. A Deputy Judge in Internet Broadcasting v MAR had held that there would be "a strong presumption" against an exemption clause covering deliberate breach. The Commercial Court in Astra Zeneca was very critical of this statement and the reasoning which produced it. It was found that there had, on the facts, been no such deliberate breach, but the court rejected perceived attempts to "revive the doctrine of fundamental breach" and refused to adopt an interpretation which would have denied the defendant any remedy in respect of the claimant's breach.
See Alstom Power & Somi Impianti under Keating Chambers Reported Cases on criteria for granting an injunction for return of documentation held by defendant.
KEATING CHAMBERS REPORTED CASES
Hackney Empire Ltd v Aviva Insurance UK Ltd [2011] BLR 728 TCC
Already reported in Con LR, the case concerns the effect and
extent of a bond issued by Aviva to guarantee obligations of the
contractor on the Hackney Empire theatre refurbishment. Obligations
assumed by the contractor under a side agreement were held not to
be within the scope of the guarantee by Aviva and so it had no
liability in respect of the sums arising from those. The
court had to consider the extent to which the surety was prejudiced
by payments on account made to the contractor, for claims which
were never fully substantiated.
David Thomas QC
RBIL v Ryhurst [2011] BLR 721 TCC
In a dispute concerning a management services agreement, the
defendant, a real estate investor, belatedly sought security for
costs after a trial date had been fixed, following significant
delay occasioned by amendments to claim and counterclaim. The
court held that the threshold for security of costs had been met,
because on available information the claimant would probably be
unable to pay costs if it lost. The court exercised its
discretion to reduce the gross amount to be taken into account to
allow for the lateness of the application; a reduction from
£2 million to £1 million was made to achieve a
reasonable allowance for security which is not oppressive.
Marc Rowlands
Alstom Transport v Eurostar International Ltd [2012] EWHC 28(Ch) – 20 January 2012
The court had to decide whether the Utilities Contracts Regulations 2006 or the Public Contracts Regulations 2006 (as amended) applied to the procurement of the design, supply and maintenance of high-speed trains. Alstom claimed that the tender process conducted by Eurostar breached the EU procurement regime and challenged the award of the contract to Siemens.
The court considered the criteria for the application of the utilities regime as regards status and activity and the definition of 'contracting authority' for the public sector regime. Alstom sought to rely on the provision of State aid to the contracting authority as indicative of public sector status.
In the result, Eurostar was held not to be a utility for the
purposes of the Utilities Contracts Regulations, nor a contracting
authority for the purposes of the Public Contracts Regulations. Nor
had it been so at any time between the start of the procurement and
the conclusion of the contract with Siemens.
Sarah Hannaford QC
Jessica Stephens
Alstom Power Ltd v Somi Impianti [2012] CILL 3113 TCC
Main contractor Alstom succeeded in obtaining an interim
injunction requiring the return of 'turnover package'
documentation held by sub-contractor Somi, following termination of
the sub-contract by Alstom. The documents had been removed from the
site by Somi and taken back to Italy. The court recognised the
importance of the documents to Alstom and that damages would not be
an adequate remedy, since these would be substantial, due to the
cost to Alstom of not getting the documents and the likelihood that
Somi could not pay them.
Justin Mort
Galliford Try Infrastructure Ltd [2012] CILL 3116 Court of Appeal
Lanes challenged the judge's finding at first instance that the adjudicator still had jurisdiction, even though the referring party had failed to pursue the first reference to adjudication. GTI challenged the judge's finding of apparent bias on the ground that the adjudicator had given a preliminary statement of his views of the dispute.
The CA recognised the right to re-start an adjudication and the
right to adjudicate would not be irrevocably lost by failure to
serve a referral notice. The adjudicator accordingly had
jurisdiction. There was no apparent bias, since a fair-minded
observer would characterise the Preliminary Views Document as a
provisional view for the assistance of the parties and not as a
final determination.
John Marrin QC
Jerram Falkus Construction Ltd v Fenice Investment Inc. (No. 4) [2012] BLM Vol. 29 No. 1 TCC
The case is described as part of a long-running saga of disputes
between the parties. It was reported in 138 Con LR. The
decision provides interpretation of the time limits for claims
under the contract (JCT Design and Build 2005), holding that the 28
day deadline meant that the losing party in an adjudication would
have to challenge the result within that time, by commencing
arbitration or litigation. The BLM report does not include the
(obiter) discussion of the prevention principle, for which see the
Con LR.
William Webb
Sprunt Ltd v London Borough of Camden [2012] CILL
3124 TCC
Building consultant Sprunt entered into a framework agreement
with Camden LBC by which it provided consultancy services as
architect. The dispute resolution provisions of the agreement
enabled either party to refer disputes to arbitration, but
identified Camden as the adjudicator nominating body. Sprunt
referred a dispute instead to the RICS and Camden sought to resist
enforcement of the decision on two grounds: absence of a contract
in writing for (the old) s.107 purposes and absence of entitlement
of Sprunt to refer a dispute to RICS. The court found in favour of
Sprunt on both grounds. Sprunt's letter with an amended
(reduced) fee proposal accepted by Camden expressly incorporated
the terms of the framework agreement and was therefore an agreement
in writing. The provision for a party to be the
adjudicator-nominating body offended against s.108 and against
policy. The Scheme would therefore apply, under which a reference
to RICS was an appropriate nomination.
Justin Mort
Partner Projects Ltd v Corinthian Nominees Ltd [2012] CILL 3120 and [2012] BLM Vol. 29 No. 1 TCC
Contractors Partner applied to enforce an adjudication decision
including interest in their favour. Owner Corinthian
resisted, arguing that the adjudicator had exceeded his powers in
the award of interest and that they should be granted a stay on the
grounds of Partner's precarious financial position, which meant
they would be unable to repay any interim award. The court held
that the adjudicator was empowered to award interest under the
contract and this could include interest on sums not certified by
the architect, as well as those certified but not paid, because the
contract gave him power to open up, review and revise any decision.
No stay would be granted because Partner's financial position
was caused largely by Corinthian's failure to pay.
Jonathan Selby
This material is prepared for Chambers by our Director of Research and Professional Development, Professor Anthony Lavers (LL.B., M.Phil, Ph.D. MCI.Arb, MRICS Barrister), Visiting Professor of Law, Oxford Brookes University.
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