Articles and Publications – Page 15

Consequential Damages in Today’s Construction Industry

May 30 2008

Pittsburgh partner Jason Richey recently teamed up with associate Bill Wickard to write “Consequential Damages in Today’s Construction Industry,” which appears in the May 5, 2008 issue of Constructioneer.

In the article, Jason and Bill stress the importance of project-specific consequential damages waivers, noting that f ailure to include such a waiver can leave construction managers open to costly lawsuits. Waivers should be both "project-specific" (anticipating the potential types of damages that could arise with a certain project) and mutual (the list of damages should be the same for the owner and contractor).

Jason and Bill point to Perini Corp. v. Greater Bay Hotel & Casino to illustrate the importance of these waivers. In the Perini case, the construction manager responsible for the renovation of the Sands, an Atlantic City, N.J. hotel and casino, produced his façade for the building four months late. The original contract did not include a damages waiver and the Sands argued that their lost profits were due to the lateness of the façade. An arbitration panel awarded the Sands $14.5 million in damages, nearly 24 times the contract fee.

To read the full article, please click here (posted with permission).

Discretionary Right to Adjudicate No Basis for Stay of Arbitration

May 03 2008

Cubitt Bldg. & Interiors Ltd. v. Richardson Roofing (Ind.) Ltd., [2008] EWHC 1020 (Queen’s Bench Div., Tech. & Constr. Ct.)

Cubitt, the contractor on a construction project in London, engaged Richardson as sub-contractor. Under the relevant sub-contract, both parties had a discretion to refer disputes to adjudication. Richardson completed its works, Cubitt alleged delay and indicated that it intended to deduct liquidated damages from the amount payable to Richardson. Richardson started arbitration proceedings against the Cubitt. Cubitt sought a stay of the arbitration so that it could refer the dispute to adjudication. Read More

Partial Enforcement of Award Which Has Not Yet Become Final

Apr 24 2008

IPCO (Nigeria) Ltd. v Nigerian Nat’l Petroleum Corp., 2008 WL 1771454, [2008] EWHC 797 (Queen’s Bench Div., Commercial Ct.)

IPCO contracted with NNPC to design and build a petroleum export terminal in Nigeria. A dispute ensued and was arbitrated in Nigeria, subject to the supervision of the Nigerian courts. IPCO obtained an award in October 2004 (in the sum of approximately US$152 million) and sought an order for its enforcement in England. At the same time, NNPC brought an appeal against the award. The English High Court granted an order to IPCO, but adjourned enforcement of the award pending the Nigerian appeal. Subsequent developments in Nigeria had meant that any appeal against the award now lay some five or ten years in the future. IPCO applied for a variation of the order adjourning enforcement of the award. Read More

No Requirement to Dispense with Leave to Appeal Arbitral Award Under Section 69

Apr 22 2008

Royal & Sun Alliance Ins. PLC v. BAE Sys. (Operations) Ltd., 2008 WL 924979, [2008] EWHC 743 (Queen’s Bench Div., Commercial Ct.)

An arbitral award pursuant to the arbitration under LCIA rules of an insurance dispute formed the subject matter of this claim. Royal & Sun sought to appeal the award to the English court on a point of law. The defendants argued that s.69 of the Arbitration Act 1996 (the “Act”) and the terms of the relevant arbitration agreement obliged Royal & Sun to seek the leave of the court. The question was settled in Royal & Sun’s favour as a pure question of construction involving consideration of the Act, the LCIA rules and the arbitration agreement. Read More

Relevant Factors in Grant of Freezing Injunction in Support of Foreign Arbitration

Mar 27 2008

Mobil Cerro Negro Ltd. v. Petroleos de Venezuela SA, 2008 WL 678144, [2008] EWHC 532 (Queen’s Bench Div., Commercial Ct.)

In this case, a freezing injunction was set aside, having been granted in support of claims which were the subject of ICC arbitration seated in New York. The parties were parties to a contract for the exploitation of oil rights, the Claimant being a US corporate and the Defendant the Venezuelan state oil company. Venezuelan legislation passed in 2007 mandated the “migration” of non-Venezuelan interests in Venezuelan oil to Venezuelan entities, and gave rise to claims under the parties’ contract. Mobil obtained a worldwide freezing injunction up to a value of $12 billion and Petroleos applied to have the injunction set aside. Read More

The Risks and Rewards of Green Building

Mar 24 2008

New legal implications arise from building environmentally friendly

By K&L Gates attorneys Patrick J. Perrone and Loly Garcia Tor, and David Crump Jr., Director of Legal Research for the National Association of Homebuilders

Appearing in the March 24, 2008 issue of the New Jersey Law Journal, this article explores the potential risks builders may face when building and marketing “green” homes and buildings.

View the full article here.

Choice of Seat Dictates Procedural Law

Mar 20 2008

Braes of Doune Wind Farm (Scotland) Ltd. v. Alfred McAlpine Bus. Servs. Ltd., 2008 WL 678195, [2008] EWHC 426 (Queen’s Bench Div., Tech. & Constr. Ct.)

In this case an agreement to arbitrate selected the Arbitration Act 1996 as the applicable procedural law but stated that the seat of any arbitration was "Glasgow, Scotland," where the Act does not apply. It was held that, construing the contract as a whole, the arbitration was seated juridically in England, with Glasgow serving as the location of the arbitral hearing. Read More

Factors Justifying Disclosure of Documents Filed in Arbitration

Mar 19 2008

John Forster Emmott v. Michael Wilson & Partners Ltd., 2008 WL 576947, [2008] EWCA Civ 184 (Ct. of App., Civil Div.)

In this case, the Court of Appeal upheld an order permitting the disclosure of documents filed in a London arbitration to the courts of certain overseas jurisdictions in related proceedings. In the London arbitration Wilson had originally made claims of fraud against the claimant Emmott but had subsequently withdrawn them. Wilson repeated those allegations in the overseas proceedings to which Emmott was not a party. Read More

K&L Gates’ Arbitration World, Spring 2008

Mar 01 2008

By K&L Gates attorneys Peter R. Morton, Ian Meredith, John L. Boos, Joanna A. Diakos.

Arbitration World is an update for clients and contacts on recent development in international arbitration law and practice.

Welcome to the Fifth Edition of Arbitration World, a publication from K&L Gates’ Arbitration Group which aims to highlight significant developments and issues in international arbitration for executives and in-house counsel with responsibility for dispute resolution.

In this edition, in terms of U.S. developments, we look at the growth of “class arbitration” in the U.S. and Canada, review the case law on challenging the scope of submission to an arbitrator in the U.S. and take an early look at an important Supreme Court case regarding the scope for Federal Courts to review arbitral awards as well as the proposed “Arbitration Fairness Act.”

We consider two aspects of the continuing development of the ethical framework for arbitrators: guidelines from the Chartered Institute of Arbitrators on the interviewing of prospective arbitrators and a U.S. Court of Appeal case on the duty to investigate potential conflicts of interest.

Potential Pitfalls in Australian Dispute Resolution Clauses

Feb 05 2008

Seeley Int’l Pty. Ltd. v. Electra Air Conditioning BV, 2008 WL 276689, [2008] FCA 29 (Fed. Ct. Austl.)

This Australian case illustrates the issues, in that jurisdiction, which can turn on niceties in the drafting of dispute resolution clauses. Seeley, a distributor of air conditioners sued their manufacturer, Electra, in the Australian Federal Court for breach of contract, seeking a declaration and summary judgment. Electra sought to restrain the proceedings on the basis of an agreement to arbitrate any issue between the parties before a single arbitrator seated in Melbourne under the IAMA Rules. However, the relevant clause also provided that nothing in it “prevents a party from seeking injunctive or declaratory relief in the case of a material breach or threatened breach of this Agreement.”
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