The CIMA arbitration rules are the default rules under the JCT Standard Forms. In the case here, Mr Justice Edwards-Stuart faced a challenge to an arbitrator’s award under sections 67 (lack of jurisdiction), 68 (serious irregularity) and 69 (error of law) of the 1996 Arbitration Act. It was suggested that the Notice of Arbitration did not comply with rule 2.1 of the CIMA Rules because it did not require Price to agree to the appointment of an arbitrator. The Judge disagreed. What the Rules require is for the party serving the Notice to name anyone they propose as arbitrator (either in the Notice or separately). In the Notice they may also, although not required by the Rules, invite the other party to respond and propose any other names.

The arbitrator notified the parties that he intended to appoint a surveyor as an assessor to address the conflicting evidence on valuation. The Judge said that this fell within the power given to him by s 37 of the 1996 Act to appoint an assessor. That said, the clause does require that where this is done, the parties shall be given a reasonable opportunity to comment on any advice offered by the surveyor. Rule 4.2 of the CIMA Rules, whilst giving the arbitrator the power to appoint an assessor, does not make specific provision for the parties to comment on any report that might be produced. The Judge noted that the overriding duty on an arbitrator to act fairly as between the parties, imposed by section 33 of the Act, “probably” required an arbitrator appointed under the CIMA Rules to give the parties some opportunity to comment.

Here, as it happened, there had not been a serious irregularity. For example, Price put forward no evidence to show what they would have done if they had been permitted to comment on the report.

The U.S. Supreme Court has issued a pro-employer decision that addresses two key issues concerning arbitration and the enforceability of labor contracts. The Court’s decision in Granite Rock Company v. International Brotherhood of Teamsters et al., No. 08-1214, stemmed from a lawsuit brought by the employer against a local union and an international union because of a 2004 labor strike that, as alleged, violated the terms of a no-strike clause in the employer’s valid and enforceable collective bargaining agreement with the local union. Littler represented Granite Rock in the litigation and before the Supreme Court.

On 31 March 2010 the UK Government, the Scottish Executive, the Welsh Assembly Government and the Northern Ireland Executive agreed a Memorandum of Understanding setting out the principles that underlie relations between them. This includes a protocol setting out the process which should be followed by each administration in the event of dispute. Ministers from the four administrations agreed that the dispute resolution process “should be fair, accessible, informed and responsive.” They also committed to further work to improve the process. The Protocol states that efforts should be made to resolve differences at official and then ministerial level before invoking formally the Joint Ministerial Committee (JMC) process.

In Pilon Limited v Breyer Group Plc [2010] EWHC 837(TCC), Coulson J held that an adjudicator’s decision to exclude aspects of the defence was erroneous and breached the rules of natural justice. If the adjudicator failed to address the question referred to him because he took an erroneously restrictive view of his jurisdiction (and had for example failed even to consider the defence to the claim or some fundamental element of it), that failure might make his decision unenforceable on grounds of jurisdiction or natural justice. Whilst an adjudicator’s inadvertent mistake when answering the question put to him does not ordinarily affect the enforcement of his decision (see the Court of Appeal’s decision in Bouygues v Dahl-Jensen [2000] BLR 49), if the adjudicator:

In Yuanda (UK) Co Ltd v WW Gear Construction Ltd [2010] EWHC 720, the adjudication clause in a trade contract provided that if the contractor referred a dispute to adjudication, it would be liable for its own legal and professional costs and those of the employer, regardless of the eventual decision.