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Arbitration

Germany

The European Parliament has adopted the EU Directive on Certain Aspects of Mediation in Civil and Commercial Matters in order to make mediation an attractive alternative to legal and arbitration proceedings. To comply with the directive, legislative provisions on the enforceability of all written mediation settlements must be introduced into German law within the next three years.

United Kingdom

The High Court recently held that the power to grant injunctions in support of arbitration proceedings is not confined to the English courts. The case provides useful guidance as to the circumstances in which parties that have agreed to submit their dispute to arbitration in London might find themselves without recourse to the English courts and instead subject to foreign court proceedings.

Many commercial dispute resolution clauses provide for claims to be submitted to conciliation or mediation before they can be submitted to arbitration or court proceedings. However, these are often only agreements to negotiate in good faith, which are not enforceable under English law. A recent High Court decision highlights the requirements that conciliation or mediation clauses should meet to be upheld by the courts.

The Court of Appeal has enforced an arbitral award that was set aside by the courts in the jurisdiction where the award was made. The case is the latest decision in the longstanding dispute between Yukos and Rosneft which has given rise to numerous arbitral and court proceedings in various jurisdictions following the expropriation of Yukos's oil assets.

The Court of Appeal has upheld the first instance decision in Sulamerica Cia Nacional de Seguros SA v Enesa Engenharia SA. The court found that the law of the arbitration agreement had its closest and most real connection with the seat of the arbitration, not the substantive law governing the underlying insurance policy.

A recent decision has reiterated the importance of the principle of comity towards the courts of "foreign and friendly states" in considering whether to grant anti-suit injunctions. The court was faced with an opaque arbitration clause providing for London as the "venue" of the arbitration, but also referring to the application of the Indian Arbitration and Conciliation Act 1996.

An arbitral tribunal has jurisdiction to grant damages for breach of an arbitration agreement. The application of that principle in the context of EU law was questioned in the latest court application in the long-running West Tankers saga. The English court confirmed that EU law did not circumscribe the arbitral tribunal's jurisdiction to award damages for breach of an arbitration agreement.

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Competition

European Union

The European Commission has opened an in-depth investigation into the planned acquisition of Aer Lingus Group plc by Ryanair Holdings plc. The initial market investigation indicated that the proposed acquisition would raise serious competition concerns in the passenger air transport sector and, in particular, could reduce choice for consumers and give rise to higher fares.

The European Commission has adopted a revised notice on immunity from fines and reduction of fines in cartel cases. Under the commission's leniency programme, since 2002 companies have been able to apply to the commission to obtain total immunity or leniency from fines.

The European Commission has cleared, subject to conditions, the proposed acquisition by Johnson & Johnson of Pfizer's Consumer Healthcare Division (PCH). The commission's market investigation indicated that the proposed acquisition would not significantly affect most of the markets on which Johnson & Johnson and PCH overlap.

The European Commission has published the final report in its energy sector inquiry. The report states that, since the publication of its preliminary report, the commission has conducted a thorough analysis and gathered further evidence which confirmed its initial finding that there are serious obstacles to achieving full liberalization of the EU energy sector.

The European Commission has opened an in-depth investigation into the proposed acquisition of SIG by CVC and Ferd. If serious doubts are raised during the commission's initial first-phase investigation into a merger transaction, it must open an in-depth investigation if it has not received an offer of appropriate remedies.

The European Commission has re-adopted its cartel decision in relation to the stainless steel sector and fined ThyssenKrupp Stainless AG €3.168 million. The commission's original decision in this case was partially annulled by the European Court of Justice on procedural grounds.

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Construction

United Kingdom

The construction industry had become used to the harsh but fair operation of the Housing Grants, Construction and Regeneration Act 1996. However, Melville Dundas and Pierce Design have prompted and continued a debate about whether a clause in the 1998 Joint Contracts Tribunal contract complies with the payment provisions of the act and what the effect of the clause is.

The key changes introduced by the new Construction (Design and Management) Regulations include the replacement of the role of planning supervisor, the imposition of greater responsibilities on clients and the removal of the civil liability exemption in respect of civil actions by employees against employers.

In many construction contracts the contract administrator is called on to act as an interim settler of disputes. A Court of Appeal decision has shown that an engineer or architect is not bound by the rules of natural justice in this regard, provided that the contract provides for the parties to refer the decision to an arbitrator.

Partnering is no longer a new phenomenon and the number of projects procured through partnering has increased steadily in recent years. Endorsements from agencies such as the Office of Government Commerce and the National Audit Office, combined with a number of high-profile applications, suggest that the popularity of the partnering approach will continue.

The Royal Institute of British Architects (RIBA) has submitted ideas for improving the Building Regulations to the minister with responsibility for the regulations at the Department for Communities and Local Government for the review being undertaken by the department and the Cabinet Office. RIBA has developed six proposals for improving the regulations.

In the construction industry, variations are frequently ordered, programmes are changed and sometimes work is not completed on time. Ideally, contracts should include a mechanism to deal with this, but what happens if the extension of time clause is defective or non-existent, or liquidated damages have been held to be a penalty, but the parties wish to try to have the work completed?

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