Civil Engineering Reference
In-Depth Information
simply agreeing to attempt in good faith to negotiate a settlement. They had identi-
fied a particular procedure, namely, ADR as recommended by CEDR, recognized as
an experienced dispute resolution provider which had published a model Mediation
Procedure and Agreement, detailing procedures to be followed in any mediation.
The court contrasted this with a simple undertaking to negotiate a contract or set-
tlement agreement. This would be insufficiently certain to allow the court to apply
objective criteria to decide whether or not the parties were in compliance or breach of
such a provision. If the clause had simply required the parties to 'attempt in good faith
to resolve the dispute or claim', that would not have been enforceable. The Cable &
Wireless/IBM clause, on the other hand, set out in more detail how the parties were to
go about their attempts to reach agreement. This was thought to include steps which
were sufficiently certain to allow a court to readily ascertain whether or not there
had been compliance. An important consideration would be whether the obligation
to mediate was expressed in unqualified and mandatory terms. Where it was, it was
thought a sufficiently certain and deinable minimumduty of participationshouldnot
be hard to find.
The court considered there to be extremely strong case management grounds for
allowing the reference to ADR to proceed and delayed hearing the Cable & Wireless
claim pending all outstanding disputes going to ADR.
In
Tang Chung Wah
v.
Grant Thornton International Limited
(2012), the claimants
were seeking a court order to the effect that an arbitrator's award was of no effect
becausethetribunaldidnothavejurisdiction.hebasisforthisargumentwasthat
the underlying contract contained an escalating dispute clause which, they argued,
operated as a condition precedent to any arbitration taking place. The requisite steps
had not been taken and therefore the arbitration was premature and the award should
not be enforced.
These arguments had been raised during the arbitration but the arbitration tribunal
had decided that there was no contractually enforceable condition precedent to pre-
vent it having jurisdiction. he mechanism set out in the contract included, as stage 1,
any dispute being referred to the Chief Executive. he Chief Executive was to attempt
toresolvethedisputeinanamicablefashionandhaduptoonemonthaterreceipt
ofarequesttoattempttodoso.Stage2wasareferencetoapanelofthreemembers
oftheBoardtobeselectedbytheBoard.hepanelhaduptoonemonthtoattempt
to resolve the dispute. Until the earlier of the date that the panel determined it could
not resolve the dispute or one month after the dispute was referred to it, no party
couldcommenceanyarbitration.Stage3wasthatanydisputewastobereferredto
and finally resolved by arbitration.
In this case, a decision had been taken to expel a member from the Grant hornton
Member Firm Agreement. This gave rise to a dispute which was referred to the Chief
Executive.heChiefExecutive'sresponsewasthatashehadbeeninvolvedinthedeci-
sion to expel he did not consider he could act as an objective conciliator and therefore
recusedhimselffromtherole.histriggeredStage2oftheprocedure.heChairman
oftheBoardrequestedmembersoftheBoardtoadviseifanyofthemfeltabletoact
on a reconciliation panel. As they had previously supported the decision to expel, they
considered it futile to form such a panel. No members put themselves forward and the
three-person panel referred to within the dispute clause was not constituted.
