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Transnational Construction Arbitration

Page 263

Index

Index

  • abuse of process 12.1–12.39;
  • arbitral institutions 4.1–4.50;
    • amendments to case, and 4.22;
    • arbitrator’s fees 4.18, 4.19;
    • arbitration in modern era 4.6–4.11;
    • authorisation of agreement, and 4.23;
    • capping of fees 4.19;
    • challenges to arbitrators 4.24–4.27;
    • charge on time basis 4.18, 4.19;
    • City of London Chamber of Arbitration 4.4;
    • conduct of arbitration 4.12–4.15;
    • courts issuing restraining orders, and 4.40;
    • decisions on challenges to tribunals 4.27;
    • discretionary powers 4.15;
    • ethics and conduct of advocate 4.28–4.31;
    • examination of awards 4.33;
    • fraud or malpractice in course of arbitration, and 4.49;
    • function of arbitration rules 4.43;
    • fund holding 4.16, 4.17;
    • ICC 4.1, 4.2;
    • institutional rules 4.12–4.15;
    • interest on deposits 4.16, 4.17;
    • intervention of foreign court, and 4.41;
    • LCIA 4.1;
    • list of issues to be determined 4.20;
    • mandatory use of FIDIC forms of contract, and 4.45;
    • need for 4.9;
    • origin 4.1–4.5;
    • origin of terms of reference 4.21;
    • potential for ethical problems 4.29;
    • powers 4.11;
    • regulation, case for 4.50;
    • rise of 4.1–4.50;
    • role of 4.1–4.50;
    • scrutiny of awards 4.32–4.38;
    • special procedures 4.5;
    • terms of reference 4.20–4.23;
    • UNCITRAL 4.6–4.8, 4.10
  • arbitration: advantages 1.2, 1.3–1.6;
    • choice of arbitrators 1.5;
    • enforceability of awards 1.6;
    • flexibility 1.4;
    • neutrality 1.3
  • cause of action estoppel 12.15
  • complex arbitrations administration under ICC Rules 6.8–6.10;
    • institutional rules on 6.5, 6.6
  • consolidation of related claims 5.1–5.53;
    • arbitral institutions creating common rules 5.43, 5.44;
    • consumer protection 5.11;
    • current arbitration mechanisms 5.4–5.6;
    • embedding new approach 5.49–5.52;
    • enforcement only against true party 5.10;
    • exclusion of Contracts (Rights of Third Parties) Act 1999 5.12;
    • multilateral contracts 5.31–5.42;
    • opt in multi party arbitration 5.25;
    • party consent and the voluntary principle 5.8;
    • procedural privity 5.9;
    • representative proceedings 5.45–5.48;
    • representative proceedings and opt out systems 5.26, 5.27;
    • revisiting party consent 5.28–5.30;
    • section 8 (1), Contracts (Rights of Third Parties) Act 1999 5.13–5.20;
    • section 8 (2), Contracts (Rights of Third Parties) Act 1999 5.21–5.24;
    • voluntary principle 5.1, 5.2;
    • way ahead 5.3
  • emergency arbitration 15.1–15.37;
  • enforcement of DAB decisions under FIDIC 1999 forms of contract 14.1–14.125;
    • argument against final award enforcing DABs decision 14.99–14.103;
    • arguments in favour of final award as issue of non payment resolved finally 14.104–14.107;
    • binding DAB decision interim relief, whether 14.90, 14.91;
    • concept of inherent premise 14.44–14.51;
    • damages amounting to interest only 14.32;
    • damages for breach of contract 14.29;
    • damages include principal sum 14.33, 14.34;
    • dispute capable of referral under sub clause 20.6 14.23–14.26;
    • effect of NOD 14.64–14.67;
    • effect of wording in Gold Book/Guidance Memorandum 14.115–14.118;
    • exercise of power by arbitral tribunal 14.59–14.63;
    • FIDIC 1999 wording 14.11–14.15;
    • FIDIC Gold Book 14.113;
    • FIDIC Guidance Memorandum 14.40–14.43;
    • final award for relief that is not final 14.92–14.98;
    • issues 14.16–14.22;
    • loss flowing from breach of contract 14.31;
    • one dispute or two dispute approach 14.71–14.80;
    • practical difficulty 14.52;
    • rationale of DAB 14.4, 14.5;
    • referral of both primary and secondary disputes 14.68–14.80;
    • secondary dispute referred to DAB prior to referral to arbitration 14.35–14.39;
    • specific performance 14.53–14.58;
    • terminology of award 14.84–14.89;
    • types of dispute board 14.2;
    • what cause of action 14.27–14.63;
    • what sort of award 14.81–14.112;
    • whether failure to pay amounts to breach of contract 14.30
  • enforcement of foreign arbitral awards 10.1–10.70;
    • developments 10.1–10.70;
    • enforcement of lookalikes 10.40–10.67;
    • evolution of ADR 10.40–10.58;
    • failure to comply with dispute adjudication board’s decision 10.47;
    • final and binding DAB decisions enforceable under New York Convention 10.59–10.67;
    • mechanics of New York Convention 10.3–10.12;
    • obtaining dispute adjudication board’s decision 10.46;
    • prospectives 10.1–10.70;
    • public policy scrutiny 10.13–10.25;
    • recognition and enforcement of awards annulled at place of arbitration 10.26–10.39
  • expert witnesses 7.1–7.73;
    • common issues faced on complex capital projects 7.13–7.18;
    • delay, and 7.1–7.73;
    • delay analysis 7.28–7.37;
    • see also delay analysis;
    • delay analysis methods 7.44–7.46;
    • delay analysis techniques 7.47–7.69;
    • disruption, and 7.1–7.73;
    • example of probabilistic model output 7.40;
    • independence 7.4–7.7;
    • multiple stakeholders with conflicting interests 7.13;
    • nature of construction projects, and 7.8–7.12;
    • project management of evidence process 7.25;
    • quantum issues 7.1–7.73;
    • role in construction arbitration 7.1–7.73;
    • scope of work 7.19–7.24;
    • skills shortages, effect of 7.14, 7.15;
    • sound governance, importance of 7.16–7.18;
    • uncertainty in forecasting outcomes 7.38–7.43
  • expropriation of contractual rights in investment treaty arbitration 9.1–9.58;
  • foreign arbitral awards: enforcement 10.1–10.70;
    • definition under ICSID convention 8.14–8.25;
    • definitions in investment treaties 8.11–8.13;
    • proceedings conducted according to ICSID Convention 8.4–8.10
  • investment 8.1–8.48;
    • construction contracts constituting 8.27–8.31;
    • construction projects versus stand-alone engineering contracts 8.37–8.45;
    • definition 8.4–8.25;
    • definitions of foreign investment in investment treaties 8.11–8.13;
    • definitions of foreign investment under ICSID Convention 8.14–8.25;
    • foreign investments in proceedings constructed according to ICSID Convention 8.4–8.10;
    • Salini text 8.18, 8.19;
    • when construction contracts have not constituted 8.32–8.36
  • investment treaty arbitrations 8.1–8.48;
    • construction contracts as investments 8.1–8.48
  • issue estoppel 12.1–12.39
  • joinder of additional parties 5.1–5.53;
    • arbitral institutions creating common rules 5.43, 5.44;
    • consumer protection 5.11;
    • current arbitration mechanisms 5.4–5.6;
    • embedding new approach 5.49–5.52;
    • enforcement only against true party 5.10;
    • exclusion of Contracts (Rights of Third Parties) Act 1999 5.12;
    • multilateral contracts 5.31–5.42;
    • opt in multi-party arbitration 5.25;
    • party consent and the voluntary principle 5.8;
    • procedural privity 5.9;
    • representative proceedings 5.45–5.48;
    • representative proceedings and opt out systems 5.26, 5.27;
    • revisiting party consent 5.28–5.30;
    • section 8 (1), Contracts (Rights of Third Parties) Act 1999 5.13–5.20;
    • section 8 (2), Contracts (Rights of Third Parties) Act 1999 5.21–5.24;
    • voluntary principle 5.1, 5.2;
    • way ahead 5.3
  • law governing arbitration agreement 2.1–2.47;
    • absence of choice of seat 2.46;
    • choice of transitional principles 2.27;
    • common intent of parties 2.32;
    • development of non discrimination principle by national laws 2.46;
    • doctrine of separability 2.6;
    • domestic legislatures 2.7;
    • drafting solution 2.1, 2.2;
    • estoppel principle 2.41–2.44, 2.46;
    • first candidate approach 2.10–2.17;
    • French law 2.30–2.32;
    • French transnational rules 2.30–2.34;
    • German Federal Supreme Court 2.35;
    • implied choice of parties 2.15, 2.16;
    • law applicable to main contract 2.10–2.17;
    • law of the seat 2.18–2.25;
    • matrix of laws 2.5;
    • national law, rules of 2.47;
    • nature of agreement 2.6;
    • New York Convention 2.8, 2.9;
    • no choice of law, where 2.22;
    • non discrimination principle 2.38–2.40;
    • overcoming challenges of transnational approach 2.36–2.45;
    • parties choosing seat of arbitration in agreement 2.46;
    • proper law of the contract 2.11;
    • second candidate approach 2.18–2.25;
    • separate inquiry, need for 2.5–2.9;
    • special rules 2.6;
    • third candidate approach 2.26–2.35;
    • transnational approach 2.26–2.35;
    • UNCITRAL Model Law 2.8;
    • validation principle 2.45, 2.46
  • Middle East 11.1–11.88;
    • recognition and enforcement of arbitral awards see recognition and enforcement of arbitral awards in Middle East
  • multi-party arbitration 6.1–6.79;
    • administration of complex arbitrations under ICC Rules 6.8–6.10;
    • agreement to consolidate 6.57–6.61;
    • appointment of arbitrators 6.34;
    • automatic nature of joinder 6.11–6.15;
    • claims 6.35–6.48;
    • consolidation 6.53–6.75;
    • different arbitration agreements 6.65–6.68;
    • discretional nature of decision to consolidate 6.69–6.73;
    • formalities of consolidation 6.74–6.75;
    • institutional rules, under 6.1–6.79;
    • institutional rules on complex arbitrations 6.5, 6.6;
    • joinder of additional parties 6.11–6.34;
    • multi-contract arbitrations 6.49–6.52;
    • procedure for claims 6.41–6.48;
    • procedure for joinder 6.16–6.30;
    • purpose of claims 6.35–6.40;
    • purpose of consolidation 6.53–6.56;
    • requirements for joinder 6.31–6.33;
    • same arbitration agreement 6.62–6.64;
    • scope of claims 6.35–6.40
  • multi-tier dispute resolution clauses 3.1–3.34;
    • ‘an attempt at conciliation’ 3.28, 3.29;
    • clarity and certainty of obligations 3.18–3.20;
    • condition precedent to arbitration 3.25, 3.30;
    • dispute resolution process, and 3.8;
    • drafting 3.34;
    • enforceability 3.9–3.30;
    • enforcement in public interest 3.22;
    • FIDIC fourth edition 3.4;
    • good faith, and 3.24, 3.26;
    • hurdles 3.5;
    • ICC standard clause 3.3;
    • main issues 3.7;
    • mediation process, and 3.11–3.15;
    • obligation to negotiate 3.31;
    • over elaborate drafting 3.6;
    • prior steps 3.17;
    • problems with 3.5–3.8;
    • stay of proceedings, and 3.33;
    • typical clauses 3.3, 3.4
  • transnational issues 1.14–1.20;
    • contractual provisions 1.17;
    • international instruments 1.16;
    • national law, and 1.18–1.20

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