Welcome to the December 2020 edition of Outlook, a roundup of news and views from the 39 Essex Chambers Commercial and Construction Group.
First, on the topic of the proper law of an arbitration agreement, following the handing down of the Supreme Court’s judgment in Enka v Chubb, and their article in July’s edition of Outlook, Steven Lim, Ben Olbourne, Niraj Modha and Philippe Kuhn consider in detail what the Supreme Court decided and what it may have left open for another day. They also reflect on some of the other cases considered in their earlier piece to see how they might stand in light of the Supreme Court’s decision, as well as offering some key practical tips for practitioners going forward.
Next, in part one of a two-article series, Alexandra Bodnar and James Bradford explore the High Court’s recent decision in Yuanda (UK) Company Limited v Multiplex Construction Europe Limited which has the potential to shake up the UK construction performance bonds market with its conclusion that an adjudicator’s decision is sufficient ‘to establish and ascertain’ the net sums due under the bond. Alex and James outline Fraser J’s reasoning and the possible conceptual challenges.
And finally, the substantial cooperation between provider and customer necessary to implement enterprise resource planning (“ERP”) software, such as SAP or Oracle, makes it ripe for disputes. Karishma Vora considers the common pitfalls which arise when companies enter into contracts for such products.
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