Date: Tue, 12 Nov 2002 10:13:08

From: Andrew Tettenborn

Subject: ADR and contract certainty UK-style

An interesting gloss from Colman J on the notorious Walford v Miles rule in England that you can't have a contract to negotiate in good faith.

In Cable & Wireless v IBM [2002] EWHC (Comm) 2059 a master agreement contains a provision requiring disputes to be first submitted to ADR as suggested by CEDR. C & W sue without submitting to ADR: IBM apply to set aside the proceedings under the Arbitration Act. C & W argue, with some logic, that ADR is by nature a form of non-binding negotiation and either party can duck out at any time: that the obligation to submit to it, if it has any content at all, is therefore an obligation to negotiate in good faith: and that therefore it must be ineffective as a matter of law under Walford. Logical maybe: but Colman J is having none of it. Any agreement to submit to ADR - even one that doesn't introduce the arbitrament of a third party - he suggests is on principle enforceable.

Any thoughts? What price Walford now?

Andrew

Andrew Tettenborn MA LLB
Bracton Professor of Law

Tel: 01392-263189 / +44-392-263189 (international)
Mobile: 07729-266200 / +44-7729-266200 (international)
Fax: 01392-263196 / +44-392-263196 (international)

Snailmail: School of Law,
University of Exeter,
Amory Building,
Rennes Drive,
Exeter EX4 4RJ
England

[School homepage: http://www.ex.ac.uk/law/ ]
[My homepage: http://www.ex.ac.uk/law/staff/tettenborn/index.html].

<<<< Previous Message  ~  Index  ~  Next Message >>>>>