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9780199281244

Construction Contracts Law and Practice

by
  • ISBN13:

    9780199281244

  • ISBN10:

    0199281246

  • Format: Hardcover
  • Copyright: 2006-05-18
  • Publisher: Oxford University Press
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Summary

An up-to-date, practical and modern textbook on the law and practice relating to construction contracts in the UK dealing with the substantive law and modern dispute resolution procedures in the field of construction law. This text will be valuable to practitioners and professionals in the construction business.

Author Biography


Richard Wilmot-Smith QC was called to the Bar in 1978, and took Silk in 1994. He has specialised in construction law since 1979.

Table of Contents

Table of Cases
xxxi
Tables of Primary Legislation
lxxiii
Tables of Secondary Legislation
lxxxiii
I. THE CONTRACT
Contracts: Formation and Interpretation
Introduction
1(4)
Invitations to Tender or Treat
5(11)
Subject to Contract
16(2)
Letters of Intent
18(3)
Offer and Acceptance
21(27)
Consideration
48(17)
Economic Duress
65(2)
Intention to Create Legal Relations
67(8)
What Happens When Work Is Done and There Is No Contract
75(3)
The Interpretation of Contracts: Rules as to How They Are Interpreted and What Background It Is Permissible To Look at in Interpreting a Contract
78(10)
Literalism and Reasonableness
79(3)
Context and `Factual Matrix': What is Admissible and What is Inadmissible Evidence of Context
82(6)
Individual Rules of Construction and Interpretation
88(11)
Implied Terms and Impermissible Terms
99(19)
A Course of Dealing
101(1)
Terms Implied by Statute
102(1)
Supply of Goods and Services Act 1982
103(6)
Housing Grants, Construction and Regeneration Act 1996: Part II
109(9)
Terms Implied at Common Law
118(22)
Criteria for the Implication of a Term into a Contract: The Basic Criterion
119(5)
Criteria for the Implication of a Term into a Contract: Traditional Terms Examined
124(16)
Impermissible Terms
140(6)
Penalties and Exemption Clauses
140(1)
`Pay When Paid' Clauses
141(2)
Entire Agreement Clause
143(3)
Rectification
146(5)
Estoppel and Waiver
151
Standard Forms of Contract and Bespoke Contracts
Introduction
1(6)
The Elements of the `Traditional Contract'
7(62)
The Basic Warranties
8(4)
Sub-letting and Assignment
12(3)
Prescription of the Standard of Work and Quality and Specification of Materials
15(2)
Setting Out
17(1)
Obedience to Instructions
18(2)
Compliance with Statute
20(4)
Men on Site
24(4)
Sufficiency of Tender
28(2)
Measurement: The Standard Method of Measurement: Contract Sum Adjustment
30(3)
The Right to Vary or Change the Works
33(9)
Insurance
42(7)
Possession and Time (and Extensions of Time) for Completion
49(3)
Certificates of Completion and Making Good Defects
52(2)
Programmes and Method Statements
54(1)
Loss and Expense
55(1)
Determination or Forfeiture
56(5)
Fossils
61(1)
War
62(5)
Fluctuations or Increased Costs
67(2)
Nominated Sub-contractors and Nominated Suppliers
69(8)
Payment and Certificates
77(6)
Arbitration, Adjudication, Expert Determination, and Litigation: Dispute Resolution
83(6)
Notices
89(2)
Prime Cost Contracts
91(2)
Design and Build Main Contracts
93(4)
Management Contracts
97(3)
Forms of Sub-contract
100
The Provision or the Principal Obligation of the Sub-contractor
101(1)
Back to Back and Indemnity
102(4)
Insurance
106(4)
Variations
110(1)
Right of Access to the Site of the Contract Professional
111(1)
Progress and Completion: Extensions of Time and Damages for Delay
112(3)
Loss and Expense
115(2)
Defects
117(1)
Set Off and `Pay When Paid'
118(8)
Sub-letting and Assignment
126(1)
Forfeiture or Determination
127(3)
Fluctuations
130(1)
Payment and Direct Payment
131(4)
Notices
135(1)
Arbitration, Adjudication, Expert Determination, and Litigation: Dispute Resolution
136
Quantum Meruit
The Meaning of Quantum Meruit
1(2)
When There Has Been an Agreement to Pay a Reasonable Price
3(3)
Where There Has Been No Agreement
6(8)
When There Is an Agreement But the Work Falls Outside Its Scope
14(10)
Where There Has Been a Void or Repudiated Contract
24
Assignment and Sub-letting and the Contracts (Rights Against Third Parties) Act 1999
Assignment and What Cannot Be Assigned
1(9)
Where Assignment Is Prohibited
5(1)
Contracts of a Truly Personal Nature
6(1)
Assignment Savouring of Maintenance and Champerty
7(3)
Statutory and Equitable Assignment
10(5)
Statutory Assignment
10(3)
Equitable Assignment
13(2)
Assignment Subject to Equities
15(2)
Assignment When There Is Insolvency
17(1)
Assignment by the Contractor
18(3)
Assignment by the Employer
21(9)
Sub-letting
30(2)
Contracts (Rights Against Third Parties) Act 1999
32
II. LIABILITY
The Roles of Professionals
Background and Professionals Generally
1(12)
The Architect
13(6)
The Project Manager
19(7)
Engineers
26(3)
Quantity Surveyors
29
Tort and Construction Law
The Common Law: Negligence
1(123)
Introduction
1(2)
The Characterization of Loss
3(9)
Historical Overview
12(1)
The modern genesis of the duty of care in relation to personal injury and damage to other property: Donoghue v Stevenson
12(4)
The modern genesis of the duty of care in relation to pure economic loss
16(7)
Dorset Yacht Co Ltd v Home Office and Anns v Merton LBC
23(13)
The retreat from Anns
36(14)
Henderson v Merrett
50(8)
Summary of the position following Henderson v Merrett
58(4)
Duties of Care and Pure Economic Loss: the Relationship
Between the Three Approaches
62(3)
Evolution of the Hedley Byrne principle
65(3)
Complex Structure Theory
68(6)
Relevance of the Contractual Background
74(1)
Introduction
74(1)
Contract between the claimant and the defendant
75(3)
No contract between the claimant and the defendant
78(5)
Contractors and the Duty of Care in Relation to Personal Injury and Damage to Other Property
83(2)
Construction Professionals and the Duty of Care in Relation to Personal Injury and Damage to Other Property
85(4)
Intermediate inspection
89(7)
Contractors and the Duty of Care in Relation to Pure Economic Loss
96(1)
Introduction
96(2)
Contract between the builder and the building owner
98(16)
No contract between builder and claimant
114(1)
Construction Professionals and the Duty of Care in Relation to Pure Economic Loss
115(7)
Liability for the Negligence of Independent Contractors
122(2)
The Common Law: Nuisance
124
Legislative Provisions
131(1)
Defective Premises Act 1972
131(4)
Building Act 1984 and associated regulations
135(2)
Party Wall etc Act 1996
137(8)
EC Legislation: Consumer Protection Act 1987
145(10)
EC Legislation: Construction Products Regulations 1991
155(5)
EC Legislation: General Product Safety Regulations 1994
160
Exemption and Limitation of Liability Clauses
Limitation of Liability Clauses in Construction Contracts and Professionals' Contracts
1(3)
How the Clauses Are Construed
4(2)
The Role of Insurance
6(1)
Common Insurance Clauses
7(2)
Effect of Insurance Clauses on Duties of Care and Liabilities under the Contract
9(4)
Unfair Contract Terms Act 1977: Generally
13(27)
Negligence Liability
21(4)
Consumer Contracts and Standard Form Contracts
25(6)
Unreasonable Indemnity Clauses
31(2)
Sale and Supply of Goods
33(6)
The Reasonable Test Applied to Section 3 Exemption Clauses
39(1)
Categories of Exemption Clauses and the Reasonableness Test under the 1977 Act
40(7)
Clauses Which Exclude Liability for Defective Performance Altogether
41(1)
Clauses Which Exclude Liability for Damages for Breach of Contract and Substitute for a It a Liability to Replace or Repair
42(1)
Clauses Which Seek to Limit Liability for Defective Performance to a Fixed Sum or a Sum Which is Expressed as a Percentage of the Contract Sum
43(1)
Contracts Which Seek to Limit Liability to a Sum Which it is Agreed That a Contractor or Professional (Usually a Professional) Shall Insure Against
44(1)
Contracts Which Provide for a `Net Contribution' Limitation of Liability in Which the Liability of a Professional Shall Be Limited to That Proportion of the Employer's Loss Which Relates to the Professional's Relative Responsibility Along with the Contractor and Other Professionals
45(1)
Contracts Which Exclude Liability for `Loss of Profits, Loss of Use' and Other `Consequential Losses'
46(1)
Sale or Supply of Goods and the Further Matters to Be Considered under the Reasonableness Test
47(2)
Effect of Repudiation
49(1)
General Terms and Severability
50(1)
Effect of Different Types of Exemption Clause: Set Off
51(2)
The Unfair Terms in Consumer Contracts Regulations 1999
53(16)
Application
53(4)
Unfair Terms and the Regulations
57(5)
Unfairness and the Regulations
62(4)
The Effect of the Regulations on Adjudication and Arbitration Provisions
66(2)
Assessment of the Terms
68(1)
Reform
69
Mistake, Misrepresentation, and Frustration
Common Mistake
1(2)
Unilateral Mistake
3(3)
Misrepresentation and the Misrepresentation Act 1967
6(8)
Rescission
14(2)
Frustration
16
Guarantee and Indemnity
Guarantee and Indemnity Contrasted
1(8)
Common Forms of Bond: Their History
9(4)
The Rule in Holme v Brunskill
13(6)
On Demand Bonds and Conditional Bonds: Trafalgar House v General Surety
19(8)
Cross Guarantees
27(3)
The Intervention of the Courts to Prevent Calls on Bonds Both in the United Kingdom and Internationally
30
III. PERFORMANCE
Certificates and the Right to Payment
Simple Contracts: Lump Sum Contracts; Substantial Performance; Non-completion
1(5)
Certificates and Payment
6(3)
Non-approval or Certification by the Contract Professional or Employee of the Developer or Contractor and Wrong Certification
9(7)
Schedules of Rates; Bills of Quantities; Milestone Payments
16(1)
The Final Account; Certification of the Final Account; Effect of Final Certificates; Discharge from Further Performance by Final Certificate
17(2)
Set Off
19
Time for Completion
Dates for Completion
1(5)
Extension of Time Clauses: An Introduction
6(9)
Effect of Discharge of Liquidated Damages and Recovery of Actual Losses
15(6)
The Law Relating to Penalties
21(8)
Extension of Time Clauses; Reasons for Extension of Time Clauses and the Contra Proferentem Rule in Relation to Liquidated Damages
29(6)
The Grant of Extensions of Time and Its Effect
35
IV. BREACH, TERMINATION AND DAMAGES
Damages for Breach of Contract
Introduction
1(1)
The Rule in Hadley v Baxendale
2(10)
Language in Analysing the First and Second Limb
9(3)
Employer's Remedies for the Contractor's Breaches of Contract
12(17)
Damages Claimed for Defects Remedied During the Defects Liability Period
19(1)
The Temporary Disconformity Theory or Heresy
20(3)
General Damages
23(1)
Where the Employer May Not Suffer All the Loss
24(1)
Damages Against Professionals
25(4)
Contractor's Remedies for Employer's Breach of Contract
29(4)
How the Remedies Inter-relate to Claims under the Contract
33(3)
Recovery of Loss Following a Settlement: The Rule in Biggin & Co Ltd v Permanite
36(5)
Discharge from Further Performance by Breach; Fundamental Breach
41(11)
Impecuniosity and the Additional Damage That Causes
52(3)
New for Old
55
Determination or Forfeiture Clauses
Types of Forfeiture Clause
1(1)
Determination for Cause
2(5)
Strict Compliance or Contra Proferentem Rule
7(8)
Repudiation
15(4)
Determination without Cause and Remedies in the Event of Forfeiture
19(3)
Liens, Bills of Sale, and Vesting Clauses in Relation to Plant and Machinery; Fixed or Floating Charges and Registration
22(3)
Penalties
25(1)
Relief against Forfeiture
26
V. CLAIMS
Loss and Expense
The Right to Order Variations; the Distinction between Variations under the Contract and a Variation of the Contract
1(8)
Contractor's Claims under the Contract; the Most Common Types of Claim
9(4)
Loss and Expense and Extensions of Time
13(13)
The Principles Which Govern the Grant of an Extension of Time
26(5)
The Principles Which Govern the Certification and Payment of Loss and Expense
31(3)
Common Problems in the Examination of Extensions of Time and Loss and Expense
34(3)
Concurrent Delay and Causation: Extensions of Time
37(16)
Concurrent Delay and Causation: Loss and Expense
53(3)
Programs and Computer Analysis
56(9)
Ownership of Float
65(15)
How are Late Variations to Be Assessed: On a Net or Gross Basis?
80(6)
How Loss and Expense Is Calculated and the Essentials for Pleading and Putting Forward a Claim for Loss and Expense
86(12)
Calculation of Loss and Expense
86(1)
Prolongation Costs
87(7)
Disruption Costs
94(1)
Finance Charges
95(1)
Management Time
96(1)
Damages or Costs Payable to Third Parties
97(1)
Loss and Expense and Rolled Up Claims
98
Limitation of Action
Rationale
1(3)
Limitation Period for Contracts under Seal
4(4)
Limitation Period for Contracts Not under Seal or Simple Contracts
8(15)
Claims for Sums Due: Contractors and Professionals
10(6)
Claims for Damages for Breach of Contract: Contractors
16(2)
Claims for Damages for Breach of Contract: Professionals
18(5)
Limitation Period in Tort
23(13)
Latent Damage: The New Three-Year Period and the Fifteen-Year `Long Stop'
36(5)
Limitation Periods for Guarantee and Indemnity
41(3)
The Separate Cause of Action in an Arbitration Award
44(2)
Actions on a Judgment
46(1)
The Limitation Period for a Contribution
47(2)
The Defective Premises Act 1972
49(1)
Claims Pursuant to Other Statutes
50(1)
Concealed Fraud and the Extension of the Limitation Period
51(5)
Amendments to Court Actions
56
Injunctions and Specific Performance
Dealing with a Breach of Contract; Specific Performance and Mandatory Injunctions
1(8)
Injunctions, Namely Orders Otherwise than Seeking to Enforce a Contract and `Damages in Lieu'
9(4)
Interim Injunctions
13
Negative Interim Injunctions
15(3)
Injunction to Restrain the Advertisement and Presentation of a Winding Up Petition
18(1)
Positive Interim Injunctions
19
Bankruptcy and Insolvency
Insolvency
1(1)
Effect of Contractor's Insolvency and Employer's Insolvency
2(3)
The Effect of Clauses Which Entitle the Employer to use and Then Sell the Contractor's Plant and Equipment
5(2)
Clauses Which Seek to Cause the Vendor Retain the Title in Goods until Payment
7(7)
Clauses Which Require Retention to be Placed unto a Special Account
14(1)
Clauses Which Permit Direct Payment of Sub-Contractors
15(3)
Insolvency Set Off
18
VI. DISPUTES
Adjudication
Introduction
1(10)
Adjudication in Practice
11(29)
Is There a Construction Contract?
12(7)
What Are Construction Operations?
19(13)
What Are Not Construction Operations?
32(8)
Definition of a Construction Contract
40(13)
Construction Operations and Other Operations
53(16)
Time and Place
55(8)
Residential Occupiers
63(6)
Contract in Writing
69(12)
The Right to Adjudication: How It Arises
81(11)
Notice of Intention to Refer a Dispute to Adjudication ('Adjudication Notice')
92(13)
Introduction
92(1)
When Should a Notice Be Served?
93(12)
Limitations on Timing: the Crystallization of a Dispute
105(95)
Key Principles
129(1)
The word `dispute' is to be given its normal meaning
129(2)
Notification of a claim is not enough
131(12)
Discussions between the parties may infer that the claim is not admitted
143(3)
Prevarication by the respondent may infer that he does not admit the claim
146(5)
Silence by the respondent may infer that the claim is not admitted
151(11)
The imposition of a deadline for responding does not automatically curtail a reasonable time for responding
162(4)
Nebulous and ill-defined claims will not give rise to a dispute even if met with an express non-admission
166(3)
The adjudicator only has jurisdiction to decide the dispute that has crystallized
169(3)
How Can a Claimant Crystallize a Dispute in the Light of the Key Principles Outlined Above?
172(22)
The Scope of the Dispute
194(6)
The Importance of the Adjudication Notice
200(18)
Widely Defined Dispute
210(8)
Notice of Adjudication Defines the Scope of the Dispute
218(4)
Drafting the Adjudication Notice
222(30)
Remedies Which Can Be Sought
237(5)
Nominating and Appointing the Adjudicator
242(8)
Responding to a Notice of Adjudication
250(2)
Challenging Jurisdiction
252(22)
No Power to Decide Own Jurisdiction
252(5)
Challenging Jurisdiction
257(1)
Agreeing to give the adjudicator power to determine his own jurisdiction
258(3)
Referring the question of jurisdiction to another adjudicator
261(4)
Referring the question of jurisdiction to the court
265(5)
Reserving the position
270(2)
Additional option
272(2)
Waiver
274(3)
The Adjudicator's Response to a Challenge
277(5)
The Referral
282(27)
Witness Statements and Expert Reports
298(6)
Confidentiality
304(5)
Response Document
309(40)
Burden of Proof
311(4)
Standard of Proof
315(3)
Positive/Negative Case
318(8)
Witness Statements/Expert Evidence
326(7)
Arguments not Referred to in Previous Correspondence
333(3)
Practical Considerations
336(5)
Reply
341(2)
Hearing
343(6)
Enforcement of an Adjudicator's Decision
349(27)
Enforcement Prior to the 1996 Act
352(2)
Enforcement Following the 1996 Act
354(6)
Enforcing Parts of an Adjudicator's Decision
360(6)
Summary Judgment
366(10)
Procedure for Applications under CPR Part 24
376(16)
Proceedings under CPR Part 8
392(10)
Statutory Demand
394(8)
The Effect of an Adjudication Decision: Does It Create a Debt or an Independent Cause of Action?
402(22)
Non-1996 Act Adjudications
408(16)
Enforcement Outside the United Kingdom
424(18)
The Slip Rule
428(6)
Resisting Enforcement
434(1)
The Construction Contract Pre-dates the 1996 Act
435(2)
No Proper Appointment
437(5)
Not a Construction Contract and Therefore Outside the Ambit of the 1996 Act
442(1)
Not Addressing the Issue Referred
443(3)
Insolvency
446(8)
Natural Justice and the Human Rights Act
454(6)
Natural Justice
454(6)
The Effect of the Human Rights Act 1998
460(11)
No Dispute at the Time of the Service of the Notice of Adjudication
466(3)
Costs: Provisions for Costs in Some Standard Forms
469(2)
Interaction with Litigation and Arbitration
471(5)
Limitation
476
Mediation and Alternative Dispute Resolution
Mediation and ADR: the Movement for Change and ADR
1(9)
What Is Involved in a Mediation
10(3)
`Rules' of Mediation; `Without Prejudice'
13(3)
How Mediations Are Run; Opening Statements; Responses; Without Prejudice Meetings
16(7)
The Role of the Mediator; the Role of Legal Advisors and Professionals
23(3)
Settlement
26(1)
Dunnett Mediations; Effect of Not Mediating upon Any Costs Applications Made at the End of Arbitration or Litigation; Cowl
27
Arbitration
The Arbitration Agreement
1(5)
Enforcement of the Arbitration Agreement
6(2)
The Arbitration Act 1996: the Theory of Party Autonomy
8(4)
Arbitration Procedure
12(14)
The Nominating Body and Choice of Arbitrator
13(2)
Agreement of Terms with the Arbitrator and His or Her Fees
15(2)
The Key Questions to Start with Which Influence Procedure
17(3)
The Expertise of the Arbitrator
20(1)
Techniques for Reducing Cost and Directions to be Given by the Arbitrator
21(5)
Quality of Arbitrators: the Pool of Talent
26(1)
Sealed Offers
27(4)
Costs
31(3)
Appeals
34
Litigation
Construction Litigation and the TCC Guide
1(2)
Pre-Action Protocols and the Mischief They Seek to Avoid
3(45)
Pre-action Protocols: the TCC Protocol
3(3)
Aims of the Protocol
6(9)
The Letter of Claim
15(7)
Objections Taken to the Claim
22(5)
Contents of the Letter of Response
27(2)
Front Loading of Costs
29(1)
The Counterclaim
30(1)
The Meeting of the Parties
31(5)
What the Parties Should Try to Agree
36(1)
What to Do if Limitation is About to Expire
37(3)
Pre-action Protocols: the Professional Negligence Protocol and Its Significance
40(8)
The Specialist Court: the TCC
48(17)
The Judges
48(9)
The TCC in London
57(3)
The TCC outside London
60(4)
Small Claims, Fast Track Claims, and Multi Track Claims
64(1)
How to Frame a Claim; the Essentials of a Claim
65(14)
Introduction
65(1)
The Elements of Pleading: the Claim
66(5)
Quantum and Linkage
71(3)
Elements of Pleading: the Defence
74(5)
Claims Consultants and the Dangers of Defective Formulation of Claims
79(2)
Schedules: `Scott Schedules'
81(5)
Case Management
86(5)
Issues for Consideration at a Case Management Conference
87(2)
Directions
89(2)
Experts
91(50)
What is Expert Evidence
91(3)
Protocol for the Instruction of Experts to Give Evidence in Civil Claims
94(1)
Independence of Experts
95(5)
Nature of the Evidence
100(8)
Control of Expert Evidence
108(4)
Single Joint Expert: Generally
112(3)
Choice of Experts
115(3)
Duties of Experts to Court and Client
118(4)
Duties of Experts: Discussions between Experts
122(2)
Instruction of Experts: the Party Appointed Expert
124(5)
Instructions to the Single Joint Expert
129(3)
Disclosure of Instructions to Experts
132(1)
Duties of Experts on Receipt of Instructions: the Single Joint Expert
133(4)
Duties of Experts on Receipt of Instructions: the Party Instructed Expert
137(2)
Rights of Experts
139(2)
A View
141(2)
Disclosure
143(7)
Notice to Admit Facts
150(1)
Preservation and Sampling of Evidence
151(2)
Summary Judgment
153(1)
Offers to Settle; Payments into Court and Costs
154(17)
Part 36 Offer by a Claimant
155(2)
Part 36 Payment
157(1)
Defendants Offer Otherwise Than a Part 36 Payment
158(8)
Costs: Do Costs Follow the Event and the Amounts of Costs Recoverable? When They Can Be Recovered?
166(2)
Standard Basis Costs
168(3)
Judgments and Appeals and Reasons
171
VII. PROCUREMENT AND COMPETITION IN THE EUROPEAN COMMUNITY
Procurement and the European Community
Overview
1(5)
Threshold Values
6(3)
Excluded Contracts
9(1)
Equality of Tenderers
10(1)
Technical Specifications
11(4)
Procedures for Seeking Tenders
15(14)
Open Procedure
16(3)
Restricted Procedure
19(4)
Negotiated Procedure
23(4)
Competitive Dialogue
27(2)
Other Innovations in the New Directives
29(2)
Criteria for Awarding Contracts
31(3)
Post-award Variations
34(1)
Enforcement, Penalties, and Remedies
35(2)
Competition: The European Community
37(17)
The EC Treaty
38(5)
Application of Article 81
43(5)
Application of Article 82
48(4)
Enforcement, Penalties, and Remedies
52(2)
UK Competition Law
54(11)
The Chapter I Prohibition
55(4)
The Chapter II Prohibition
59(3)
Enforcement and Penalties
62(3)
Corruption and Bribery
65(476)
Public Officials Only
66(4)
Private and Public Officials
70(4)
Crime Committed Abroad
74(1)
Law Reform
75(466)
Appendix 1: Supply of Goods and Services Act 1982 (Extracts) 541(1)
Appendix 2: Housing Grants, Construction and Regeneration Act 1996 (Extracts) 542(7)
Appendix 3: Scheme for Construction Contracts (England and Wales) Regulations 1998 (SI 1998/649) 549(8)
Appendix 4: Contracts (Rights of Third Parties) Act 1999 557(5)
Appendix 5: Party Wall etc Act 1996 562(12)
Appendix 6: Misrepresentation Act 1967 574(2)
Appendix 7: The Insolvency (Amendment) Rules 2005 (SI 2005/527) (Extracts) 576(2)
Appendix 8: Protocol for the Instruction of Experts to Give Evidence in Civil Claims 578(10)
Appendix 9: Technology and Construction Court Guide 588(50)
Appendix 10: Rules of Arbitration of the International Chamber of Commerce 638(11)
Index 649

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