Case Law Repository
A curated repository of significant decisions in international and domestic arbitration and expert determination proceedings, with summaries of the principal findings.
Dispute Resolution
International and domestic arbitration remains the preferred method for the resolution of complex construction and engineering disputes. Expert determination provides a binding or non-binding mechanism for the resolution of discrete technical or valuation issues. The following cases represent significant judicial decisions that have shaped the law and practice of arbitration and expert determination across major jurisdictions.
This repository is maintained as a reference resource and is updated as new decisions of significance are handed down. For detailed analysis of recent decisions, refer to our Insights & Case Reviews page.
International Arbitration
Key decisions from supervisory courts and appellate authorities addressing the conduct, procedure and enforcement of international arbitration proceedings.
Supreme Court authority on the enforcement of international arbitral awards and the scope of the court’s power to examine the jurisdiction of the arbitral tribunal, including the question of whether a party was bound by the arbitration agreement.
Supreme Court decision on the law governing the arbitration agreement and the principles for determining the proper law of the arbitration clause where the parties have not made an express choice. A landmark decision in international arbitration.
Supreme Court authority on the duty of disclosure of potential conflicts of interest by arbitrators and the circumstances in which an arbitrator’s failure to disclose appointments in related references gives rise to justifiable doubts as to impartiality.
High Court of Australia decision on the constitutional validity of the International Arbitration Act 1974 and the limited scope of judicial review of international arbitral awards under the New York Convention and the Model Law.
Singapore Court of Appeal authority on the grounds for setting aside international arbitral awards, including the public policy ground and the approach to be adopted when an award is challenged on the basis of a breach of natural justice.
Hong Kong Court of Final Appeal authority on the enforcement of arbitral awards and the treatment of related arbitration proceedings across multiple jurisdictions. Addressed the preclusion doctrine in the context of international arbitration.
Domestic Arbitration
Significant decisions addressing the conduct, procedure and judicial supervision of domestic arbitration proceedings in construction and engineering disputes.
NSW Court of Appeal authority on the enforceability of arbitration agreements and the circumstances in which a court will refer parties to arbitration, including the treatment of multi-party disputes and joinder in domestic arbitration.
High Court of Australia decision on the grounds for setting aside domestic arbitral awards, including the distinction between errors of law on the face of the award and jurisdictional errors.
Addressed the scope of arbitral jurisdiction in multi-contract construction disputes and the treatment of related claims arising under different contracts within a single arbitration proceeding.
Supreme Court authority on the law applicable to arbitration agreements in the context of chains of related contracts and the proper approach to determining the parties to an arbitration agreement.
Singapore Court of Appeal authority on the grounds for setting aside domestic arbitral awards on the basis of breach of natural justice, establishing the framework for the court’s supervisory jurisdiction over arbitral proceedings.
Expert Determination
Expert determination is a contractual dispute resolution mechanism in which a neutral expert is appointed to determine a defined question. The following decisions address the nature, enforceability and scope of expert determinations across major jurisdictions.
Addressed the enforceability of expert determinations under construction contracts and the limited grounds upon which a party may challenge the binding nature of a determination, including manifest error and departure from the terms of the expert’s appointment.
Considered the distinction between expert determination and arbitration, the nature of the expert’s function, and the circumstances in which an expert determination may be challenged on grounds of procedural unfairness or departure from the agreed terms of reference.
Court of Appeal authority on the binding nature of expert determinations and the principle that an expert determination is final and binding unless the expert has departed from the instructions given or has acted in manifest error.
House of Lords authority on the nature of certification and expert determination in commercial contracts, establishing the principle that a certificate or determination by a third party is conclusive in the absence of fraud or manifest error.
Addressed the scope of the expert determiner’s jurisdiction and the consequences of an expert determination that addresses matters outside the terms of the expert’s appointment. Considered the partial enforceability of expert determinations.
Western Australian authority on the enforceability of expert determination clauses in construction contracts and the distinction between expert determination as a condition precedent to arbitration and expert determination as a final resolution mechanism.
Singapore authority on the role of expert determiners in construction disputes and the interaction between contractual expert determination mechanisms and statutory adjudication under the Building and Construction Industry Security of Payment Act.
Investment Treaty
Investment treaty arbitration involves disputes between foreign investors and host states arising under bilateral investment treaties and multilateral investment agreements. The following decisions are of particular relevance to construction and infrastructure disputes.
Established the “Salini test” for determining whether a construction contract constitutes an “investment” for the purposes of ICSID jurisdiction. The four criteria — contribution, duration, risk, and contribution to the host state’s development — have been widely applied in subsequent investment treaty proceedings involving construction projects.
Addressed the treatment of construction contract disputes within the investment treaty framework, including the distinction between ordinary commercial disputes and claims of expropriation or denial of fair and equitable treatment in the context of major infrastructure projects.
Considered the treatment of construction and concession disputes under bilateral investment treaties, the standard of fair and equitable treatment, and the quantification of damages in complex infrastructure arbitrations.
Dispute Resolution
Expert Services International provides advisory services across all major dispute resolution forums, from domestic adjudication and expert determination through to international arbitration under institutional rules. This case law repository reflects the breadth of our practical experience.
