Birse and St David got stuck on the question of whether an arbitrator in arbitration or a judge in court shall decided their differences of opinion. In short, St David said that if a Standard Form JCT80 applies, so too does the arbitration machinery in the form. Birse agreed with that analysis, but said it never entered into the JCT80 contract. So, before we even have an argument, the two companies had to go to court to argue about how and where they could argue.
Now then, the useful thing for all us onlookers is to take a peep at their partnering charter. You will remember of course that partnering is one of those fancy new fangled words that Latham, Egan and environment secretary John Prescott keep on about. Some say partnering is the glue that gets the folk working together closely; some say it's not glue at all, but the lubricant that gets the same folk working together smoothly.
Whether it is glue or lubricant or smoke or mirrors didn't matter to the building site at Adventurers Quay; the folk there drew up and signed the Cardiff Bay Charter. The charter declares:
Perhaps the charter gives a context, a backdrop, a feel for the intentions of the parties against which the facts are set
They fell out, but the interesting question is what notice a court might take of a partnering charter. In this instance nothing of the charter was legally binding, but it was, said the judge, "clearly intended to provide the standards by which the parties were to conduct themselves and against which their conduct and attitudes were to be measured".
Sure the parties have to comply with the contract, with the law; but if procedures under the contract had not been strictly complied with, yet the letter or spirit of the charter had, a court or arbitrator could reflect on that charter when making a decision.
Perhaps the charter gives a context, a backdrop, a feel for the intentions of the parties against which the facts are set. The word "ethos" crops up; it goes to the characteristics or spirit or attitude intended by a community of people or system of working within a contract. It may be that the courts or arbitrators will see fit to give effect to that ethos since that is what the parties intended. Partnering is not legally binding but smoke and mirrors, together with lubricant and glue, can make a quite a difference.
The judge decided that even though one party was still sitting on the incomplete contract documents, all the essential terms were agreed. So JCT 80 applied.
The judgment also explains the circumstances when a court will exercise its right to decide whether an arbitration clause exists at all. Sometimes it will be appropriate to ask a putative arbitrator to decide.
Tony Bingham is a barrister and arbitrator specialising in construction.