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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> John G Burns Ltd -v- Grange Construction & roofing Company Ltd [2013] IEHC 284 (19 June 2013)
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Cite as: [2013] IEHC 284
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Judgment Title: John G Burns Limited -v- Grange Construction & roofing Company Limited Neutral Citation: [2013] IEHC 284 High Court Record Number: 2013 8 MCA Date of Delivery: 19/06/2013 Court: High Court Composition of Court: Judgment by: Laffoy J. Status of Judgment: Approved |
Neutral Citation [2013] IEHC 284 THE HIGH COURT [2013 No. 8 MCA] IN THE MATTER OF THE ARBITRATION ACT 2010 AND IN THE MATTER OF AN INTENDED ARBITRATION BETWEEN JOHN G. BURNS LIMITED APPLICANT AND
GRANGE CONSTRUCTION & ROOFING COMPANY LIMITED RESPONDENT Judgment of Ms. Justice Laffoy delivered on 19th day of June, 2013. The application Factual background 3. The main contract was created by Articles of Agreement dated 9th November, 2009 (the 2009 Agreement) made between the Board of Management, referred to as “the Employer”, of the one part and the applicant, referred to as “the Contractor”, of the other part, which was in the standard form of building contract where quantities form part of the contract issued by the Royal Institute of Architects of Ireland (RIAI) in agreement with the CIF and the Society of Chartered Surveyors (2002 Edition, revision 1, print 3). Clause 16 of the 2009 Agreement covered the situation where provision would be made in the contract documents for work to be executed on site and/or material or goods to be supplied and fixed by a firm to be selected by the designated architect, Kieran Barry of Kieran Barry & Associates (the Architect), and such firm was thereby “declared to be a Nominated Sub-Contractor employed by the Contractor”. In other words, the Architect made the selection but the sub-contractor was employed by the main contractor. 4. The chain of events which led to the respondent being retained as a sub-contractor was as follows:
(b) There were a number of documents appended to the one page tender. The first was Appendix 1, which was headed “General Conditions and Contract Particulars for Sub-Contract Purposes”. The first two paragraphs of Appendix 1 reiterated, although not in the same words, what was stated in the tender, as recorded earlier. For instance, it was made clear that the Main Contract was based on the standard Articles of Agreement issued by the RIAI which, in fact, had been utilised in the 2009 Agreement. Appendix 1 then went on to set out some of the detail contained in the 2009 Agreement, for example, the identity of the Employer and the Architect. Appendix 1 then, under the heading “Appendix to Main Contract” effectively replicated the Appendix in the Main Contract. That Appendix contained details by reference to the 2009 Agreement, for example, the date for possession, the date for completion and suchlike. The final item in Appendix 1 read as follows:
(c) By letter dated 13th December, 2009, the Architect sent a copy of the respondent’s tender to the applicant and, subject to certain matters which are not relevant for present purposes, intimated that the applicant would be requested to enter into a sub-contract with the respondent to perform the cladding, etc, sub-contract. (d) By letter dated 18th December, 2009 to the respondent, the applicant confirmed its intention to enter into a sub-contract with the respondent subject to confirmation of certain matters of detail. (e) What counsel for the applicant characterised as the sub-contract and what counsel for the respondent characterised as a contract document was a letter dated 19th January, 2010 from the applicant to the respondent. In this letter the applicant stated that, as “Main Contractors”, it instructed the respondent “to proceed with all works associated with the supply, delivery and installation complete of the Wall, cladding, Flat roof coverings, Fascias and Soffit nominated sub-contract”. The agreed contract price was set out as per the respondent’s tender. The position in relation to VAT was set out – VAT was to be accounted for by the Employer directly to the Revenue Commissioners. It was then stated:
(f) It was clearly envisaged that the letter of 19th January, 2010 would be signed on behalf of both the applicant and the respondent at the foot thereof. It was signed on behalf of the applicant. While it would appear that it was not signed on behalf of the respondent, as subsequent events clearly demonstrate, the terms set out therein were accepted on behalf of the respondent, although the commencement date of 8th March, 2009 was not met by the respondent. (g) By letter dated 16th March, 2010, the applicant wrote to the respondent noting that the commencement date of 8th March, 2010 had been later revised during discussions to 15th March, 2010, “due to knock on delay effects on structional steel and other elements of the construction works due to the failure of” the respondent to produce working drawings and to attend the site and suchlike. In essence, the letter was a letter of complaint on the part of the applicant in which it was emphasised that the respondent was aware of the main contract programme and the requirement that the contract work be completed in full by August 2010. The applicant officially requested the respondent to commence on-site immediately and gave notice that all and any loss and expense incurred by the applicant in relation to the delay would be detailed and submitted to the respondent as part of the valuation and certification process. That letter clearly suggests that the applicant considered that the parties were contractually bound before that letter issued, presumably, on foot of the letter of 19th January, 2010. (h) The next letter, which has been relied upon by counsel for the respondent in support of the respondent’s position, was also a letter of complaint, which was dated 23rd June, 2010, to the respondent from the applicant complaining of delay on the part of the respondent. In the letter it was stated that on 26th May, 2010 a further revised realistic programme was tabled by the respondent and accepted by the applicant and the Architect showing a final revised and agreed completion date for 18th June, 2010. In essence, the complaint was that the respondent had not met the agreed completion date. The paragraph in the letter on which the respondent relies in support of its contention that any dispute between the parties was to be referred to arbitration, is the penultimate paragraph in which it was stated:
(i) The next letter of complaint from the applicant to the respondent was dated 13th June, 2011 and was a response to the letter dated 7th June, 2011 from the respondent to the applicant seeking to have its account discharged within seven days; otherwise it would be issuing legal proceedings. In the letter of 13th June, 2011 (which it would appear was wrongly dated 13th June, 2010) the applicant referred to “letters dated 15 March and the 23rd June, 2010 noting a breach of contract for the performance of the works”. I assume that the reference should have been to the letter dated 16th March, 2010 referred to at (g) above and that the letter of 23rd June, 2010 is the letter referred to at (h) above. As I understand the position, in June 2011, the respondent was contending that the applicant had wrongfully withheld from it the sum of €35,065 (excluding VAT), which had been certified by the Architect. In identifying the dispute between the applicant and the respondent at that juncture, the applicant stated as follows:
(j) On 11th August, 2011 the respondent presented an itemised claim dated 10th August, 2011 to the applicant claiming in total the sum of €76,526.28 and in a letter of 12th August, 2011 confirmed that the quantum items related “to errors, incorrect set out of the building and building not constructed to our drawings in a number of areas by [the applicant]”. The response of the applicant was a three page letter dated 26th August, 2011, wherein the respondent’s claim was rejected by the applicant for a variety of reasons, including reliance on Condition (17) in the letter of 19th January, 2010, noting that the previous payment made by the applicant was “in full consideration of the Architect’s Certificate 11 save for the matter in dispute as per cost details attached”. The applicant stated that it had honoured all payments up to that date, “save for the matter as has arisen in the performance by [the respondent] on this project”. 5. The dispute between the applicant and the respondent continued through the remainder of 2011 and into 2012. The next significant feature was that the respondent engaged Ken O’Connor Associates, Chartered Quantity Surveyors, to deal with what was asserted as the failure of the applicant to discharge the balance of the monies due under the Sub-Contract. By letter dated 15th June, 2012, Ken O’Connor Associates wrote to the applicant asserting, inter alia, as follows:
6. The response of the applicant by letter dated 29th June, 2012, in essence, although this terminology was not used, was that the respondent had no valid claim. However, the applicant did not take the line at that stage that the respondent was not entitled to have the matter referred to arbitration. On the contrary, it stated that it was its company policy to expedite all avenues possible to try to resolve matters in an amicable fashion, prior to and without recourse to costly dispute resolution processes. It then requested a meeting with the respondent in accordance with that policy “and prior to concurring with the provision of clause 26 of the executed contract employed”. 7. Ultimately, Ken O’Connor Associates, by letter dated 26th August, 2012, requested the President of the CIF to appoint an arbitrator. A copy of the relevant contract was sought by the CIF on 7th September, 2012. In response, by letter dated 10th September, 2012, Ken O’Connor Associates informed the CIF that the executed contract between the parties was “the CIF form of Sub-Contract (for use with the RIAI Main Contract Form) 5th Edition 1989”, but that the applicant had not returned a copy of the executed form to the respondent. That statement was not correct, because no such Sub-Contract had been executed by the parties. However, the letter further stated that “the executed contract” was referred to by both the Architect and the applicant in various correspondence and the following items of correspondence were attached: the letter of 13th December, 2009 referred to at para. 4(c) above; the letter of 23rd June, 2010 referred to at para. 4(h) above; and the letter of 29th June, 2012 referred to at 6 above, the manner of inclusion of which will be outlined later. 8. By letter dated 14th September, 2012 on behalf of the President of the CIF, Ken O’Connor Associates was informed that Mr. Joe Behan of J.P. Behan & Associates had been appointed arbitrator to deal with the dispute between the applicant and the respondent “pursuant to Clause 26 of the Sub-Contract for use [with] the RIAI main contract form, 5th Edition dated October 1989”. On the same day the applicant was notified of the appointment. 9. By letter dated 26th September, 2012, the applicant’s solicitors, Beauchamps, having asserted that no arbitration agreement existed between the applicant and the respondent, sought clarification from the President of the CIF as to the dispute which was referred to in the letter of 14th September, 2012. The response on behalf of the President of the CIF, which was dated 1st October, 2012 , was that the CIF had sought clarification from Ken O’Connor Associates to ensure that there was jurisdiction to appoint an arbitrator and that CIF had received copies of correspondence between the parties referring to Clause 26 and which also indicated the existence of a dispute. Beauchamps persisted in the view that the President of the CIF did not have jurisdiction to nominate an arbitrator. Further, their position was that there was no arbitration agreement in existence between the parties and that the matter should be dealt with by the courts. 10. Mr. Behan recognised that there was a fundamental issue in relation to his appointment. Both sides, the respondent through Ken O’Connor Associates, and the applicant through Beauchamps, engaged in correspondence with Mr. Behan, which included a long letter of 28th November, 2012 from Ken O’Connor Associates citing case law. By letter dated 12th December, 2012, the liquidator informed both sides that, having considered the submissions made by both parties, he was satisfied that he had jurisdiction to act as arbitrator in the matter, having stated:
Standard form of Sub-Contract 12. The arbitration clause in the CIF standard form Sub-Contract is Clause 26 which provides for the appointment of an arbitrator by the President of the CIF at the request of either party, if both sides have failed to agree such appointment. Clause 26 contains two provisos which clearly link the standard Sub-Contract to the Main Contract. 13. However, it was to Clause 38 of the Main Contract (i.e. the 2009 Agreement) that the applicant referred in the letter of 13th June, 2011, erroneously as it contends. Clause 38(a) of the Main Contract envisages a dispute being referred to a conciliation process first and then to arbitration in accordance with Clause 38(b). Under Clause 38(b), if the parties fail to agree as to who shall be the arbitrator, the appointment may be made, at the request of either party, by the President for the time being of the Royal Institute of Architects of Ireland after consultation with the President of the CIF. Again, it would not be unreasonable to infer from the letter of 13th June, 2011 from the applicant that the author believed that the relationship of the applicant and the respondent was governed by an arbitration clause, although the reference to “Clause 38 of the sub-contract” was clearly erroneous; Clause 38 is to be found in the 2009 Agreement. 14. However, despite what, in the absence of evidence to the contrary, might reasonably be inferred, in the grounding affidavit on this application sworn on 9th January, 2013 by Gareth Brady, a director of the applicant, it was averred that the standard CIF standard form Sub-Contract for use with the RIAI Main Contract form “was never agreed between the parties as governing their contractual relations”. Later, Mr. Brady averred that at the time of the contract, meaning, presumably, the Sub-Contract between the applicant and the respondent, “there was no reference to the CIF form of subcontract in any correspondence passing between the parties”. Further, the references in the letters of 23rd June, 2010 and 13th June, 2011 were made in error. Mr. Brady averred that he “inadvertently referred to the clauses in the Construction Industry Federation sub-contract without checking back to the contract between the parties of 19 January, 2010”. 15. The replying affidavit on behalf of the respondent was sworn by Gregory Crinion, a director of the respondent, on 14th February, 2013. Mr. Crinion has referred to the letter of 13th December, 2009 from the Architects, which he called the “letter of nomination” and he has specifically averred as follows:
Arising from the foregoing I say that [the respondent] understood and assumed that the standard terms and conditions of the RIAI (sic) Standard Form Subcontract would form part of the subcontract to be entered into between [the respondent] and [the applicant].” 16. Mr. Crinion’s reference to the “terms of the RIAI Main Contract” in what he described as the “letter of nomination” of 13th December, 2009 “including, but not limited to the period for service of notice of arbitration in case of dispute of 10 working days” appears to be a reference to Appendix I attached to the tender and, in particular, to the part thereof which replicated the Appendix to the 2009 Agreement, specifically the last item thereof, which is quoted at para. 4(a) above. The item in the Appendix was intended to stipulate a period of time if it was intended to vary standard Clause 35 in respect of the relevant timeframe. However, paragraph (i) of Clause 35 was not varied, because it stipulated when the Architect was to issue the Final Certificate “unless the Architects receive a notice of arbitration within ten working days or such other period as may be stated in the Appendix”. All one can say in relation to Appendix I attached to the tender is that, in referring to Clause 35(i) of the Main Contract, i.e. the 2009 Agreement, it did refer to arbitration. However, when one looks at the context in which the word “arbitration” appears, which is governing the relationship between the Employer and the Main Contractor through the involvement of the Architect, there is no basis for concluding that what was intended by the reference was that an arbitration clause would be part of the sub-contract between the applicant and the respondent. 17. In his second affidavit sworn on 5th March, 2013, Mr. Brady disputed Mr. Crinion’s contention that it is customary to use the CIF form Sub-Contract where the RIAI form of Main Contract is used. He averred that, in actual fact, it is often the case that the contract between a main contractor and a sub-contractor “is evidenced in correspondence and that there is never any intention to enter into a standard form sub-contract”. The majority of the contracts he has been involved with in such circumstances have not involved the incorporation or execution of standard form contracts. In the case of the Mount Sackville project, the letters of engagement to the other sub-contractors were almost identical or very similar to the letters provided to the respondent, some of which he exhibited. Notwithstanding that averment, it is clear that the CIF standard form Sub-Contract, which the respondent contends applies, is the industry standard where the form of Main Contract used in the 2009 Agreement is in place. Having said that, the issue here is whether there was an agreement between the applicant and the respondent that its terms would be incorporated in the Sub-Contract between the applicant and the respondent in a manner which complies with the Model Law. The law
20. The Court was referred to three authorities of the courts in this jurisdiction, which I will consider in chronological order, only the last of which addresses the Act of 2010 jurisdiction. 21. The earliest is the decision of the High Court (Morris P.) in Lynch Roofing Systems Limited v. Bennett & Son Limited [1999] 2 IR 450. The application under consideration in that case was an application under s. 5 of the Arbitration Act 1980 (the Act of 1980) for an order staying the proceedings on the basis that there was an arbitration agreement between the parties. As here, the dispute was between a main contractor, the defendant, and a sub-contractor, the plaintiff. The defendant, which was seeking to stay the proceedings, claimed that at the time of the negotiation of the contract, the price and the fact that the standard conditions of contract RIAI (April 1998 edition), which contained an arbitration clause, would apply to the contract, were agreed between the parties. A letter was later sent to the plaintiff confirming the contract as agreed and specifying that it would be subject to a written receipt of the conditions and terms detailed on Form CBS/ACC (which form incorporated the standard conditions of contract RIAI). The letter also stipulated that failure to respond would be viewed as acceptance of the conditions. No response was received from the plaintiff, which went on site and commenced the sub-contract works. The position of the plaintiff was that at no time during the negotiation of the contract was the existence of an arbitration clause brought to its attention. Morris P. held in favour of the defendant and granted a stay on the proceedings. In so doing, Morris P. applied the principle enunciated by the Court of Appeal in the United Kingdom in British Crane Hire v. Ipswich Plant Hire [1975] 1 QB 303. Morris P. quoted the finding in the case, which factually was not concerned with the incorporation of an arbitration clause, that –
22. The next authority cited was a decision of the High Court (Peart J.) in McCrory Scaffolding Limited v. McInerney Construction Limited [2004] 3 I.R. 592. This was also an application under s. 5 of the Act of 1980 to stay the proceedings on the ground there was an arbitration agreement governing the relationship of the parties. Once again, the defendant was the main contractor and the plaintiff was the sub-contractor. The letter of appointment sent by the defendant informed the plaintiff that it intended to enter into a signed contract which incorporated the GDLA 82 conditions of contract, which contained an arbitration clause. No follow up written contract was ever signed by the parties but the plaintiff commenced the tasks agreed between the parties. The defendant contended that there was a valid and subsisting arbitration agreement, which governed the dispute between them, as a result of the reference to GDLA 82 conditions of contract in the letter of appointment, but the plaintiff contended that the letter of appointment did not incorporate the arbitration agreement in that form. Peart J., in making an order staying the proceedings, followed the decision in Lynch Roofing Systems Ltd. v. Bennett & Son Limited and held that it did. 23. Both of those decisions pre-dated the commencement of the Act of 2010. The final authority, the decision of the High Court in Barnmore Demolition & Civil Engineering Ltd. v. Alandale Logistics Ltd. & Ors. (Unreported, High Court, Feeney J., 11th November, 2010), post-dated the commencement of the Act of 2010. The application before Feeney J. was for an order under Article 8 of the Model Law, which provides as follows:
The application of the law to the facts 25. The determination of Mr. Behan contained in the letter of 12th December, 2012 is fundamentally illogical. It is true that there is “no signed contract between the parties”, in the sense that there is no single document setting out the terms and conditions of the sub-contractual arrangement, which is signed on behalf of both parties. However, if there is no agreement to arbitrate between the parties, then Mr. Behan has no jurisdiction to arbitrate on foot of his appointment by the President of the CIF. Of course, it may be that, as is implicit in the letter dated 30th January, 2013 from Ken O’Connor Associates to Mr. Behan, that there is a clerical error or a typographical error or some error of a similar nature in the letter of 12th December, 2012. Even if there is, Mr. Behan has not set out in the letter of 12th December, 2012 on what basis he is satisfied that he has jurisdiction to act as arbitrator, and in particular, what aspects of the submissions made to him and the case law contained in the submissions support that conclusion. Therefore, this Court must go back to first base. 26. At the point in time at which the respondent commenced the works it sub-contracted to execute, which cannot be identified from the evidence before the Court with precision but which would appear to have been some time in April or May 2010, the documents which evidenced the agreement entered into between the parties were the following documents:
(b) the Architect’s letter of 13th December, 2009 confirming the intent to nominate the respondent as a sub-contractor in relation to wall cladding, etc; (c) the letter of 18th December, 2009 from the applicant to the respondent confirming the intention of the applicant to enter into a sub-contract with the respondent and seeking confirmation of various matters; and (d) the letter dated 19th January, 2010 which refers to and incorporates the tender documents and the letter of nomination dated 13th December, 2009. 27. Accordingly, looking at the position as at 19th January, 2010, the relevant documentation strongly suggests that the entire contract between the parties is contained in that documentation. That is supported by the fact that throughout the letter of 19th January, 2010 there are references to “this contract” and “this sub-contract”. Apart from that, the CIF standard form Sub-Contract is a very complex document which, on its face, is envisaged to be adapted to apply to particular agreed circumstances. While, at the hearing, the parties did not conduct any comparison between the terms set out in the letter of 19th January, 2010 and in the CIF standard form Sub-Contract, even a cursory comparison suggests that the intention was that the terms and conditions governing the parties’ relationship were spelt out in the letter of 19th January, 2010 and the documents referred to in it, when read in the context of the 2009 Agreement. To take one example, retention is dealt with in Condition (14) in the letter of 19th January, 2010, where it is stated:
28. In reaching the conclusion that, when the respondent commenced the sub-contract works, the letter of 19th January, 2010 read in conjunction with the documents referred to in it, on its face, constituted the contract between the applicant and the respondent, I have not overlooked the submissions made by counsel for the respondent that the conditions in the letter of 19th January, 2010 and in the documents referred to in it do not give the complete picture. Counsel referred, for instance, to Condition (15), which stated that failure on the part of the respondent to co-operate with the applicant in the provision of information, shop drawings for approval and all other documentation in a prompt manner would be “treated as delay to the Main Contract resulting in delay remedies” being sought by the applicant, submitting that the documentation contained no guidelines in relation to the delay mechanism. Counsel for the respondent also pointed to the narrative at the commencement of the letter dated 23rd June, 2010, in which the applicant aired its complaints in relation to delay on the part of the respondent in producing an acceptable programme for the sub-contract works, which involved the date for completion of the works being extended, although the respondent had never formally requested an extension of time. Counsel for the respondent also pointed to an assertion by the applicant in the letter of 26th August, 2011 that the respondent had not applied for an “Extension of Time” in accordance with the contract clauses. It is true that there was no provision in the letter of 19th January, 2010 combined with the documents referred to in it, such as the provision contained in Clause 7(b) of the CIF standard form Sub-Contract, under which a sub-contractor is required to give notice in writing to the contractor if completion is delayed, whereupon the contractor is obliged to grant a fair and reasonable extension for completion. However, that does not mean that a contractual arrangement based solely on those documents was unworkable or that it was necessary to apply the provisions of some standard form of contract to the contractual relationship of the parties, so as to give rise to an inference that there must have been a mutual agreement between the parties that the CIF standard form of Sub-Contract would apply. 29. Of course, as I have already commented, subsequent letters which emanated from the applicant suggest that the applicant considered that some provisions, whether in a standard form of sub-contract or otherwise, which were not set out in the letter of 19th January, 2010, applied to the contractual arrangement between the parties. Mr. Brady has attributed the references in question to error and inadvertence. It was submitted by counsel for the respondent that the various references in the correspondence which passed between the parties indicated a mutual understanding on the part of the parties that the CIF standard form Sub-Contract would apply to the contractual relationship, notwithstanding that Mr. Brady rejected that as a fact on affidavit. 30. The difficult question for the Court is whether what Mr. Brady, on the basis of legal advice, now contends were errors in correspondence from the applicant to the respondent supports the respondent’s contention that the terms of the CIF standard form Sub-Contract, in particular, the arbitration clause, were by mutual agreement of the parties incorporated in the Sub-Contract. Working back in time, I attach little weight to the reference to Clause 26 in the letter of 29th June, 2012 to Ken O’Connor Associates, because the context was that the applicant was endeavouring to postpone dealing with the request to agree to the appointment of an arbitrator. As regards the reference to Clause 38 in the letter of 13th June, 2011, that was clearly an error because Clause 38 was the arbitration clause in the Main Contract (i.e. the 2009 Agreement), not in the CIF standard form Sub-Contract, although the attitude adopted by the applicant suggested that it considered that arbitration was the appropriate process for resolving disputes. There remains the reference to “Clause 7(a) of this Sub-Contract” in the letter of 23rd June, 2010. As Ken O’Connor Associates correctly recognised, that was a reference to Clause 7(a) of the CIF standard form Sub-Contract. Indeed, in its letter dated 10th September, 2012 to the CIF, in response to the request of the CIF to be furnished with a copy of the relevant contract, Ken O’Connor Associates did not furnish the most important document, the letter of 19th January, 2010, but did furnish the letter of 23rd June, 2010, stating that the context of the reference to Clause 29(a) of the Main Contract and Clause 7(a) of the Sub-Contract “clearly” showed that the Sub-Contract being referred to was the CIF standard form Sub-Contract, 5th Edition 1989, which, in my view, did not really reflect the true situation. Aside from the fact that Mr. Brady has averred that the reference to Clause 7(a) was made in error, the position is that the contract between the applicant and the respondent was already in place by 23rd June, 2010 and there was no reference in the contract documentation then in place to any document containing an arbitration clause, so as to constitute an arbitration agreement in writing within the meaning and for the purposes of Article 7 of the Model Law. 31. This case is clearly distinguishable on the facts from the pre-2010 Act authorities referred to above, not only because of the unusual circumstance that it is the main contractor, not the sub-contractor, who is seeking to avoid having the dispute arbitrated, but also for the following reasons. In the Lynch Roofing Systems Ltd. case, as the facts outlined earlier indicate, the letter confirming the contract as agreed expressly stated that it was subject to conditions and terms detailed, which incorporated the RIAI standard conditions, which contained an arbitration clause. Similarly, in the McCrory Scaffolding Ltd. case, the letter of appointment expressly stated that the contract would incorporate certain standard conditions which, again, were identified and contained an arbitration clause. In each of those cases, the Sub-Contractor, by its conduct in commencing and carrying out the Sub-Contract works, implicitly accepted the Main Contractor’s offer to it on the terms specified and then concluded the contract by conduct. In contrast, what the evidence establishes in this case is that the respondent commenced the Sub-Contract works on the basis of the terms outlined in the letter of 19th January, 2010, which did not provide for the incorporation of the CIF standard form Sub-Contract or any arbitration clause, and that action constituted acceptance of the terms offered by the applicant without any such incorporation and, thus, completion of the contract by conduct. 32. For the same reason, in my view, the respondent has failed to establish the existence of an agreement by the parties to submit their dispute to arbitration which complies with either paragraph (2), paragraph (3) or paragraph (6) of Article 7. In particular, paragraph (6) cannot be invoked because there is no reference in any contract document to the CIF standard form Sub-Contract, nor is there any reference to any arbitration clause, in a manner which makes either the CIF standard form Sub-Contract or any such arbitration clause part of the contract between the parties. Decision of the Court 34. Despite that decision, I feel constrained to make the general observation that it would be infinitely preferable if the dispute between the applicant and the respondent was resolved by some process of alternative dispute resolution, rather than by litigation.
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