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 CONTENTS

Other key differences 79

Regulation of ANAs and adjudicators 80
The ambit of judicial review 81
Legal principles 82
Remittal of invalid determinations 83
Severance of invalid parts of determinations 84
Effectiveness of the Vic Act 84
B. Tasmania (Tas) 85
Key differences 85
Regulation of adjudicators and ANAs 86
The ambit of judicial review 87
Legal principles 88
Reform is underway 88
C. The Australian Capital Territory (ACT) 90
Key differences 91
Regulation of ANAs and adjudicators 91
The ambit of judicial review 92
Express right to appeal 93
Referring questions of law 94
Legal principles 94
Effectiveness of the ACT Act 95
D. South Australia (SA) 95
Key differences 95
Regulation of ANAs and adjudicators 96
The ambit of judicial review 97
Legal principles 98
Effectiveness of the SA Act 98
The future of the SA Act 98

CHAPTER 5 AUSTRALIA: THE EAST COAST MODEL

(QUEENSLAND) 100
Introduction 100
2014 reform 101
The object of the BCIPA 102
Business days 103
Application of the BCIPA 103
Dual adjudication scheme 104
Appointment and regulation of adjudicators 106
Administration of adjudicators’ registration 108
Adjudicators’ fees 110
Immunity of adjudicators 110
Adjudicator’s jurisdiction 111
Ambit of judicial review 112
Legal principles 114
Natural justice 114
Good faith 115

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Remittal of invalid adjudication decisions 115

Severing invalid parts of the adjudication decision 116
Injunctions 116
Effectiveness of the BCIPA 116
The future of the BCIPA 117

CHAPTER 6 AUSTRALIA: THE WEST COAST MODEL 118

Introduction 118
A. Western Australia (WA) 120
The purpose of the WA Act 120
Application of the WA Act 121
Statutory mechanism 121
Adjudication process 121
Adjudicator’s powers 122
Adjudicator’s duty to dismiss 122
Adjudicator’s determination 122
Regulation of adjudicators and prescribed appointers 123
Immunity of adjudicators and appointers 124
Limited rights of review 125
Ambit of judicial review 127
Legal principles 127
Procedural fairness 128
Effectiveness of the WA Act 128
The future of the WA Act 129
B. The Northern Territory (NT) 129
Key differences 130
Limited right of review 131
The ambit of judicial review 132
Legal principles 132
Effectiveness of the NT CC Act 134

CHAPTER 7 CHARTERED INSTITUTE OF ARBITRATORS’

DISPUTE BOARD RULES 136
Introduction 136
Dispute boards in context 137
Types of dispute boards 138
Dispute resolution boards (DRBs) 138
Dispute adjudication boards (DABs) 138
Combined dispute boards (CDBs) 138
The major forms of DB rules compared and contrasted 138
Fédération Internationale Des Ingénieurs-Conseils (FIDIC) (The International
Federation of Consulting Engineers) 139
The International Chamber of Commerce (ICC) 139
The Institution of Civil Engineers (ICE) 140
The American Arbitration Association (AAA) 140
The Chartered Institute of Arbitrators’ Dispute Board Rules 141

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Practical considerations 142

Cost considerations for dispute boards 143
Selecting DB members 143
Conclusion 143

CHAPTER 8 FÉDÉRATION INTERNATIONAL DES INGÉNIEURS-

CONSEILS (FIDIC) DISPUTE BOARD RULES 145
Introduction 145
FIDIC adjudication provisions 147
Claims 147
Appointment of the DAB 147
Dispute avoidance 148
Referral of the dispute 149
Procedure and conduct of the adjudication 150
Procedures after the decision has been issued 151
Rules 152
Enforcement 155
Amendments to the FIDIC adjudication procedure 157
FIDIC and statutory adjudication 158
Is it possible to arbitrate without a DAB being in place? 158
Costs 160
Failure properly to constitute a DAB under FIDIC 160

CHAPTER 9 GERMANY 169

Introduction 170
Adjudication: Recent developments in Germany 170
DIS Rules on Adjudication and Expert Determination 171
DIS Rules on Adjudication 171
DAB as a standing board during the project 172
Basic elements of the DAB disputes procedure under the DIS Rules 172
Effect of the DAB decision 173
Declaration of non-recognition 173
Enforcement of a DAB decision 173
Preliminary rulings 174
DIS Rules on Expert Determination 174
SL Bau by Deutsche Gesellschaft für Baurecht and DBV 175
Acceptance of the rules 177
Initiatives for the implementation of statutory dispute resolution mechanisms
for the construction industry 178
Recommendations made by the Working Group Construction Contract Law
(June 2013) 178
Proposed relationship between construction order and contractual adjudication 179
Current status of proposals 180
Recommendations by the Deutscher Baugerichtstag 180
Recommendations for the implementation of statutory adjudication by the second
and third Deutsche Baugerichtstag in 2008 and 2010 180

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The fourth Deutsche Baugerichtstag welcomes the Working Group’s proposal

on the introduction of a Construction Order 180
Legal opinion by Professor Papier on the constitutional admissibility of
statutory adjudication 181
Fifth Deutsche Baugerichtstag 2014 fully embraces the concept of the
construction order and makes a recommendation for the introduction of
statutory adjudication proceedings 183
2015 Report by the Reformkommission Bau von Großprojekten 183
Commentary 184
Contracting with public authorities: Dispute resolution under the VOB/B 185

CHAPTER 10 HONG KONG 187

Introduction 187
Scope 188
Requirements concerning payment clauses 189
Statutory payment claim procedure 190
Implied payment provisions 191
Statutory adjudication 192
Enforcement 195
Review of adjudication decisions 196
Taking account of payments made under an adjudication 196
Right to suspend 196
Use of statutory adjudication 197

CHAPTER 11 INTERNATIONAL CHAMBER OF COMMERCE

DISPUTE BOARD RULES 198
Dispute resolution “road map” 198
Fédération Internationale des Ingénieurs-Conseils (FIDIC) 199
Key dates 199
International Chamber of Commerce, International Court of Arbitration 200
ICC Dispute Board Rules (DB Rules) 200
Model documents 200
Appointment of DB 200
How DBs operate 201
Powers of the DB 201
Obligation to co-operate 201
Services provided 201
Procedural timeline in formal referrals, or disputes 201
Types 201
Dispute review boards (DRBs) 201
Dispute adjudication boards (DABs) 202
Combined dispute boards (CDB) 202
Recommendations 202
Background to the revision of the ICC DB Rules 202
Revised standard ICC DB provisions 203
ICC DAB, followed by ICC arbitration if required 203

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Major changes to the ICC DB Rules 203

The Persero decision 204
Conclusions 204

CHAPTER 12 IRELAND 205

The Irish legal system 205
The Constitution of Ireland 206
Dispute resolution in Ireland 206
Conciliation in Ireland 206
Adjudication in Ireland 207
Construction Contracts Act 2013: Some problems anticipated in practice 208
Opportunities to frustrate payment 208
Employer can raise any defence 209
Suspension of work 210
Adjudication in the United Kingdom involves rough justice 210
Implications of the Constitution of Ireland 211
Jurisdiction of the adjudicator 214
Powers of the adjudicator 215
Adjudicator resigning 216
Adjudicator withholding their decision pending payment of their fees 216
Enforcement of the adjudicator’s decision 217

CHAPTER 13 MALAYSIA 219

Construction Industry Payment and Adjudication Act 2012 (the CIPAA) 219
Construction adjudication process 221
Commencement of statutory adjudication 225
Construction adjudication process 227
The conduct of construction adjudication 228
The rôle of the adjudicator 229
Powers of the adjudicator and conduct of the adjudication proceedings 231
The adjudication determination process 233
The adjudication decision 237
Enforcement of adjudication decisions 238
The rôle of the courts in construction adjudication under the CIPAA 239
The courts’ rôle to decide disputes under construction contracts concurrently
with adjudication 240
The courts’ rôle in enforcing adjudication decisions 242
The courts’ rôle in considering applications for the stay of adjudication decisions,
pending “final determination by arbitration, or the court” 242
The court’s rôle in considering applications to set aside adjudication
decisions 244
Conclusion 246

CHAPTER 14 MAURITIUS 247

Introduction 247
Disputes 247

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Dispute avoidance 248

Mauritian statutory adjudication in the construction industry 248

CHAPTER 15 NEW ZEALAND 250

Introduction 250
The “leaky building” epidemic: New Zealand Weathertight Homes Resolution
Services Acts 2002 and 2006 251
Adjudication under the Construction Contracts Act 2002 251
Statutory revisions 254
Adjudication under the Weathertight Homes Resolution Services Act 2006 256

CHAPTER 16 NORTHERN IRELAND 259

Introduction 259
Enforcement 262
Writ of summons 262
Application for summary judgment 263
Hearing 264
Costs 264
Taxation 265
Enforcement 265
Declaratory relief 266
Court decisions 267
No construction contract 267
No dispute 268
Setting off against adjudicators’ decisions 268
Financial difficulty of paying party 269
Insufficient time in which to respond 270
Abuse of process 270

CHAPTER 17 SCOTLAND 272

Introduction 272
A brief history 273
Statutory adjudication 274
“Smash and grab” adjudications 274
Immunity for adjudicators 275
Enforcement of adjudication decisions in the Scottish courts 275
Lack of jurisdiction (ultra vires) 276
Confusing decisions 276
Legal advice 276
Adjudicator’s knowledge 276
Abuse of process 277
Importing the Scheme 277
The statutory Scheme for Scotland (as well as for England and Wales) 277
Some interesting statistics 278
Conclusions 279

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CHAPTER 18 SINGAPORE 280

Building and Construction Industry Security of Payment Act 2004 280
Construction adjudication process 284
Commencement of statutory adjudication and adjudication procedures 298
The rôle of the adjudicator 299
The duties of the adjudicator 301
The powers of the adjudicator and the conduct of the adjudication proceedings 304
The adjudication determination process 306
The adjudication determination 308
Adjudication review process and determination 309
Enforcement of adjudicated amount 314
The rôle of the courts in construction adjudication under the SOPA 317
Recourse to the courts to “submit a dispute relating to, or arising from,
the contract” before an adjudication determination 318
The parties’ right to challenge the adjudication determination at the final
determination before the court, or in arbitration 319
The claimant’s entitlement to apply to the court to enforce an adjudication
determination as a judgment of the court 321
The court’s rôle in setting aside an adjudication determination 322
Conclusion 325

CHAPTER 19 SOUTH AFRICA 326

Introduction 326
Contractual provisions prescribing adjudication 327
The Principal Building Agreement 330
Enforcement of adjudicators’ decisions 332
The institutional and legislative framework for adjudication 337
Towards statutory adjudication: The Prompt Payment and Adjudication
Regulation 342
Conclusion 350

CHAPTER 20 UNITED STATES OF AMERICA 352

Introduction 352
The American Institute of Architects (AIA) 354
A201–2007: Provisions, weaknesses and possible improvement 355
The Initial decision maker (IDM) 355
The procedure relating to claims 356
The scope of the IDM’s jurisdiction 357
The initial decision 358
Enforcement 360
Additional remarks 361
Mediation 361
Arbitration 362
Consolidation 363
The involvement of the American Arbitration Association (AAA) 364
Selection 364

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Impartiality and disclosure 364

Exclusion of liability 365
Costs 365
Lessons from practice 365

APPENDIX A THE UK HOUSING GRANTS, CONSTRUCTION

AND REGENERATION ACT 1996 (AS AMENDED)
AND ITS AUSTRALIAN EQUIVALENTS 369

APPENDIX B THE UK HOUSING GRANTS, CONSTRUCTION

AND REGENERATION ACT 1996 (AS AMENDED) AND
ITS OTHER INTERNATIONAL EQUIVALENTS 371

APPENDIX C THE SCHEME FOR CONSTRUCTION CONTRACTS

(ENGLAND AND WALES) REGULATIONS 1998 (AS
AMENDED) AND ITS AUSTRALIAN EQUIVALENTS 373

APPENDIX D THE SCHEME FOR CONSTRUCTION CONTRACTS

(ENGLAND AND WALES) REGULATIONS 1998
(AS AMENDED) AND ITS OTHER INTERNATIONAL
EQUIVALENTS 375

Index 381

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 F O R E WORD

Adjudication has been growing in popularity over the last 30 years as an initial form
of dispute resolution, particularly in construction and engineering projects. Usually,
adjudication involves the temporary resolution of disputes by one, or more, adjudica-
tors, such that it is binding upon the relevant contract parties, until it is finally resolved
by the parties’ chosen method of final dispute resolution, mostly arbitration, or litigation.
There are basically two types of adjudication: namely the statutorily-imposed and the
contractually-agreed versions. These two types raise, in general, the same types of
issues of enforceability and the courts of the relevant country will seek to determine
the extent to which adjudicators’ decisions are to be enforced. There is legislation in
force in about a dozen countries, or states, with draft legislation, or statutes, not yet in
force in others in relation to adjudication for construction contract disputes. Many
international contracts provide for adjudication, in particular those incorporating the
FIDIC Conditions of Contract.1 Other international institutions, such as the Beijing
Arbitration Commission2 and the Chartered Institute of Arbitrators,3 provide for optional
adjudication.
A relatively common policy thread throughout the world is the facilitation of timely
payment between contracting parties within the construction and building industries by
improving cash flow down the contractual chain.
Although there are many similarities between the different systems of adjudication and
the approaches adopted by the domestic courts on issues of enforceability, there are some
significant differences. One prime example is the restriction in certain jurisdictions of
adjudication to payment disputes and the differences as to what this encompasses. There
is in at least one jurisdiction a proposal that adjudication should only apply to disputes
above a certain financial limit.
Whilst legislatures will have regard to their own national interests (often including the
importance to their economies of the construction and engineering industries and the need
to provide cash flow and at least temporarily binding certainty upon disputes), this book

1 See chapter 11 below and [Appendix 1.1].

2 The Beijing Arbitration Commission (BAC) is currently consulting with a sub-committee with regard to the
revision of its Construction Dispute Board Rules (effective as from 1 March 2005), that sub-committee being co-
chaired by the present author. It is anticipated that the existing Rules [Appendix 1.1] will be revised and updated
during the course of 2017.
3 See [Appendix 10].

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 FOREWORD

provides the first compendious comparative analysis of the approaches of every country
in the world that has legislated, or is seriously considering legislation, for adjudication.
The differences between the jurisdictions are extremely interesting. By way of example,
in some countries (such as Ireland), there could well be a constitutional challenge to
adjudication as not complying with the fair trial requirement in the European Convention
on Human Rights. That is not a problem in the United Kingdom, or, apparently, in other
jurisdictions that have a written constitution. There is, however, considerable criticism
of adjudication in various jurisdictions, in particular with regard to a statistical bias in
favour of claimants in adjudication and the difficulty of achieving fairness in an adju-
dication, which (from start to finish) can run to 28 days, albeit relating to disputes that
would take a court, or arbitrator, 10 to 20 times longer to resolve. The different courts’
approach may be more, or less, supportive of adjudication, with challenges in the United
Kingdom succeeding relatively infrequently and on the East Coast of Australia in some
80% of adjudication cases.
It is clear that professionals and people in the construction and engineering industries
can learn from what is practised in other jurisdictions. Indeed, legislatures (and the judi-
ciary) can and should learn from adjudication models other than their own.
This should be considered as an immensely useful book for all those involved in
the adjudication business, from construction clients (whether employers, contractors, or
sub-contractors) and construction industry professionals (whether architects, surveyors,
engineers, or project managers), to academics, legislators and lawyers who practise in
the field. It should give them ideas as to how to seek to support, or challenge, adjudica-
tions, as well as providing fertile grounds for seeking to change legislation, in order to
incorporate the better aspects of adjudication in other countries. This book provides the
first serious analysis of adjudication worldwide and should be most welcome to all those
involved, or seeking to become involved, in adjudication, or in promoting it elsewhere.

Sir Robert Akenhead (formerly QC and High Court Judge

in charge of the Technology and Construction Court, London, and
now arbitrator, adjudicator and mediator, Atkin Chambers, London)

xvi
 P R E FA CE

My perception of the “gap in the (legal publishing) marketplace”, which fuelled my

enthusiasm for this project, was originally brought home to me when I was proofreading
the twelfth edition of Hudson’s Building and Engineering Contracts (Hudson),1 for my
good friends and long-standing colleagues at my then chambers, Nicholas Dennys QC,
Mark Raeside QC (as he then was, prior to his elevation to the TCC judiciary in Leeds)
and Robert Clay. That perception was markedly reinforced when I performed a similar
rôle for the First and Second Supplements2 to that highly-esteemed publication and when
I was later writing the fifth edition of Delay and Disruption in Construction Contracts,3
during my extended editorial sabbatical from Atkin Chambers.
What struck me most was not what had been included,4 but by how much had (no
doubt because of page constraints) been necessarily missed out. In addition to adjudication
in the United Kingdom, the Hudson main work addresses (in a mere 22 pages) statutory
adjudication in certain Commonwealth jurisdictions, with the Second Supplement increas-
ing that page count by 10 pages.
To a certain extent, this lacuna has subsequently been filled by James Pickavance’s
excellent A Practical Guide to Construction Adjudication,5 in which specialist editors
contribute separate chapters on Scotland (Tony Jones), Northern Ireland (Michael Hum-
phreys QC), Australia (Peter Wood and Phillip Greenham), Ireland (Dermot McEvoy),
Malaysia (Philip Koh), New Zealand (Tómas Kennedy-Grant QC) and Singapore (Steven
Cannon). Appendix 7 thereto contains a helpful comparison of United Kingdom and
international statutory régimes.
In appendices A to D inclusive to this publication, the indefatigable Anne Eckenroth (who
has moved on to pursue a career as an English solicitor) and I have set out to compare
both the United Kingdom statute (the Housing Grants, Construction and Regeneration
Act 1996 (the HGCRA), as amended by the Local Democracy, Economic Development
and Construction Act 2009 (the LDEDCA)) and the Schemes published thereunder with,
first, their Australian, and secondly, their international equivalents.

1 Sweet and Maxwell/Thomson Reuters (2010): see the Acknowledgments page.

2 Sweet and Maxwell/Thomson Reuters (2012): again, see the Acknowledgments page.
3 Informa law from Routledge (2016).
4 See the main work of Hudson, at paras 11–014 to 11–020 inclusive and 11–053 to 11066 inclusive and the
corresponding paragraphs in the Second Supplement thereto.
5 Wiley Blackwall (2016).

xvii
 PREFACE

This book could not have been completed without my expert team of specialist contribut-
ing editors. Anne Eckenroth and Ruta Kersyte (now returned to work in her native Vilnius,
in Lithuania) performed immaculate project management in London and the Foreword
was kindly contributed by Sir Robert Akenhead, who has now returned to international
arbitral practice in my former chambers in Gray’s Inn. First-rate word-processing services
were provided by Nancy Menyere and Sara Meli.
Two friends and colleagues from my new chambers, ArbDB Chambers, on Fleet Street,
London, namely Michael Cover and Murray Armes (now practising solely from Sense
Studio, London), prepared the first drafts of the chapters on the Chartered Institute of
Arbitrators’ and the FIDIC Dispute Board Rules, whilst my long-standing friends and
colleagues, Ragnar Harbst (of Baker & McKenzie, Frankfurt) and John Lyden (of Cork,
Ireland), covered Germany and Ireland respectively. Tony Canham (of ArbDB Chambers,
London) provided a helpful note regarding Mauritius, which will be developed in the first
Supplement, which will also deal with Kenya, whose proposed legislation was learned
about as this book went to press.
My now friends and colleagues, Samer Skaik (of Deakin University, Australia), Philip
Davenport (of New South Wales, Australia), Vincent Liu (of Holman Fenwick Willan,
Hong Kong), S Magintharan (of Essex LLC, Singapore), Rebecca Saunders (of Lane
Neave, Christchurch, New Zealand), David Carrick and Tim Pettigrew-Smith (both of
Hill International, Edinburgh, Scotland) and Vaughan Hattingh (of MDA Consulting (Pty)
Limited, South Africa) each provided erudite contributions (or peer reviews thereof) on
their local jurisdictions, and managed (without exception) to comply with the extremely
strict deadlines set for them by Anne and Ruta.
Ruta assisted greatly with the first drafts of the chapters on the ICC’s revised Dispute
Board Rules and Northern Ireland and Anne researched the position in the United States
of America with her customary care and enormous attention to detail.
Whilst the end result could not have been achieved without each of the above individu-
als (and the personal support and encouragement of my partner, Kesarin Jaitham), any
and all remaining editorial infelicities are mine alone.

Andrew Burr
31 August 2016

xviii
 A C K N O W L E D G ME NT S

Enormous thanks are due to all the members of the expert team of specialist contributing
editors for their magnificent efforts.
In addition, the publishers wish to express their grateful thanks to the following bod-
ies and organisations for their permission to include excerpts from their publications in
this book:
1. Joint Contracts Tribunal (various excerpts in chapter 1);
2. NEC (for the excerpt in chapter 1);
3. Chartered Instituted of Arbitrators (the Dispute Board Rules);
4. FIDIC (Dispute Board Rules);
5. DIS (Rules on Adjudication);
6. ICC (Dispute Board Rules);
7. JBCC (Principal Building Agreement 2000);
8. AIA A201-2007 (General Conditions of the Contract for Construction and
Standard Form of Agreement between Owner and Contractor).

xix
 B IOGR A P H I E S O F T H E E XP E RT T E AM OF
SPECI A L I S T C O N T R I BUT I NG E DI TORS

Chapter Contributor Biography

Foreword Sir Robert Sir Robert Akenhead was, until 1 December 2015, one
Akenhead of Her Majesty’s High Court Judges, sitting primarily
in the Technology and Construction Court of England
and Wales (the TCC), was called to the Bar in 1972 and
practised from Atkin Chambers from 1973 until 2007,
almost exclusively in construction and engineering.
His work as a barrister took him all over the world, to
places such as Hong Kong, Singapore, many parts of
Europe, Fiji, Australia, South Africa, Indonesia and the
West Indies. He was made QC in 1989. In 2007, he
was made a High Court Judge, sitting in the Queen’s
Bench Division and, in particular, in the TCC. From
September 2010, for three years, he was the judge-
in-charge of the TCC. He is the co-author of several
books, Site Investigation and the Law and Technology
and Construction Court Practice and Procedure, as
well as being, since 1999, a joint editor of the Building
Law Reports. He practises now as arbitrator, mediator
and adjudicator, at Atkin Chambers, Gray’s Inn.
Chs 1 Introduction Andrew Burr Andrew Burr is an adjudicator, arbitrator and barrister,
and 2 and the United having been a member of Atkin Chambers since 1983;
Kingdom he now practises from ArbDB Chambers, on Fleet
Street and as Legal Counsel at Silver Shemmings LLP.
He specialises primarily in construction and technology
matters and is also an affiliated foreign lawyer with
PR1MUS (Vilnius, Lithuania). Andrew is a past chair
of the European Branch of the Chartered Institute of
Arbitrators and has worked throughout Europe and
internationally on a wide range of construction and
infrastructure matters. He is general and articles editor
of Construction Law Journal and recently sat on
the advisory committee for the revision of the ICC’s
Dispute Board Rules. Andrew is a listed arbitrator at the
Beijing Arbitration Commission (whose Construction
Dispute Board Rules he is helping to revise) and the
Vilnius Court of International Arbitration and is a
member of the Independent Standards Board of the
International Mediation Institute.
(Continued )

xxi
(Continued)

Chapter Contributor Biography

Ch. 3 Australia: the Samer Skaik Samer Skaik, BEng, MSc, CPM, PMP, MIEAust,
East Coast ACIArb, is an accredited adjudicator (NSW), a
model with project management and claims consultant and
New South a lecturer in construction management. Samer
Wales as the is the Founder and Director of Construction
principal Management Guide (cmguide.org), which has
legislation been providing claim and project management
Ch. 4 Australia: the consultancy services internationally since 2008.
East Coast Samer has extensive experience in managing large
model: Victoria, construction projects, alongside lecturing, advising
Tasmania, The and writing on construction management and law.
Australian In 2017, he completed his PhD thesis on “Statutory
Capital Adjudication” with a “Scholarship Grant” from
Territory and Deakin University. Skaik has published various peer-
South Australia reviewed research articles, with a particular focus on
statutory adjudication worldwide. In 2016, Samer
Ch. 5 Australia: received a High Commendation in the Australian
The East Brooking Prize in Construction Law for his paper
Coast model: “Taking Statutory Adjudication to the Next Level:
Queensland Legislative Review Mechanisms of Erroneous
Ch. 6 Australia: The Determinations”. He usually appears as a regular
West Coast speaker and panellist in international conferences
model and seminars and as a peer reviewer for academic
conferences, such as RICS Cobra and AUBEA.
Samer’s work was very kindly peer-reviewed by
Philip Davenport, a solicitor and previous Head of
the Legal Branch of the NSW Department of Public
Works and Services; he assisted in drafting the local
statute and its amending legislation.
Ch.7 CIArb DB Michael Cover Michael Cover is an arbitrator, mediator and
Rules adjudicator. He is on the panel of many United
Kingdom and international administering institutions
and is a Member of ArbDB, the Arbitration,
Mediation and Dispute Board Chambers (www.
arbdb.com).
Ch. 8 FIDIC DB Murray Armes Murray Armes is a chartered arbitrator, mediator
Rules and adjudicator and is on the FIDIC President’s
List of International Adjudicators. He trained
as an architect, but now devotes all his time to
the avoidance and resolution of international
construction disputes. He has a long-standing
interest in dispute avoidance and is currently
on the panel of dispute adjudicators for the F4E
ITER prototype nuclear fusion project, one of the
largest energy projects in the world. As arbitrator
and adjudicator, he has given decisions in a wide
variety of construction and engineering disputes and
regularly gives seminars and runs workshops across
the world on dispute resolution under FIDIC and
other international contracts and dispute procedures.
Chapter Contributor Biography

Ch. 9 Germany Ragnar Harbst Ragnar Harbst is a partner with Baker &
McKenzie in Frankfurt, Germany. He is qualified
as Rechtsanwält (Germany) and Solicitor (England
and Wales). His practice, both as counsel and
arbitrator, is devoted to international infrastructure
disputes.
Ch. 10 Hong Kong Vincent Liu Vincent Liu is a construction lawyer, admitted
as a solicitor in Hong Kong, Western Australia,
New South Wales and the Australian Capital
Territory. His principal areas of practice have
included construction and engineering (front and
back end). He has advised and acted for clients
in construction disputes, involving mediation,
arbitration, litigation and adjudication, under the
security for payment legislation, and has acted in
more than 40 statutory adjudications, involving
some of the largest infrastructure and mining and
resources projects in Australia (including the Perth
to Mandurah Railway, North West Shelf Expansion
Project, Gorgon Project and the Sino Iron Ore
Project in Cape Preston). Vincent holds a Certificate
in Adjudication from the Institute of Arbitrators and
Mediators Australia, is a Fellow of the Chartered
Institute of Arbitrators and was also a New South
Wales Law Society Accredited Construction
Litigation Specialist.
Ch.11 ICC DB Rules Ruta Kersyte See above.
and Andrew
Burr
Ch. 12 Ireland John Lyden John Lyden is a construction contract consultant,
chartered quantity surveyor, arbitrator,
conciliator and mediator based in Cork, Ireland.
For over 25 years, he has specialised in delay
and disruption claims and dispute resolution.
He has written and lectured extensively on
construction law from an Irish perspective. John
has been appointed by the Minister under section
8 of the Irish Act as a member of the Panel of
Adjudications.
Ch. 13 Malaysia S Magintharan S Magintharan LLB (Hons) Essex, Dip ICArb,
Barrister of the Inner Temple, Advocate of
the Supreme Court of Singapore, has been in
active legal practice over 20 years, specialising
in construction law, international commercial
arbitration and construction adjudication. He is
the Managing Director of Essex LLC, Singapore,
and holds Fellowships at the Chartered Institute of
Arbitrators, Singapore Institute of Arbitrators and
the Malaysian Society of Adjudicators. He is a
practising Barrister, Arbitrator and Adjudicator.
(Continued )
(Continued)

Chapter Contributor Biography

Ch. 14 Mauritius Tony Canham Tony Canham has been a practising arbitrator since
1977. He has a wealth of expertise in the field, having
been appointed as arbitrator in more than 250 cases
throughout his career. By profession a Chartered
Engineer, he is a Past President of the Society of
Construction Arbitrators; he is also a Chartered
Arbitrator and a Past President of the Chartered Institute
of Arbitrators (CIArb), a Fellow of the Institution
of Civil Engineers and a Fellow of The Academy of
Experts. He is listed on the panels of arbitrators of
various bodies, including the CIArb, the Hong Kong
International Arbitration Centre, the Kuala Lumpur
Regional Centre for Arbitration, the Dubai International
Arbitration Centre, the JAMS Global Engineering and
Construction Panel of Arbitrators and Mediators and, of
course, the MARC Panel of Arbitrators.
Ch. 15 New Zealand Rebecca Rebecca Saunders LLB, BSc, Barrister and Solicitor
Saunders of the High Court of New Zealand, Solicitor
(England and Wales, non-practising), is a partner at
Lane Neave, in Christchurch, New Zealand. Rebecca
is a construction law specialist, with extensive
experience in construction adjudication, arbitration,
mediation and litigation in New Zealand and the
United Kingdom.
Ch 16 Northern Ruta Kersyte See above.
Ireland and Andrew
Burr
Ch. 17 Scotland David Carrick David Carrick is a senior vice president at Hill
International (UK) Limited’s Edinburgh office.
He has more than 35 years’ experience in claims
analysis and resolution, as an arbitrator, mediator,
conciliator, expert witness and advisor. He is a
Chartered Arbitrator, Chartered Surveyor and
Accredited Adjudicator.
Trevor Trevor Pettigrew-Smith is an arbitrator and
Pettigrew- Chartered Surveyor, FRICS, FCIArb and FCICES.
Smith He is a Director at Hill International, based in
Edinburgh, Scotland, and has over 35 years’
quantity surveying experience in the construction
sector, working at a senior level on building and
civil engineering projects. Mr Pettigrew-Smith is a
quantum expert and adjudicator, skilled in preparing
claims and expert reports and is on the panels of
adjudicators for the RICS, CIArb and CIC. He
has varied project experience, both throughout the
United Kingdom and internationally, in a number of
sectors, including marine, on and off-shore oil and
gas, infrastructure, civil engineering and building.
Ch. 18 Singapore S. Magintharan See above.
Another random document with
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Wighod, abbat and presbyter, went on to the country of the
Northanymbrians, to Aelfuald the King, and the Archbishop of the
holy church of the city of York, Eanbald. The King was living far off in
the north, and the said Archbishop sent his messengers to the King,
who at once with all joy fixed a day for a council,[295] to which the
chief men of the district came, ecclesiastical and secular. It was
related in our hearing that other vices,[296] and by no means the
least, needed correction. For, as you know, from the time of the holy
pontiff Augustine no Roman priest[297] [or bishop] has been sent
there except ourselves. We wrote a Capitular of the several matters,
and brought them to their hearing, discussing each in order. They,
with all humility of subjection and with clear will, honoured both your
admonition and our insignificance, and pledged themselves to obey
in all things. Then we handed to them your letters to be read,
charging them to keep the sacred decrees in themselves and in
those dependent on them.
“These are the chapters which we delivered to them to be kept.
[298]

“1. Of keeping the faith of the Nicene Council.

“2. Of Baptism, the Creed, the Lord’s Prayer.
“3. Of two Councils to be held every year.
“4. Of the service and vesture of Canons and Monks.
“5. Of the elections of Abbats and Abbesses.
“6. Of ordaining Priests and Deacons.
“7. Of the Canonical Hours.
“8. Of the rights of churches granted by the See of Rome.
“9. That ecclesiastics do not take food secretly.
“10. That priests do not perform sacred rites with bare legs[299]; of
the offerings of the faithful; that chalice and paten for sacrificing to
God be not made from ox-horn, because they are bloody; that
bishops in their councils judge not secular matters.
 “11. Let kings and princes study justice, obey bishops, venerate
the church, employ prudent counsellors.
“12. That in the ordination of kings no one permit the assent of evil
men to prevail; kings must be lawfully elected by the priesthood and
the elders of the people, and be not born of adultery or incest; let
honour be paid by all to kings; let no one be a detractor of a king; let
no one dare to conspire for the death of a king, because he is the
anointed of the Lord; if any one have part in such wickedness, if he
be a bishop or of priestly order let him be thrust out from it, and
every one who has assented to such sacrilege shall perish in the
eternal fetters of anathema. For by examples among yourselves it
has frequently been proved that those who have been the cause of
the death of sovereigns have soon lost their life, being outside the
protection of divine and human law.
“13. That powerful and rich men decree just judgements.
“14. Of the forbidding of fraud, violence, rapine; that unjust tribute
be not imposed on churches; of keeping peace.
“15. Unlawful and incestuous unions are forbidden to all, alike with
the handmaids of God and other illicit persons and with those in
affinity and kindred and with other men’s wives.
“16. Lawful heirship is by decree refused to the children of harlots.
“17. Of tithes to be given; of usury to be forbidden; of just
measures and equal weights to be established.
“18. Of vows to be fulfilled.
“19. We have added that each faithful Christian must take example
from Catholic men; and if anything has remained of the rites of
pagans it must be plucked out, contemned, cast away.
“For God made man fair in form and appearance; but the pagans
with diabolical instinct have inflicted most horrible scars,[300] as
Prudentius says:

He tainted the innocent ground[301] with sordid spots,

 for he evidently does injury to God, who fouls and defiles His
creature. Without doubt a man would receive a rich reward who
underwent for God this injury of staining. But to one who does it from
gentile superstition it profiteth nothing, as circumcision to the Jews
without belief of heart.
“Further, you wear your clothes after the manner of the gentiles
whom by God’s help your fathers drove out of the land by arms. It is
a wonderful and astonishing thing that you imitate the fashion of
those whose life you always hate.
“You have the evil habit of maiming your horses: you slit their
nostrils, you fasten their ears together and make them deaf, you cut
off their tails; and though you could have them entirely unblemished,
you will not have that, but make them odious to every one.
“We have heard also that when you go to law with one another
you cast lots after the fashion of the gentiles. This is counted as
completely sacrilegious in these days.
“Further, many of you eat horses, which no Christian in eastern
lands does. This you must give up. Strive earnestly that all your
things be done decently and in order.
“20. Of sins to be confessed and penance to be done.
“These decrees, most blessed Pope Hadrian, we propounded in a
public council in presence of King Aelfuuald, Archbishop Eanbald,
and all the bishops and abbats of that region, also of the ealdormen,
dukes, and people of the land. And they, as we said above, with all
devotion of mind vowed that they would in all things keep them
according to the utmost of their power, the divine clemency aiding
them. And they confirmed them in our hand (in your stead) with the
sign of the holy cross. And afterwards they wrote on the paper of this
page with careful pen, affixing the mark of the holy cross.
“I Aelfuualdus king of the Transhumbrane race, consenting, have
subscribed with the sign of the holy cross.
“I Dilberch[302] prelate[303] of the church of Hexham joyfully have
subscribed with the sign of the holy cross.
 “I Eanbald by the grace of God archbishop of the holy church of
York have subscribed to the pious and catholic force of this
document with the sign of the holy cross.
“I Hyguuald bishop of the church of Lindisfarne obediently have
subscribed with the sign of the holy cross.
“I Aedilberch bishop of Whithern[304] suppliant have subscribed
with the sign of the holy cross.
“I Aldulf bishop of the church of Mayo[305] have subscribed with
devoted will.
“I Aetheluuin[306] bishop have subscribed by delegates.
“I Sigha the patrician with placid mind have subscribed with the
sign of the holy cross.[307]
“To these most salutary admonitions we too, presbyters and
deacons of churches and abbats of monasteries, judges, chief men,
and nobles, unanimously consent and have subscribed.
“I duke Alrich have subscribed with the sign of the holy cross.
“I duke Siguulf have subscribed with the sign of the holy cross.
“I abbat Aldberich[308] have subscribed with the sign of the holy
cross.
“I abbat Erhart have subscribed with the sign of the holy cross.
“All this having been accomplished, and the benediction
pronounced, we set out again, taking with us illustrious
representatives of the king and the archbishop, the readers
Maluin[309] to wit and Pyttel. We travelled together, and they brought
the above decrees to a council of the Mercians, at which the glorious
King Offa was present, with the senators of the kingdom, the
Archbishop Iaenbercht[2] of the holy Dorovernian Church, and the
other bishops of those parts. In presence of the council the several
chapters were read out in a clear voice, and lucidly expounded both
in Latin and in Teuton so that all could understand. Then all with one
voice and with eager mind, grateful for the admonitions of your
apostolate, promised, that they would according to their ability with
most ready will keep in all respects these statutes, the divine favour
supporting them. Moreover, as at the northern council, the king and
his chief men, the archbishop and his colleagues, confirmed them in
our hand (in the stead of your lordship) with the sign of the holy
cross, and again ratified this present document with the sacred sign.
“I Ieanbrecht[310], archbishop of the holy church of Dorovernum,
suppliant have subscribed with the sign of the holy cross.
“I Offa king of the Mercians, consenting to these statutes, with
ready will have subscribed with the sign of the holy cross.
“I Hugibrecht[311] bishop of the church of Lichtenfelse have
subscribed with the sign of the holy cross.
“I Ceoluulf bishop of the Lindisfaras[312] have subscribed.
“I Unuuona bishop of the Legorenses[313] have subscribed.
“I Alchard[314] bishop have subscribed.
“I Eadberht[315] bishop have subscribed.
“I Chumbrech[316] bishop have subscribed.
“I Harchel[317] bishop have subscribed.
“I Acine[318] bishop have subscribed.
“I Tora[319] bishop have subscribed.
“I Uuaremund[320] bishop have subscribed.
“I Adalmund[321] bishop have subscribed.
“I Adored[322] bishop have subscribed.
“Edrabord abbat. Alemund abbat. Boduuin abbat. Uttel abbat.
“I duke Brorda have subscribed with the sign of the holy cross.
“I duke Eadbald have subscribed.
“I duke Bercoald have subscribed.
“I count Othbald have subscribed.”
 APPENDIX C
(Page 177)

Sed obsecro si vestrae placeat pietati ut exemplarium illius libelli

domno dirigatur apostolico aliud quoque Paulino patriarchae similiter
Richobono et Teudolfo episcopis doctoribus et magistris ut singuli
pro se respondeant Flaccus vero tuus tecum laborat in reddenda
ratione catholicae fidei tantum detur ei spatium ut quiete et diligenter
liceat illi cum pueris suis considerare sensus quid unusquisque
diceret de sententiis quas posuit prefatus subversor in suo libello et
tempore praefinito a vobis ferantur vestrae auctoritati singulorum
responsa et quidquid in isto libello vel sententiarum vel sensuum
contra catholicam fidem inveniatur omnia catholicis exemplis
destruantur et si aequaliter et concorditer cunctorum in professione
vel defensione catholicae fidei resonant scripta intelligi potest quod
per omnium ora et corda unus loquitur spiritus sin autem diversum
aliquid inveniatur in dictis vel scriptis cuiuslibet videatur quis maiore
auctoritate sanctarum scripturarum vel catholicorum patrum innitatur
et huic laudis palma tribuatur qui divinis magis inhaereat testimoniis.
 APPENDIX D
(Page 197)

The following are the passages of the Donation which touch the
question of the joint patronage of St. Peter and St. Paul in the
Church of Rome. The edition from which they are taken is thus
described on the title-page:—

Constantini M. Imp. Donatio Sylvestro Papae Rom.

inscripta: non ut a Gratiano truncatim, sed integre edita: cum
versione Graeca duplici, Theodori Balsamonis, Patriarchae
Antiocheni, et Matthaei Blastaris, I(uris) C(anonici) Graeci.
Typis Gotthardi Voegelini
(1610).

The first page of the Latin Edict is not represented in the Greek
Thespisma. It ends with the words: “Postquam docente beato
Silvestro trina me mersione verbi salutis purificatum et ab omni
leprae squalore mundatum beneficiis beati Petri et Pauli
Apostolorum cognovi.”

Iustum quippe est, ut ibi lex sancta caput teneat

principatus, ubi sanctarum legum institutor salvator noster
beatum Petrum Apostolatus obtinere praecepit cathedram,
ubi et crucis patibulum sustinens beatae mortis poculum
sumpsit suique magistri et domini imitator apparuit: et ibi
gentes pro Christi nominis confessione colla flectant, ubi
eorum doctor beatus Paulus Apostolus pro Christo extenso
collo martyris coronatus est: illic usque in finem quaerant
doctorem, ubi sancti doctoris corpus quiescit; the Greek has
τὂν διδάσκαλον ὅπου τὰ τῶν ἁγίων λείψανα ἀναπαύονται.
 Construximus itaque ecclesias beatorum Petri et Pauli
Apostolorum, quas argento et auro locupletavimus: ubi
sacratissima eorum corpora cum magno honore recondentes,
et thecas ipsorum ex electro (cui nulla fortitudo praevalet
elementorum) construximus, et crucem ex auro purissimo et
gemmis pretiosis per singulas eorum thecas posuimus et
clavis aureis confiximus.

Pro quo concedimus ipsis sanctis Apostolis dominis meis,

beatissimo Petro et Paulo, et per eos etiam beato Silvestro
patri nostro summo Pontifici et universali urbis Romae Papae
et omnibus eius successoribus Pontificibus, qui usque in
finem mundi in sede beati Petri erunt sessuri, atque de
praesenti concedimus palatium imperii nostri Lateranense,
quod omnibus praefertur atque praecellit palatiis.

Si quis autem (quod non credimus) temerator aut

contemptor extiterit, aeternis condemnationibus subiaceat
innodatus, et sanctos Dei principes Apostolorum Petrum et
Paulum, sibi in praesenti et in futura vita sentiat contrarios,
atque in inferno inferiori concrematus cum diabolo et omnibus
deficiat impiis.

The learned editor makes an interesting comment on the

recognition by Constantine of the par utriusque meritum, the equal
merit of the two apostles Peter and Paul. The fate of Paul, he says,
resembles that of Pollux. The two brothers, Castor and Pollux, had a
Temple in common in the Forum, but it came to be called the Temple
of Castor alone.
In using such a document as this, the temptation to alter words
must have been very great. As an example of such change, the
words which follow on our first quotation may be cited—“utile
iudicavimus una cum omnibus satrapis et universo senatu,
optimatibus etiam et cuncto populo Romani gloriae imperii
subiacente.” For gloriae Gratian reads ecclesiae. The Greek version
has τῆς ῥωμαικῆς δόξης.
 On a phrase of the Donation—“eligentes nobis ipsum principem
Apostolorum vel eius vicarios firmos apud Deum esse patronos”—
the editor quotes a remarkable passage from Aimoin[323] v. 2, which
it is specially fitting to reproduce here, since it relates to
Charlemagne and his sons: “Post non multum tempus incidit ei
desiderium dominam quondam orbis videre Romam, principis
Apostolorum atque doctoris gentium adire limina, seque suamque
prolem eis commendare; ut talibus nitens suffragatoribus, quibus
coeli terraeque potestas attributa est, ipse quoque subiectis
consulere, perduellionumque [si emersissent[324]] proterviam
proterere posset. Ratus etiam non mediocre sibi subsidium conferri,
si a Vicario eorum cum benedictione sacerdotali tam ipse quam et
filii eius regalia sumerent insignia.”
In a letter to Karl of the highest importance, Ep. 33. a.d. 794.
Hadrian I uses a remarkable phrase in describing
Karl’s regard for the Church of Rome. He speaks of his faith and love
towards the church of the blessed chiefs of the apostles Peter and
Paul,—quantum erga beatorum principum apostolorum Petri et Pauli
ecclesiam fidem geritis et amorem. In the same letter he employs an
argument which—while it would naturally have force with Karl—
appears to assign to national churches other than that of Rome a
remarkable position of independence. “If,” he says, “everywhere
canonical churches possess their dioceses intact, how much more
should the holy catholic and apostolic Roman church, which is the
head of all the churches of God,—Si enim ubique Christianorum
ecclesiae canonicae intactas suas possident dioeceses, quanto
amplius sancta catholica et apostolica Romana ecclesia, quae est
caput omnium Dei ecclesiarum....”
 APPENDIX E
(Page 290)

Eginhart gives the name of Charlemagne’s elephant as Abulabaz.

This probably represents AbuʾlʿAbbás, the elephant being in that
case named after his royal donor, the first Abbasid Caliph, who was
none other than our old friend of many tales of adventure, Harun al
Raschid. His caliphate lasted from 786 to 809, and thus coincided
with the most brilliant period of Charlemagne’s reign as king and
emperor. His policy was to remain on most friendly terms with
Charlemagne, while sending to Irene’s supplanter at Constantinople,
Nicephorus, communications of the following character:—
“Harun al Raschid, Commander of the Faithful, to Nicephorus, the
Roman dog.
“I have read thy letter, O thou son of an unbelieving mother. Thou
shalt not hear, but behold my reply!”
Eginhart tells us under the year 807 of noble presents sent by the
Saracen king of the Persians to Charlemagne. They included a
pavilion and court tents, all, including the ropes, of linen of divers
colours; palls of silk many and precious; scents, unguents, and
balsam; two great candelabra of brass (orichalc) of marvellous size
and height; and above all a wonderful clock made of brass (orichalc).
The principle of this remarkable machine was that of the water clock.
At each complete hour little balls of brass were set free, which fell on
to a cymbal below with a tinkling sound, while at the same time
twelve knights on horseback opened windows and pushed out,
closing windows which had been open.
 FOOTNOTES
[1] Mendacia.
[2] See the story of his conversion, p. 11.
[3] The following inscription is found in this book:—“Hunc
Vergilii codicem obtulit Berno gregis beati Martini levita devota
mente Deo et eidem beato Martino perpetualiter habendum ea
quidem ratione ut perlegat ipsum Albertus consobrinus ipsius et
diebus vitae suae sub pretextu sancti Martini habeat et post suum
obitum iterum sancto reddatur Martino.”
[4] It appears to be impossible to identify the site of the cell of
Wilgils. The local idea is that Kilnsea may be the place. But then
the local idea is that Kilnsea means “the cell by the sea”.
[5] The church of St. Andrew in Rome was the first church
which Wilfrith in his youth visited on his first appearance in that
city. It was on the altar of that church that he first saw a
magnificent copy of the Gospels, which so fired his enthusiasm
that he had a similar copy made, written in letters of gold on
purple parchment and adorned with gems, for his church at
Ripon. His great church at Hexham, the finest church north of the
Alps, he dedicated to St. Andrew, and the dedication thus became
a favourite one in Northumbria. See my Theodore and Wilfrith, p.
17.
[6] Horreense, the Germans think; now Oeren.
[7] Epternach.
[8] See my Conversion of the Heptarchy, pp. 202-4.
[9] See my Conversion of the Heptarchy, p. 190.
[10] iii. 20, plate xiii.
[11] Ps. lxxvii. 11.
[12] The relative numbers of these three “sides” of the School
of York may possibly be indicated by the quidam, alii, nonnulli, of
the author.
[13] Biscop.
 [14] After a parenthetical paragraph the writer continues, “Cuius
iam, ut dictum est, sequens Hechbertus vestigia.”
[15] Gregory, it must be supposed. If one of the Apostles of the
Lord had been meant, much more honorific words would have
been used.
[16] Used antiphrastically for malediction: see Job i. 5.
[17] Deut. xxxii. 11.
[18] Chapter viii of the Rule of St. Benedict directs that a monk
shall not conceal from his abbat evil thoughts which come into his
heart.
[19] John xiii. 25 to xviii. 1 inclusive.
[20] Sigulf, as we have seen, told the writer the facts of Alcuin’s
life which he recorded.
[21] Dial. ii. 85. Benedict there narrates that he saw the whole
world collected into one ray of the sun, in which the soul of
Germanus, bishop of Capua, ascended to the heavens.
[22] Ps. cvi. 1.
[23] Francia, both here and in Alcuin’s Letter 35, where he
writes as if with these words in his mind: “I came to France, under
pressure of ecclesiastical need, and to confirm the reason of the
Catholic Faith.”
[24] There is a tradition that Alcuin wrote the Office for the Mass
on Trinity Sunday. See Appendix A.
[25] The “hereditary right” seems to indicate that by these
“benedictions” the library of York is meant, of which more will be
said later on.
[26] “Talentum sui domini”, sc. Elcberti?
[27] The perpetual presence of Sigulf was needed for the
celebration of masses, Alcuin remaining a deacon. There is a
curious mention of Alcuin’s part in the administration of Holy
Communion, and of the action of the young King Louis when
receiving at his hand; see p. 32.
[28] We can date this meeting fairly closely by the fact that Karl
granted a privilegium to Parma on March 15, 781.
[29] The bishop George whom we know as intimately
concerned with the affairs of Hadrian I and with British interests
was Bishop of Ostia. If this is he, we shall hear of him again in
connexion with the Archbishopric of Lichfield.
[30] Abbat of St. Martin of Tours, a curiously early connexion of
Alcuin with his future home. To him Alcuin addressed the earliest
letter of his which is extant; see p. 205.
[31] Alcuin was about seven years older than Karl. They were
at this time about forty-six and thirty-nine years of age.
[32] St. Peter of Ferrières, dio. Sens.
[33] Alcuin makes mention of his residence here during the
autumn of 798 in his correspondence with Gisla, Karl’s sister; see
p. 253. The Museum of Troyes is housed in the old buildings of
the Abbey of St. Loup.
[34] Matt. x. 23.
[35] He was subject to febrile attacks.
[36] For Alcuin’s letter to Fulda, written after Karl’s refusal of
permission, See Appendix A.
[37] “In psalmorum et missarum multa celebratione.”
[38] See p. 13.
[39] Called Witto by Alcuin (ep. 107), and Candidus (106) as
the Latin rendering of the Teutonic name.
[40] To Fredegisus Alcuin wrote letters on the three kinds of
visions (257) and on the Trinity (258). He is understood to be the
“Nathanael” of other letters. Of Fredegisus, Theodulfus, the
Bishop of Orleans, wrote to Karl:

Stet levita decus Fredegis sociatus Osulfo,

Gnarus uterque artis, doctus uterque bene.

He was a master in the school of the Palace and afterwards

Archdeacon. He became Abbat of Cormery, and eventually of
Tours.
[41] See the mention of him in previous note. Osulf was a
household officer of the young King Charles, see p. 250. The last
words of Alcuin’s interpretation of the vision suggest that he was
an Englishman, one of the youths whom Alcuin brought from York
as his assistant masters.
[42] This was Benedict, the Abbat of Aniane in Languedoc. That
region is here spoken of as Gothia, because the Goths had
settled about Toulouse in the fifth century. The fact that Benedict
used often to come to consult Alcuin is an interesting illustration
of the disregard of distance in those days. As the crows fly,
Toulouse is some 270 miles from Tours, and the journey was a
long and arduous one.
[43] The three sons of Karl were all of them kings (practically
sub-kings) of one part or another of his vast domains. The great
partition of the empire was not arranged by Charlemagne till after
Alcuin’s death.
[44] It will be borne in mind that Alcuin was only in deacon’s
orders.
[45] This is one of the various indications of date which enable
us to calculate the time at which the biography was written.
[46] Charles and Pepin died before their father, and Louis
became sole emperor and ruler of all that Charlemagne had held.
[47] With regard to some possible confusion here between Karl
and his eldest son Charles, see p. 246.
[48] Vita, c. 21.
[49] It is frequently impossible to calculate a man’s nationality
from his name in the century with which we are dealing, and it is
unsafe to guess at it. Aigulf, for instance, was the name of the
Gothic Count of Maguelone, the cup-bearer of Karl’s son, Pepin of
Aquitaine, and father of Benedict of Aniane.
[50] Engelsaxo.
[51] “Venit iste Britto vel Scotto.” The Scot in those days was
the Irishman. We may imagine that “Scotto” was formed derisively
to match “Britto”. But it should be remembered that in Alcuin’s
dialogue on grammar the disputants are Saxo and Franco, a very
similar formation.
[52] It is of at least local interest to remark that the latest of
many burnings of York Minster, Alcuin’s old abode, was caused
very much in the same way. Carpenters had been at work, in the
bell-chamber of the south-west tower, and left a candle burning
on the table where they had been planing wood. The candle
burned low and fell over on to some shavings, to which it set fire,
and thence the flame grew and grew till it burst out, and the great
fire of May 20, 1840, was the result. This present writer was a boy
of six at the time, and from his bedroom window saw it all, from
the beginning, through the sounding boards of the chamber. He
was eventually carried off in a blanket, as the tower would have
fallen into his father’s house if it had come down. The house, it
may be added, was the house in which Guy Fawkes was born.
See also p. 82.
[53] The word monasterium has so many meanings that we
cannot be sure what precisely is here meant. It may possibly
mean the maius monasterium, Marmoutier, see p. 221.
[54] The historian here quoted, a contemporary of St. Martin,
must not be confused with Sulpicius, Archbishop of Bourges, a.d.
584, surnamed Severus to distinguish him from a second
Sulpicius Archbishop of Bourges, surnamed Pius, who died a.d.
644.
[55] “Hesterna die indicatur mihi,” &c. We fortunately have the
letter. It is Epistle I of the collected works of Sulpicius.
[56] It may be that we have here an early hint of a practice of
which we have record in later times. The water which had been
used for washing the tomb of St. Martin was held to have healing
properties in the later middle ages.
[57] Believed at that time to have been written by St. Paul.
[58] In our editions, Arno and not Fredegisus was the recipient
of this treatise.
[59] Presumably the same as Withso and Witto.
[60] “Franci et Saxonis,” the author says. But in the disputatious
dialogue they are called Saxo and Franco. Saxo addresses
Franco as O Franco! but on one occasion he slips into the
vocative France: “En habes, France, de adverbio satis.” Fr. “Non
satis; pausemus tamen ad horam.” Saxo. “Pausemus.” The
dialogue is much of the same kind as that found in Aldhelm’s
works a hundred years earlier between Magister and Discipulus.
See my St. Aldhelm, ch. xii.
[61] We have seen from the author that he could very seldom
shed tears, p. 27.
[62] There is a delicate touch in putting into the devil’s mouth
the literal name and not the intimate name.
[63] Cant. iv. 4.
[64] A cynic might remark that Alcuin did not answer the clever
question of the enemy. He could not deny that he was elaborately
deceiving his attendants.
 [65] Sulpicius Severus, Life, c. 25.
[66] Theodulf of Orleans makes a little apology to Karl for
Alcuin’s use of wine and beer (not English beer! see p. 267):

Aut si, Bacche, tui aut Cerealis pocla liquoris

Porgere praecipiat, fors et utrumque volet;
Quo melius doceat, melius sua fistula cantet,
Si doctrinalis pectoris antra riget.

If he bids bring forth cups of thy liquor, O Bacchus, or cups of

the liquor of corn, and perhaps takes both; it is that he may teach
the better, the better may sing his stave, if he moistens the
recesses of his instructive breast.
[67] “Celebrabat omni die missarum solemnia multa.”
[68] Based on Isa. xxii. 22.
[69] See p. 211.
[70] The biographer here passes in a telling manner to the
present tense.
[71] Again the use of Alcuin’s baptismal name at a critical point.
[72] This is one of the endless number of cases in which it is
made quite clear that the original attraction to Rome was not the
asserted bishopric of Peter, but the fact of the tombs of Peter and
Paul. The cult of these two chiefs, princes of the Apostles, was
the source of the reputation of Rome. See Appendix D.
[73] See p. 268.
[74] The title consists of twenty-four elegiacs, with only ordinary
thoughts.
[75] Gesta Regum, i. 3.
[76] The mention of Ascension Day in the account of Bede’s
death is in the judgement of some scholars more easily
reconciled with the incidence of Ascension Day in the year 742.
[77] The see of Dunwich appears to have been vacant then.
[78] All this tells against the now exploded belief that Theodore
established the parochial system. His paroichia was the diocese.
[79] The earliest pieces of English now extant in the original
form are the inscriptions in Anglian runes on the cross erected in
670 in the churchyard of Bewcastle, in memory of the sub-king
Alchfrith (see p. 9). The main inscription runs thus: + This sigbecn
thun setton hwaetred wothgar olwfwolthu aft alkfrithu ean küning
eac oswiung + gebid heo sinna sowhula. + This token of victory
Hwaetred Wothgar Olwfwolthu caused make in memory of Alcfrith
once king and son of Oswy. + Pray for the high sin of his soul.
See also p. 296.
[80] See p. 5.
[81] In ordinatione.
[82] Constituant.
[83] He was Bishop of Winchester a.d. 1367 to 1398; Wilfrith
was Bishop of York a.d. 669 to 678.
[84] Eton was founded, in a very small way, in 1440.
[85] As to the treatment of ancient ecclesiastical MSS. in one
part of France at the time of the Revolution, see pages 219, &c.
[86] It is now maintained that ‘Saxon’ is formed from saxa,
stones, but for a different reason, being taken as describing
‘armed men’ in the stone age.
[87] It is so, also, in Eddi’s prose account, “pro lachrymis ad
aures Dei pervenientibus.”
[88] See also p. 137.
[89] See my Lessons from Early English Church History, pp.
74, 75.
[90] Our word “inn” means a place enclosed, or a place
comprising an enclosure.
[91] p. xxiii.
[92] See also p. 141.
[93] “Monasterium” is used in the middle ages for a parish
church in the country. “Minster” has always been a special
Yorkshire word, “York Minster,” “Ripon Minster,” “Beverley
Minster.” The unique inscription at the side of the sun-dial at
Kirkdale Church, dated as in the days of Tostig the Earl, sets forth
that “Orm Gamal-suna bohte Sanctus Gregorius minster”.
[94] The writer of this cannot refrain from mentioning a curious
coincidence of dates and experience between himself and his
schoolfellow and head master Alcuin. York Minster was burned on
May 23, 741, when Alcuin was six years old. The cathedral school
being within the precincts, Alcuin would have to be removed to a
place of safety. York Minster was burned on May 20, 1840,
curiously near to being the eleven-hundredth anniversary of the
burning on May 23, 741, and the present writer, then aged six,
was carried from his bed in the minster precincts to a place of
safety in Castlegate.
[95] An. dcc.xli. Her forbarn Eoferwic. This entry is found in
the two MSS. of the Chronicle known as Cotton. Tib. B. 1 and
Bodl. Laud. 636. These two MSS. have special information about
Northumbrian affairs. They differ in the spelling of proper names,
but in this case they take the same spelling of the Anglian name
of York, which appears in five different forms in the Chronicle.
[96] Before Froben this was read Alcuinus, clearly an
impossible reading in a list drawn up by Alcuin himself, and at a
time when his chief effort of versification could not be in the
library.
[97] See Appendix B, p. 310.
[98] Haddan and Stubbs, iii. 440.
[99] a.d. 790-805.
[100] “Sacerdos.” It appears clear that Alcuin is using the word
as equivalent to “episcopus”, as it frequently was.
[101] Mal. ii. 7.
[102] “Speculator.”
[103] “Super-speculator.” Isidore explains in his Etymologies
that bishops are called “episcopi” by the Greeks and
“speculatores” by the Latins, because they are set on high in the
church.
[104] “Sacerdotes.” That Alcuin is speaking of bishops, not of
priests in general, is clear from his verses at the end of the letter,
where he repeats his phrases “terrae sal”, “lumina inundi”, and
adds “Bis sex signa poli”, the twelve stars of the sky, namely the
bishops of the Southern Province. These were, not counting
Athelhard himself, Higbert of Lichfield, Kenwalch or Eadbald of
London, Kinbert of Winchester, Unwona of Leicester, Ceolwulf of
Lindsey, Denefrith of Sherborne, Aelhun of Dunwich, Alheard of
Elmham, Heathred of Worcester, Ceolmund of Hereford, Wiothun
of Selsey, Weremund of Rochester.
[105] “Consacerdotes.”
 [106] Prov. xviii. 19. The Vulgate and the Septuagint versions
give the force of the passage in Alcuin’s sense. The Authorised
Version gives, “A brother offended is harder to be won than a
strong city.” The Revised Version agrees exactly with the A.V.
[107] Gildus, in Alcuin.
[108] It may be supposed that Offa was engaged in building an
abbey church at St. Albans. William of Malmesbury says of the
church built by Offa in honour of St Alban (Gesta Regum, i. 4):
“The relics of St. Alban, at that time buried in obscurity, he had
reverently taken up and placed in a shrine decorated to the fullest
extent of royal munificence with gold and jewels; a church of most
beautiful workmanship was there erected, and a society of monks
assembled.” The black stones may have been wanted for
pavements.
[109] Pope Hadrian I. He died December 27, 795, having held
the Papacy for twenty-three years, with great distinction, at a
most important time in its history.
[110] Simeon of Durham, under the year 795.
[111] This would naturally mean Ireland at that time, but it is far
from clear that Ireland is meant.
[112] Isa. i. 4.
[113] Offa died July 26, 796, and Ecgfrith died in the middle of
December in the same year, after a reign of 141 days.
[114] In each of these two cases the new king was, in this year
796, most unexpectedly raised to the throne from a comparatively
poor position, in which he had married a wife of his own position.
Alcuin fears that they will be tempted to cast off the early wife and
take some lady more fitted for a throne.
[115] This prophecy was not fulfilled. It was not till nine years
after the date of this letter that Eardwulf was expelled from the
kingdom.
[116] Prov. xx. 28.
[117] Ps. xxiv. 10, Vulgate; xxv. 10, A. V.; xxv. 10, Psalter.
[118] Haddan and Stubbs, iii. 521, from William of Malmesbury,
G. R. i. 4.
[119] A mancus was more than one-third of a pound, but that
conveys no real idea to the modern mind of its actual value.