Appeal to the Commercial Court Nobiskrug appealed the tribunal’s decision, asserting that the tribunal had made an error in finding that it should reimburse Valla Yachts when there had been no finding that it was under a legal liability to the subcontractors in respect of the payments. Nobiskrug accepted there was a reservation of rights but argued that this did not create a right or a cause of action against Nobiskrug for the recovery of sums paid to the subcontractors. Nobiskrug’s position was that the payments made by Valla Yachts were voluntary and the reservation of rights simply meant that Valla Yachts had not waived its right to recover the monies by pursuing its counterclaims. Valla Yachts argued that the tribunal’s award could be supported on restitutionary grounds, as follows: • The tribunal had found that Nobiskrug had abrogated its project management responsibilities and had failed (i) to investigate the claims advanced so that Valla Yachts was unable to form a proper assessment of whether the payments demanded were due and (ii) to manage their resolution effectively so as to minimize any disruption caused to the works. • These breaches had placed Valla Yachts in an extremely difficult position where it was compelled to make the payments if the yacht was to be completed. • Its action in making the payments was to the benefit of Nobiskrug in that it was discharging Nobiskrug's project management responsibilities, or at least mitigating the breach of those responsibilities. Payment allowed the project to continue and Nobiskrug to earn the contract price. Therefore, Nobiskrug was unjustly enriched and Valla Yachts had a valid restitutionary claim. Somewhat inevitably, the Commercial Court remitted the matter to the tribunal for further consideration. The Court did not think the tribunal could be said to have ordered the reimbursement of payments made by Valla Yachts “simply on the basis that it made them subject to a reservation of rights”. On the other hand, it was unclear on what basis the tribunal had ordered reimbursement and Valla Yachts restitutionary analysis was “not spelt out completely on the face of the Award”. Of note, however, the Court considered that the restitutionary claim had “considerable force”. Conclusions and implications It will be unsurprising to most that a mere reservation of rights was insufficient to entitle the employer to the reimbursement of direct payments. Of much greater interest, however, is the Court’s encouragement of a restitutionary claim based on the contractor’s failure to adequately manage subcontractor claims. If successful, such an argument would appear to avoid the need for the employer to prove that (i) the contractor had a liability to the subcontractors in respect of the amounts paid by the employer; or (ii) the contractor’s project management failings had caused or contributed to the amounts claimed by the subcontractors. The ability to make such claims would be of considerable assistance to employers