International Construction Law Review
THE ROLE OF THE ADJUDICATOR NOMINATING BODIES IN ADJUDICATION UNDER CONSTRUCTION CONTRACTS
LUCINDA LEVY
Consultant in Legal Support Services at Cyril Sweett, London, UK
AND
ISSAKA NDEKUGRI
School of Engineering and the Built Environment, University of Wolverhampton, UK
Introduction
The effect of the Housing Grants, Construction and Regeneration Act 1996 (HGCRA) in the UK is that a party to a qualifying construction contract has a right to refer at any time any dispute arising under the contract for resolution by a process referred to as “adjudication”. This process entails submission of the dispute to a third party, the adjudicator, for a determination that is binding on the disputants until the dispute is finally determined by legal proceedings, by arbitration (if the contract provides for arbitration or the parties otherwise agree to arbitration) or by agreement.1
The process is designed to produce, within five to seven weeks after a dispute has arisen, a decision that can be implemented to avoid any impasse that might otherwise arise from the dispute remaining unresolved. The essence of the temporary nature of the determination is that the parties are still free to reach a final agreement to a different effect or to refer the same dispute for final resolution by an arbitrator or a court. There is considerable literature on the development of this concept of adjudication prior to it being put into statutory form.2
The ambit of the HGCRA is established by the concept of “construction contract”, which is defined in section 104 of the HGCRA to include most of the work and services performed or provided by contractors and the construction professions. Every construction contract must include in its terms the right to refer a dispute to adjudication in accordance with minimum procedural requirements stated in section 108 of the Act. Failure to include such terms has the effect of making the contract subject to statutorily implied terms under the Scheme for Construction Contracts.3
1 S. 108(3).
2 For example, M C McGaw, “Adjudicators, Experts and Keeping out of Court” (1998) 8 Const LJ, No 4; C Dancaster and J L Riches, Construction Adjudication
(LLP, 1999); J Redmond, Adjudication in Construction Contracts
(Blackwell Science, 2001).
3 Hereafter referred to as the “Scheme”.
[2003
The International Construction Law Review
414