International Construction Law Review
TRIBUNAL BIAS – FAMILIARITY BREEDS CONCERN
Julian Bailey1
Introduction
As a form of dispute resolution, statutory adjudication – in all its permutations – is sui generis. It is a procedure inspired by contractual systems for resolving construction and engineering disputes, however first and foremost it is a creation of statute, and must therefore be understood according to the terms of the applicable statute.
Systems of statutory adjudication now operate in a number of countries, being the UK, Australia, New Zealand, Singapore, Malaysia and also the Isle of Man. The Republic of Ireland has passed legislation that contemplates the adjudication of construction disputes, and in HKSAR a similar type of legislation has been proposed. Although each legislative regime broadly has similar objectives, namely to improve the cash flow of people who perform construction work by (among other things) providing a speedy and binding form of interim dispute resolution (“adjudication”), the content of each legislative scheme varies, and care must therefore be taken when seeking to compare case law emerging from each jurisdiction to ensure that like is compared with like.
The subject of this article is the question of adjudicator bias.2 The topic is discussed with reference to a recent English decision in which a well-known adjudicator was removed as an arbitrator in a case (Cofely)3 in which he had an accumulation of prior experience (primarily as an adjudicator) with one of the parties to the arbitration.
Adjudicator bias
The issue of bias falls under the broader rubric of natural justice (or procedural fairness).4 There are two components of natural justice.5
1 Solicitor, White & Case LLP; Chairman of the Society of Construction Law (UK) (2015–2016).
2 The topic overlaps with arbitrator bias, and as will be seen questions of arbitrator bias are relevant to the discussion in this article of adjudicator bias.
3 Cofely Ltd v Bingham [2016] EWHC 240 (Comm). The author declares an interest in that he is a friend of Mr Bingham, the adjudicator/arbitrator in question.
4 For discussions of the position in NSW regarding natural justice, see McDougall, “An Examination of the Role and Content of Natural Justice in Adjudications Under Construction Industry Payment Legislation” (11 September 2009) and McDougall, “Natural Justice and the Building and Construction Industry Security for Payments [sic] Act 1999 (NSW)” (May 2014), both downloadable at www.supremecourt.justice.nsw.gov.au).
5 Amec Capital Projects Ltd v Whitefriars City Estates Ltd (CA) [2004] EWCA Civ 141; [2005] BLR 1 at 11–12, per Dyson LJ (as he then was); [2005] 1 All ER 723; 96 Con LR 142.
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