Checklists for Adjudication

(Subject to specific rules)

Drafting the Notice of Adjudication

  1. Have you described the disputes sufficiently well for it to be clear.
  2. What the issues are?
  3. What experience the adjudicator should have had?
  4. Who is involved in the dispute?
  5. Have you described the circumstances giving rise to the dispute?
  6. Have you stated clearly what decision you want?
  7. Have you included the names of all parties to the contract?
  8. Have you sent the Notice of Adjudication to all parties to the contract?
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Adjudicator Selection and the Referral Notice

  1. If an adjudicator is not named in the contract is there a person named in the contract to select an adjudicator?
  2. If not, the Referring Party chooses an ANB and applies for a selection.
  3. Nominating bodies must make a selection within 5 days.
  4. The Receiving Party cannot object to a selection.
  5. Prospective adjudicators must confirm within 2 days that they are able and willing to accept the appointment.
  6. The Referral Notice is the Referring Party’s full statement of his case.
  7. The Referral Notice should contain:
  1. All the information he wishes to bring to the attention of the adjudicator.
  2. Proposals on the timetable for the adjudication.
  3. Proposals for any joining of disputes.
  4. A copy of the Notice of Adjudication.
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Receipt of a Referral Notice by the Receiving Party

  1. On receipt of the Notice of Adjudication:
    1. Check that whether you have an adjudication clause in the contract.
    2. If so, check whether it complies.
    3. If not, check that the Act applies to your contract.
    4. If so, check that the Notice of Adjudication is valid.
  1. When the Referral Notice arrives:
    1. Check its contents comply with the Notice of Adjudication.
    2. Answer each point made in it with a denial, acceptance or comment.
    3. Keep your alternative arguments separate from the responses to the Referral Notice.
    4. Criticise all figures including those when you consider there is no entitlement.
  1. Always aim to assist the adjudicator.
  2. Send a copy of all you send to the adjudicator to all other parties.
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Procedure.

  1. The time periods start when the Adjudicator receives the Referral Notice.
  2. The Referral Notice should contain all the information the Referring party wishes the adjudicator to have.
  3. The Referring Party should suggest in the Referral Notice any procedures he wishes to be adopted.
  4. The Receiving Party should inform the adjudicator how long he requires to reply, and any other procedures he wishes to be adopted.
  5. The adjudicator:
  1. Will set the procedure for the adjudication when he receives the Referral Notice.
  2. Can take the initiative in ascertaining the facts and the law.
  3. Will make his decision in accordance with the contractual right of the parties.
  4. Can take any failure to comply with his directions into account when making his decision.
  5. May make his decision when he think he has enough information.
  6. Can, after informing the parties, seek take advice from third parties.
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The Decision

  1. The adjudicator must decide all the matters in dispute.
  2. The adjudicator must reach his decision within the allotted time.
  3. If he fails to do so the Referring Party may issue another Notice of Adjudication.
  4. The adjudicator will not be entitled to any payment.
  5. The adjudicator can only decide matters not in the Notice of Adjudication if
  1. the parties agree, and/or
  2. they are necessarily connected to the dispute.
  1. The adjudicator may open up, revise and review any decision, certificate issued under the contract unless that decision is stated to be final and conclusive.
  2. If requested by one of the parties, the adjudicator must give reasons for his decision.
  3. There is no power to revise or correct a decision once made.
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The Effects of the Decision

  1. The parties must comply with the decision of the Adjudicator.
  2. The decision is binding until the dispute is finally resolved by arbitration, litigation or agreement.
  3. The adjudicator may order the parties to comply peremptorily with his decision.
  4. Failure to comply with a peremptory order permits the courts to enforce the decision.
  5. The adjudicator can state a final date for payment in his decision.
  6. Failure to pay by the final date for payment entitles a party to issue a notice of intention to suspend performance.
  7. The payer then has 7 days in which to pay in full.
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Payment of the Adjudicator

  1. The adjudicator will normally be entitled to be paid his fees and expenses reasonably incurred.
  2. The adjudicator can allocate the proportion of his fees and expenses that each party bears.
  3. If the adjudicator resigns he will be entitled to payment if he resigns because:
    1. The dispute is similar to one that has already been referred to adjudication, or
    2. The dispute varies significantly from the one in the referral notice and consequently he feels incompetent to deal with it.
  4. If the adjudicator resigns for other reasons he is not entitled to any payment.
  5. The parties may revoke the appointment of the adjudicator at any time.
  6. If his appointment is revoked he is entitled to fees and expenses reasonably incurred.
  7. The adjudicator may apportion such fees and expenses between the parties.