| Tartalomjegyzék |
|---|
| Arbitration vs. Adjudication: UK |
| Final decision ? |
| Cost of adjudication |
| Cost comparison |
| Timetable compared |
| Minden oldal |
1. oldal / 5
“Salmond (2010) has shown the wide range of challenges being used by parties to resist the enforcement of adjudicators’ decisions. These (almost routine it would appear) challenges to the adjudicator’s decision raise the threshold of costs to the parties which may consequently render some smaller claims uneconomic to pursue. They also extend the period of time during which the referring party has to wait for payment, mitigating against speedy resolution advocated by Latham (1994). (…) Whilst the adjudication process may reach a conclusion with the decision, that is not the end of the dispute as far as the parties are concerned. There is the issue of enforcement and if that becomes prohibitively expensive or protracted this, in itself, could impact on the attractiveness of adjudication as a means of resolving the dispute.” Peter Kennedy, Janey Milligan, Lisa Cattanach, Edward McCluskeyThe development of Statutory Adjudication in the UK and its relationship with construction workload (2010, COBRA Conference)
From its inception adjudication was purportedly considered as less formal and cheaper than arbitration while more binding as other unformal ADR.While statutory adjudication in some other countries is mandatory (see Security of payments Acts in States and Territories of Australia, which stipulate that contracting out of adjudication mandated by Acts is null and void), according UK statutory provisions (The Housing Grants, Construction and Regeneration Act 1996 as amended by Part 8 of the Local Democracy, Economic Development and Construction Act 2011) provide for mixture of voluntary and mandatory adjudication (mandatory provisions are covered by Scheme for Construction Contracts (England and Wales) Regulations, respectively Scheme for Construction Contracts (Scotland) Regulations. Limited party autonomyHovewer, from viewpoint of user (contracting party) free will of parties in adjudication clauses is very limited by very point of statutory law. Section 108 of Construction Act 1996 states clearly: Adjudication108. – (1) A party to a construction contract has the right to refer a dispute arising underthe contract for adjudication under a procedure complying with this section. For this purpose "dispute" includes any difference.(2) The contract shall –(a) enable a party to give notice at any time of his intention to refer a dispute to adjudication;(b) provide a timetable with the object of securing the appointment of the adjudicator and referral of the dispute to him within 7 days of such notice;(c) require the adjudicator to reach a decision within 28 days of referral or suchlonger period as is agreed by the parties after the dispute has been referred;(d) allow the adjudicator to extend the period of 28 days by up to 14 days, with the consent of the party by whom the dispute was referred;(e) impose a duty on the adjudicator to act impartially; and(f) enable the adjudicator to take the initiative in ascertaining the facts and the law.(3) The contract shall provide that the decision of the adjudicator is binding until thedispute is finally determined by legal proceedings, by arbitration (if the contractprovides for arbitration or the parties otherwise agree to arbitration) or by agreement.The parties may agree to accept the decision of the adjudicator as finally determiningthe dispute.(4) The contract shall also provide that the adjudicator is not liable for anythingdone or omitted in the discharge or purported discharge of his functions asadjudicator unless the act or omission is in bad faith, and that any employee or agentof the adjudicator is similarly protected from liability.(5) If the contract does not comply with the requirements of subsections (1) to (4),the adjudication provisions of the Scheme for Construction Contracts apply.(6) For England and Wales, the Scheme may apply the provisions of the ArbitrationAct 1996 with such adaptations and modifications as appear to the Minister makingthe scheme to be appropriate. In fact parties to construction contract (e.g. principal, contractor and subcontractor) has only roam for voluntary agreements regarding adjudicator nomination, determination of adjudicating body, or amend deadlines of decisions, and provide strict clauses for costs-sharing or unilateral cost burden, but above mentioned “compliance points” are quite dissuasive. According above mentioned paper of Caledonian University, more than 90 % of adjudicators in last decade were appointed by adjudication nomination bodies (ANB), interesting fact, concerning “free of will” to appoint adjudicator, emphasized by Elliot (2006) as distinguishing point between English and Australian adjudication. Party which disapprove nomination by adjudicator (or even ANB) in contract, may rely to the provisions of respective statutory Schemes.