LEGAL COMMENT
Not actually legal comment this issue – I am suggesting some New Year resolutions.
First some background. Back in the olden days (before the 1996 Act, Construction Adjudication, Civil Procedure Rules) the Official Referees ‘borrowed’ from arbitration to make litigation in those courts more attractive than arbitration. CIArb had no effective answer. The onset of CPR and the TCC court made things worse – why would anyone want to subject its disputes to arbitration? To top it all, in came adjudication, following the ‘Construction Act’ and taking business away from other methods of dispute resolution in the construction industry. However, now that adjudication has been running for over five years, its deficiencies can be seen, particularly when related to complex, multiple and high value disputes. In addition, because of the compressed system necessary for adjudication, arbitrators have been able to see ways of cutting time and costs.
Resolution 1 is therefore to give very careful consideration, before advising clients, as to whether adjudication is the preferred course or, perhaps, that the client’s best interests overall may be served by arbitration, either under the contract or ad hoc.
Resolution 2 is for adjudicators to give careful consideration whether they should proceed or refuse the nomination on the basis that the matter is not appropriate for adjudication.
It is clear to me that the standards required by CIArb for inclusion on its panel of Construction Adjudicators is far higher than any other nominating body. Also, the RICS used to be popular as an appointer of arbitrators as you would feel confident in obtaining the appointment of a chartered quantity surveyor. For adjudication, the RICS has shot itself in the foot and let down its clients and members by opening up panel membership to all and sundry while, at the same time, keeping the panel so small that an adjudicator nominated by RICS may well be dealing with another three adjudications at the same time.
Resolution 3 is to consider using CIArb as the prime body for nomination of adjudicators.
Peter Horne