Civil Engineering Reference
In-Depth Information
The adjudicator can be appointed in various ways. SBC has provision in clause 9.2.1 and in
the contract particulars for the adjudicator to be named; that is, the parties have decided on
the name before entering into the contract. There is also provision for the parties to simply
apply tooneofseveral bodies that maintain panels ofadjudicators andwhich will undertake
(for a modest fee) to nominate an adjudicator who has passed the criteria set by that par-
ticular body. The RIBA, RICS and CIArb are typical nominating bodies. Of course, there
is nothing to stop the parties simply agreeing the name of an adjudicator when the dispute
arises. If the parties can agree a name, that is by far the best way because the adjudicator is
then a person whom both parties trust to make the right decision.
Putting the name in the contract in advance appears to have the same effect, but it does
havesomeseriousdisadvantages.Anadjudicatorchoseninadvance,perhapsseveralmonths
or even years before required, may not be available when required due to holidays, illness,
retirement or even death. The adjudicator may be admirable in very many respects but not
suited to the particular problem that arises. For example, the parties may choose Mr X, who
is an architect, but the eventual dispute may concern structural steel or electrical services.
When applying to a nominating body, the danger is that the parties are stuck with whoever
isnominated,unlesstheybothobjectandagreetoasktheadjudicatortostepdowninfavour
of another of their choosing.
Therefore, the answer to this question depends on what the contract says or, if there is no
standard contract, what the Scheme for Construction Contracts (England and Wales) Regu-
lations 1998 says.
Itisessentialthattheadjudicatorisappointedinstrictconformitywithanyprocedurethat
is laid down. If the relevant procedure has been complied with, there is nothing the employ-
er can do about it. The adjudicator must be accepted. Obviously, if there is a good reason to
object, for example if the adjudicator has a link with the other party, the appointment can be
challenged. If the adjudicator does not step down, the employer can agree to proceed with
the adjudicator without prejudice to the contention that the adjudicator lacks jurisdiction on
the grounds of actual or apparent bias or an apparent breach of the rules of natural justice.
That position can be tested in the courts if the adjudicator's decision is adverse to the em-
ployer.
If the proper procedure for the appointment of the adjudicator has not been observed, the
employer is on firm ground to challenge, and the adjudicator should resign as soon as it is
established that the appointment is flawed.
