Who will choose the adjudicators?
The New Construction Act introduces, perhaps for the first time, a new character to the drama played out on construction sites across the country: the adjudicator. Only 'perhaps', because dom/I already provides for written adjudication on valuation disputes; in any event the adjudicator rejoices in other titles, including 'first tier dispute settler' and 'third party neutral', and has arguably been around for ages - certainly for as long as the New Engineering Contract.
If adjudicators are to referee the construction game, who will appoint them? Sir Michael Latham envisaged that the adjudicator would be chosen by the parties and named in the contract - the approach adopted for large engineering projects such as the Hong Kong airport.
This has its drawbacks, not least that an experienced construction professional and problem-solver may not be able to drop everything at a moment's notice and devote up to six weeks to an adjudication; they may well be giving expert evidence in a lengthy trial, sitting as an arbitrator or attending to the needs of their clients in some far-flung corner of the globe. Recognising this, the scheme goes on to suggest that the contract may specify a nominating body to appoint an adjudicator.
Earlier versions of the scheme provided for 'Adjudicator Nominating Bodies' (anbs) who were to be approved by the Secretary of State and set out in a schedule to the scheme. There were about l6 anbs, including the riba, the ice, the cic, the rics, the ciob, the Official Referee's Solicitors and Bar Associations, the Chartered Institute of Arbitrators and the Centre for Dispute Resolution. When final representations on the draft scheme were invited there was no suggestion that the status of anbs would change. When the scheme was passed, however, the requirement for statutory approval was dropped, although the existing anbs remain and can now be added to without sanction.
When considering an anb as a route to the appointment of an adjudicator, there is a ready distinction between those bodies that believe adjudication is something the industry has needed for decades, whom I might call 'the enthusiasts', and those that ask what rules will apply and how adjudicators' decisions will be enforced or challenged - these are, obviously, 'the lawyers'. The identity of the appointing body will, in the main, determine the discipline of the adjudicator.
Enthusiasts are horrified by the notion that adjudications might be conducted by lawyers: surely this is not what Sir Michael wanted? Construction professionals with 30 years' project management experience are what is required. But when you reflect on the requirements of the Act and the scheme, for an adjudicator to ascertain the facts and the law, and reach a decision in accordance with the applicable law in the short time permitted, the need for a lawyer may not seem so far-fetched.
The choice of anb is not simply one of relevant discipline. Various anbs have devised their own adjudication rules in place of the scheme. Thus orsa, cic, ice and cedr have their own rules, each the result of different processes of consultation, none of which have yet to be put to the test. Interestingly, the orsa rules, drafted primarily by construction lawyer Robert Fenwick Elliott, enable the adjudicator to reach a 'fair and commercially reasonable view of how the disputed matter should lie' if it is not possible to reach a concluded view on the parties' legal entitlement. This contrasts with the position under the scheme. Ultimately the choice of anb may well be made by those drafting the contracts, and, whatever Sir Michael may have wanted, they are likely to be lawyers.
Kim Franklin is a barrister, arbitrator and adjudicator who specialises in construction law