Pitfalls of adjudication

One matter, mentioned by Bingham, has had little publicity but is at the core of most problems. A requirement of section 108 (2)(b) is that the dispute is "referred". The courts have now clarified that the dispute must be crystallised and cannot be varied by matters that have not been between the parties prior to commencement. Referral of the dispute on day one gives the full period for determining the issues. Unfortunately, some of the relevant bodies have issued procedures that have been copied without due thought from the Arbitration Act and require the submission of a statement of case that will immediately extend the date at which the dispute becomes recognisable.

I was disappointed that the scheme only gave the power to adjudicators to take the initiative in verifying the facts and the law. The only duty on the adjudicator is to make the decision, which has led many to making poor decisions by relying on submissions without making further enquiries.

Adjudicators should assume a requirement that they shall ascertain the facts and the law. This may lead to more adjudicators realising that they have no jurisdiction but, I submit, will assist in reversing the trend, which is taking adjudication in the same direction as arbitration.