report too many cases on adjudication. In Building, too, there have been a plethora of articles in the legal section on adjudication. One has to ask the question: why?
Of the 42 cases reported last year in the Building Law Reports, 14 related to adjudication and the balance covered other construction subjects. The other subjects included pure (or impure) contract issues, construction-related torts, statutory matters, arbitration, alternative dispute resolution, conflict of laws and international contracts, Technology and Construction Court practice, limitation and performance bonds. The complaint that we report or comment too often on adjudication is not borne out by the statistics – but we do report it more than any other subject.
Construction law is many faceted. It covers building and engineering contracts and torts such as negligence and nuisance. It branches into European Union law, for instance on procurement issues and on European commission directives. Necessarily, there will be financing, bond and banking angles because most projects involve them. Landlord and tenant disputes, such as repairing covenants, also arise. There are also cases involving the actual or possible liability of the many professional disciplines involved in the construction field. The subject matter stretches to all types of structure: housing, office blocks, factories, roads, bridges, oil and gas platforms and pipelines, power stations, M&E services, computers (hardware and software), mining, reclamation, dams and tunnels.
British firms of solicitors and barristers’ chambers operate worldwide in the construction law field. This is attributable to a number of factors, not least of which is the fact that many UK professional firms and construction companies have traditionally been involved in all four corners of the globe over the past 150 years. The British quantity surveyor is renowned worldwide. Many of the world’s contracts are in English, albeit sometimes of the American variety; even if the law is not of the UK, there is a preference for lawyers who speak, and think in, English.
The basic law of contract is similar the world over. For instance, the law over duress is similar in Islamic countries
The reality is that in most legal jurisdictions, the law will enforce a lawful contract. If I agree to paint your Italian, Ukrainian, Iranian, Chilean, Mexican, Chinese, Botswanan or even English house red but I paint it blue, you can sue me for the costs of repainting it red in all these countries. The basic concepts of the law of contract are similar the world over. For instance, the law relating to duress in contract law in Islamic countries is similar to England.
The law reporters are therefore faced with a wide range of subject matters. However, the one thing that they cannot control is what cases come up before the courts, because it is only these that can generally be reported, given the confidentiality that relates to arbitration and many adjudications. A recent international case decided in the Court of Appeal, The Department of Economic Policy and Development of the City of Moscow vs Bankers Trust (25 March 2004) suggests that there may be some restrictions on the reporting of cases involving challenges to arbitrators or arbitral decisions, but the fact that this case can be reported suggests that the restrictions will not be severe.
Over the past six years, adjudication has been popular among the “users” or clients. As in many forms of dispute resolution, the losers do not like losing, so they will explore ways of challenging the decisions of adjudicators in the courts. Because the Construction Act is fresh law, there have been numerous attempts to set aside adjudication decisions and the courts have had to “feel their way” along. As more cases are processed through the courts at first instance, more go to the Court of Appeal.
Robert Akenhead QC is a barrister specialising in construction law at Atkin Chambers and joint editor of Building Law Reports.