This practice, which is widespread, is adopted by firms that do no wish to use adjudication but cannot ban the process, as it is a statutory right. Typical deterrent clauses used by firms include requiring a disgruntled party to enter into mediation before adjudication and forcing the referring party to pay opponent's costs.
The CIB made its call in a report on the success of adjudication to construction minister Nick Raynsford. The change proposed is to make the Scheme for Construction Contracts, a document that accompanied the act, applicable to all disputes. This would mean that every adjudication would be subject to the same rules.
The CIB also recommended amendments to make the scheme itself more fair and transparent.
The board's proposed changes would mean that each party paid its own costs, that adjudicators could correct a blunder after giving their decision, and that the time available for a responding party to reply would be extended from seven days to 14.
The proposals followed a request in June from construction minister Nick Raynsford for the CIB to carry out an impartial assessment of the industry's view on adjudication provisions in the Scheme for Construction Contracts.
A move to outlaw bespoke clauses would be a victory for the subcontracting lobby. Rudi Klein, chief executive of the Specialist Engineering Contractors Confederation and a CIB task group member, said: "The only reason you have bespoke provisions is to get round the act." Tony Blackler, head of construction at solicitor Macfarlanes, said: "It would be a super idea and something a lot of us hoped would happen. I think they should look at the scheme before turning it into tablets of stone." The Constructors' Liaison Group is separately pressing the DETR to outlaw a provision in the scheme that prevents the use of adjudication to resolve disputes over matters that are "final and conclusive".
Under the scheme in its present form, a contractor can define an issue such as the termination of a contract as final and conclusive and therefore not subject to adjudication procedure.
Klein said: "The present scheme allows the possibility of taking away all disputes from adjudication."