Construction Contracts in Context

Adjudication especially meant for construction contract has been purposely provided for as a stop gap arrangement for relief to the aggrieved party so that, if necessary, the adjudication order can be challenged. Adjudicators are therefore ideally technically qualified so that they can replace the expert determination requirement. Moreover, the adjudication can be invoked then and there for each dispute as and when arises during the contractual process. Moreover, adjudicator is bound to give his decision within 28 days and maximum 42 days subject to being so extended by the party who referred the dispute for adjudication. Since the adjudicator is technically qualified rather than legally qualified, matters arsing in construction contracts being mostly technical in nature and having the sanction of law, the adjudication in fact amounts a hybrid form of expert determination and arbitration subject to challenge in subsequent proceedings in arbitration or litigation. The adjudication having become statutory, the decision is binding until the dispute is finally determined by arbitration or litigation. Moreover, the parties cannot contract out to dispense with adjudication. The JCT has therefore rightly incorporated the adjudication requirement in construction contracts. As in arbitration, adjudicator also is expected to act impartially. Even if it is challenged in arbitration or litigation, the arbitrator and the court are both benefited by the wisdom of technically qualified adjudicator to arrive at an impartial decision on technical and monetary issues. The adjudication therefore seems to be the ideal forum to combine both expert determinations as well as arbitration or mediation. This not only reduces the delay due to the expert determination process but also avoids the otherwise unimpeachability of the expert determination. If the expert determination is part of adjudication process, it can be challenged as well, unlike a standalone expert determination process.