Why should adjudicators refrain from deciding jurisdictional issues? (Part 1)

By Samer Skaik

The intent of the Security of Payment (SOP) legislation in many jurisdictions[1] was set out to help vulnerable class of subcontractors get paid in a timely manner. As such, rapid statutory adjudication was introduced within the legislation whereas adjudication decisions are binding and interim pending any subsequent final resolution of the dispute by arbitration or litigation. However, adjudication decisions can mainly be set aside[2] by way of judicial review on grounds of jurisdictional errors which invalidate adjudication process. Adjudicators are always susceptible to errors when deciding upon jurisdictional issues due to many factors including the complex drafting of the SOP legislation, tight timeframes, complexity of raised arguments, a failure by disputants to raise jurisdictional issues not apparent on the submissions as well as the inappropriate selection of adjudicators where the referred matter requires a particular expertise. [Read more…]

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Judging the arbitrators

By Stuart Jordan

May 2017

Arbitration is something that the construction industry in the Gulf region relies on a great deal. It is not just an afterthought for dealing with disputes.

Right at the start, when the participants are deciding on their investments and the risks they are prepared to hold, access to high quality disputes resolution is an essential part of that thinking. There is no point in contracting parties weighing up these decisions and negotiating contracts carefully if they do not have confidence in the process by which their rights and obligations may eventually be decided. [Read more…]

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Launching CMGuide Inaugural Mentoring Programme

We are very delighted to launch the Inaugural Mentoring Programme targeting graduates and early-career professionals in the construction industry.

This is a free service initiated and operated by CMGuide and led by CMGuide Founder (Mr Samer Skaik). The mentoring programme is targeting ambitious graduates and early-career professionals in the construction industry. At start, the programme will only be available in two countries: Australia and the UAE. We encourage prospective and interested mentors in those two countries who have the experience in any of the mentoring areas to join our ‘Mentors Panel’ ASAP so we can serve and enrol more mentees in the programme. Interested mentors should mention the mentoring area and availability arrangement so we can properly match mentees (protégé) with appropriate mentors. It is completely up to the mentors and mentees once to discuss and agree the mentoring arrangement during the mentoring year such as communication method, frequency of meetings, level of support, etc.  [Read more…]

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The tip of the iceberg: Jurisdiction of statutory adjudicators

By Samer Skaik

I am delighted to see my article entitled “The tip of the iceberg: Jurisdiction of statutory adjudicators” published this month in Construction Law Journal under Construction Act Review Section. This is the second time I got an article published in this section. A third article is also in the pipeline for the next edition.

This is the brief as quoted from the Editorial introduction:

Samer Skaik discusses the jurisdictional limits of statutory adjudicators in both the UK and New South Wales adjudication models, focusing on challenges relating to the validity of the adjudicator’s appointment. The author identifies the trend of the Australian courts in particular to allow adjudicators to provisionally determine their own jurisdiction rather than encouraging pre-emptive applications by the parties. He considers this approach problematic, in part because adjudicators may not be legally trained, but also as giving rise to other difficulties and inconsistencies that in his view undermine the intention of the legislation. The author concludes by proposing a “roadmap” to regulate adjudicators’ jurisdiction, to assist with navigating around the difficulties and deficiencies that he identifies.

To read the full article, please click here

[Read more…]

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Does Statutory Adjudication fall short in dealing with complex claims in Australia?

By Samer Skaik

Statutory adjudication has been enacted progressively throughout Australia on a state-by-state basis over a period of 10 years starting in 1999. The first Australian jurisdiction to introduce statutory adjudication was New South Wales (NSW) by virtue of the Building and Construction Industry Security of Payment Act 1999. Despite the many differences between all of the Acts in Australia, they can be broadly grouped on the basis of similarity into the East Coast model Acts (including New South Wales, Queensland, Victoria, South Australia, Tasmania and Australian Capital Territory)[1] and the West Coast model Acts (including Northern Territory and Western Australia).[2] The East Coast model Acts were modelled after the original NSW Act and provide, in addition to an adjudication scheme, for a highly regulatory statutory payment scheme which runs alongside the contractual payment scheme. The West Coast model Acts are more akin to the UK Act, affording primacy to the contractual payment scheme. The common objective of all the legislation is to facilitate timely cash flow within the construction contractual chains. [Read more…]

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The impact of flawed appointment on the quality of adjudication outcome

By Samer Skaik

Quality of adjudication decisions under the Security of Payment legislation may mean different things to different people. The ultimate yardstick by which adjudication quality can be measured is to be found in the legal accuracy – both in terms of procedural and substantive fairness – of adjudication decisions whether such decisions involve a determination on the merits or dismissal for want of jurisdiction. However, recognising that there is a trade-off between fairness and efficiency in dispute resolution,[1] this criterion needs to be calibrated in the light of the legislative objective, being to provide a rapid dispute resolution procedure in order to expedite cash flow on construction contracts. Thus, it would clearly be absurd to hold adjudication decisions up to as higher level of scrutiny as in arbitration or litigation. [Read more…]

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Middle Eastern projects – the effects of FIDIC’s contract amendments

Need guidance on the new FIDIC contract changes that are about to come into effect?

Then you’d best act now as the official FIDIC contracts conference for this region is taking place this month on 14 & 15 February in Abu Dhabi.

[Read more…]

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Fast-track your career in construction law

Get your career into first-gear with the Masters in International Construction Practice & Law.

Run by the University of Stuttgart, one of Europe’s leading centres of engineering excellence, this practical programme is designed for professionals in full-time employment. [Read more…]

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The Mechanism of the Australian Statutory Adjudication in a Nutshell

By Samer Skaik

Many construction practitioners in Australia face difficulties in understanding the mechanism of the Statutory Adjudication and how it differs from a State to another. While it is important to point out that the Australian Acts are different, there are a number of common mechanisms. Typically, a person entitled to a progress payment for carrying out construction work (or supplying related goods and services) had to seek recovery of any unpaid amounts via lengthy legal proceedings in arbitration or court. As such, parliament enacted the Security of Payment (SoP) legislation to protect the rights of such persons and facilitate rapid recovery of due payment. The SoP legislation provides statutory rights enabling quick and inexpensive recovery of progress payment for any subcontractor or supplier performing construction works or supplying related goods and services. To facilitate these rights, the SoP introduced a rapid adjudication process to resolve payments disputes. [Read more…]

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FIDIC’s contract changes

FIDIC have been busy transforming and improving the Rainbow Suite of Contracts.

What does this mean for you?

You can get insider tips on the new Rainbow Suite Contracts directly from the FIDIC Updates Task Groups and the FIDIC Contracts Committee at FIDIC’s official Contract Users’ event which is taking place this December in London. [Read more…]

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