International Construction Law Review
MAJOR CONSTRUCTION PROJECTS AND DISPUTE RESOLUTION: DOES ADJUDICATION HAVE A ROLE TO PLAY?1
DAVID STREATFEILD-JAMES, QC
Atkin Chambers, London
I. INTRODUCTION
Adjudication in the context of this paper is a reference to the statutory scheme introduced by the Housing Grants, Construction and Regeneration Act 1996. This scheme came into force in 1998, and requires that provision be made in many (but not all) building, construction and engineering contracts for a (temporarily) binding determination of disputes by a third party within a short time period. Relatively rapidly, a body of law has been built up concerning the adjudication process, and the enforcement of the decisions of adjudicators: this is considered later in this paper.
However, adjudication is not the place to start: it should not be considered in isolation, as a discrete right. Its context is important, for it was a response to particular pressures and concerns. Secondly, it is only one part of a complex of dispute resolution procedures, the promotion of each of which by its proponents gives rise in turn to separate considerations. To understand adjudication requires an understanding of these other procedures, and their advantages and disadvantages. Thirdly, as Schor and Hinchey have convincingly suggested,2
it is a fundamental mistake to look for any one or more “ideal” approaches to dispute resolution.
Put briefly, the problem is—particularly in the United States—that there has been a “decade’s prolific output of surveys, studies, seminars, task force reports and institutional rule revisions”3
concerning ADR. The time has come to step back, and to separate out the various different considerations and imperatives which have produced this wealth of literature. Only then can one re-approach the narrower issue of dispute resolution in the large construction context, and address the fundamental question: how best should “real time dispute resolution” be achieved?
1 This is a slightly amended version of a paper given at a conference in San Francisco in October 2002.
2 “What’s Right and What’s Wrong with ADR in America: Are We Asking the Wrong Questions?”, paper given to a joint meeting of the American College of Construction Lawyers and the Technology and Construction Court Bar Association (TECBAR) in London on 5 November 2001.
3 Ibid.
[2003
The International Construction Law Review
484