International Construction Law Review
THE ENFORCEMENT OF UK ADJUDICATION DECISIONS IN EFTA/EU COUNTRIES—UNRECOGNISABLE JUDGMENTS?
KEVIN BARRETT
Solicitor and Partner in the Technology Engineering and Construction Team of Wragge & Co LLP *
1. INTRODUCTION
In 1996 the United Kingdom Parliament enacted the Housing Grants, Construction and Regeneration Act (“the Act”). Part 2 of the Act was a direct response to lobbying by sectors of the construction industry, most notably bodies representing subcontractors, who regarded both the courts and arbitration (in England, Wales and Scotland) as too slow, too complex and too expensive. Further, the relative ease with which summary judgment could be avoided—even for certified payments—was regarded as particularly unsatisfactory. The Act sought to address these criticisms by introducing a new dispute resolution procedure, called “adjudication”, intended to be quick and cheap, but providing only a temporarily binding resolution of disputes.1
Despite the temporary or provisional status of adjudication decisions they will, once given, generally be enforced by the UK courts, i.e. the court will give judgment in respect of any sum an adjudicator has decided must be paid. However, if it is necessary to export the judgment to a country within the European Free Trade Association or the European Union in order to levy execution it is first necessary to secure recognition of the judgment by the courts of the relevant jurisdiction. This article considers whether, and in what circumstances, the courts of the other EU and EFTA states may refuse to recognise a UK judgment which gives effect to a decision of an adjudicator.
2. THE SCOPE OF ADJUDICATION
The statutory adjudication procedure applies to those disputes arising under a construction contract for the carrying out of construction operations.2
* kevin_barrett@wragge.com. The German law aspects of this article were provided by Annabel Hasenkamp of Graf von Westphalen, Freiburg (annabel.hasenkamp@westphalen-law.com).
1 The Act does not apply in Northern Ireland. See s.105(6)(b).
2 In summary, construction operations encapsulate works of construction, alteration, repair, maintenance, extension, demolition or dismantling of buildings or structures or works forming or to form part of the land, as well as installation and fitting-out work and operations that are an integral part of or preparatory to or for rendering complete such work, including painting or decorating. This broad definition is subject to a number of expressly excluded categories of work which relate to oil and gas, mining and tunnelling, nuclear processing, power generation, water, chemicals, pharmaceuticals, foodstuffs and artistic works. Contracts of sale of goods only are also excluded. Further, the Construction Contracts (England and Wales) Exclusion Order 1998 excludes a variety of agreements from the operation of Part 2, namely, agreements for highway and sewerage adoption, for planning matters under the Town and Country Planning Act, for the private finance initiative and for development of land (where the development agreement also involves the disposal of an interest in the land). There is also a territorial restriction which limits the operation of the Act to construction operations carried out in England, Wales and Scotland.
[2005
The International Construction Law Review
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