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何焯華條賓周+歡迎炸佢: jameslam@hkpro.com.hk
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Date Posted: 18:54:53 10/13/02 Sun
In reply to:
Megan
's message, "Hehe, I got it from a place called www.dynamicdrive.com. You should go there, it has MILLIONS of great code." on 19:37:38 05/10/02 Fri
淨屌何焯華條仆街呢+歡迎炸佢: nancychow@hkpro.com.hk
何焯華條賓周+歡迎炸佢: jameslam@hkpro.com.hk
點解呢度又有中文又有英文又有西班牙文咁搞野既﹖﹗
WHY DOES HERE GET CHINESE ENGLISH AND SPANISH ALL IN THE SAME TIME SO FUNNY?!
(SORRY I DON'T KNOW SPANISH)
Robert Falcona
淨屌何焯華條仆街呢
何焯華條賓周
Adjucication
The standard forms of contract have, for some years, contained provision for adjudication. Although there is no definition of the term ( and this continues to be the case under the new Act), adjudication was recommended for construction contracts in the Latham Report and has now become mandatory in certain construction contracts by the Housing Grants, Construction and Regeneration Act 1996. "Statutory" adjudication, what is dealt with below, is not to be confused with the original constructual process, which is dependant upon the particular terms and status agreed between the parties. "Contractual" adjudication may, however, comply with the requirements of the Housing Grants, etc, Act so that the two processes may overlap. As examples of adjudication under contract, the traditional decision of the Engineer under the ICE Conditions complies with what is generally understood by the term; and under the Engineering & Construction Contract (ECC), the equivalent process is called adjudication, in this case being carried out by an independent third party.
The important distinction between adjudication and other forms of ADR lies in the fact that adjudication is intended to result in one party being compelled, at least temporarily, to submit to the decision, for example, by paying money to the other party. Consequently, the status of an adjudicator's decision can give rise to dispute. In Cameron v. Mowlem the plaintiff sub-contractor requested the appointment of an adjudicator under Form DOM/1 to determine a dispute over payments due. Without giving reasons, the adjudicator determined that the sum of 52,800 pounds should be paid, but Mowlem resisted payment relying on a right of set-off, in respect of which the required notice had been given. The Court of Appeal held, first, that the adjudicator's award could not be enforced as an arbitration award; and secondly that the adjudicator's award did not preclude the contractor from exercising a contructual right of set-off, and that the adjudicator's powers did not include determination of sums due under the terms of the sub-contract. The case illustates the need for clarity in determining the status of an adjudicator's decision.
Can the decision of an adjudicator be challenged on its merits, either on fact or law? The Cameron v.Mowlem case confirmed that the decision did not rank as an award for the purpose of challenge in accordance with the Arbitration Act. There is a line of authority dealing with the circumstances in which the decision of an independent expert might be called into question, for example where reasons for the decision are given which are demonstrably wrong. It has been held by the Court of Appeal, however, that the decision of an expert, which would include an adjudicator, cannot be challenged unless it can be shown that the expert has departed from the instructions given to him in a material respect.
Statutory adjudication
Following the Latham Report of 1994 the Department of the Environment issued consultation papers intended to explore ways of legislating to achieve the reforms recommended. This proved somewhat controversial, but a Bill was introduced dealing with a limited number of the Latham recommendations which was passed into law as Part 2 of the Housing Grants, Construction and Regeneration Act 1996. The Act deals with three construction-related matters. First, there is an elaborate definition of the term "construction contract", to which the substantive provisions apply (or do not apply if the definition is not satisfied). Secondly, there are measures providing for the compulsory availablity of adjudication and its consequences. Thirdly, there are important provisions dealing with the right to payment under a construction contract, as defined.
"Construction contract" is defined in section 104 and 105 of the Act as meaning an agreement for carrying out construction operations (as defined), including sub-contracted work and (importantly) architectural design or surveying work or advice on building, engineering, decoration or landscape. The term "construction operations " is widely defined but (significantly) excludes a long list of construction operations such as extraction of oil, gas or minerals, installation of plant for nuclear processing, power generation or water or effluent treatment, bulk storage of chemicals, oil, gas, steel, or food or drink. Also, excluded is the manufacture or delivery of components, materials, plant and machinery unless the contract also provides for installation. The Act applies only to construction operations in England and Wales (and Scotland), whatever the applicable law of the contract. Accordingly, the Act will apply to an Italian sub-contractor supplying marble if it is also to be installed by the sub-contractor; but it will not apply to a United Kingkom supplier who merely delivers components for heating and ventilation, drainage or fire protection, etc. It should be noted that this is the first attempt to "ringfence" the construction industry for the purpose of special legislation. The success of new measures remain to be seen.
Adjudication is dealt with in section 108 of the Act which provides as follows:
"(1)A party to a construction contract has the right to refer a dispute arising under the contract for adjudication under a procedure complying with this section.
For this purpose 'dispute' include any difference.
(2) The contract shall-
(a)enable a party to give notice at any time of his intention to refer a dispute to adjudication;
(b)provide a timetable with the object of securing the appointment of the adjudicator and referral of the dispute to him within 7 days of such notice;
(c)require the adjudicator to reach a decision within 28 days of referral or such longer period as is agreed by the parties after the dispute has been referred.
(d)allow the adjudicator to extend the period of 28 days by up to 14days, with the consent of the party by whom the dispute was referred;
(e)impose a duty on the adjudicator to act impartially; and
(f)enable the adjudicator to take the initiative in ascertaining the facts and the law.
(3)The contract shall provide that the decision of the adjudicator is binding until the dispute is finally determined by legal proceedings, by arbitration(if the contract provides for arbitration or the parties otherwise agree to arbitration) or by agreement. The parties may agree to accept the decision of the adjudicator as finally determining the dispute.
(4)The contract shall also provide that the adjudicator is not liable for anything done or omitted in the discharge or purported discharge of his functions as adjudicator unless the act or omission is in bad faith, and that any employee or agent of the adjudicator is similarly protected from liability.
(5)If the contract does not comply with the requirements of subsections (1) to (4), the adjudication provisions of the Scheme for Construction Contracts apply.'
Of particular note is the requirement that a party must be enabled to give notice 'at any time'. This provision, at a stroke, removes the traditional authority of the Engineer or the Architect to render decisions which could be challenged only by a subsequent process of arbitration, often after completion of the contract. The new measure entitles the contractor (or even the Employer) to require immediate adjudication on any matter of difference. This measure also has a profound effect on the procedure under clause 66 of the ICE Conditions whereby a dispute is to be referred first to the Engineer. No such provision may hold up the right to adjudication. The consequential amendments to clause 66 are dealt with.
The other provision of particular note is that clause 108 is not restricted to payment disputes, but includes disputes relating to time, quality and any other matter capable of giving rise to a difference between the parties. Bearing in mind that all sub-contracts must also contain such provisions, the possibility of over-lapping and conflicting adjudication decisions is immediately apparent. A further notable feature, to which attention was drawn during the parliamentary debate, is that section 108(4) provides only for immunity in contract, which will be apt to bind only the immediate parties, and did not any third party who may suffer damage as a result of the adjudicator's decision. This is to be contrasted with section 29 of the Arbitration Act 1996.
Procedure for adjudication
Clause 108 operates by requiring either a conforming contractual adjudication scheme, or in default the statutory Scheme for Construction Contracts is to apply. The Scheme(which proved highly controversial in its drafting) was published shortly before the primary legislation came into force, on May 1,1998. The Scheme contains a much more detailed procedure for the giving of notice, the appointment, the adjudication procedure, the decision and its enforcement. As regards ocerlapping disputes (for example where the same issue arises under the main contract and one or more sub-contract) the Scheme provides only that, where the dispute in question is the same or substantially the same as one which is already the subject of an adjudication decision, the adjudicator "must resign". The parties may, of course, agree some other course, and the issue may be dealt with by way of a contractual scheme. As regards enforcement, the adjudication decision takes effect as a contractural debt,since the procedure itself is expressly required to form part of the construction contract. Little consideration appears to have been given to the problems of enforcement which, in the event, have proved to be a major difficulty. In principle, there is nothing to prevent
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