The adjudicatorAppointing the adjudicator

The identity of the adjudicator can be by prior agreement of the parties; such agreement is binding. More commonly, contracts identify a nominating body, particularly standard form contracts. A failure by the nominating body to 'communicate' the selection of the adjudicator on time allows the Referring Party to either agree with the other party to nominate a specific adjudicator or request another nominating body to select an adjudicator.

The Scheme contains provisions for when there is no named adjudicator or specified nominating body.

There is a timetable for the appointment; the appointment becomes operative at the time of acceptance.

The adjudicator's jurisdiction

The adjudicator's jurisdiction arises out of the contract, party agreement or the Scheme. Parties should be careful as to the extent of the jurisdiction given; particularly as it can be provided indirectly. An adjudicator has the power to decide matters under the contract which he considers are necessarily connected with the dispute.

Parties can agree for an adjudicator to determine his own jurisdiction, although more commonly it is determined by the court. An adjudicator can consider a jurisdictional challenge and, if he considers it well founded, resign.

Where an adjudicator exceeds his jurisdiction, or acts contrary to public policy, the decision is invalid. However, a mistake as to fact, law or procedure does not effect an adjudicator's jurisdiction; accordingly it does not invalidate his decision. The decision will be binding until finally determined by litigation, arbitration or party agreement.

Adjudicator's duties

An adjudicator must carry out his duties in accordance with the provisions of the contract or the Scheme and must reach his decision in accordance with the applicable law and the contractual time limits. An adjudicator must also act impartially and comply with the rules of natural justice; the general rule being that minor breaches of the rules will be disregarded.

Reasoned decisions

There is no general duty for an adjudicator to give a reasoned decision unless asked to do so, or required to do so by the contract. A failure to give reasons in an adjudication therefore does not amount to a breach of natural justice. The court has provide valuable guidance as to what constitutes a reasoned decision. This includes the status of any provisional conclusions reached by the adjudicator.

Adjudicator's powers

The contract, or nominating body rules applicable to the adjudication, may set out adjudicator powers. The Scheme provides the adjudicator with a number of powers in relation to procedure.

An adjudicator is to be pro-active and take the initiative in ascertaining the facts and the law. If powers to allow this are not expressly provided for in the contract, they will be implied by the Scheme.

Remuneration and liability of an adjudicator

An adjudicator is entitled to payment of his reasonable fees and expenses. The arbitrator also has the power to determine what is reasonable; such decision is final unless the arbitrator acted in bad faith. Parties are jointly and severally liable for the adjudicator's fees. Where an adjudicator issues a decision without jurisdiction, the Referring Party bears the costs.

An adjudicator is immune from claims by the parties in relation to anything he may have or have not done in the discharge of his duty, unless in bad faith. Similarly an employee or agent of the adjudicator is similarly protected.

Resignation or revocation of an adjudicator

The parties may, at any time, agree to revoke the appointment of an adjudicator. The parties will be jointly and severally liable for the adjudicator's fees and expenses.

An adjudicator may resign at any time upon giving written notice. An adjudicator must resign where the dispute is the 'same' or 'substantially the same' dispute as one previously adjudicated or where the adjudicator decides that he cannot provide a fair result in the timescale available.