1. Adjudicators: the 2016 cases CIArb South East
JOHN DENIS-SMITH 21 FEBRUARY 2017

2. The Crunch Points for Adjudicators
Wrong appointment route
Outside the scope of adjudication clause
Excess of adjudicator initial jurisdiction
Excess of adjudicator jurisdiction in relation to powers
Bias/breach of natural justice

3. 2016 Trends
Serial adjudications: Penten Group Ltd v Spartafield Ltd [2016] EWHC 317 (TCC)

4. Wrong Appointment Route
Ground Developments Ltd v FCC Construccion SA & Ors [2016] EWHC 1946 (TCC)
Goldsworthy & Ors (t/a Goldsworthy Builders) v Harrison & Anor [2016] EWHC 1589 (TCC)
RMC Building & Civil Engineering Limited v UK Construction Limited [2016] EWHC 241 (TCC)
Deluxe Art & Theme Ltd v Beck Interiors Ltd [2016] EWHC 238 (TCC) [2016] B.L.R. 274; 164 Con. L.R. 218

5. Outside the adjudication clause
Murphy & Sons Ltd v W Mather and Sons Ltd [2016] EWHC 1148 (TCC)
Cf Hillcrest Homes Ltd v Beresford and Curbishley Ltd [2014] EWHC 280 (TCC)

6. Excess of adjudicator’s initial jurisdiction
The “dispute”
Stellite Construction Limited v Vascroft Contractors Limited [2016] EWHC 792 (TCC)
Serial adjudication
Penten Group Ltd v Spartafield Ltd [2016] EWHC 317 (TCC)
Brown v Complete Building Solutions Limited [2016] EWCA Civ 1 at [24]:
“it is important that the Court gives due respect to the adjudicator’s decision, see for example, Carillion Construction Ltd v. Devonport Royal Dockyard Ltd [2005] EWCA Civ 1358, Chadwick LJ at [85].”
Amey Wye Valley Ltd v The County of Herefordshire District Council [2016] EWHC 2368 (TCC)
Waldeck Associates Ltd v Decomo UK Ltd [2017] QBD (TCC)
Severability

7. Excess of adjudicator’s powers
Lulu Construction Limited v Mulalley & Co Limited [2016] EWHC 1852 (TCC)
SS 1(1) and 5A(3) of the Late Payment of Commercial Debts (Interest) Act 1998
Reply
S 108A of the 1996 Act
WES Futures Ltd v Allen Wilson Construction Ltd [2016] EWHC 2863 (TCC) at [16] per Coulson J
Distinction between dispute and power

8. Bias/Natural Justice 1
The test: Chadwick LJ in Carillion Construction Ltd v Devonport Royal Dockyard Ltd [2005] EWCA Civ 1358 at [85]
“…the objective which underlies the Act and the statutory scheme [for adjudication] requires the courts to respect and enforce the adjudicator's decision unless it is plain that the question in which he is decided was not the question referred to him or the manner in which he has gone about his task is obviously unfair. It should be only in rare circumstances that the court will interfere with the decision of an adjudicator”
See Dyson LJ in Amec Capital Projects Ltd v Whitefriars City Estates Ltd [2004] EWCA Civ 1418 at [20]-[21]
“Judges are assumed to be trustworthy and to understand that they should approach every case with an open mind. The same applies to adjudicators, who are almost always professional persons. … There needs to be something of substance to lead the fair-minded and informed observer to conclude that there is a real possibility that the tribunal will not bring an open mind and objective judgment to bear. ”

9. Bias/Natural Justice 2 Cofely v Bingham [2016] EWHC 240
The five musketeers (out of 109)
The hearing (cf Paice & Anor v Harding (t/a MJ Harding Contractors) [2016] EWHC B22 (TCC))
Hearing the adjudicator’s side (Woods Hardwick Ltd v Chiltern Air-Conditioning Ltd [2001] BLR 23 and Systech International Ltd v PC Harrington Contractors Ltd [2012] EWCA Civ 1371)
Immunity and Fees: Section 29 of the Arbitration Act 1996; Systech International Ltd v PC Harrington Contractors Ltd [2012] EWCA Civ 1371

10. Bias/Natural Justice 3
Beumer Group UK Ltd v Vinci Construction UK Ltd [2016] EWHC 2283 (TCC).
The three Musketeers. NEC 3 Engineering and Construction Contract, Option A and NEC 3 Engineering and Construction Sub-Contract, Option A.
(1) Unilateral communications: Paice and Springall v MJ Harding Contractors [2015] EWHC 661 (TCC) [2015] BLR 345; Discain Project Services Ltd v Opecprime Developments Ltd (No.1) [2000] BLR 402
(2) Failure to give fair hearing: [34] “[Beumer’s Counsel] argues that it can be seen from the two decisions in the two adjudications that [the adjudicator] scrupulously confined himself to the submissions before him in each adjudication. However, that submission cannot meet the argument that Vinci must be given a fair opportunity to put its own case, and an important element of that case (that Beumer was advancing a case that Logan’s works remained incomplete, which supported Vinci's case against Beumer) could not be put.”

11. Bias/Natural Justice 4
In the light of Beumer, how does one resolve matters under NEC Contracts?
Under the terms of Option W2.3(3a) and W2.3(3b), the two adjudications could have been dealt with together, if the necessary consent had been forthcoming.
Failing agreement, the adjudicator must notify the party of the existence of other proceedings
How does one resolve the duty of confidentiality owed to the party in the first set of proceedings?

12. Bias/Natural Justice 5
John Sisk & Son Limited v Duro Felguera UK Limited [2016] EWHC 81 (TCC)
The one (or two?) Musketeers.
Making one’s mind up: too early and never.
Edwards-Stuart J at [37]:
“the circumstances have to be considered at the time when the matter comes before the court, so that all the circumstances which by then would be known to a properly informed and fair-minded observer fall to be taken into account.”
Was that approach taken in Beumer?

13. Keeping Up with Events
Goldsworthy & Ors (t/a Goldsworthy Builders) v Harrison & Anor [2016] EWHC 1589 (TCC)

14. Conclusions: a year to remember?
The effect of a binding adjudicator’s decision
Purposiveness v Black letter law
Is it getting easier?

15. Thank You JOHN DENIS-SMITH 39 ESSEX CHAMBERS
39 Essex Chambers LLP is a governance and holding entity and a limited liability partnership registered in England and Wales (registered number 0C360005) with its registered office at 81 Chancery Lane, London WC2A 1DD. 39 Essex Chambers‘ members provide legal and advocacy services as independent, self-employed barristers and no entity connected with 39 Essex Chambers provides any legal services. 39 Essex Chambers (Services) Limited manages the administrative, operational and support functions of Chambers and is a company incorporated in England and Wales (company number  ) with its registered office at 81 Chancery Lane, London WC2A 1DD.

16. Arbitration: Legal Update 2017
Marion Smith QC

17. QMC and White & Case 2015 International Arbitration Survey
“The State of Play”

18. What is your preferred method of resolving cross-border disputes?

19. The necessity for arbitration
“Most human beings living on this planet today do not have the remotest chance of obtaining decent justice from their courts.”
Jan Paulsson, Arbitration in Three Dimensions, LSE Working Papers 2/2010

20. What are the three worst characteristics of international arbitration?