Civil Engineering December 2022 | Vol 30 No 11

Civil Engineering December 2022 21 Some of these are closed lists and some are open. Where it is an open list, it means that the list can be accessed, and an adjudi- cator chosen from the list. FIDIC and the ICE-SA lists are open. Closed lists cannot be accessed, and a nomination fee has to be paid to get the information on a prospective adjudicator. Some contracts have a panel of adjudicators named in the con- tract data and the adjudicator has to be chosen from these select few. Other contracts require that the adjudicator is chosen from a particular panel (like FIDIC or SAICE for example). The adjudication starts in an ad-hoc and standing adjudicator scenario with the notice of a dispute. In some contracts this is a more formal process. However it is required to be done, it is an important step since it is usually from this communication that the ambit of the dispute is defined and the jurisdiction of the adjudicator is determined. In this notice, if it is an ad-hoc DAB, the claiming party nominates someone from the named panel of adjudicators from the contract data or suggests a group of three prospective adjudi- cators for the selection by the responding party of the adjudicator that will preside over the matter (either from the panel prescribed in the contract or just the preference of the claiming party). If the responding party is not happy with any of the suggested potential adjudicators and agreement cannot be reached, the adjudicator nominating body named in the contract data is approached to appoint an adjudicator. Where a three-person DAB is called for, both parties choose an adjudicator for the approval of the other party. These two approved adjudicators and the parties agree on a third adjudicator who assumes the chairperson role in the DAB and usually has the casting vote. Some contracts (like the NEC) prescribe the number and timing of submissions from the parties and others (like FIDIC) prescribe the duration of the whole process from the date of the referral by the claiming party (that is the submission of the state- ment of claim) to the date when the adjudicator is obliged to give his decision. Adjudicators often call for a case management meeting at the start of the process, shortly after, or at the time of the formalisation of their appointment. In this meeting, the number and timing of submissions, the date and venue for any hearing (if required) and the date for the delivery of the adjudicator’s decision can be discussed and understood by all participants at this meeting. Sometimes adjudicators need expert assistance to fulfil their function (like, for example, appointing a forensic planner). Adjudicators are obliged to advise the parties of their intention to appoint such an expert and the terms of service for this person. Once the expert’s report has been received, the parties must be given the opportunity to comment on the report produced by the expert. Adjudicators are not arbitrators and the laws of evidence do not have to be observed in adjudications. The laws of natural justice do however apply, and adjudicators are well advised to make sure they give both parties equal opportunity to present their cases. In South Africa, for language skills and communication rea- sons, hearings are frowned upon. It can however be advisable to allow the parties to make oral presentations so that they cannot complain that they did not have a chance to present their cases. In these circumstances a hearing would be advisable. This would also give the adjudicator the opportunity to explain the process to the parties who are often inexperienced in these matters. The golden rule is, if there are disagreements of fact, call a hearing. If the issues are in principle, it can usually be handled on the papers, without a hearing. The objective of an adjudicator is to give a decision that can be enforced. The adjudicator can give the wrong answer to the right question, and this would be enforceable. However, if he gives the right answer to the wrong question (this is called the Bouygues effect) it would not be enforceable because that would be outside of his jurisdiction. Quoted authorities have ventured the opinion that the most frequent challenges to the enforcement of an adjudicator’s award are where the adjudicator didn’t have jurisdiction. The next most frequent challenge is that the laws of natural justice were not complied with. In South Africa, there have been challenges to the jurisdic- tion of an adjudicator because appointment procedures were not (allegedly) properly followed. We have also experienced a Constitutional challenge because there is not an automatic right in the adjudication process to legal representation and to having a hearing. This challenge was unsuccessful. Many adjudicators have had long careers and it can be dif- ficult to comply with the warrantee requirements when being appointed. The criteria for the assessment of bias are not that the adjudicator displayed bias in his conduct, or expressly in his decision (for example), but that there was the perception of bias. This is why the candid disclosure of the potential adjudicator’s business relationships with either of the parties is so important. The International Bar Association published a document in 2014 entitled “IBA Guidelines on Conflicts of Interest in International Arbitration,” which is a very useful document to determine whether there is a possibility that there could be a perception of bias. At a recent webinar held in May this year, organised by Pinsent Masons and entitled “Dispute Boards in Africa”, a discus- sion took place concerning adjudicators’ fees. The representative from CRCICA divulged that their fee scale ranged from US$800 to US$3 400 per day. DISPUTE AVOIDANCE The latest versions of the FIDIC (2017 second edition) and the NEC (NEC4, 2017) make provision for dispute avoidance procedures. This is carried out by an executive intervention or by adding a preliminary role for the DAB to provide an opinion prior to the dispute being declared and being referred to adjudication. The Royal Institute of Chartered Surveyors have introduced a low-value construction adjudication process. With these developments, there was a concern that the industry was losing confidence in adjudication as a means of resolving disputes and that cheaper and more expedient means of addressing the differences between the parties was being sought. This, however, is not the case and the experience in the UK (in particular) is that the demand for the intervention by a third party (like an adjudicator) is actually increasing.  REFERENCE Maritz, M J, Hatting, V. 2015. Adjudication in South African construction industry practice: towards legislative intervention. Journal of the South African Institution of Civil Engineering , 57(2): 45–49.