Adjudication

This is the second part of a Special Issue; the response to our call for papers was so great that we had to divide the papers into two groups to match the journal’s budgeted page numbers. When we proposed the Special Issue, we did it against a backdrop of the Housing Grants Construction and Regeneration Act 1996 (HGCRA) of England and Wales. That act introduced adjudication as a first-tier method of dispute resolution in all relevant construction contracts. This major step represented an extraordinary legislative intervention. It was also an opportunity for empirical study and data in an area dominated by anecdote and hearsay. Enforcement, procedural, and jurisdictional issues relating to adjudications or decisions made by adjudicators have produced a large body of case law. In addition, the statutory changes created the role of adjudicator and offered a new career path for many construction professionals.

We knew that adjudication had become a statutorily imposed method of dispute resolution in the U.K.—and we suspected—in different forms in New Zealand, Singapore, several states of Australia, and the United States.

We hoped that papers might explain the position around the world and add to the debate about construction dispute resolution. That aim has been achieved; the papers report on more than nine countries over the two Special Issues. The papers included in this Special Issue are mixed: some are research papers in the usual ASCE sense, some are research papers in the legal sense, and we hope that some will help answer that old question, What is different or special about construction?

Nicholas Gould and Charlene Linneman, solicitors specializing in the field, describe the Adjudication Society and the volume of case law regarding enforcement of adjudication decisions and clarifications of procedural issues.

Mair Coombes Davies, another barrister, describes adjudication outside construction: adjudication for consumer disputes. This paper first explores some of the differences, using as an illustration of consumer adjudication the Communications and Internet Services Scheme (CISAS). Second, it looks forward to how the advantages of both may combine to produce more effective dispute resolution with consistently high standards for resolving differences between parties, ensuring that disputes are always effectively and efficiently investigated while streamlining procedures so that they are easy to use, transparent, and cost-effective.

Timothy Hill and Colin Wall wonder “Why No Adjudication in Hong Kong.” When discussing the absence of adjudication in Hong Kong, it is worth remembering that, amid all the hyperbole about adjudication, some industries in the U.K. successfully lobbied to stay out of the legislation. Other areas, countries, including Hong Kong, have avoided the rush to adjudication.

Richard Anderson argues that good ideas are often overtaken by great events. That happened to adjudication. Originally envisaged as a single concept applying across the U.K., it has been overtaken by more significant constitutional change. This paper takes a look at that process. Something of a parallel could perhaps be drawn with the individual states in the United States each introducing a similar form of legislation. The possibility exists, of course, of each area adopting a different approach, but the indications are that certain communality is developing in adjudication and that it is perhaps a measure of the success of the concept of adjudication that adopting it other dependency areas, such as the Isle of Man, are voluntarily.

Mohamed Marzouk, Ahmed El-Dokhmasey, and Moheeb El-Said report on the sources of construction delays and the development of a knowledge-based expert system dedicated to engineering-related delays. The authors discuss claim entitlement, responsibility, and compensability of claims. A case study is presented to demonstrate the capabilities of the proposed expert system.

Since the authors first wrote their papers, developments have continued apace, and some authors asked that their papers be considered in that light.