This document summarizes a research paper that proposes a roadmap to optimize statutory construction adjudication of complex payment disputes in Australia. It begins by reviewing criticisms of the current adjudication system in dealing with large, legally and technically complex claims. It then evaluates measures of an effective dispute resolution system, including procedural fairness, accessibility, speed, cost-effectiveness, informality and finality. The document examines the evolution of security of payment legislation across Australian states, noting recommendations to improve adjudication of complex claims. Finally, it proposes using the Queensland model as a benchmark and incorporating additional improvements, such as criteria for timeframes for complex claims, appointment of qualified adjudicators, and a merits review system, to develop an optimized process.
This document summarizes a research paper that investigated factors influencing the quality of adjudication of complex payment disputes in Australia. It begins by providing background on statutory adjudication processes in different Australian states. It then discusses what constitutes a large or complex claim and reviews literature on this topic. Finally, it identifies five key factors that can impact the quality of adjudication determinations: the method of adjudicator appointment; regulation of adjudicators; reviewability of determinations; timeframes in the adjudication process; and adjudicators' powers. The document provides an overview of criticisms of different approaches to these factors under various state legislation and considers their potential influence on producing quality determinations, particularly for large or complex claims.
This document summarizes and examines the legislative review mechanism for erroneous adjudication determinations in Singapore. It discusses the following key points:
1) Singapore introduced an adjudication review mechanism allowing respondents to have determinations reviewed by another adjudicator on its merits, which is unique compared to other jurisdictions.
2) The review mechanism aims to remedy injustice from hasty adjudications and increase confidence in outcomes, as adjudicators have limited time to consider complex cases.
3) The mechanism has shortcomings including restrictions, ambiguities in procedures, and fixed timelines that may not suit all complex cases. While it increases fairness, the review process could still be improved.
This document discusses statutory adjudication, which was introduced to quickly and fairly resolve payment disputes in the construction industry. It examines various review mechanisms for erroneous adjudication determinations that exist in different jurisdictions. The paper argues that an appropriately designed legislative review mechanism, like those in Singapore and proposed in Tasmania that allow a full review of the merits of determinations, could optimize statutory adjudication and increase parties' confidence by attaining procedural fairness, accessibility and finality. This could make adjudication a more effective alternative dispute resolution for construction payment disputes.
This document discusses the evolving inconsistency in Australian case law regarding judicial review of statutory construction adjudication determinations. It notes that while courts have a supervisory role over adjudications, their involvement can undermine the objective of security of payment legislation to facilitate cash flow. The document analyzes different types of errors adjudicators can make and how courts have inconsistently classified errors as jurisdictional vs non-jurisdictional. It argues this inconsistency is confusing and contributes to the erosion of the legislation's objective by bogging down the adjudication process in judicial review. Moving forward, the document suggests establishing a legislative review mechanism for jurisdictional challenges may help address this problem.
This document discusses the causes of compromised outcomes in complex statutory adjudications in Australia. It reviews criticism that the legislation has failed to facilitate decisions of sufficient quality for complex adjudications. The identified key causes of unsatisfactory outcomes for complex cases are flawed appointment of adjudicators, relaxed eligibility and regulation of adjudicators, intimidation of adjudicators, unclear jurisdictional boundaries, abbreviated timeframes that don't allow thorough examination of complex cases, limited inquisitorial powers for adjudicators, and lack of review mechanisms for adjudication decisions.
This document examines approaches to limiting judicial intervention in statutory construction adjudication in Australia. It discusses how courts have adopted both broad and narrow approaches to jurisdictional facts, with a broad approach supporting the objective of keeping cash flowing but bringing risks of more errant determinations. The document also analyzes legislative silence and inconsistent case law around remitting flawed determinations and severing valid parts. It concludes that an expanded legislative review process, based on Western Australia's legislation, could help reduce tensions between the objective and court involvement by providing alternative relief.
Webcast Slides--Gibson Dunn 2012 Year-End Report and Hot TopicsGareth Evans
Â
These are the slides from our Webcast on the Gibson Dunn 2012 E-Discovery Year-End Report. Watch for our 2013 Mid-Year E-Discovery Report around the end of June.
- The document summarizes an interview between Jamie Ritchie and Niall Lawless, an experienced Irish construction adjudicator, about adjudication in Ireland.
- In the interview, Lawless discusses some of the main differences between adjudication in the UK and Ireland, including that in Ireland it is limited to payment disputes. He also provides insight into typical adjudicator backgrounds and fees.
- Common grounds for challenging an adjudicator's decision that Lawless has seen include issues around jurisdiction and natural justice. He also notes some circumstances where an oral hearing in adjudication may be appropriate.
This document summarizes a research paper that investigated factors influencing the quality of adjudication of complex payment disputes in Australia. It begins by providing background on statutory adjudication processes in different Australian states. It then discusses what constitutes a large or complex claim and reviews literature on this topic. Finally, it identifies five key factors that can impact the quality of adjudication determinations: the method of adjudicator appointment; regulation of adjudicators; reviewability of determinations; timeframes in the adjudication process; and adjudicators' powers. The document provides an overview of criticisms of different approaches to these factors under various state legislation and considers their potential influence on producing quality determinations, particularly for large or complex claims.
This document summarizes and examines the legislative review mechanism for erroneous adjudication determinations in Singapore. It discusses the following key points:
1) Singapore introduced an adjudication review mechanism allowing respondents to have determinations reviewed by another adjudicator on its merits, which is unique compared to other jurisdictions.
2) The review mechanism aims to remedy injustice from hasty adjudications and increase confidence in outcomes, as adjudicators have limited time to consider complex cases.
3) The mechanism has shortcomings including restrictions, ambiguities in procedures, and fixed timelines that may not suit all complex cases. While it increases fairness, the review process could still be improved.
This document discusses statutory adjudication, which was introduced to quickly and fairly resolve payment disputes in the construction industry. It examines various review mechanisms for erroneous adjudication determinations that exist in different jurisdictions. The paper argues that an appropriately designed legislative review mechanism, like those in Singapore and proposed in Tasmania that allow a full review of the merits of determinations, could optimize statutory adjudication and increase parties' confidence by attaining procedural fairness, accessibility and finality. This could make adjudication a more effective alternative dispute resolution for construction payment disputes.
This document discusses the evolving inconsistency in Australian case law regarding judicial review of statutory construction adjudication determinations. It notes that while courts have a supervisory role over adjudications, their involvement can undermine the objective of security of payment legislation to facilitate cash flow. The document analyzes different types of errors adjudicators can make and how courts have inconsistently classified errors as jurisdictional vs non-jurisdictional. It argues this inconsistency is confusing and contributes to the erosion of the legislation's objective by bogging down the adjudication process in judicial review. Moving forward, the document suggests establishing a legislative review mechanism for jurisdictional challenges may help address this problem.
This document discusses the causes of compromised outcomes in complex statutory adjudications in Australia. It reviews criticism that the legislation has failed to facilitate decisions of sufficient quality for complex adjudications. The identified key causes of unsatisfactory outcomes for complex cases are flawed appointment of adjudicators, relaxed eligibility and regulation of adjudicators, intimidation of adjudicators, unclear jurisdictional boundaries, abbreviated timeframes that don't allow thorough examination of complex cases, limited inquisitorial powers for adjudicators, and lack of review mechanisms for adjudication decisions.
This document examines approaches to limiting judicial intervention in statutory construction adjudication in Australia. It discusses how courts have adopted both broad and narrow approaches to jurisdictional facts, with a broad approach supporting the objective of keeping cash flowing but bringing risks of more errant determinations. The document also analyzes legislative silence and inconsistent case law around remitting flawed determinations and severing valid parts. It concludes that an expanded legislative review process, based on Western Australia's legislation, could help reduce tensions between the objective and court involvement by providing alternative relief.
Webcast Slides--Gibson Dunn 2012 Year-End Report and Hot TopicsGareth Evans
Â
These are the slides from our Webcast on the Gibson Dunn 2012 E-Discovery Year-End Report. Watch for our 2013 Mid-Year E-Discovery Report around the end of June.
- The document summarizes an interview between Jamie Ritchie and Niall Lawless, an experienced Irish construction adjudicator, about adjudication in Ireland.
- In the interview, Lawless discusses some of the main differences between adjudication in the UK and Ireland, including that in Ireland it is limited to payment disputes. He also provides insight into typical adjudicator backgrounds and fees.
- Common grounds for challenging an adjudicator's decision that Lawless has seen include issues around jurisdiction and natural justice. He also notes some circumstances where an oral hearing in adjudication may be appropriate.
A perfect storm? Regulationfunding and education in the English legal servi...Julian Webb
Â
This document discusses the changing legal services market in England due to increasing regulation, funding cuts, and other forces. It notes that legal aid cuts have concentrated the market and hurt nonprofit legal organizations. Alternative business structures (ABS) have emerged but with concerns about commercialization's effects. The future may include many nonlawyers providing consumer legal services. This implies challenges for legal education and training to prepare students for new roles, skills like technology usage, and maintaining competence amid industry changes.
In this month's edition the team look at:
âą a case of evaluation gone wrong â lessons learned from assessment of tenders
âą devolution - the game changer? A look at the Cities and Local Government Devolution Bill 2015
âą the cost case to end all cost cases - or was it! Coventry and other v Lawrence and others
âą new procurement guidance for EU grant recipients
âą changing a cost budget: it's not that easy!
âą a look at the Trade Union Bill - consultation.
The document discusses new optional appellate arbitration rules developed by the American Arbitration Association (AAA). Key points:
- The rules establish an appellate process within arbitration to allow for higher-level review of awards while maintaining arbitration's expedited nature.
- Parties can agree to use the rules to appeal awards on issues of material legal errors or clearly erroneous factual findings.
- Appeals are typically documents-only with no oral arguments. The process aims to be completed within 3 months.
- The rules are intended for large, complex cases where appellate review is important.
This document summarizes a study that assessed construction dispute resolution mechanisms for road projects in the Ethiopian Somali Regional State. The study identified the major causes of disputes as design-related, contractor-related, owner-related, contract-related, and external factors. It found that the main dispute resolution mechanisms used are amicable settlement (negotiation), dispute review experts, arbitration, and other undisclosed methods. Negotiation is most commonly used initially but disputes often proceed to arbitration, which resembles regular litigation. The study recommends various ways to minimize disputes, such as ensuring complete contract documents.
Employment law update: a roundup of the most recent developmentswalescva
Â
The document provides a summary of recent employment law developments in the UK, including legislation, cases, and future proposals. It outlines changes from the Enterprise and Regulatory Reform Act 2013 regarding conciliation, whistleblowing protection, tribunal procedures, and the Equality Act. It also summarizes several cases related to employment status, volunteers, disciplinary investigations, and discrimination. The document concludes with an overview of upcoming proposed legislation.
Tensions between Lawyers and Experts (Wherever in the world you may be)
Janine Stewart and Stephen Price, MinterEllisonRuddWatts;
Sean Brady, Brady Heywood; and
Simon Braithwaite, FTI Consulting*
8th International Society of Construction Law Conference Chicago, IL, USA
September 26-28, 2018
Panel Host Sean Sullivan Gibbs Hanscomb Intercontinental Ltd
Why You Should Team Up and Make Friends: Your Professional Responsibilities W...Parsons Behle & Latimer
Â
A presentation about the ethical and professional obligations when reviewing a potential personal injury matter and when associating with another firm on personal injury matters.
This document discusses products and services. It was prepared by two students, Azeri Bin Alewi of class 11DAT11F2001 and Nor Shah Hafizah Binti Ehsan of class 11DAT11F2016. The document contains information on offerings but does not provide any details.
El documento compara los lenguajes de programaciĂłn Python, C, Perl y LISP, y ofrece una opiniĂłn personal sobre cuĂĄl es mejor para determinar una deuda y menciona el desarrollo del peitaje.
This document analyzes pharmaceutical sales force management strategies. It finds that returns on promotional investment have declined 24% from 1998-2001, as companies focus on maintaining large sales forces without improving effectiveness. It recommends that companies rethink detailing strategies to halt this decline. The analysis also finds that sales force size and structure should evolve throughout a product's lifecycle to maximize revenue potential. It provides sales force benchmarks for seven countries/regions and recommendations for optimizing sales force size, structure, and effectiveness across different markets and stages of the product lifecycle.
Lalitha Exports works with rural farmers and artisans in South India to source and export organic agricultural products, handicrafts, and other goods. The company was established in 2015 and has since built a wide network of suppliers to provide quality products at reasonable prices while also supporting rural communities. Lalitha Exports aims to understand international consumer needs and connect potential Indian producers to establish itself as a leading supplier of goods like rice, spices, vegetables, fruits, textiles, and leatherwork. The company prides itself on efficiency, consistency, honesty and integrity in its operations.
La street food et les food trucks ont le vent en poupe ! Voici donc un petit tour dâhorizon des camions qui sillonnent Paris pour ravir vos papilles !
The document discusses four compliance paths for meeting New Zealand's H1 energy efficiency requirements for housing and small buildings:
1. The NZS4218 Schedule Method, which requires all building component R-values to meet minimum requirements in the NZS4218 schedule.
2. The NZS4218 Calculation Method, which involves calculating building thermal performance indices.
3. NZS4218 Modelling, which uses thermal modelling software to assess a building design.
4. The Alternative Solution of using the Building Performance Index (BPI) to demonstrate compliance through energy modelling or in-situ testing.
Vanuit Semilo is een maatwerk campagne opgezet, waarbij de consument in een relevant umfeld op het juiste moment de boodschap ontvangt. De campagne bestond uit twee delen:
Deel 1: Informeren, de bezoeker bekend maken met Blue Band vloeibare boter met roombotersmaak.
Deel 2: Activeren, de bezoeker laten deelnemen aan de win-actie op de special page.
Door zowel display uitingen als content integratie werd de bezoeker naar een Blue Band pagina gelinkt binnen de omgeving van Smulweb. Hier werd de bezoeker geĂŻnspireerd met heerlijke recept tips, kon hij/zij deelnemen aan een wedstrijd en werd er alles verteld over bakken met Blue Band. Zie hier onder welke mogelijkheden zijn ingezet voor deze campagne.
A perfect storm? Regulationfunding and education in the English legal servi...Julian Webb
Â
This document discusses the changing legal services market in England due to increasing regulation, funding cuts, and other forces. It notes that legal aid cuts have concentrated the market and hurt nonprofit legal organizations. Alternative business structures (ABS) have emerged but with concerns about commercialization's effects. The future may include many nonlawyers providing consumer legal services. This implies challenges for legal education and training to prepare students for new roles, skills like technology usage, and maintaining competence amid industry changes.
In this month's edition the team look at:
âą a case of evaluation gone wrong â lessons learned from assessment of tenders
âą devolution - the game changer? A look at the Cities and Local Government Devolution Bill 2015
âą the cost case to end all cost cases - or was it! Coventry and other v Lawrence and others
âą new procurement guidance for EU grant recipients
âą changing a cost budget: it's not that easy!
âą a look at the Trade Union Bill - consultation.
The document discusses new optional appellate arbitration rules developed by the American Arbitration Association (AAA). Key points:
- The rules establish an appellate process within arbitration to allow for higher-level review of awards while maintaining arbitration's expedited nature.
- Parties can agree to use the rules to appeal awards on issues of material legal errors or clearly erroneous factual findings.
- Appeals are typically documents-only with no oral arguments. The process aims to be completed within 3 months.
- The rules are intended for large, complex cases where appellate review is important.
This document summarizes a study that assessed construction dispute resolution mechanisms for road projects in the Ethiopian Somali Regional State. The study identified the major causes of disputes as design-related, contractor-related, owner-related, contract-related, and external factors. It found that the main dispute resolution mechanisms used are amicable settlement (negotiation), dispute review experts, arbitration, and other undisclosed methods. Negotiation is most commonly used initially but disputes often proceed to arbitration, which resembles regular litigation. The study recommends various ways to minimize disputes, such as ensuring complete contract documents.
Employment law update: a roundup of the most recent developmentswalescva
Â
The document provides a summary of recent employment law developments in the UK, including legislation, cases, and future proposals. It outlines changes from the Enterprise and Regulatory Reform Act 2013 regarding conciliation, whistleblowing protection, tribunal procedures, and the Equality Act. It also summarizes several cases related to employment status, volunteers, disciplinary investigations, and discrimination. The document concludes with an overview of upcoming proposed legislation.
Tensions between Lawyers and Experts (Wherever in the world you may be)
Janine Stewart and Stephen Price, MinterEllisonRuddWatts;
Sean Brady, Brady Heywood; and
Simon Braithwaite, FTI Consulting*
8th International Society of Construction Law Conference Chicago, IL, USA
September 26-28, 2018
Panel Host Sean Sullivan Gibbs Hanscomb Intercontinental Ltd
Why You Should Team Up and Make Friends: Your Professional Responsibilities W...Parsons Behle & Latimer
Â
A presentation about the ethical and professional obligations when reviewing a potential personal injury matter and when associating with another firm on personal injury matters.
This document discusses products and services. It was prepared by two students, Azeri Bin Alewi of class 11DAT11F2001 and Nor Shah Hafizah Binti Ehsan of class 11DAT11F2016. The document contains information on offerings but does not provide any details.
El documento compara los lenguajes de programaciĂłn Python, C, Perl y LISP, y ofrece una opiniĂłn personal sobre cuĂĄl es mejor para determinar una deuda y menciona el desarrollo del peitaje.
This document analyzes pharmaceutical sales force management strategies. It finds that returns on promotional investment have declined 24% from 1998-2001, as companies focus on maintaining large sales forces without improving effectiveness. It recommends that companies rethink detailing strategies to halt this decline. The analysis also finds that sales force size and structure should evolve throughout a product's lifecycle to maximize revenue potential. It provides sales force benchmarks for seven countries/regions and recommendations for optimizing sales force size, structure, and effectiveness across different markets and stages of the product lifecycle.
Lalitha Exports works with rural farmers and artisans in South India to source and export organic agricultural products, handicrafts, and other goods. The company was established in 2015 and has since built a wide network of suppliers to provide quality products at reasonable prices while also supporting rural communities. Lalitha Exports aims to understand international consumer needs and connect potential Indian producers to establish itself as a leading supplier of goods like rice, spices, vegetables, fruits, textiles, and leatherwork. The company prides itself on efficiency, consistency, honesty and integrity in its operations.
La street food et les food trucks ont le vent en poupe ! Voici donc un petit tour dâhorizon des camions qui sillonnent Paris pour ravir vos papilles !
The document discusses four compliance paths for meeting New Zealand's H1 energy efficiency requirements for housing and small buildings:
1. The NZS4218 Schedule Method, which requires all building component R-values to meet minimum requirements in the NZS4218 schedule.
2. The NZS4218 Calculation Method, which involves calculating building thermal performance indices.
3. NZS4218 Modelling, which uses thermal modelling software to assess a building design.
4. The Alternative Solution of using the Building Performance Index (BPI) to demonstrate compliance through energy modelling or in-situ testing.
Vanuit Semilo is een maatwerk campagne opgezet, waarbij de consument in een relevant umfeld op het juiste moment de boodschap ontvangt. De campagne bestond uit twee delen:
Deel 1: Informeren, de bezoeker bekend maken met Blue Band vloeibare boter met roombotersmaak.
Deel 2: Activeren, de bezoeker laten deelnemen aan de win-actie op de special page.
Door zowel display uitingen als content integratie werd de bezoeker naar een Blue Band pagina gelinkt binnen de omgeving van Smulweb. Hier werd de bezoeker geĂŻnspireerd met heerlijke recept tips, kon hij/zij deelnemen aan een wedstrijd en werd er alles verteld over bakken met Blue Band. Zie hier onder welke mogelijkheden zijn ingezet voor deze campagne.
This document discusses challenges to statutory adjudication in the construction industry and proposes measures to diminish judicial intervention. It finds that as payment claims increase in size, so too does the proportion of determinations challenged through judicial review. Larger claims are more likely to involve complex issues that parties seek to dispute in court. However, extensive litigation undermines the objective of facilitating cash flow. The document examines current approaches used by courts to limit review and proposes that courts adopt a broad view of jurisdictional facts, and allow adjudicators to correct defects upon remittal rather than quashing entire determinations. It argues these pragmatic measures can better balance parties' rights with the legislation's purpose of resolving disputes quickly and inexpensively.
This document summarizes a conference held in Sydney, Australia from July 8-10, 2015 on construction, building and real estate research. It contains the proceedings from the conference, including various papers presented on topics related to adjudication of payment disputes in the Australian construction industry. One such paper examines how adjudicators should deal with expert reports in statutory adjudication processes, given time constraints and the increasing complexity of disputes. It analyzes several relevant court cases and discusses the challenges adjudicators face when required to consider extensive evidence like expert reports within tight deadlines.
The document discusses civil justice system reforms in England and Wales that were initiated in the 1990s. It notes that Lord Woolf conducted a review that identified high costs, delays, and complexity as major issues. Woolf proposed reforms aimed at decreasing delays and costs, encouraging settlement, and making the system simpler and more accessible. The reforms introduced new civil procedure rules that decreased litigation and emphasized cooperation over adversarial approaches. Studies found the reforms had positive impacts like reduced court caseloads and a less combative culture, though costs remained a challenge.
This document discusses the lack of transparency in international arbitration and the need for standardized performance data on arbitrators and arbitration institutions. It notes that major corporate users have expressed dissatisfaction with the excessive time and costs of international arbitration. In response, arbitration institutions have implemented various initiatives to increase efficiency. However, the document argues that for these initiatives to be fully effective, users need reliable, standardized information on whether the initiatives are being properly implemented and how institutions and arbitrators perform. Such transparency would allow users to make more informed choices and incentivize better performance. The document advocates for increased transparency and standardized data on arbitration performance.
Chris Coxon - Evidence informed policy making - 26 June 2017OECD Governance
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Presentation by Cris Coxon, Head of Civil and Administrative Justice Research, Ministry of Justice, United Kingdom, at the event on Governing better through evidence-informed policy making, 26-27 June 2017. The event was organised by the OECD Directorate for Public Governance in cooperation with the European Commissionâs Joint Research Centre (JRC), the Campbell Collaboration and the International Network for Government Science Advice (INGSA). For further information please see http://www.oecd.org/gov/evidence-informed-policy-making.htm
Conventional wisdom suggests that businesses choose binding arbitration mainly because it ensures cost savings and shorter resolution times inter alia. These are often touted as one of arbitrationâs top advantages over traditional court litigation. Mounting delays and escalating costs have led many to wonder whether arbitration is really preferable to litigation. With the rise in popularity of this dispute resolution alternative, especially among sophisticated parties in complex international matters, many of those having gone through an arbitration procedure attest that this is more of a myth than a reality and that arbitration may not be so inexpensive and timeous after all. In fact, the arbitration community is increasingly concerned with reducing the costs of arbitration, and ensure timely resolution so it can continue to serve as a financially viable and attractive alternative to litigation because the longer the proceedings, the more expensive they will be. This paper identifies the areas where cost and time quickly accrue and then designs ways by which an arbitrator can save time and rein in such cost.
The document discusses ways that arbitrators can save time and costs in commercial arbitration proceedings. It identifies five key methods: 1) using pre-hearing meetings to simplify issues and reach settlements; 2) employing a Scott Schedule to compartmentalize complex disputes; 3) exchanging written proofs in advance to allow scrutiny of documents; 4) admitting written statements instead of oral openings and closings; and 5) choosing hearing locations for convenience. The document argues these techniques can streamline proceedings and focus on material issues to reduce associated costs and delays of arbitration.
This document proposes a model order to limit e-discovery in patent cases. It begins by discussing how e-discovery has increased litigation costs and become a tactical weapon. The proposed order aims to streamline e-discovery by first requiring parties to exchange core documentation, and then limiting email production requests to specific issues, custodians, and search terms unless costs are borne by the requesting party. It also addresses concerns about privilege waiver to reduce pre-production document review costs. The goal is to promote efficient discovery focused on material information rather than unlimited fishing expeditions.
Jeremy Winter and Peter Johnson gave a presentation on resolving complex delay claims to the Society of Construction Law. They discussed challenges with determining extensions of time under standard construction contracts and analyzing delays. Peter Johnson presented several methods of analyzing delays, including time impact analysis, which tracks the effects of individual delays on a project's critical path over time. This method accounts for planned work, prior events, and the direct impact of single delay events. Jeremy Winter discussed using similar time-based analyses to prove entitlement to money for prolongation costs due to delays. Presenting claims sequentially and tracking actual time impacts and costs allows claimants to avoid issues of concurrency and prove entitlement for at least some delays to recover all prolongation costs.
This newsletter from UK Adjudicators provides updates on security of payment laws and adjudication. It discusses training being offered in 2019 to support applicants to their adjudicator panel. It also summarizes differences between how Australian and English courts treat severing valid parts of an adjudicator's decision from parts affected by jurisdictional error. Additionally, it provides updates on legislation regarding construction retention schemes in the UK and amendments to security of payment laws in New South Wales.
Recon 2011: Recapping New Laws from 2010 and The Who When and What to Expect...Allen Matkins
Â
This document summarizes new laws from 2010 and previews what to expect in 2011. It discusses the Dodd-Frank Act, which regulates the financial industry, California's new expedited one-day jury trial process, and new employment laws. It provides an overview of key provisions of these new laws and their potential impact.
U301 part b reforming the victorian criminal justice systemCrystal Delosa
Â
This document outlines key concepts, skills, and reforms related to the Victorian criminal justice system. It discusses factors that affect the ability of the system to achieve principles of justice, including costs, time, and cultural differences. Recent reforms aimed to improve access to legal services, increase use of technology, expand problem-solving courts, and fund prisoner programs. Recommended reforms suggest increasing funding for legal assistance, improving availability of interpreters, and abolishing unnecessary committal proceedings to reduce delays. The document evaluates how well recent and recommended reforms address issues and achieve fair, equal, and accessible justice.
The document summarizes a court case regarding two plaintiffs' failed attempt to recover funds from an insurer under section 601AG of the Corporations Act. The plaintiffs had transferred money to a company (Q1) for short-term loans but never recovered the funds. The court found that Q1 was liable to the plaintiffs for breach of contract and misleading conduct. However, the insurer (Vero) was not liable to indemnify Q1 as the insurance policy did not cover the specific liability based on the policy terms and exclusions. In particular, the fraud exclusion and assumption of liability exclusion applied to preclude coverage for Q1's liability to the plaintiffs.
2015 09 10 Peter Boase LLM Dissertation.PdfLeonard Goudy
Â
This dissertation aims to determine whether there is an implied term within the Scheme for Construction Contracts that results in a new cause of action when complying with an adjudicator's decision. The research will critically evaluate two key cases - Jim Ennis Construction Ltd v Premier Asphalt Ltd and Aspect Contracts (Asbestos) Ltd v Higgins Construction Plc - in which two High Court judges disagreed on this issue. The research objectives are to identify relevant case law and legislation, evaluate the two cases and their progression through the courts, and formulate a position on whether the Scheme requires amendment to include an express term addressing this gap. The justification is that clarifying this issue could reduce litigation, tighten adjudication
The document provides an overview and update on SPeRS (Standards and Procedure for Electronic Records and Signatures), which was initially published in 2003 to establish industry standards and best practices for electronic transactions and signatures. SPeRS 2.0 will be published in November 2011, addressing new issues and legal/regulatory developments since 2003. It discusses topics like electronic notarization, case law on authentication and consent, and agreements/notices in electronic transactions.
Recent Amendments to the Commercial Division Rules_MFD_GCWGracie C. Wright
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The document summarizes recent changes to the rules of practice in the Commercial Division of New York state courts. The changes were recommended by a task force convened to streamline commercial litigation. Key amendments include: limiting interrogatories to 25 and restricting their subject matter; encouraging early agreement on privileged document categories rather than detailed logs; new rules governing discovery from non-parties; and various measures aimed at promoting early settlement, such as mandatory mediation for some cases and an accelerated adjudication track. The changes are meant to reduce costs and delays in commercial litigation.
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Advantages And Disadvantages Of Litigation
The litigation is the formal and conventional way in dispute resolution over the centuries of time. Courts are traditional, recognizable forums in which litigation is adjudicated (Kennedy and Richards, 2004). Even though there are number of methods available outside the court system litigation is still act a major role in dispute resolution as the conventional method.
But with the time people identified limitations of the system which created uncomfortable situations to users due to certain drawbacks hold with the litigation system. Through litigation successive governments has ensured that people are delivered with justice and adjudicated on their disputes. Even though disputes are resolved through litigation people come across so many difficulties, such as stress, expenditure, delay and bitter arguments that pave the way for further disputes.
A major issue on using litigation for labour disputes is frequent postponements awarded in hearing a case in the courts. According to Sivananthiran and Ratnam (2003) the most prominent cause responsible for delay in adjudication is frequent adjournment granted by the Labour Courts. Both workmen and employer seek adjournment after adjournment at each of the above stage and this contributes to the delay in dispute resolution process.
2.5.3 Labour tribunals
It is the most popular...show more content...It defines the objectives and scope of the Act, as an Act to provide for the prevention, investigation and settlement of industrial disputes, and for matters connected therewith or incidental thereto . By analyzing the definition, it is focused on providing methods in minimizing the disputes and identifyi
This document describes the methodology used for the case studies on class action lawsuits. The researchers chose a case study approach because it was not feasible to conduct a large-scale statistical study of class actions due to limitations in available data and resources. They selected 10 recent class action lawsuits that had been certified and substantially resolved to study in depth. The cases focused on consumer and mass tort lawsuits. Information was collected through interviews with key participants and reviewing court records. Selection criteria and sources used to identify potential cases are described.
Who is the most influential arbitrator in the world Rishab Gupta
Â
This article analyzes methods for measuring influence and quality among arbitrators in investment treaty arbitration. It uses citation analysis and number of appointments to identify the most influential arbitrators. The article describes a database of 664 arbitral decisions and 5,516 citations. It finds that the 10 most cited decisions received between 101-103 citations each. The 10 most cited arbitrators received between 330-547 citations each after removing self-citations. The 10 arbitrators with the most appointments received between 15-29 appointments each. Francisco Orrego Vicuña, James Crawford, and Gabrielle Kaufmann-Kohler were among the most influential based on these two metrics.
By Scott Goldstein: Exploring New TerritoryNDeXTech
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The OCC consent orders of 2011 overhauled the mortgage servicing industry by implementing new guidelines and requirements for servicers and their attorney networks. Mortgage servicers are now taking a more active role in managing attorney relationships and compliance through thorough vendor reviews, strict information security policies, and extensive file audits. Law firms have had to quickly adopt new procedures, policies, and infrastructure to maintain approved vendor status and handle increased documentation requests resulting from the consent orders. This transformed the old model of informal relationships between servicers and attorneys into a new, highly regulated world with multidimensional compliance requirements.
This document provides summaries of several articles from a law firm relating to public procurement, state aid, judicial review, and local government issues. It includes summaries of recent court cases and regulatory changes. The articles discuss the lifting of automatic suspension in public procurement cases, updates to the General Block Exemption Regulation regarding state aid, notes on procedure and interpretation in judicial review, legitimate expectations in planning contributions, LEPs (Local Enterprise Partnerships), and a new EU public procurement directive.
Similar to A PROPOSED ROADMAP TO OPTIMISE THE (20)
2. Skaik, Coggins and Mills
94
criticism is particularly aimed at adjudications of large, technically and legally
complex disputes, where adjudicators are ill equipped to resolve them fairly.
The growing dissatisfaction with adjudicatorâs determination is obvious with a large
volume of case law regarding challenged adjudications in courts as reported by
Australian Legislation Reform Sub-Committee (ALRS 2014). This unsatisfactory
situation urged many legal academics and practitioners to debate how an effective
statutory adjudication regime should look like in response to the evolving criticism.
This paper is deemed to contribute to this debate drawing upon relative previous work
from a different perspective starting with reviewing the requirements of effective
dispute resolution platform and aiming to propose a roadmap to optimize adjudication
of complex payment disputes in Australia.
EFFECTIVE BINDING DISPUTE RESOLUTION
Parties to any construction dispute seek to have their dispute fully sorted out in a
quick, inexpensive and informal manner. Not only does a builder seek to recover
disputed progress payments from his employer but he is also desperate to have all
current disputes resolved to ensure certainty in business. Gerber and Ong (2013)
determined three key essential requirements for an effective binding dispute
resolution, namely, procedural fairness, accessibility and finality. Yung et al. (2015)
set four measures of the effectiveness stemmed from the objective of the WA Act:
fairness, speed, cost effectiveness and informality. These measures are discussed
briefly below.
Procedural Fairness
Procedural fairness may include the impartiality and independence of the decision
maker as well as affording both parties the right to present their defensive arguments
and be fairly heard. The parties should feel that their arguments have been considered
and should receive a reasonable reasoned conclusion to understand the grounds on
why they have won or lost. The selection and appointment of a qualified decision
maker and the assurance that he is properly equipped with the necessary powers to
perform his functions are key integrated features for the parties to believe that
prospective justice will be achieved. Nevertheless, the more procedural fairness is
considered in dispute resolution, the more expensive and lengthy it becomes (Gerber
and Ong 2013). The challenge for any decision maker is how to strike the balance of
allowing fair hearing while upholding economic and speedy dispute resolution
processes.
Accessibility (Speed and Cost Effectiveness)
According to Gerber and Ong (2013), the speed and affordability of a dispute
resolution process are the main characteristics of any accessible justice system. The
inherent cost in the lengthy process, including legal fees and case administration, is a
major barrier that may force desperate disputants to seek alternative ways to get their
dispute settled. Some parties cannot afford lengthy proceedings of dispute resolution
as it may lead to injustice where a crucial evidence, that a party relies on, may be no
longer available.
Finality
Finality embraces not only the extent in which a disputant can appeal a binding
decision but also the limitations on his rights to commence a second proceeding on the
same dispute after obtaining the decision on the first dispute (Gerber and Ong 2013).
3. Roadmap to optimise adjudication
95
Arbitration provides a greater certainty on the finality of the outcome due to the very
limited grounds of appeal. Although Statutory Adjudication is an interim process that
does not prevent any party to commence other legal proceedings, it offers a
âtemporary finalâ and binding determination with very limited grounds of appeal.
However, the strict limitations to challenge some decisions, that contain an error of
law or technical errors, may leave the aggrieved party without a quick remedy against
unjust decision.
Informality
Yung et al. (2015) mentioned three factors that compromise informality: standardized
structure of proceedings, abidance by rules of evidence and engagement of expert
witness and lawyers. They also found that informality does not generally have an
impact on accuracy of determination under the West Coast model. Since they help
understand the tenets behind the evolvement of statutory adjudication, the above
measures stand as good criteria to evaluate and improve existing SOP legislation as
follows in the next sections.
THE EVOLUTION OF AUSTRLAIAN LEGISLATION
East Coast model
For the last fifteen years, the leading NSW legislation has been prone to various
governmental reviews aiming to improve its operation against the set objectives. In
2004, NSW Department of Commerce released a review report mentioning many
suggestions to improve the legislation including but not limited to have minimum
qualifications for adjudicators and allow longer duration for adjudication
determination. Six years later, the Department of Services Technology and
Administration (2010) released a discussion paper drawing upon the above report
proposing significant improvement to NSW Act aiming to increase confidence in the
regime and adding certainty to the outcome of adjudicatorâs determination. The paper
addressed serious concerns regarding the need for better regulation of adjudicators and
the capacity for the Act to deal with complex claims, especially in high value
contracts, in which the risk and impact of incorrect adjudication is severe. In 2012,
Bruce Collin QC was assigned by NSW Government to prepare an independent report
on the construction industry insolvency. Collin's final report addressed various
recommendations to improve the NSW Act to give better protection to subcontractors
(Collins 2012). The report endorsed collective submissions from the industry
proposing to allow a sliding scale of timeframes based on the size of adjudicated
claim, so the larger the claim, the more duration is given to respondents and
adjudicators. The report also recommended a specific training system for adjudicators
and proposed core topics to be covered in the training course. After all, the three
amendments of NSW legislation enacted in 2002, 2010 and 2013 did not implement
any of the recommendations concerning large or complex claims.
In Victoria, the SOP regime was amended in 2006 (Section 10b) to prevent claims
involving complex matters such as latent conditions and time related cost from being
adjudicated. South Australia released final report of discussion paper in May 2015
stating that most of received submissions from the industry favoured the Qld model in
its new form and putting recommendations to effectively deal with complex claims
such as longer timeframes and better appointment process of competent adjudicators
(Moss 2015).
4. Skaik, Coggins and Mills
96
Queensland model
Wallace (2013) released his final report, which reviewed the operation of the Qld Act.
Accordingly, the Act was substantially amended in December 2014 introducing
exceptional revolution in adjudication proceedings establishing, inter alia, a dual
scheme that provides different mechanisms in dealing with standard and complex
payment claims on the basis of the claim monetary value. The timeframes are kept the
same for standard payment claims except for the respondent, who can make the
adjudication response within 10 days instead of 5 days in the original Act2
. For
complex payment claims, the respondent now has 15 business days to submit his
adjudication response3
and can raise new reasons that were never addressed in the
payment schedule4
. He is also eligible to apply to the adjudicator for an extension of
time of up to 15 business days to submit his response5
. These arrangements were
sought to overcome the criticisms of ambush practice and lack of procedural fairness.
The adjudicator can have up to 20 business days to issue decision instead of 10 days
stated in the Original Act.6
As proposed by Wallace, the claim monetary value was
fixed at $ 750,000, so any claim greater than this value will be treated as a complex
claim even though it involves simple matters. Wallace simply adopted this cap to tie it
with the monetary limit of the civil jurisdiction of the District Court of Queensland.
According to the statistics, he assumed that approximately 90% of claims will be
adjudicated under the standard scheme.
On the other hand, the Reform established robust arrangement for appointment and
regulation of adjudicators. The Reform not only abolished Authorised Nominating
authorities7
replacing it with a single governmental registry in response to perceived
bias in adjudicatorâs appointment, but also established a unique Policy for adjudicator
grading and selection criteria.8
The Policy established, inter alia, a grading scale for
adjudicators depending on their qualifications, experience and skills, namely,
Adjudicator (lowest), Advanced Adjudicators and Senior Adjudicator (highest),
whereas complex or large claims cases are only assigned to senior adjudicators. The
policy states that: âThe Registrar will have discretion when assessing an application
to nominate a Senior Adjudicator irrespective of the claim value where the complexity
of the matters in dispute warrants nomination of a Senior Adjudicator.â
West Coast model
Until now, there have been no appropriate studies on the performance of the West
Coast model with regard to its capacity to deal with complex claims. However, many
academics trust this model being more effective than the East Coast model. The model
applies the approach of âone size fits allâ where adjudication proceedings are the
same no matter how simple or complex is the claim allowing only 14 days for
adjudicator to issue determination. Also, the legislation does not have adequate
regulations governing the appointment and regulation of adjudicators. The Report of
ALRS (2014) recommended a national scheme across Australia which draws heavily
from the West Coast model. However, the ALRS Report embraced the need of quality
control system of adjudicators as well as sliding timescale for determinations (ALRS
2014: 63 and 65). Yung et al. (2015), argued that it may be too early to discuss
2
S 24A (2) a, Qld Act.
3
S 24A (4), Qld Act.
4
S 24 (5), Qld Act.
5
S 24 A(5), Qld Act
6
S 25A (5&6), 25B; Qld Act.
7
S 114, Qld Act.
8
See Adjudicator Grading and Selection Criteria for Nomination of Adjudicators 2014 Policy.
5. Roadmap to optimise adjudication
97
harmonized national scheme while there is a very little and unreliable research
evaluating the effectiveness of the West Coast model. Evans (2014) issued a
discussion paper endorsed by the Building Commissioner in an attempt to review the
performance and operation of the Western Australia legislation since its
commencement. The paper suggested important inquiries to the industry pertaining
the appropriate time limits for complex claims as well as regulation of adjudicators
including qualifications, registration, auditing and training. Until the time of writing
this paper, the final report was not released.
THE ROADMAP TO EFFECTIVE ADJUDICATION REFORM
Marquet (2015) confirmed the need for reform noting that the current volume of
judicial review is destructive of speed, certainty and affordability. He also noted that
the improvement of SOP regimes requires the achievement of just outcomes, not
merely fast or cheap ones. Having summarised the key developments and proposals to
date with respect to the various Australian legislation, this paper now turns its
attention to the future by proposing a roadmap towards the destination of optimising
the statutory adjudication of complex payment disputes in Australia. This roadmap
starts from a well-established position based upon the government and academic
literature to date, the shortcomings of the existing East and West Coast model
adjudication schemes, and consequent need for a better designed adjudication scheme
to determine complex payment disputes. As such, rather than retracing the need for an
improved adjudication scheme, the roadmap aims to move forward the research by
identifying five key areas (or pit stops) from the relevant literature where it is
contended that empirical research is now needed in order to realise the destination of
an optimal adjudication scheme for complex payment claims. The key research areas
â selection of Qld model as a benchmark, criteria of complex disputes timeframes,
appointment and regulation of adjudicators, powers of adjudicators and merits review
systemâ are discussed below. The discussion includes a justification of each issue as a
research area, and an exploration of the various options available to address the issues
sometimes even putting forward hypotheses for the research. At this preliminary
stage, this roadmap represents somewhat of a âblunt instrumentâ, and intended to
proffer an âaunt Sallyâ for feedback in order that the roadmap be refined for
subsequent use by the lead author as the basis for his PhD research.
Queensland Model as a Benchmark
It does not make sense to reinvent the wheel and leave the efforts of other legislatures
and scholars behind. As a start point of the roadmap, the Authors are of the opinion
that the Qld model is deemed the most appropriate benchmark to deal with complex
payment disputes because of the reasons mentioned earlier such as the appointment
process of adjudicators and the new mechanism to deal with complex claims. Having
said that, it may be too early to judge the effectiveness of the Qld model, so a case
study will be undertaken to evaluate the performance of the Act in its recent form to
have certainty of the improved outcome. Also, there is still a great opportunity to build
upon the current features of Qld model and enhance certain areas relating to complex
claims by considering the remaining pit stops down the road as follows next.
Criteria of Complex Disputes Timeframes
Since SOP was successful in dealing with simple and small claims, it is quite
important to maintain such strength and draw the line, so complex claims can have a
different process within the legislation. Table (1) below shows the distribution of large
claims in major Australian States. As part of the proposed measures in this study, the
6. Skaik, Coggins and Mills
98
cap of complex claims should be reduced to $500,000 instead of $750,000 which will
capture a bit more applications of likely complex nature (e.g. 3% more as in Qld) and
tie it with the claims categorizing of annual reports for accessible data monitoring.
This monetary value is distilled from the NSW Home Building Act, which limits the
jurisdiction of Tribunal to review building disputes up to $500,000,9
otherwise, the
claim should be dealt with by a district court or a supreme court. This limitation of
jurisdiction reflects the nature of complexity and substantial economic substance of
claims exceeding this amount. Also, a sliding scale of time limits should be developed
for claims larger than $500,000, so the larger the claim, the longer the timeframe of
adjudication decision to avoid the pitfall of âone size fits allâ approach. A nice
proposal of such sliding scale has been already developed by ALRS (2014: 65) and
deemed a good start point of research to establish reliable and deliberate time limits.
Table 1: Distribution of large adjudicated claims in Australia 10
Claim amount NSW QLD WA
Years 2012 2013 2014 2012 2013 2014 2012 2013 2014
< 100,000 73% 78% 74% 78% 71% 73% 49% 44% 29%
100-499,000 20% 16% 22% 11% 16% 14% 32% 25% 35%
â„ 500,000 7% 6% 4% 11% 13% 13% 19% 31% 36%
Furthermore, complex claims should include smaller claims with a defined cap
between $100,000 and $500,000 but this consideration should be only decided by the
Registrar following the complexity criteria explained below. The minimum proposed
threshold of $100,000 ensures that more than 70% of applications will be adjudicated
under the original scheme. Also, Department of Services Technology and
Administration (2010) considers simple claims lower than $100,000. This threshold
replicates the same limits in Victoria for having adjudication determination
reviewed.11
According to his second reading speech, his Honour Madden (2006)
confirmed that such limit is given in order not âto disadvantage small subcontractors
who rely on prompt payment to stay in businessâ. This proposal will ensure that
considerable percentage of subcontractorsâ claims of complex nature against head
contractors will be likely dealt with, in similar fairer proceedings to the corresponding
claims served by head contractors against their own principals. The complexity
criteria for claims ranging from $ 100,000 to $500,000 should include the volume and
nature of documents, inclusion of expert reports, the nature of disputed matters such
as damages, breach of contract, prolongation claims, legal matters, latent conditions,
changes in regulations etc. Ultimately, the above proposed thresholds and criteria of
complex claims will be subject to further consultation with the industry stakeholders.
Appointment and Regulation of Adjudicators
Although the Qld Reform replacing ANAs with a single governmental registry was
necessary to remove the apprehended bias, it does not appear to resolve the problem
of bias where Qld Government is part of adjudication. This issue was highlighted by
the Parliamentary Committee (2014) who suggested to seek an alternative to the new
appointment process should the Government becomes involved in Adjudication. Such
alternative might be naming one of the reputed abolished ANAs such as IAMA in the
relevant regulation for this purpose. The Qld Policy for selecting and grading
9
See s 48K of Home Building Act 1989 - NSW
10
Note: In the annual reports, WA adopts calendar year while NSW and Qld adopts financial year. Also, for 2013, the table
considered the first two quarters to work out the NSW percentage which might change upon the release of the annual report.
11
See s 28A (a) of Vic Act.
7. Roadmap to optimise adjudication
99
adjudicators12
is an excellent tool but needs further pragmatic improvement to
increase the quality standards of adjudicators dealing with complex claims. For
instance, the Registrar, once receives both adjudication application and relevant
response, should decide the time limits of adjudication decision based on the size
and/or complexity of claim in accordance with the above criteria as soon as possible.
Then, the Registrar can refer the case to a prospective adjudicator with a copy to both
parties stating whether the claim is simple or complex and fix the relevant time limits
in the referral notice.
The Registrar should take all possible measure to ensure that the nominated
adjudicator is competent enough to reach just outcome within the stated time limits.
The prospective adjudicator must adhere to a specific code of conduct developed by
the Registrar replicating its counterpart of Singapore Mediation Centre (SMC) such as
raising any actual or apprehended conflict of interest before accepting nomination and
undertaking to adhere to the time limits13
. To have some flexibility, the adjudicator
may formally request additional specific time from the party referring the claim to the
Registrar in order to accept nomination. The adjudicator must notify the Registrar and
both parties of his acceptance or decline within four days of receiving the referral
notice. During proceedings, the adjudicator must dismiss the application if satisfied
that it is not possible to fairly reach a decision within the available time limits because
of the complexity of the case.14
On the other hand, adjudication training should include a compulsory legal training
for adjudicators who do not possess appropriate legal qualifications, while lawyers
with no proven construction experience should have another compulsory training in
construction technology, programming and quantity surveying. Yung et al. (2015)
addressed the necessity of legal training in Western Australia due to the fact that many
submissions for complex claims are prepared by lawyers. To be eligible to adjudicate
complex claims, minimum years of experience should be expressly stated but not less
than 10 years in dispute resolution and local construction experience. Also, a system
for compulsory Continuous Professional Development (CPD) for active adjudicators
should be established as recommended by the Wallace (2014:236). Evans (2014) also
requested submissions on the necessity of the CPD requirements as part of the review
of the WA Act. It is argued that imposing CPD will ensure that adjudicators are well
informed and up to date with the relevant development in case law.
Unsatisfactory adjudicatorâs performance should be closely monitored and formally
recorded. A complaints system similar to that of SMC15
should be established and
serious investigation should be carried out by the Registrar which may result in
imposing a disciplinary action on non-performing adjudicators including formal
warning or suspension of registration. Any voided adjudicatorâs decision under any
Australian Act should be seriously scrutinized. Where the reasons for voiding the
decision include lack of good faith or substantial errors, the registration of the
concerned adjudicator should be temporarily suspended till he undertakes an ad-hoc
compulsory training with examination. Should the same adjudicator got another
decision voided within five years of the first voided decision, the Registrar may cease
12
Ibid no. 7
13
See (clauses 1,2 and 10), Adjudicator Code of Conduct, Adjudication under the Building and Construction industry Security
of Payment Act (Cap 30B) (Rev Ed 2006), Singapore Mediation Centre
14
See Balfour Beatty Construction Ltd v Lambeth London Borough Council [2002] EWHC 597 at [36]
15
See (clause 9) of Adjudicators Code of Conduct, Singapore Mediation Centre
8. Skaik, Coggins and Mills
100
renewal of registration or cancel it.16
The Qld model uniquely states that the
adjudicator would NOT be entitled to recover his adjudication fees if his decision was
overturned by a competent court on grounds of lack of good faith17
. However, it will
be advantageous to include quashed decisions for other substantial errors to limit the
influence of legislatorâs support and give adjudicators more incentives to turn their
minds intellectually into the cases before them. However, it may be too irrational to
waive the whole fees, so proportionate fee deduction may be decided by the Registrar
in favour of the aggrieved party.
Adjudicator's Powers
Complex claims commonly involve various sophisticated technical or legal issues,
whereas most of eligible adjudicators canât practically possess such collective
expertise to turn their minds reasonably into all presented arguments. Therefore, in
any complex claim, the adjudicator should be equipped with inquisitorial powers
similar to adjudicator's powers under the UK model such as taking the initiative to
ascertain facts and law, engaging experts and receiving and considering oral evidence
in conferences.18
To clarify and refine the proposed powers further, the adjudicator
should be allowed to use his own knowledge and experience but should request
further submissions from the parties on such opinion or any other issue to ensure
fairness. However, he should be empowered to give deadlines and limit the length of
submissions. He should allow legal representation in conferences but should be
limited as the adjudicator finds appropriate for efficient conduct of proceedings and
avoiding unnecessary expenses19
. To avoid the shortcoming of dealing with expert
reports as mentioned by Skaik et al (2015) or where the differences between experts
are enormous, the adjudicator should call for a conference with experts and conduct
hot tubing, in which both experts are examined concurrently and allowed to cross
examine each other. Atkinson and Wright (2014) argued there is no reason why such
arrangement is not implemented in adjudication where the adjudicator can receive live
expert evidence. If the adjudicator found it necessary to request further submissions,
engage experts, arrange testing or conduct conference, he may request an additional
time (up to 5 business days) from the referring disputant only to avoid potential tactics
of some respondents who may not have the same claimantâs incentive to reach reliable
and robust outcome. Sheridan and Gold (2014) noted that when that party does not
approve such additional time, the adjudicator should resign if it is unfeasible for him
to reach sound outcome and he should warn the applicant about this possibility when
requesting the additional time. These provisions will not only improve the procedural
fairness but also help adjudicators understand complex legal or technical matters, so
the soundness and reliability of the adjudication outcome will be definitely improved.
Review of adjudication decisions
Marquet (2015) noted that although the Full Court supports Supreme Courts in
remitting invalid adjudications, even if the legislation is silent about it, to the original
adjudicator, it is not preferable option being lengthy, complicated and against the
intent of the legislation. According to ALRS (2014: 67), it is preferable to keep any
merits review process away from expensive prerogative writ proceedings that
undermine adjudication by raising jurisdictional issues leaving the actual disputes
16
This approach adapted from 'Code of Conduct for Authorised Nominating Authorities', Building and Construction Industry
Security of Payment Act 2009, South Australia.
17
S 35(6) Qld Act.
18
See (s13, part 1), Scheme for Construction Contracts Regulations, UK.
19
See s 67, Construction Contracts Act 2002, New Zealand
9. Roadmap to optimise adjudication
101
unresolved. The availability of informal review in the WA20
and Victoria21
do not
address these concerns as the review is limited to few jurisdictional issues rather than
the merits of the dispute. To control the overall cost and improve the finality and
informality of statutory adjudication, judicial review should be reduced as practical as
possible by establishing a fast track internal review system of the merits of
adjudication decisions. The Singapore model is the only statutory adjudication regime
which provides such excellent mechanism for aggrieved respondents22
. According to
Christie (2010), such mechanism is worth serious consideration by Australian
Parliaments envisaging reform of their existing schemes. According to the SG Act, the
respondent must pay the adjudicated amount to the claimant in the first place to be
entitled to apply for review.23
The respondent may apply to the ANA for the review
within 7 days24
of obtaining the adjudication decision if the adjudicated amount
exceeds the relevant response by $100,000 or more. The ANA should appoint one
adjudicator or a panel of three adjudicators if the difference exceeds $1 Million.25
The
adjudicator(s) must issue the decision within 14 days26
.
To refine and harmonize the inclusion of this system within the roadmap, the review
should be further limited to complex claims as defined earlier. The respondent should
not appeal the original adjudication decision in court unless having the case reviewed
by this mechanism in the first place.27
Also, the review adjudicator should be selected
from the next higher category in the grading scale. The panel of adjudicators should
be only needed if the original decision was issued by a senior adjudicator with the
highest grade. The review adjudicator(s) must issue the decision within an equivalent
timeframe to that of the original adjudicator under the legislation. The identity of the
original adjudicator should not be disclosed to the review adjudicator(s). It is worth
noting that the proposed review system may not be urgently required if all the
previous pit stops of the roadmap are adopted in the legislation. The review system
acts as a safety net that will not only improve the accessibility, certainty and precision
but also increase the confidence in the final outcome avoiding lengthy and expensive
legal proceedings in arbitration or court on the same payment dispute.
CONCLUSION AND FURTHER RESEARCH
Recently, statutory adjudication in Australia has received increasing criticism
regarding its unsuitability to deal with technically and legally complex payment
claims, where adjudicators are under pressure to consider substantial volumes of
submissions in very tight timeframes. Criticisms have been directed at, inter alia,
adjudicatorâs appointment and regulations, procedural fairness, jurisdictional powers
and lack of finality. This paper reviewed the features of successful binding dispute
resolution in the context of complex claims which include procedural fairness,
accessibility (speed and affordability), finality and informality. Then, it briefly
reviewed the evolution of Australian SOP regimes. Finally, the paper proposed the
Qld model as a benchmark for the envisaged roadmap to effectively deal with
complex payment disputes with proposed measures of further improvement.
20
S 46, WA Act.
21
S 28 (b) of Vic Act.
22
S 18, Building and Construction Industry Security of Payment Act 2004-Singapore âSG Actâ
23
S 18 (3) SG Act
24
S 18(2) SG Act
25
See S 10(1) the Building and Construction Industry Security of Payment Regulations 2005.
26
S 19(3) SG Act
27
See RN and Associates Pte v TPX Builders Pte Ltd [2012] SGHC 225 at [61] where the appeal on grounds require the re-
opening of the merits of the case was rejected since the review system was not invoked first.
10. Skaik, Coggins and Mills
102
The paper asserts the need for further investigation to ensure the Qld model will lead
to a better overall outcome. The Authors propose specific pit stops for the roadmap to
improve the Qld model drawing upon the collective strengths in other legislations and
commentaries. The measures include establishing criteria of timeframes of complex
disputes, improving the appointment and regulation of adjudicators, equipping
adjudicators with inquisitorial powers and creating a system to review the merits of
adjudication decisions adapted from Singapore model. The paper findings are
presented as blunt instruments or hypotheses to inform the subsequent empirical
research which the authors are currently undertaking to further investigate, strengthen
and validate the proposed pit stops in order to optimise the statutory adjudication of
complex payment disputes in Australia.
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