REUTERS | Ahmad Masood

Repeatedly appointing the same adjudicator

Last month I wrote about parties subsequently appointing an adjudicator as their expert, and the potential for the adjudicator/expert to be, or appear to be, biased. It was interesting that the post attracted two comments, with each one putting one side of the argument in a situation where the adjudicator was subsequently invited to act as a solicitor for one of the parties.

That got me thinking about situations where the adjudicator is appointed multiple times, either by the same parties on one project, or by one party on different projects.

Multiple appointments are common

It is quite common for the same adjudicator to be appointed either by the same parties on one project, or by one party on different projects. This may arise for a number of reasons:

  • The nature of the dispute. It’s an obvious thing to say, but if the dispute is about, say, design, you may want an architect/engineer.
  • Whether you are named in the contract as the adjudicator. I’m not sure how often parties name one or more individuals as potential adjudicators but, if they do, it increases the likelihood of a multiple appointment.
  • Something more subjective, like the referring party thinks more highly of you because you have previously reached a decision that favoured it, and so the nominating body was asked to appoint you.

The pros and cons of multiple appointment

From where I sit in the middle of the parties’ dispute, I think the pros of multiple appointment (especially on the same project) probably outweigh the cons. For me, the key issue is that in any subsequent adjudication, the adjudicator will have a working knowledge of the project and will get up to speed pretty quickly. This may have the knock-on effect of a costs saving for the parties. (It may be no coincidence that other types of ADR, like dispute boards, also operate in this way.)

While one party may be aggrieved with a previous decision, as a generality, I think parties are likely to be comfortable knowing the adjudicator may have heard another dispute between them, especially if they have confidence in the adjudicator’s ability. In practice, I assume the reason adjudicators are named in contracts, or repeatedly requested, is because the party/parties consider the adjudicator to be sound.

Multiple appointments are not the “golden egg”

However, multiple appointments are not always the answer. Sometimes you have to decline a multiple appointment. This can sometimes arise in the “one party on different projects” situation.

Usually you decline an appointment, not because there is an allegation of bias, but because the multiple-appointment scenario starts to look like you may be biased. After all, when, as part of the conflict checks, you tell the responding party that you have acted as the adjudicator in X disputes that have involved the referring party, that is all they see. There is no space on the form that requires you to also say what the result of those adjudications were.

I have declined to accept appointments as a result of being uncomfortable with the perception that I might be favouring a particular firm. For example, in a situation where I had acted as the adjudicator on a number of occasions when the firm was taking the same issue/point in respect of its terms of appointment. At some point, enough is enough. However, thankfully this point isn’t reached very often.

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