HGCR Act 1996 - Enforcement of Adjudicators Decision© Daniel Atkinson 2001 02 October 2001
SUMMARYAn Adjudicator’s decision can be enforced by summary procedure through the Courts. Provisions in the contract for the validity of an Adjudicator’s decision to be decided in arbitration will not prevent the decision being enforced in this way.1. Possible Stay to ArbitrationSection 9 of the Arbitration Act 1996 at Section 9(4) requires the Court to grant a stay if applied for. This applies notwithstanding that the matter is to be referred to arbitration only after exhaustion of other dispute resolution procedures Section (9)(2). If the arbitration clause is drafted to require any dispute on the Adjudicator’s decision to be decided in arbitration then this could significantly delay enforcement of the decision. In Macob Civil Engineering Ltd -v- Morrison Construction Ltd (1999) TCC the validity of the Adjudicators decision had been referred to Arbitration, and the Defendant sought a stay of the enforcement proceedings under Section 9 of the Arbitration Act 1996. The reason for this was obvious, since the contract also provided that Arbitral proceedings should not be commenced before practical completion of the sub contract works. This was dealt with robustly by the Court. It was held that in this situation the defendant had two options. The first was to defend the enforcement proceedings on the basis that the purported decision was not binding or enforceable because it was invalid. In the present case this argument failed. The second option was to refer the dispute to Arbitration. What the Defendant could not do was to assert that the decision was a decision for the purpose of a reference to Arbitration, but not a decision pending any revision by the Arbitrator. It was held that once the defendant elected to treat the decision as one capable of being referred to Arbitration, he was bound also to treat it as a decision which was binding and enforceable unless revised by the Arbitrator. The stay was therefore refused. Section 111(4) provides that an adjudication decision which requires that an amount should be paid, is to be construed as requiring payment not later than either (a) seven days from the date of the decision, or (b) the final date for payment, whichever is the later. This creates a separate right to payment which it is suggested could be enforced in the normal way through the Courts. 2. Performance of Decision - The SchemeParagraph I.21 requires the parties to comply with the decision of the Adjudicator immediately on delivery of the decision to the parties. The Adjudicator may however give directions in his decision for the time for performance. Paragraph I.23(1) allows the Adjudicator, if he thinks fit, to order in his decision any of the parties to comply peremptorily with his decision or any part of it. Paragraph I.24 incorporates Section 42 of the Arbitration Act 1996 with modifications, in the following terms, and allows the peremptory order to be enforced by the Courts:
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