Open Up, Revise and Review in Adjudication.

Posted on 23/02/2018 · Posted in Adjudication

Adjudication is a way of resolving disputes in construction contracts, and has been widely used by the construction industry in the UK since the introduction of the Housing Grants, Construction and Regeneration Act (the Construction Act) in 1996. Adjudication is seen as an extremely successful way to resolve disputes efficiently and cost effectively avoiding the need to commit large amounts of time, money or resources.

When a construction contract has been fully completed, a final certificate is issued by the contract administrator to confirm to that effect. In the course of the work being carried out subject to the contract, interim certificates may also be issued which outline work completed to date and may request interim payment. Any of these certificates may be challenged by a party in the case where they believe work has not been completed subject to contract or is incomplete in any way, or if there are disputed facts or technical points disagreed with (for example work has not been carried out to the contractually agreed specification).

The only use of an obstacle is to be overcome. All that an obstacle does with brave men is, not to frighten them, but to challenge them.”
Woodrow Wilson

This challenge of a certificate may be referred to as ‘open up, revise and review’ – terminology used in reference to construction industry disputes where an adjudicator may have the right to do exactly this – open up, revise and review a certificate that is being challenged in an adjudication dispute.

When a construction contract is challenged, the courts have an inherent jurisdiction to open up, revise and review certificates under construction contracts. An adjudicator’s authority to open up, revise and review a certificate is not however explicitly outlined in the 1996 Construction Act, so without specific terms outlined in the contract, an adjudicator or arbitrator would not have such powers given his or her jurisdiction is limited to the ‘dispute’ defined by the parties in the notice of adjudication. However most standard modern day contracts do give adjudicators these powers, and the Scheme for Construction Contracts (England and Wales) Regulations, known as the Scheme, also states that this jurisdiction is in the adjudicator’s hands.

It is important to remember that the entire adjudication process is subject to the overall supervision of the courts, and that despite the adjudicator’s powers, it is still the courts that will generally be the place where decisions are enforced.

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