As an adjudicator is acting in a quasi-judicial role in making a determination affecting parties’ rights under a construction contract, it is imperative that the adjudicator carries out his/her functions under the Act in a highly ethical manner and otherwise in strict conformity with the requirements of the Act.
WHAT IS REQUIRED OF ADJUDICATORS
No Conflict of Interest:
A person cannot serve as an eligible adjudicator in any payment dispute where the person has any financial interest (except the adjudicator’s normal fees) or other interest in the outcome of the particular dispute. The adjudicator should disclose as soon as possible any situation which may give rise to a conflict of interest.
In particular, an adjudicator who is a member or director of a company or industry association retained by any party to the dispute should not act as adjudicator without the fully informed consent of the parties.
An adjudicator must always maintain impartiality during the adjudication process towards the parties and their representatives (if any) involved in the dispute.
Impartiality means freedom from favouritism or bias in word or action towards a disputant party.
Furthermore, an adjudicator is not to play an adversarial role and must maintain an even-handed approach towards all parties involved. An adjudicator should not become an adviser to any of the parties.
If the adjudicator believes that his/her background or personal experiences or relationships would prejudice the adjudicator’s role or detract from his/her impartiality, the adjudicator must withdraw from the adjudication, unless all parties agree to proceed after full disclosure of all relevant facts relating to the issue of neutrality.
If the adjudicator had at any time prior to the adjudication provided any services (eg. legal, consulting or commercial) or had any social or professional relationship with any of the parties, he/she cannot proceed with the adjudication. However, if after full disclosure, all parties to the adjudication agree, the adjudication may proceed.
In considering the submissions, accompanying supporting documents, information and comments of the parties in dispute and in formulating a determination, an adjudicator must be objective. This entails the Adjudicator being free from subjective personal feelings, including notions of justice and fairness.
In this regard, the Act specifically limits the adjudicator in making a determination to only considering the following:
- the provisions of the Act;
- the provisions of the relevant construction contract giving rise to the dispute;
- the payment claim and all submissions, including relevant documentation provided by the claimant;
- the payment schedule of the respondent and all submissions, including relevant documentation provided by the respondent; and
- results of any inspection carried out by the adjudicator.
An adjudicator's decision must disclose proper analysis, objectivity and regard only to those limited matters referred above.
Compliance with the Act:
An adjudicator must comply with the requirements of the Act and regulations (if any).
Conscientious and Diligent:
An adjudicator should carry out his/her task in a conscientious and diligent manner.
The fee charged for the adjudication of any matter will be reasonable and not excessive.
DECLARATION BY ADJUDICATOR
Prior to the referral of an adjudication, Adjudicate Today provides the adjudicators with party details and requires the adjudicators to provide a written advice to the effect that:
- they have not had any connection with the contract which is the subject of the adjudication application;
- they have not had any connection with either of the parties which is likely to give rise to a perception of conflict of interest eg. association memberships, social or family relationship, employment, business, shareholdings;
- if they previously had an adjudication to which either party to the current application was a party, nothing occurred which could cause either party to reasonably consider that they may not determine this application with complete impartiality; and
- they do not have any conflict of interest.
MAKING A COMPLAINT
From time to time parties may consider that an adjudicator has breached our code of ethics and wish to complain.