Adjudication practice and procedure

This subtopic provides practical guidance and precedents in relation to construction adjudication proceedings. For guidance on enforcing or challenging an adjudicator’s decision, see subtopic: Adjudication enforcement and challenges.

Practice Notes

The right to adjudicate:

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The right to adjudicate
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Adjudication—is there a ‘dispute’?
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Adjudication—requirements for a ‘dispute’—key cases
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Introduction to adjudication clauses and procedures
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Benefits and risks of adjudication

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International arbitration (Tecnimont, KT-Kinetics Technology v TotalEnergies EP Italia)

Arbitration analysis: The Paris Court of Appeal dismissed a challenge to partially annul an ICC partial award arising from an EPC project dispute, holding that the tribunal’s decision to bifurcate proceedings on a ground not raised by the parties does not exceed its mandate where the applicable rules permit bifurcation. The court also dismissed challenges based on due process and international public policy, emphasising that the parties had ample opportunity to debate the bifurcation. This decision confirms the broad discretion afforded to arbitral tribunals in procedural management and the high threshold for annulment on this ground. Practitioners in construction and energy disputes should advise clients on bifurcation strategy early, as challenges to such decisions rarely succeed. Written by Clément Fouchard, partner at Reed Smith, and Mathilde Adant, associate at Reed Smith.

Construction adjudication, assignment of claims, insolvency, waiver, and jurisdiction in enforcement (Eden Homes (Scotland) 2 v Southside Veterinary Clinic)

Construction analysis: The court rejected Southside’s argument that the appointment of a provisional liquidator of the original contractor company defeated the assignment of the original company’s claim and prevented Eden Homes from bringing the claim. Instead, the court confirmed that no automatic vesting of the claim to the provisional liquidator occurred on such an appointment following the insolvency of the original contractor and that the earlier assignment of the claim to Eden Homes’s predecessor remained effective, thereby securing Eden Homes’ right to make the claim. The court also held that the adjudicator had jurisdiction to award interest, emphasising that a responding party in an adjudication must raise a clear and specific jurisdictional challenge; mere participation with general reservations is insufficient. The judgment clarifies the limits of a liquidator’s powers over a company’s assets and reinforces the principle that adjudication jurisdiction challenges must be explicit and timely. Written by Jonathan Pawlowski, partner at Howard Kennedy LLP.