Coulson J said: ‘The law on this topic is clear. Jurisdictional issues often arise during the course of an adjudication, and it is usually sensible for the parties to ask the adjudicator to investigate the issue and state his conclusion. But, unless the parties have also agreed to be bound by the result of the adjudicator’s investigation into his own jurisdiction, his ruling on that issue will not be determinative, and the challenger can defeat any subsequent enforcement proceedings by showing a respectable case that the adjudicator had reached an erroneous conclusion as to jurisdiction: see, in particular, paragraph 10 of the judgment of May LJ in Pegram Shopfitters Limited v Tally Weijl (Uk) Limited [2003] EWCA Civ 1750.
Accordingly, there needs to be either an express agreement between the parties that the adjudicator’s decision on jurisdiction is to be binding or, at the very least, an implied agreement to the same effect, which may arise where the objecting party fails to reserve its position, or there has been a unilateral waiver of any jurisdictional objection. In both JW Hughes Building Contractors Limited v GB Metal Work Limited [2003] EWHC 2421 (TCC) and Nordot Engineering Limited v Siemens Plc [2001] CILL 1778, the court found an ad hoc agreement between the parties that they would be bound by the adjudicator’s decision as to jurisdiction, but such cases are rare. Generally speaking, as Dyson LJ put it in Amec Projects Limited v Whitefriars City Estates Limited [2004] EWCA Civ 1418, ‘the ‘decision’ of an adjudicator as to his jurisdiction is of no legal effect and cannot affect the rights of the parties . . .”
Judges:
Coulson J
Citations:
[2010] EWHC 837 (TCC), [2010] BLR 452, [2010] CILL 2865, [2011] Bus LR D42, 130 Con LR 90
Links:
Cited by:
Cited – Aedifice Partnership Ltd v Shah TCC 10-Aug-2010
The defendant challenged the arbitration enforcement saying that there had been no contract and therefore no jurisdiction for the arbitration. . .
Cited – Alexander and Law Ltd v Coveside (21BPR) Ltd TCC 12-Dec-2013
The claimant sought to enforce an arbitration award. The respondent resisted, saying that the claimant faced unresolved insolvency proceedings, and may be unable to repay any sum later found due. . .
Lists of cited by and citing cases may be incomplete.
Construction, Arbitration
Updated: 17 August 2022; Ref: scu.412289