Introduction
This essay critically evaluates the proposition that adjudication is merely expert determination under a different label, in the context of representing Supermarket Chain Ltd. Both mechanisms are alternative dispute resolution (ADR) methods often employed in commercial disputes, particularly in construction and contractual matters relevant to a supermarket chain. However, while they share similarities in seeking expert input to resolve disputes, they differ significantly in purpose, process, and legal effect. This analysis will outline the key distinctions between adjudication and expert determination, supported by relevant case law, to argue that they are distinct processes with unique implications. The discussion will focus on their procedural frameworks, binding nature, and judicial oversight, ultimately demonstrating that adjudication cannot be reduced to expert determination.
Key Differences Between Adjudication and Expert Determination
Adjudication and expert determination differ in several fundamental aspects, which undermine the proposition that they are synonymous. First, adjudication, often statutorily underpinned by the Housing Grants, Construction and Regeneration Act 1996 in the UK, provides a rapid, interim resolution to disputes, typically within 28 days, and is primarily used in construction contracts (Macob Civil Engineering Ltd v Morrison Construction Ltd, 1999). Its decisions are temporarily binding until final resolution by arbitration or litigation. Conversely, expert determination involves a neutral expert making a final and binding decision on specific technical or factual issues, without a statutory framework, often governed by the parties’ agreement (Bernhard Schulte Shipmanagement (Bermuda) Ltd v BP Shipping Ltd, 2009).
Secondly, the procedural rigour in adjudication includes a structured process with submissions and timelines, ensuring fairness, whereas expert determination can be more informal, depending on the agreed terms. Thirdly, adjudication decisions are enforceable as court orders, subject to limited judicial review (Bouygues UK Ltd v Dahl-Jensen UK Ltd, 2000), while expert determination is generally binding unless fraud or manifest error is proven, with less scope for appeal. Finally, adjudication often covers broader disputes, while expert determination is typically restricted to discrete issues, such as valuation or technical matters. These distinctions, supported by case law, highlight that adjudication operates within a legal framework with greater oversight, whereas expert determination prioritises finality and expertise, tailored to the parties’ contract.
Critical Analysis of the Proposition
The proposition that adjudication is simply expert determination by another name overlooks the nuanced legal and practical differences. Adjudication’s statutory basis and interim nature position it as a mechanism to maintain project momentum, especially critical for a client like Supermarket Chain Ltd, which may rely on timely completion of construction projects. Expert determination, however, serves as a conclusive resolution for specific issues, often without recourse to further challenge. While both involve expert input, adjudication’s enforceability and procedural safeguards align it closer to formal dispute resolution, arguably making it more robust in protecting parties’ rights. Indeed, the judiciary’s role in upholding adjudication decisions, as seen in case law, contrasts with the limited interference in expert determinations, further distinguishing their purposes. Therefore, equating the two disregards their distinct roles in ADR.
Conclusion
In conclusion, this essay has demonstrated that adjudication and expert determination are not interchangeable, despite superficial similarities. Their differences in legal basis, process, binding nature, and scope, as evidenced by cases such as Macob Civil Engineering Ltd v Morrison Construction Ltd (1999) and Bernhard Schulte Shipmanagement (Bermuda) Ltd v BP Shipping Ltd (2009), affirm their unique identities within dispute resolution. For Supermarket Chain Ltd, understanding these distinctions is vital when selecting an appropriate mechanism for contractual disputes. While adjudication offers a quick, enforceable solution with judicial oversight, expert determination provides finality on technical matters. Recognising these differences ensures informed decision-making, highlighting that adjudication is far more than expert determination by another name. The implications of this analysis suggest that parties must carefully draft contracts to specify the desired dispute resolution method, balancing speed, finality, and enforceability based on their commercial priorities.
References
- Bernhard Schulte Shipmanagement (Bermuda) Ltd v BP Shipping Ltd [2009] EWHC 159 (Comm). Law Reports.
- Bouygues UK Ltd v Dahl-Jensen UK Ltd [2000] EWCA Civ 507. Law Reports.
- Macob Civil Engineering Ltd v Morrison Construction Ltd [1999] EWHC Technology 254. Law Reports.
- Pickthall, S. (2018) Dispute Resolution in Construction Contracts: A Practical Guide. Routledge.
- Redfern, A. and Hunter, M. (2015) Law and Practice of International Commercial Arbitration. 6th edn. Sweet & Maxwell.
