The conventional meaning of the term ‘adjudication’ is settling a conflict between parties by a person of authority. In a narrow sense, it is deciding upon cases and referrals by judges or arbitrators. In a wider sense, any person or tribunal who decides upon rights and obligations of subjects can be regarded as involving themselves in the adjudication process. Thus an administrative tribunal in an official enquiry, or a school principal who decides upon a quarrel among school children, falls within its purview.

Construction adjudication as embodied in the FIDIC standard forms is a mechanism of resolving disputes between the contracting parties. In contrast to the conventional adjudication, which is a judicial or an administrative process, construction adjudication is merely a contractual arrangement. Yet, a Construction Adjudicator sits to decide upon rights and obligations of the contracting parties when adjudicating a dispute, and hence the basics of the discipline remain the same.

This article attempts to present some views of the writer on adjudication, with special attention to construction adjudication.

As regards to the procedure, there are two main divisions among the countries in the world; namely the accusatorial (adversarial) procedure and inquisitorial procedure. Accusatorial procedure is practiced in the so called common law countries, and in that procedure the judge sits as a referee. The parties (usually through their Attorneys) pursue on their cases with making submissions, examining witnesses, setting forth arguments and so on. In contrast, in the inquisitorial procedure the judge takes an active role and steers the search for evidence, examines the witnesses and enquires into the facts. Attorneys play a rather passive role.

With regard to arbitral proceedings, the parties are normally free to choose the procedure as concept of ‘Party Autonomy’ serves as the cornerstone of arbitration in the common law countries. The Sri Lankan Arbitration Act aptly recognizes this position.

Arbitral proceedings in Sri Lanka normally adopt accusatorial procedure. Reference is often made to ‘ad-hoc procedure or ‘institutional procedure’, but this should be distinguished from the two basic divisions stated above. It merely refers to timing or agenda of proceedings: In ad-hoc procedure, the parties decide the agenda as the proceedings progress, whereas in institutional procedure, the parties agree to adopt rules of procedure laid down/ published by an arbitral institution.

Construction Adjudication too is a matter of contract; tripartite contract/s are made among the DB Member/s and Parties to the construction contract. The Procedural Rules (PRs) are annexed to the General Conditions (GC) of DB Agreement. Accordingly, the DB possess authority to establish/ adopt suitable procedures avoiding unnecessary delays/ expenses, to adopt an inquisitorial procedure, to take initiative in ascertaining the facts, to conduct a hearing, to call written documentation/ arguments before or at the hearing, and to proceed the hearing ex-parte if need arises (PRs 5,6,7,8).

The state judiciary is paid by the state and is thus independent of the litigants; the laws regarding to the procedure as well as the substance are well laid down/ established. Accordingly, the principles of natural justice, due process, considering all relevant facts and exclusion of irrelevant facts, deduction of the decision/ judgment on objective criteria are ensured. By virtue of their holding judicial offices, judges in common law jurisdictions are immune from personal liability for judicial wrongdoing.

Arbitrators are professionals providing services, and do not hold regular office as judicial officers. Yet, their function has been consistently identified as quasi-judicial by the English Courts and they are expected to act judicially. Yet, this may not obviously be to the same extent as expected from formal judges. For example, the Practice Guideline 9 of the Chartered Institute of Arbitrators states that there is no requirement that the Arbitrators must act judicially in the sense that they should follow the same principles as adopted by Courts in making order for costs. In fact, the requirement to act judicially is interpreted liberally and has even been held applicable on administrative tribunals who decide on rights and obligations of subjects. Acting judicially infers a higher standard than acting fairly. The Section 15 of the Sri Lankan Arbitration Act requires the arbitrators to act impartially, expediently and to ensure due process. The Sub-section 25(2) requires the Arbitral Award to be reasoned. The Section 45 provides that an arbitrator shall not be liable for negligence but shall be liable for fraud in respect of anything done or omitted to be done. Such immunity operates as an exception for liability under negligence.

The arbitrators also owe certain ethical duties; they include duties of disclosure, devotion of sufficient time for expedient disposal of the reference, to act without bias etc...

With regard to construction adjudication as envisaged in the FIDIC forms of contract, the following paragraphs attempt to highlight the salient features in respect of duties of adjudicators.

Meting out justice is a delicate task in the mundane world. It might be prudent for the tribunals sitting in ADR to be conscious of the notions of acting judicially in the conduct of proceedings. In construction adjudications, the DB is empowered to make its own inquiries and to adopt inquisitorial type of procedure. It is submitted that a DB should take serious caution in such endeavor because it amounts to taking/ blending pieces from the two systems of procedure: For instance, even when the adjudicator finds lack of evidence by one party and queries for such, it might perhaps cause unfairness to the other party. It may be conservative enough for the DB to limit its own enquiries to find such facts that are not required to be proved in a trial before a court of law. Those are described in the Evidence Ordinance (Section 57) and include all laws and public acts passed by the Parliament.

The parties to construction contracts essentially employ professionals and they also have duty to act without negligence. The writer believes that what is first perceived in the minds of a disputant are issues, though in a rudimentary shape; therefore, it is suggested that the Claimant first jot down the main issues and develop the Statement of Dispute (SOD). Similarly, the Respondent ought to study the SOD, and develop the Statement of Response. Both parties owe the duty to furnish sufficient evidence and argumentation to support their positions.

The writer wish to suggest the following scheme in respect of conducting of construction adjudication;

The writer hopes that the foregoing will be viewed critically by the concerned.