Nominating An Adjudicator – Getting It Right

Summary and implications

Choosing the right adjudicator to decide your dispute can be one of the most important and difficult aspects of the adjudication process. All too often the referring party proposes the name of an adjudicator, who is then declined by the responding party due to some deep seated (and most probably unfounded) suspicion that the individual in question must certainly have a biased opinion in favour of the referring party. The end result is usually a panel appointment of an adjudicator that neither party feels is best placed to decide the dispute.

Nominating bodies

There is a plethora of adjudication bodies available, all keen for parties to incorporate reference to that body in the dispute resolution provisions of their contracts. The most well-known bodies within the infrastructure, construction and engineering sectors, include TecSA, ICE, IChemE and the Royal Institution of Chartered Surveyors (RICS). Each nominating body has its own application form which allows the parties to submit differing amounts of detail in terms of the dispute in question.

It is not uncommon for parties to use the nomination forms as an attempt to select an adjudicator of their choice, (although the TeCSA application form specifically states that, save in the case of a genuine legal conflict, TeCSA will not take into account any preferences expressed by either party as to the names of adjudicators to be excluded).

Applying for the nomination - what to watch out for

In Eurocom Ltd v Siemens Plc [2014] EWHC 3710 (TCC) Mr Justice Ramsey held that there was a strong prima facie case that the referring party's representative had made a fraudulent misrepresentation in the way in which he had applied to RICS for the nomination of an adjudicator (thereby invalidating the adjudicator's appointment and ensuring the adjudicator did not have jurisdiction to reach a decision).

The facts of the case

Siemens engaged Eurocom to install communications systems at Charing Cross and Embankment underground stations. A dispute arose between the parties, and in August 2012 Eurocom initiated adjudication proceedings against Siemens. Mr Matthew Malloy was appointed by RICS as the adjudicator. His decision was served in September 2012.

In November 2013, Eurocom served a second notice of adjudication on Siemens. Within the request form to RICS for the nomination of an adjudicator, Eurocom's representative was asked to identify any individuals who would have a conflict...