Adjudicator appointment – the “Forum-shopping” option

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Adjudicator appointment – the “Forum-shopping” option

March, 2013
Mark Entwistle

The process of obtaining the services of an adjudicator has, from the very start of statutory adjudication in the UK, been a rather fraught affair. Throughout the period from 1996 to the present day, the quality of adjudicator performance has, understandably, been a matter of concern to all involved; parties, their representatives, adjudicator nominating body (ANB) administrators and to adjudicators themselves.

Criticisms of adjudicator performance, singly or collectively, remain a feature of the UK dispute resolution scene, and it is not unknown (though mercifully relatively rare in the context of the number of adjudications heard) for the Technology and Construction Court to voice criticism of the performance of some unfortunate adjudicator or other.

ANBs, in the main (though by no means universally), keep a close eye upon the ability and performance of their adjudicator panellists by setting CPD requirements and regularly re-assessing capability. From the critical comments that continue to be heard about adjudicator performance, this may not be perceived by users of adjudication and their representatives and may not be sufficient to give confidence in adjudicators’ abilities across the board.

In the circumstances, it comes as something of a surprise therefore that parties do not make greater efforts to obtain the appointment of an adjudicator in whom they have confidence and are more likely to throw themselves upon the mercy of a particular (often contract determined) ANB.

The soon to be published Adjudication Reporting Centre Report (number 12), authored by members of the Glasgow Caledonian University indicates that the tendency to use ANBs for the appointment of an adjudicator has increased consistently over the past seven years, and now stands at a joint all-time high in the period (jointly with 2011).

  • In 2012 90.7% of adjudicator appointments were made through ANBs, compared with 83.2% in 2005.
  • In the same period, the proportion of party-agreed appointments has declined (again consistently over the period) from 16.8% in 2005 to 7.8% in 2012.

This data may be viewed with some surprise, it being counter-intuitive that as more and more parties and their representatives acquire experience of an increasingly wide range of adjudicators (thus becoming conversant with particular individuals’ abilities) the more likely it is that parties will revert to the unpredictability of ANBs for nominations. Of course, it is to be accepted that making such judgements without recourse to the raw data upon which the reported percentages are based, is itself an inexact science, but the trend appears to be consistently one-way and one wonders why that is.

It also rather flies in the face of the fact that the subject of “forum-shopping” in adjudication has become a warm (if not hot) topic in recent times, rather suggesting that party representatives (or at least certain of them) are increasingly drawn into attempting to influence the ANB choice of the particular adjudicator to be nominated. ANB administrators will be well aware (as indeed nominated adjudicators are) of the attempts that are often made to eliminate certain names from consideration or to positively influence choice. Such practices undoubtedly cause difficulties for administrators, who strive to ensure that the appointment made properly reflects the needs of the case (either they take heed of the limiting factors cited in the request for nomination or they don’t – leading to the prospect that they will be “damned if they do and damned if they don’t”). The very nature of forum-shopping (in the guise now understood in adjudication) reflects the fact that a party perceives an inherent risk in allowing an ANB an absolutely free choice of whom to nominate.

In Lanes Group plc – v – Galliford Try Infrastructure Limited [2011] - though not a case which concerned the appointment process for an adjudicator – adverse comment was made by the judge regarding forum-shopping (described as “never attractive”). Of course, attempting to influence the ANB selection of an adjudicator is not strictly forum-shopping but the label suffices here, where one party attempts to exert pressure on an appointing body to nominate an acceptable adjudicator. On some views that pressure is both entirely understandable and practical; naturally, an adjudicator is sought who will understand the technical and legal aspects of the dispute to be referred, though it is interesting that it is only the referring party who is given, by most if not all ANBs, the opportunity to state what type of adjudicator is appropriate. The Respondent generally has to “lump it”.

It is also understandable that a referring party should wish to see appointed an adjudicator who is likely to be favourable to its case, and many party representatives are so well-versed in adjudication these days that they will have had experience of a good many adjudicators. It would not be a surprise to anyone that a party representative might keep a directory of adjudicators with each practitioner judged by ability, technical and legal proficiency, management skills, time management and other relevant factors. It is even widely believed that one particular firm keeps a black-list of adjudicators it would wish not to have appointed. Thus it is that attempts to influence the free choice of an ANB from those on its full panel list are often seen to be deliberately restrictive.

In the circumstances, it is altogether surprising therefore that more appointments are not made by party agreement. It remains the case that having one’s name put forward by one party to the other is often the kiss-of-death as far as being appointed is concerned. How odd! It would be good to think that the old prejudices that used to exist, to the effect that a proposed adjudicator (or indeed arbitrator) would be likely to be biased in favour of the proposing party, had evaporated. Seemingly not – the prejudices, not the perception of bias! Further, the notion that a party would deliberately propose to its opponent an incompetent adjudicator is, of itself, risible.

Only party representatives will know how often an attempt is made to agree the name of an adjudicator with the other party, and how often that overture is resisted. That should not dissuade all parties and their representatives from making that attempt. Of course, the other party or its representative may have no knowledge or experience of the name(s) put forward by the putative referring party. That should not stifle the attempt to reach agreement, either by proposing alternative names or, better, by encouraging the parties to have proper discussions on the matter; which discussions could also involve the adjudicators being considered. It is striking how few times, when names are being considered for possible agreement, the parties do not contact potential adjudicators to ascertain not just their availability, terms and charging rates, but also their experience and expertise. It would be the simplest of matters to request adjudicators being considered to complete a questionnaire designed to give both parties the opportunity to assess ability, independence, relevant technical and legal expertise, and availability.

The alternatives to party agreement would appear far less likely to deliver the result that the parties (collectively) are likely to want; being the appointment of an adjudicator who is capable of understanding the issues and of delivering a timely and enforceable Decision that is as close to correct as it is possible to be in the circumstances.

The naming of an adjudicator in the contract will immediately cause concern that he/she is in some way linked to the naming party (or likely to be biased in its favour). Where the same name is often used, that suspicion is likely to be greater. Interestingly, the Glasgow Caledonian Report indicates that this approach was seen in only 1.6% of appointments (albeit having growing gradually over the past four years).

Utilising either the ANB named in the contract or an ANB of choice if none is named, remains by far the most frequently used approach, though it is difficult to understand why. Although most ANBs do try to establish the highest quality of ability and performance in their panellists, the fact remains that in any panel there exists a range of abilities (and legal and technical expertise), and it is a lottery, as far as the parties are concerned, who might be nominated and whether that person is the best (or most appropriate) adjudicator for the dispute. It is a reflection of this lottery that parties seem increasingly minded to influence the choice of nominated adjudicator by “forum-shopping”. Better, by far, to remove the lottery altogether by agreeing an adjudicator who is mutually satisfactory to the parties. That would also save the nomination fee.

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