ADJUDICATION PROCESS (DevB Technical Circular (Works) No. XX/2021
In this section you will find a recommended adjudication process under DevB TC(W) No. XX/2021 from serving a notice of adjudication to the adjudication decision.
STEP 1: NOTICE OF ADJUDICATION
The first step in the proceeding is service the notice of adjudication with claimant's intention to refer a dispute to adjudication on the other party or parties to the construction contract.
The notice of adjudication shall state:
date of the notice;
the parties involved;
nature and brief description of the dispute;
details of where and when the dispute arisen;
the relief or remedy sought;
details sufficient to identify the construction contract to which the dispute relates.
STEP 2: APPOINTING THE ADJUDICATOR
HKICAdj is an Adjudicator Nominating Body (ANB). Appointment of adjudicator by an ANB as agreed by the contracting parties is intended to be done shortly after the service of the notice of adjudication. Once the parties agree HKICAdj as the ANB, they may agree on one of HKICAdj’s adjudicators if they wish and HKICAdj will appoint the person selected by the parties subject to availability and there being no conflict of interest. In the absence of an agreement between the parties on an adjudicator, the claimant can secure an appointment of an adjudicator by applying to HKICAdj in its capacity as an ANB within 2 working days after the notice of adjudication was served. HKICAdj will then appoint a HKICAdj adjudicator within 2 working days of making an application and the respondent cannot delay or avoid the adjudication process and will be bound to accept the appointment and will be bound by the outcome of the adjudication whether or not the respondent participates in the appointment process.
Under HKICAdj administered adjudication service, HKICAdj will serve a notice of acceptance immediately upon receipt of payment of the HKICAdj's administrative fee and security for the adjudicator’s fees and expenses. It will serve a notice of confirmation that the appointed adjudicator meets the eligibility criteria for adjudicators, has no conflict of interest and is willing and available to act as the adjudicator.
STEP 3: ADJUDICATION CLAIM
The parties are free to agree on the timetable for the process whereby the parties present their respective cases and evidence to the adjudicator for consideration. If there is no agreed process, HKICAdj recommends the following process:
The claimant refer the dispute in writing (the adjudication claim) to the adjudicator within five working days of receiving the adjudicator’s notice of acceptance, extendable up to ten working days as agreed by the parties. Failure on the part of the claimant to submit by the due date will bring the proceedings to an end and will require a new application for appointment of an adjudicator to be made by the claimant.
The claimant must serve a copy of the adjudication claim and any accompanying documents on every other party to the adjudication at the same time as they are served on the adjudicator.
The adjudication claim must specify the nature or the grounds of the dispute with all supporting document and to be served together with a copy of the notice of adjudication.
The submissions in the adjudication claim must be consistent with the notice of adjudication where the adjudicator’s jurisdiction is confined in relation to the nature and scope of the dispute that the adjudicator can decide. If the claimant wishes to raise any new or different matters, these matters shall be served in a new notice of adjudication.
When submitting an adjudication claim, the claimant is not limited to the arguments, contentions and evidence put forward by it before the dispute has arisen.
The claimant should submit the claim in a logical, concise and sequential manner. It should include the background of the dispute, the chronological events to the claim, the issues in dispute, the claimant’s case and the reasons for the dispute in relation to those matters, the factual and legal basis upon which the claimant replies upon and the redress to be sought.
STEP 4: ADJUDICATION RESPONSE
A respondent may serve on the adjudicator a written response to the adjudication claim within five working days after receiving the claim or the adjudicator’s notice of acceptance, whichever is the later, or within any further time agreed between the parties up to ten working days. A respondent may request the adjudicator to allow for a further time to respond the additional time is reasonably required. A respondent must serve any response on the claimant and every other party to the adjudication at the same time it is served on the adjudicator. If a respondent wishes to seek an extension of time from the adjudicator to the period within which to serve a response to the adjudication claim, an application for an extension of time must be made before the expiry of the response period. An application for extension of time to respond should be made to the adjudicator and at the same time copy to every other party. It is open to a respondent to raise any ground in law or in fact in its response as a defence of the claim. The written response may be accompanied by any other documents, evidence, authorities and other material that the respondent wishes to rely upon in support of its response to the claim. The adjudication response is not an opportunity for the respondent to make a counterclaim. A respondent may make a set-off claim in the written response only to the extent of zeroizing the adjudication claim. A respondent may file a separate notice of adjudication to recover a set-off amount but HKICAdj will not always guarantee to appoint the same adjudicator to deal with cross claims or any other claims between the same parties under the same contract. However, if two or more adjudication proceedings are pending, HKICAdj may consolidate the proceedings and an appoint an adjudicator to determine the adjudication claims at the same time.
STEP 5: ADJUDICATION REPLY
If a claimant who receives a response considers that it contains new or different grounds or evidence for opposing the claim, it may request for the adjudicator's approval to file a reply to those new or different grounds or evidence. If the adjudicator approves to file a reply, the claimant shall make the further submissions within 3 working days, which is not subject to any extension. A claimant must serve any reply to a response on the respondent and every other party to the adjudication at the same time it is served on the adjudicator.
STEP 6: ADJUDICATOR'S DECISION
An adjudicator will decide whether a party to a construction contract is liable to make a payment under that contract. An adjudicator shall decide the dispute within 20 working days, or such other time as the parties may agree, after the time for service of the reply. The adjudicator’s decision is binding on the parties unless or until the dispute is finally determined by arbitration or resolved by agreement or mediation after the dispute is determined by the adjudicator. An adjudicator is under a duty to comply with the principles of natural justice and to abide by procedural fairness. The adjudicator’s decision must be in writing, dated and contain the reasons for the decision unless the parties agree in writing that reasons may be dispensed with. Within two working days after the date on which a copy of the adjudicator’s decision is given to the parties, an adjudicator may, on his or her own initiative, correct any clerical, typographical or computational errors contained in the decision. The adjudicator shall decide the due date of payment and interest.
STEP 7: SCRUTINY OF ADJUDICATOR'S DECISION
The HKICAdj is committed to delivering consistent, certain and professional adjudication services of the highest possible standard. When so requested by a party, each decision by an adjudicator will be scrutinized by one of the HKICAdj’s panel adjudicators before being given to the parties. Scrutiny of adjudicators’ decisions aims at ensuring that all decisions are of the highest possible standard and are thus less susceptible to correction. Scrutiny of a decision is not to change an adjudicator's decision on a point in law or fact, or any matters affecting the adjudicator’s independence and autonomy in rendering the decision. HKICAdj will charge additional cost for this service.