CIPAA
CIPAA
p
CPD
CIPAA+Architects
Ar David Cheah
ArDavidCheah
6 Dec 2014
6Dec2014
CONTENTS
1.0
INTRODUCTION
1.1
1
1
1.2
1.3
1.4
15
1.5
2.0
slides
1 - 8
CONSTRUCTION CONTRACTS
9 - 11
2.1
2
1 S4 CIPAA 2012
2.2 Type & Nature
2.3 Adjudicability
Commencement
Contracting out
Parties
Modes of Service
12 - 14
CONTENTS
4.0
5.0
6.0
15 - 18
19 - 21
PRINCIPAL COSTS
22 - 24
6.1
6.2
6.3
6.4
6.5
7.0
slides
RIGHT TO ADJUDICATE
7.1
7.2
73
7.3
7.4
7.5
7.6
Making of Claim
Response to Claim
D i i off U
Decision
Unpaid
id P
Party
t
Decision to initiate Adjudication
Initiation of Adjudication
Notice of Adjudication
25 - 32
CONTENTS
slides
33 - 35
36 - 42
9.1
9.2
9.4
95
9.5
10.0
43 - 49
11.0
50 - 54
0
12.0
ENFORCEMENT
O C
55 - 60
13.0
CONFIDENTIALITY
61 - 62
14 0
14.0
IMMUNITY
63
15.0
CONSOLIDATION OF PROCEEDINGS
64
1.0 INTRODUCTION
ADJUDICATION :
DEFINITIONS
O S AND MEANING
G
DEFINITION BY
B.BENTLEY
is a process where
an independent 3rd
party
p
y is g
given
power
to make an interim
decision
within a short
period of time
on disputes
arising under a
contract between
the p
parties
DEFINITION BY
D. SIMMONDS
A procedure whereby :
when a dispute
b t
between
contracting
t ti
parties arises
MEANING/PROCESS
is engaged to examine
the arguments of the
parts, and
the decision or
determination is binding in
the interim unless
subsequently overruled by
arbitration or the courts.
TYPES OF ADJUDICATION
AD-HOC
COMMON TYPES
3 main types :-
Mode of agreement
- Ad-Hoc
- Contractual
- Statutory
CONTRACTUAL
- Oral or
- Preferably in writing
Scope of reference to
adjudication of :
Recommended minimum
contents of agreement
Mandated by law eg by a
specific legislation
eg :
- Clause 34.0
34 0 PAM
Contract 2006 (with &
without quantities)
STATUTORY
eg :
Express
E
provision
i i states
t t :
- Future disputes; or
- Disputes that have
crystallised
- Procedural issues
- Effect of decision/
determination
May or may not be a condition
precedent to reference to other
ADR
COMPLEMENTS
ARBITRATIONAND/OR
LITIGATION
SHORTTIMEFRAME
FROMREFERENCETO
DECISION
INTERIM/INTERMEDIATE
SOLUTION
CANBEINQUISITORIAL
ANDADVERSARIALIN
NATURE
ADJUDICATION :
ESSENTIAL
FEATURES
NONEGOTIATIONS
INVOLVED
MANAGEMENTOF
DISPUTES
STATUTORYOR
CONTRACTUAL
CONTRACTUAL
PROCEDURE
INFORMAL&SUMMARY
PROCEDURE
PAYMENTS
MATTERSUNDER
STATUTE/CONTRACT/
PARTIESAGREEMENT
EXTENSIONOFTIME
VARIATIONORDERSAND
VALUATIONS
ISSUES &
SUBJECT
MATTERS OF
ADJUDICATION
ADJUSTMENTOF
CONTRACTSUMeg.SET
OFFS,etc
WITHHOLDING/DELAY
WITHHOLDING
/ DELAY
OFCONSENTS/
APPROVALS,etc
VALIDITYOF
INSTRUCTIONS
AREWORKSPROPERLY
EXECUTED
DISPUTERESOLUTION
PROCESSFORDISPUTES
UNDER CONSTRUCTION
UNDERCONSTRUCTION
CONTRACTS
ISAJUDICIALPROCESS
ANDNOTAJUDICIAL
PROCEDURE
PROCESSISMANDATED
BYLAW(seenextslide)
DISPUTEREFERREDTOAN
AGREEDORSELECTED
IMPARTIAL3RD PARTY
STATUTORY
ADJUDICATION :
GENERAL
FEATURES
DOESNOTREQUIRE
PARTIESAGREEMENT
TOCOMMENCE
ADJUDICATOR ACTS ON
ADJUDICATORACTSON
FASTTRACKBASISAND
ISSUESOUTROUGHJUSTICE
RIGHTSANDREMEDIES
PRESCRIBED AND
PRESCRIBEDAND
ENFORCEABLEBYLAW
COMPLEMENTSOTHER
DISPUTERESOLUTION
METHODSeg.ARBITRATION,
O S eg
O ,
LITIGATION,etc
HOUSINGGRANTS,
CONSTRUCTIONAND
REGENERATIONACT1996
(UK)
6
BUILDING&CONSTRUCTION
INDUSTRYSECURITYOF
PAYMENTACT1999(NSW)
CONSTRUCTION
CONTRACTSACT2002
(NZ)
BUILDING&CONSTRUCTION
BUILDING
& CONSTRUCTION
INDUSTRYPAYMENTSACT
2004(Queensland)
CONSTRUCTION
CONTRACTS ACT 2004
CONTRACTSACT2004
(WA)
STATUTORY
ADJUDICATION :
LEGISLATIONS
CONSTRUCTIONCONTRACTS
(SECURITYOFPAYMENTACT)
2004 (N T it i
2004(NewTerritories,
Australia)
CONSTRUCTION
CONTRACTSACT2004
(Isle of Man)
(IsleofMan)
CONSTRUCTIONINDUSTRY
PAYMENT&ADJUDICATION
ACT2012(Malaysia)
BUILDING&CONSTRUCTION
INDUSTRYSECURITYOF
PAYMENTACT2006(Victoria)
BUILDING&CONSTRUCTION
INDUSTRYSECURITYOF
PAYMENTSACT2004
(Singapore)
STAGE1
PRELIMINARY
STAGE
STAGE2
INITIATIONOF
ADJUDICATION
STAGE
STAGE3
APPOINTMENT
OF
ADJUDICATOR
STAGE
S5 to 7
S7 and 8
S21 to 23
sub stages :
3 sub-stages
sub stages :
2 sub-stages
sub stages :
2 sub-stages
- making of
payment claim
- payment
p
to claim
response
- decision of
unpaid party
- decision to
initiate
adjudication
- which has not
been paid
- initiation of
adjudication
process
- selection of
adjudicator
- appointment of
j
adjudicator
STAGE4
CONDUCTOF
ADJUDICATION
PROCEEDINGS
STAGE
STAGE5
POSTDECISION
STAGE
IMPROVED
PAYMENT
PROCESS
for Construction
Contracts (as
defined in S4
CIPAA))
C
to facilitate :
IMPROVED
CASH FLOW
to prohibit
conditional
payment terms
eg.
eg
- pay if paid
- regular and
- timely
- back to back
payment
PROVIDE
DEFAULT
PAYMENT
MECHANISM
in the absence of
express payment
provisions in the
construction
co
st uct o
contract
to provide default
payment terms
EXPEDITE
DISPUTE
RESOLUTION
adjudication as
an alternative
dispute
eso ut o
resolution
procedure that
is :
- speedy
- cheaper
MAKE
RECOVERY
OF PAYMENT
EFFECTIVE
upon the
conclusion of
adjudication
tto provide
id
remedies for the
recovery of
payment
MEANING
Contract to carry
out Construction
Construction
Work
CONSTRUCTION
WORK : SCOPE
See next page :
Type & Nature
MEANING
Contract to carry
outt Consultancy
C
lt
Services by
consultants and
sub-consultants
Services to be in
relation to
Construction
Work
accounting
services provided
for the
construction firm
is excluded
SERVICES
COVERED
Planning &
f
feasibility
ibili study
d
CONSTRUCTION
WORK : SCOPE
See next page :
Type & Nature
TYPES OF
DISPUTES
Professional
negligence
Architectural
Work
Generally
complex
Engineering
In UK adjudication
procedure to
follow the Model
Adjudication
Procedure
published by the
Construction
I d t Council
Industry
C
il
(CIC)
Surveying
S
i
Exterior & Interior
Decoration
Landscaping ;
and
Project
Management
Services
10
TYPE OF WORK
NATURE
PERMANENT
WORKS
CATEGORY (a)
Building
Edifice
Construction
- Site clearance
- Soil investigation and
improvement
- Earth-moving
- Excavation
- Laying of foundation
- Site restoration; and
- Landscaping
Extension
Installation
Repair
Maintenance
Renewal
Renovation
Alteration
Dismantling
Demolition
CATEGORY (b)
Drainage work
Harbour works
Irrigation work
Railway
Wall
Fence
Chimney
CATEGORY (d)
Construction materials
Equipment
Labour
(1)
(2)
CATEGORY (e)
Bridge
Mechanical work
Viaduct
Dam
Reservoir
Water work
Cableway
Gas work *
Earthworks
Canal
Oil work *
Pipeline
Sewer
Aqueduct
Culvert
Drive
Shaft
Tunnel
Reclamation work
Whether constructed :
Telecommunication work
1.
(* include pipework)
Petrochemical work *
2.
PROCUREMENT
Electrical work
Wholly or partly
CATEGORY (c)
Road
Structure
PREPARATORY/INTEGRAL/TEMP
ORARY WORKS
Aerodrome
ADJUDICABILITY
CONSTRUCTION
CONTRACT
Includes :1. Construction work
contract
1. wholly or
2. p
partially
y
2. Construction
consultancy
contract
in Malaysia
Form : Made in
writing
iti
Precondition : valid
contract under
Malaysian Law
PARTIES
COVERED
TERRITORIAL
JURISDICTION
Construction work
carried out :
All construction
contracts in private
sector
1. Federal
Government
1. Sabah
2. Sarawak
3. West Malaysia
2. State
Government
EXEMPTED UNDER
SECTION 40
EXCLUDED UNDER
SECTION 3
2 Forms :
S40(a) : any person/ class of
persons
[person = corporation and
natural person,
class of persons = persons
belonging to a particular
profession, trade or sector in the
construction industry]
All contracts in
public sector :
eg. Fabrication of
oil rig partly,
those in Malaysia
is covered
Includes :-
11
Also include :
1. Government
Depts
2. GLCs
Occupation is an on-going
on going event
Westfields Construction Ltd v
Clive Lewis (2013)
3. Statutory bodies
Extent :
1. From all provisions, or
2. From any provisions
12
MISCELLANEOUS ISSUES IN
STATUTORY ADJUDICATION (SA)
COMMENCEMENT
OF SA
Governing Provision
Date : to be decided
by
M
Method
th d : b
by
notification in the
Gazette or .
CONTRACTING OUT
OF CIPAA
Any express
provision prohibiting
contracting out
Possible under the
Doctrine of
Freedom to
Contract ?
Appears not
possible
ibl if CIPAA is
i
construed as a
whole
Any other way ? By
seeking Ministers
Minister s
exemption
DESCRIPTION OF
PARTIES
Parties variously
described under
different stages of
adjudication
Stages involved :
1. During contract
payment stage
2 During adjudication
2.
stage
3. During enforcement
of Adjudicators
decision stage
MODES OF SERVICES OF
NOTICES AND
DOCUMENTS : UNDER SA
Governing Provision
Scope : Sets out the
procedures for the service
under the SA :
1. Notices; and
2. Other documents
Mandatoryy requirements
13
STAGE
1. During Contract Payment Stage
REMARKS
DESCRIPTION OF PARTIES
UNPAID PARTY
CLAIMANT
PLAINTIFF *
(Party in whose favour
adjudication decision
was made) **
S4
NON-PAYING PARTY
S4
RESPONDENT
DEFENDANT *
(Party against when
adjudication decision
was made) **
** For enforcement of
other remedies by
S29 and 30
Chart based on,
G Bayley
G.Bayley
Adjudication in New
Zealand
14
WHAT IS A
DOCUMENT ?
PERSONAL
DELIVERY (S38(a))
1 P
1.
Personall d
delivery
li
2. To the party
Acknowledged by
the party, date &
time of service,,
name & signature
If signing is
refused, record
the
circumstances of
the situation
DELIVERY AT
PLACE OF
BUSINESS (S38(b))
1 L
1.
Leaving
i att partys
t
usual place of
business (i.e. the
company)
2. During partys
normal business
hours
Written
acknowledgment
attested with the
company stamp,
stamp
signatures &
name of person
receiving
documents on
behalf of the
intended recipient.
OTHER MEANS
(S38(d))
DELIVERY BY
POST (S38(c))
1 Sent by registered
1.
post
2. To partys usual or
last-known place
of business
Agreement to be in
writing
writing
Most convenient
mode
PAYMENT ISSUES
PROHIBITION OF
CONDITIONAL PAYMENT
(Pay when paid) (S35)
Prohibits all
conditional payments
terms in construction
contracts
15
NON-PAYMENT ISSUES
ADJUDICATION OF
PAYMENT DISPUTES
(Parts II to IV)
APPLICABLE PROVISION
(S b
(Sub-section
ti 27(2))
Main subject
matter of Act
Precondition : By
agreement
between parties
EXAMPLES OF ISSUES
DEFAULT PAYMENT
PROVISIONS (S36)
Default provisions
in the absence of
express terms of
payment in
construction
contracts
C
Claims
a s suc
such as :
1. Extra-contractual/ Common
Law
2. Ex-gratia
Non Payment Issues eg:
1. Extension of time and
damages
2. Liens
3. Technical issues
4. Site possession issues, etc
Nature : To extend
adjudicators
jurisdiction
Timing : Only after
adjudication
proceedings have
started
WHAT IS PAYMENT
WHAT IS INCLUDED
DEFINITION (S4)
Payment for :
1. Work done i.e.
construction work, or
Progress/Interim payments
Pa ments on Pen
Payments
Penultimate
ltimate and Final Certificates
(S36 : absence of
express terms of
payment)
EXCLUSION
Payment for :
2. Provisional Sums
3. Contingent Sums
Ex-gratia claims
Pre-condition : Must be
1. Expressly provided for in construction
contracts
2. Must fall within the scope of CIPAA
3. Under a construction
contract
Proviso : Unless the default
provisions
i i
off S36 apply
l
16
17
CONDITIONAL PAYMENT
APPLICATION AND
TYPES
Generally apply to :1. Sub-contractors eg.
Domestic, Nominated,
etc.
2. Consultants,
sub-consultant
3. Others e.g. Suppliers,
etc.
Type of clauses :1 P
1.
Pay if paid
id
2. Pay when Paid
3. Back to Back
Effect :
1. Cash flow risk
transferred to subcontractors, etc.
2. Generally, literally
construed by Courts
DEFINITION AND
FORMS UNDER S35(2)
2 Main Types :Type I S35(2)(a) where :1. The obligation of payer to
the payee
2. Is conditional on the payer
having received payment
from a 3rd party e.g.
principal
Type II S35(2)(b) where :1. The obligation of the payer
to pay the payee
2 Is conditional upon the :
2.
- availability of funds, or
- drawdown of the
payers financing
facilities
S35(1) :-
2. In a construction contract
PROHIBITION OF
CONDITIONAL PAYMENT
((Pay
Pay when paid
paid)) (S35)
EFFECTS OF S35
18
MANNER OF VALUATION
OF AMOUNT TO BE PAID
SCOPE : S36(1)
Deals with default
provisions on terms of
payment in a
Construction Contract
C
Covers :
1. Construction Work
2. Consultancy Services
Default Provisions :
1. Shall be applicable
2 Unless otherwise
2.
agreed by parties
The only clause in
CIPAA where the term
progress payment is
found
PURSUANT TO
S36(1)
PURSUANT TO
S36(2)
1. Contract Price :
S36(1)(a) - %
completion of the
work
2. Any other rate specified in
the Contract : S36(1)(b)
3. Any variation agreed by the
parties for a adjustment of
1 and 2 above:
S36(1)(c) variation has
to be instructed per
contract terms
4. Diminution in value /
reasonable cost of
rectifying defect / nonconformance :
S36(1)(d)
Costofrectification
Setoffs&Counterclaim
Respondent
R
d t is
i entitled
titl d tto sett
offs in relation to defects &
counterclaims, not set-offs for
back charges or counterclaim
for liquidated damages
FREQUENCY OF PROGRESS
PAYMENTS S36(3)
S36(2) : consultancy
services, design & build
contracts
Used where matters in
S36(1)(a) to (d) are absent
By reference to :
1. Fees set by relevant
regulatory board :
S36(2)(a), or
2. In absence of 1,
f i reasonable
fair
bl
rates / prices prevailing in
the construction industry.
A claim for work to be
valued on a fair &
reasonable price has
to be sufficiently
particularised :
S36(2)(b)
3. fees for architects &
engineers can be
computed per statutory
scale of fees published by
the Board of Architects or
Board of Engineers
Governing provision :
S36(3)
Governing provision :
S36(4)
Timetable :
1. For Construction
Work : Monthly
2. For Consultancy
Services: Monthly
3. For Supply
Contracts: Upon
delivery of Supply
Items
1 Within 30 calendar
1.
days
2. Time to run from date
of receipt of invoice
CONSTRUCTION
INDUSTRY
EMPLOYERS
Enforce a fairer
allocation of risks
despite dominant
position
Compel mandatory
payment of the amount
due to the contractor
with effective sanctions
Improve professional
f
and good governance in
administrating payments
Eradicate the delinquent
and recalcitrant
employers
Improve quality of work /
finished products
CONTRACTORS
SUBCONTRACTORS
CONTRACTORS,
ETC
Generally as for
contractors
Allow enforcement of
payment in the absence
of express provisions in
the sub-contract
Develop a healthy and
professional
body/corpus of
downstream
suppliers/subsuppliers/sub
contractors effectively
supporting the upstream
players/parties
19
20
CLAIMS
CONSULTANTS/
LAWYERS
CONSTRUCTION
PROFESSIONALS
2. In time
3. remedies for default
available through
CIPAA
2. Default Possible
claims in :
- Breach of contract
- Tort of Negligence
Opportunity to :
1 Become adjudicators
1.
2. Do adjudication support
work
For lawyers :
1 New/increased
1.
opportunities
2. For consequential
litigation work eg.
Applications for stays,
enforcement, etc
New/increased
opportunities :
COURTS
ADJUDICATORS
Need to maintain
competency, integrity and
professionalism
Statutory immunity
against :
Need to be
educated/updated on the
philosophy,
hil
h
aims/objectives,
implementation, etc of
adjudication
Necessity to :
1 any action/suit
1.
1. recognise the
differences between
adjudication and other
ADR methods
2. provided acting in
good faith
CONTRACT
DOCUMENTATION
Terms of all construction
contracts
1. Review and revised
2 To conform with CIPAA
2.
provisions
Terms that contradict/depart
from CIPAA to be
removed/revised eg ;
CONTRACT
ADMINISTRATION
Contract administration issues
that are affected by CIPAA are
mainly :
1.
Payment
2.
Variations
Necessity to ensure :
1. Conditional payment
terms
2. Restricting right to
adjudication
3. Pre-conditions to
adjudication, etc
Terms of sub-contractors to
be aligned with those of
Main Contractor to conform
with provisions of CIPAA
21
MISCELLANEOUS
ISSUES
Owners compliance issues :
1. Availability of funds/cash-flow
2. Administration of payment
process
3. Awareness and compliance
with CIPAA
Miscellaneous
issues/challenges :
1. Adjudication of non-payment
issues
2. Adjudication
j
of complex
p
and
value wise sizeable disputes
3. Solvency of the parties
4. Possibility and effect of
evidence-ambush
evidence-ambush
5. Consolidation of adjudication
6. Problems of claimants acting
in consort
7. Attitude of the courts
22
COSTS OF
ADJUDICATION
PROCEEDINGS
(S18 CIPAA)
2 categories :
COSTS OF
REFERENCE
1. Costs of
reference; and
2. Cost of
decision
Nature :
COSTS OF
DECISION
- Parties costs
involved in the
adjudication
proceedings
Types :
1. fees of lawyers/
representatives
2. fees of expert
witnesses,
advisors, etc
3. costs of meetings,
venue, transcription
(if any), etc
4. costs for the
preparation and
defence of the
claim
5. costs of
documentation,
investigation
expenses
6. administrative
costs
7. other incidental costs
Nature :
- Adjudicators fees
and costs (direct
and indirect costs)
2. Indirect costs
fees/costs relating
to the appointment
of the Adjudicator
by 3rd party
or NB (A
Nominating Body)
The adjudicator :
1. shall order the
costs to follow the
event (no
discretion), and
T
Types
:
1. Direct costs fees
and
expenses of the
Adjudicator
OTHER
JURISDICATION
MISCELLANEOUS
(S18(1)
KLRCA
Effect :
1. Adjudicator has no
discretion
2. So long as the
party is
successful, it can
recover the costs
SOPA
(Singapore)
Adjudicator has
power to
determine which
party
t shall
h ll pay
cost of the
adjudication &
the amount of
contribution by
each p
party.
y The
cost of
adjudication is
limited to
adjudication
application fee &
the adjudicator
adjudicators
s
fee. No
provision to
award the
successful party
his costs (same
as NSW)
S )
23
TYPE OF DISPUTE
QUANTUM
INVOLVED
ADJUDICATORS
FEES ARE
DETERMINED BY
COMPLEXITY OF
THE DISPUTE
ABILITY AND
EXPERIENCE OF THE
ADJUDICATOR
3RD PARTY
SPECIALIST INPUT
AGREEMENT ON
FEES
APPOINTMENT
BY PARTIES
APPOINTMENT
BY KLRCA
DIRECTOR
S19(1) : Parties
and Adjudicator
free to agree
KLRCAs
standard fees
shall apply
Failure to agree :
S19(2) applies
i.e. KLRCAs
standard fees
shall apply
PARTIES LIABILITY
FOR THE FEES
ENTITLEMENT TO
FEES OR EXPENSES
ADVANCE SECURITY
S19(4) : A mandatory
(see use of word
shall).
Release of
adjudication decision
subject to S19(5) i.e.
contingent on full
full
payment of fees and
expenses to be
deposited with
Director of KLRCA
Adj
Adjudicator
di t may h
have
a lien over his
decision
24
Exception
p
:
1. When delay in delivery
of decision due to
failure of parties to
comply with S19(5) i.e.
deposit full payment
with KLRCA
KLRCA, or
Amount
1. reasonable
proportion of total
fees
2. Where legally
challenged and struck
down by courts
2. in equal shares
3. to be deposited to
Director of KLRCA
DEFAULT IN
PAYMENT
PRE CONDITIONS
PRE-CONDITIONS
Construction contract
under CIPAA must
be valid
Non-paying party
fails to pay by due
date
Such default is for
either whole or part
of amount claimed
Provided limitation
has not set in
25
Not defined
expressly in CIPAA
To be decided by
necessary
implication
No payment certificate
was issued per contract,
th amountt which
the
hi h th
the
contractor considers
should have been certified
had the certificate been
promptly issued
Depends on 2
circumstances
PRESENCE OF
EXPRESS
DATE/PERIOD FOR
PAYMENT IN
CONSTRUCTION
CONTRACT
ABSENCE OF EXPRESS
DATE/PERIOD FOR
PAYMENT IN
CONSTRUCTION
CONTRACT
Default
provisions of S36
CIPAA applicable
i.e. S36(3) and
36(4)
26
STAGE1
PRELIMINARY
STAGE
STAGE2
INITIATIONOF
ADJUDICATION
STAGE
STAGE3
APPOINTMENT
OF
ADJUDICATOR
STAGE
S5 to 7
S7 and 8
S21 to 23
sub stages :
3 sub-stages
sub stages :
2 sub-stages
sub stages :
2 sub-stages
- making of
payment claim
- payment
p
to claim
response
- decision of
unpaid party
- decision to
initiate
adjudication
- which has not
been paid
- initiation of
adjudication
process
- selection of
adjudicator
- appointment of
j
adjudicator
STAGE4
CONDUCTOF
ADJUDICATION
PROCEEDINGS
STAGE
STAGE5
POSTDECISION
STAGE
27
MAKING OF CLAIM
GOVERNING
PROVISION
S5 : Payment Claim
consisting
of :-
Discretionary up to
Unpaid Party
Must be within
Li it ti P
Limitation
Period
i d
(Limitation Act/
ordinance)
- S5(1)
- S5(2)
S5(2) : In Writing
S5(2)
Reference to case
law/ authorities for
elucidation
Use of shall
connotes
mandatory
d t
requirement
Detailed
requirements :
Ultimately up to
unpaid Party
Amount claimed
- broad basis of the
computation in support
of the amount claimed
eg. quantity & rates if
lump sum (%
completed)
- to include payment
certificate
S5(2)(b)
Identify cause of
action moneyy not
paid on due date
Stipulate contract
provision under which
made
(a) Date of contract &
brief work
description/project
title
(b) Clauses on
payment
(c) Clauses on
entitlement of
payment on due
date
Defines the
jurisdiction of the
Adjudicator
S38
4 main forms
as S38(a) to
(d)
S5(2)(d)
S5(2)(c)
MODE OF
SERVICE
EFFECT
S5(2)(a)
CONTENTS
OF PAYMENT
CLAIM
FORM OF
PAYMENT
CLAIM
TIMING OF
SERVING
NATURE
RESPONSE TO CLAIM
S6 : Payment Response
is a statement of the
non-paying (NP) party
made in response to a
payment claim issued by
the unpaid party. If there
is a set-off for defects,
NP must assert
otherwise this would
effectively preclude the
adjudicator to consider
this defence in the
subsequent
proceedings. Adjudicator
has
as no
o po
power
e to a
allow
o
correction because both
payment claim &
response are served
before appointment.
NON-PAYING
PARTYS
OPTION
TIME TO
RESPOND
GOVERNING
PROVISION
S6(3) :
Mandatory requirement
If NP party fails to
respond :-
S6(2) : In
In Writing
Writing
- deemed to have
disputed entire
payment
p
y
claim
- Unpaid Party
(UP) can proceed
to next stage
S6(1)
Person responding
p
g=
Non-Paying Party (NP
Party)
Serve Payment
Payment Response
Response
on UP within 10 working
days
Pre-condition : Receipt
of Payment Claim from
Unpaid Party under S5
Either pay :
- whole amount claimed, or
- any amount as admitted
Defines jurisdiction of
Adjudicator
4 sub-sections
MANNER OF
SERVICE
EFFECT
FORM OF
PAYMENT
RESPONSE
- S6(4)
28
S38
4 main types
S38(a) to (d)
NO ACTION
S6(2)
S6(4)
Either whollyy or p
partly
y
Upon
p expiry
p y of 10 working
g days
y p
per
S6(3) from receipt of payment
claim
Contents of Response :
- amount disputed to show in broad
computational basis
- reason for dispute
p
(eg. Furnishing proof of payment
set-offs, counterclaims due to
contractors delay or defects)
WHEN TO
DECIDE ?
After 10 working
days
y : S6(3)
( )
Decision before this
will be premature
and invalid
PRE
PRECONDITIONS
Non-paying party
serves payment
response of
admitted amount
only (S6(1))
Non-paying party
disputing
p
g amount
claimed wholly/
partly (S6(2))
Non-paying party
fails to respond
(S6(4))
UNPAID
PARTYS
OPTIONS
NATURE OF
DECISION TO
INITIATE
ADJUDICATION
29
TIME BARS/
LIMITATIONS
Give up claim
S7(1)
S7(3)
Negotiate
Negotiate, mediate
or settle claim
Discretionary : The
use of word May
indicates
Discretionary
Reject Non-paying
partys decision/
rejection/ inaction :
crystallises
t lli
a
Payment Dispute
Unpaid Party to
d id
decide
- Sabah Limitation
Ordinance [Cap 72]
- Sarawak Limitation
Ordinance [Cap 49]
INITIATE
ADJUDICATION
Right under S7
CIPAA
Provided by
Statute
COMMENCE
ARBITRATION
COURT ACTION
Amount claimed
Under S37
Can proceed
concurrently
tl
Otherwise it is timebarred
30
GOVERNING
PROVISION
S7(1)
S7(1)
Provides
P id th
thatt :
Either
Eith :
Example
Payment claim : RM1
million
Payment response :
disputed amount is
RM400K
Di
Dispute
t is
i confined
fi d tto
RM400K & not RM1
million
- Unpaid Party
- Non-Paying Party
SUBJECT MATTER
Onlyy if a dispute
p
exists
The dispute must
arise from a
Payment Claim
under
u
de S5
Only 1 dispute to be
adjudicated at a
time (based on res
judicata)
RIGHT TO REFER
DISPUTE TO
ADJUDICATION
S7(2)
( )
Right exercisable
after 10 working
days to serve
payment response
B
Butt within
ithi relevant
l
t
Limitation period
Otherwise it is not
valid
31
INITIATION OF ADJUDICATION
S8(1)
WHEN TO
INITIATE
WHO CAN
INITIATE ?
GOVERNING
PROVISION
REPRESENTATION
S8(3)
PROCESS
COMPLETED
NOTICE OF
ADJUDICATION
S8(1)
( )
Up to Claimant
S8(1)
S8(2)
( )
Either :
Within relevant
limitation period
Otherwise it is timebarred
By Claimant serving
Notice of
adjudication on
Respondent
Alert Respondent to
commence
preparation of his
case, that is natural
justice to be afforded
- Brodyn Pty Ltd v
Davenport (2004)
When the
Respondent
receives the
Notice of
Adjudication
Counsel not
required, can be
claim consultant &
construction
professional (QS)
Counsel for
complex & large
quantum claim
- Unpaid Party or
- Non-Paying
party
PROCEDURE
Chase Oyster
y
Bar Pty
y
Ltd v Hamo Industries
Pty Ltd (2010) :
Claimant failed to serve
adjudication notice
within 20-day period per
NSW SOPA1999.
Proceeded with
Adjudication application.
Adjudicator appointed,
decision in his favour.
Hd : Invalid because
adjudication notice is
j i di ti
jurisdictional.
l Notice
N ti outt
of time & hence not
valid.
Also, Steel v Beks :
Claimant sent claim
details to wrong fax
number .
Hd : Respondent did not
receive payment claims
or adjudication notice
(no service). The
subsequent adjudication
application
li ti and
d
determination are invalid
An adjudicator
can then be
appointed as in
S21
Respondent :
6 Lawyers, 6 Senior
corporate personnel
& consultants
32
NOTICE OF
ADJUDICATION
FORM
MODE OF SERVICE
S8(1)
S38
Written form
does not
expressly state
to be signed
4 modes (S38(a) to
(d))
good practice to
do so
CONTENTS OF NOTICE
STATUS OF NOTICE
Defines the
arbitrators
jurisdiction
Watkin Jones &
Son Ltd v Lidl UK
GmbH
PURPOSE OF NOTICE
To inform Respondent :
- of nature of dispute
- of case against him
To define remedy/
remedies sought
To inform Appointing
Authority to appoint a
suitable adjudicator
8 0 APPOINTMENT OF
8.0
ADJUDICATOR
METHODS OF
S
SELECTION
C O
PRECONDITIONS
- receipt by
Respondent
p
of valid
Notice of
Adjudication from
Claimant
Mandatory
requirements
2 valid methods :
Discretion given to
parties to exercise either
option
GOVERNING
PROVISION
S21(b)
PRE
PREREQUISITE
Upon written
request by :
-e
either
t e pa
party
ty
S21(b)(i)
WHEN TO
APPOINT ?
Within 5
working days of
receipt of
written request
(S23(1))
- both parties
S21(b)(ii)
GOVERNING
PROVISION
S21(a)
PRE-REQUISITE
Need parties
agreement
agreement in
writing
PROCEDURE
Either party may
propose
p
p
suitable
candidates to other to
select from
Claimant to initiate
PROHIBITION
Against pre-agreed or
named :
- Adjudicator (dominant
party cannot compel the
other party to accept a
candidate ahead of any
dispute arising)
- Appointing Authority
(other than KLRCA)
GENERAL
SELECTION
CRITERIA
BY DIRECTOR
O KLRCA
OF
C
BY THE
PARTIES
- by the parties
(S21(a))
- Director of KLRCA
(S21(b))
33
Freedom to appoint,
should not limit to
institutional list
Need to :
- be suitably qualified
- willing and able to take
up appointment
- declare as per requirements
of S24 : Duties and obligations
of the adjudicator
A il bl ((no good
Available
d if h
he iis hi
highly
hl
experienced but his calendar is
congested)
WHEN ?
Agreement must be
made after reference
to adjudication
Must be completed
within 10 working
days from receipt of
Notice of
Adjudication by
Claimant or
Respondent
EFFECT OF
DEFAULT
Claimant may abandon
claim
Either party can request
Director of KLRCA to
select and appoint
(S21(b)(i))
Both parties can request
Director of KLRCA to
select and appoint
(S21(b)(ii)), need not
wait for expiry of 10
working days under
S21(a)
34
THE ADJUDICATOR
ELIGIBILITY
CRITERIA/
COMPETENCY
STANDARDS
GOVERNING
PROVISIONS
S4 (Interpretation)
DEFINITION OF
ADJUDICATOR
S4
Must be :
- an individual/
natural
t l person
- Not an artificial
person eg. a
company, etc.
Depends on the
appointer :
- if Director of
KLRCA set by
KLRCA (S32(a))
Very wide
No power to
decide own
jurisdiction/
KompetenzKompetenz
Kompetenz
principle
inapplicable (not
found in S27)
- if parties set by
them
POWERS OF
ADJUDICATOR
General
requirements :
- suitably qualified
- experienced
- able and willing
- meet duties and
obligations
under S24
- must ensure
confidentiality
(S25)
- available
Defined mainly by
S25 & 26
JURISDICTION OF
ADJUDICATOR
IMMUNITY
S34(1) :
- cannot be sued
for any act/
omission
provided done in
good faith
S 27(1) :
Limited to matter referred to
adjudication by parties :- under S5 : payment claim
and
- under S6 : payment response
S34(2)
( ):
- cannot be
compelled to
give evidence in
any subsequent
arbitration/ court
proceedings
S27(2) :
- jurisdiction can be extended
- to any other matter
- by written agreement
between parties
- at any time
S27(3) :
- adjudicator can opt to
proceed notwithstanding a
jurisdiction challenge
- and complete adjudication
- subject to parties right :
1. to set aside decision
under S15 or,
2. oppose application for
enforcement under S28
35
APPOINTMENT OF ADJUDICATOR
GOVERNING
PROVISIONS
S21 to 24
Selection either :
- by parties
(S21(a)), or
S21 and 24
NOTIFICATION OF
ADJUDICATOR
SELECTED
(agreed by parties)
PROCEDURE
(S22)
3 steps :
S22(1) :
- notification of
adjudicator
- by whom :
Claimant
- negotiation of
terms and
fees
- Form : in
writing
- acceptance of
appointment
by adjudicator
- requirement :
provide a
copy of
Notice of
Adjudication
to the
adjudicator
2 main methods :
- by parties : S22, or
- by Director of
KLRCA : S23
- by Director of
KLRCA (S21(b))
GOVERNING
PROVISION
APPOINTMENT BY
THE PARTIES
METHODS OF
APPOINTMENT
PRE-CONDITIONS
PRE
CONDITIONS
NEGOTIATION
OF FEES AND
TERMS
S22(2) :
OPTIONS
AVAILABLE TO
NOMINEE
- adjudicator to
propose &
negotiate with
the parties
- time period :
within 10
working
days from
receipt of notice
Note : The parties
would have
satisfied
themselves with
adjudicators
terms & fees
b f
before
notification,
tifi ti
otherwise it would
be embarrassing if
agreement cannot
be reached on the
terms & fees.
3 options :
- accept
appointment
- reject
appointment
Time limit : 10
working days
(S22(2))
Note : Adjudicator
needs to do
conflict check &
ensure
availability, all
within 10 days
Form :
presumably in
writing
Recipients :
Claimant and
Respondent.
Content :
together with
declaration of
S24
- fail to respond
CONSEQUENCES
OF REJECTION/
FAILURE TO
RESPOND
ACCEPTANCE
OF
APPOINTMENT
S22(3)
Options :
Discretionary :
- Claimant
might
abandon
claim, or
- Parties may
proceed to
select
l t and
d
appoint
another
adjudicator
(S21) or either
party to request
KLRCA to
appoint
i t
(S21(b)(i) or (ii))
9.0 COMMENCEMENT OF
PROCEEDINGS
COMMENCEMENT OF PROCEEDINGS
FORMALISATION OF
ADJUDICATORS
AGREEMENTS
GOVERNING
PROVISIONS
S21 : Appointment of
adjudicator & decision
Calling of Preliminary
Meeting
S22 : Appointment of
adjudicator by parties
Video conference
with parties
S23 : Appointment of
adjudicator by
KLRCA Director
- by parties : S22(2)
Must be a valid notice under
S22(2)/ 23(2) and S38 (service of
notices and documents)
complete with declaration of S24
WHEN ?
GOVERNING PROVISION
S25(f) : call for meetings with the
parties
WHEN ?
PRELIMINARY
MEETING/
CONFERENCE
FIRST STEP
PRE-CONDITION
36
In Writing
Contents :
- for
f KLRCA appointment
i t
t : will
ill b
be
KLRCAs Standard Terms and
Conditions
- for party appointed : as negotiated
PARTICIPANTS
PURPOSE
Adjudicator : chair
Claimant and
representatives
Respondent and
representatives
To g
give direction to p
parties experts
p
on meeting
g & jjoint
statements
ADJUDICATION CLAIM
GOVERNING
PROVISION
S9 : Adjudication
Claim
Principally :
- Nature & description of dispute
- Remedy sought
- Any supporting document
S9(1) :
Onus is on
Claimant to ensure
service (Steel v
Beks (2010))
PARTIES SERVED
CHARACTERISTICS
MODE OF SERVICE
PARTY INVOLVED
FORMAT AND
CONTENTS OF
APPLICATION
SERVICE OF
ADJUDICATION
CLAIM
37
S38
4 Modes : S38(a) to
(d)
WHEN ?
Original
g
to Respondent
p
:
S9(1)
Within 10 Working
Working
days
Copy to Adjudicator :
S9(2)
Of receipt of
adjudicators
acceptance of
appointment under :
- S22(2)
- S23(2)
Short hearing
IF SERVICE IS LATE
SUPPORTING DOCUMENTS
DOCUMENTS
(1) -
QUANTITY OF DOCUMENTS
& SUBMISSION
Short hearing
RELEVANT TERMS OF
CONTRACT
Exception :
- complex
l
- enormous quantum
38
39
ADJUDICATION RESPONSE
GOVERNING
PROVISION
S10 :
Adjudication
Response
PARTY
INVOLVED
NATURE
If Respondent fails to
serve adjudication
response :
TIME FOR
RESPONDENT TO
MAKE DECISION
RESPONDENTS
OPTIONS
S10(1) : The
Respondent
S10(1) :
within 10 working
days from receipt
of Adjudication
Claim under
S9(1) from
Claimant
- S10(3) applies
- Claimant may
proceed with
adjudication
RESPOND TO
CLAIM
Provisions of
S10(1) to (3)
apply
Respondent may
apply to
Adjudicator to
extend times
S25(p)
2 situations :
- fail to respond at all, or
- fail to respond within 10
working days stated in
S10(1)
Effect :
- S10(3) applies
- Claimant may proceed with
adjudication
- Unless Adjudicator has
extended time vide S25(p)
CONSEQUENCE OF
DEFAULT TO MEET
TIME DEADLINES
2 scenarios :
- original 10
working
g days
y
period under
S10(1); or
- any extended
time under S25(p)
2 consequences :
- S10(3) : Claimant
may proceed with
adjudication
- S26 : Power of
adjudicator not
affected by
Respondents
non-compliance
- Adjudicator
j
may
y
draw an adverse
inference and
based on the
Adjudication
Claim
40
PARTIES
SERVED
S10(1) :
Claimant is
served
original AR
Copy to
Adjudicator
(S10(2))
MODE OF
SERVICE
WHEN
S10(2) : within 10
working days of receipt
of Adjudication Claim
under S10(1)
FORMAT
S38
Not stipulated
4 methods
(S38(a) to (d)
Left to the
Respondent
CONTENTS
S10(1) :
Answer to Adjudication Claim with any supporting document
NOTE :
Respondent to respond to each allegation of fact & liability
Eg (a) V.O.
Eg.
VO
is the V.O. disputed or admitted ?
If admitted extent of any residual liability for payment
(b) Claimant put forth argument on certain supposed facts
Whether this is disputed or agreed ?
If agreed,
g
extent of agreement
g
Payment amount
Respondent alleges Claimant not entitled or Respondent accept whole or part of the
claim but sum payable is reduced by counterclaim, or set-off (eg. Defects, materials &
resources supplied, advance payments)
LIMITATIONS/
RESTRICTIONS
41
ADJUDICATION REPLY
PARTIES
SERVED
S11(1) :
Claimant
serves
original reply
to
Respondent
and copy to
Adjudicator
with any
supporting
document
(S11(2))
Unique only
to CIPAA
CIPAA, not
found in UK
or Singapore
WHEN
S11(1) : within 5
working days of receipt
of Adjudication
Response under
S10(1)
MODE OF
SERVICE
FORMAT
S38
Not stipulated
4 methods
(S38(a) to (d)
Left to the
Claimant
CONTENTS
EFFECT
Effect of exercise of
both options i.e.
- to reply as S11
S11(1) :
- reply to Adjudication
Response
p
- any supporting document
Reply to Adjudication
Response may comprise :
- rebuttals
- denials
d i l
- admissions
- challenges
- answers, etc
to issues/matters raised
Documents to include only
documents that support and
constitute part of the reply
Cannot raise new
aspects/issues not
previously raised or stated in
the claim
- to keep quiet/fail to
reply
are two-folded :
- signifies the end of
the Submissions
- signifies the
beginning of the
next stage i.e.
Determination
Determination
Sub-stage
If Claimant does not
serve a reply, it
cannot be assumed
th t the
that
th Claimant
Cl i
t
concedes to the
points raised in the
adjudication response
APPLICABLE
PROVISIONS
S20
S24
S25
S
S26
S27
PRECONDITIONS
No jurisdiction
issues
In the event of
jurisdictional
challenge,
Adjudicator may
decide to proceed :
S27(3)
No grant of a stay
of adjudication by
High Court
Satisfactory
completion of the
earlier stages i.e.
Submissions stage
CONDUCT OF
PROCEEDINGS
Governing Provision
S12(1)
He can conduct
adjudication :-
- in the manner
he considers
appropriate
- within the powers
given to him under
S25
Very wide power but
statutorily defined by
:
- S24 : Duties
and Obligations
- S25 : Powers
- Others : S20,
26, 27 etc
IMPORTANT
CONSIDERATIONS
MANNER
By the Adjudicator
who is the master of
the proceeding
As decided by
Adjudicator but subject
to statutory limitations
Usual practice,
involving adversarially
and inquisitorially
S25 :
He has power to :
- call for meetings
- order interrogatories
to be answered
- use his specialist
skills and expertise
- carry out
inspections, etc
But needs to comply
with S24 especially :
- rules of natural
j ti ii.e. against
justice
i t
bias and procedural
fairness
- ensure
independence,
impartialit etc
impartiality
42
Must :
- ensure confidentiality
(S20)
- not exceed
d hi
his
jurisdiction at all times
(S26 & 27)
Must :
- allow parties to be
personally represented
or by third party
(S12(3))
- that Evidence Act 1950
is not strictly adhered
to
- act in
i good
d ffaith
i h at allll
times
- ensure his continuing
duty under S24
throughout the
proceedings :
(a) no conflict of
interest
(b) impartially, timely &
avoid unnecessary
expense
( ) comply
(c)
l with
i h NJ
(d) independent &
impartial
PARTICULAR
ISSUES
Effect of :
- S14 : Consolidation
of adjudication
proceedings
di
- S17 : Withdrawal &
recommencement
of adjudication
proceedings
- S26 : power of
adjudicator not
affected by noncompliances
- S37 : Relationship
between
adjudication
dj di ti and
d
other dispute
resolution process
SOURCES/LIMITS TO
JURISDICTION
DEFINITION
No definition in CIPAA
Definition in :
Chip Hup Hup Kee
Construction Pte Ltd v
Ssangyong Engineering &
Construction Co. Ltd
(2009)
- Competence of a tribunal
to hear a matter
43
EFFECTS OF BREACHES
OF JURISDICTION
Two situations envisaged:
- Where adjudicator has no
jurisdiction in the first place
- Where the adjudicator
exceeds the limit or extent of
his jurisdiction
General effects:
- For the 1st scenario:
1. The Adjudication Decision is
invalid, non-binding and
unenforceable
Si
Simmonds
d definition
d fi iti :Jurisdiction within the context
of adjudication
- is the power of the
adjudicator
- to hear and decide
- a dispute referred to him
- issue his decision
GENERAL RULE
In a dispute between 2
parties in a construction
contract :-
Adjudicators power to
investigate his own
jurisdiction :
Adjudicator can
investigate any partial
or full challenge to his
jurisdiction
However, in the
ordinary case and
without specific
agreement by the
parties, the
adjudicator does not
have jurisdiction to
decide his own
jurisdiction i.e.
KompetenzKompetenz doctrine
does not apply
- parties agreement
Jurisdictional Challenges :
- Timing
Ti i
- Types
- Parties involved
- Effect
- Court
Courts
s role
KOMPETENZKOMPETENZ
GENERAL RULE
(1) If an adjudicator is
validly appointed and
attempts to answer that
dispute :(a) his decision will be
binding in
accordance
acco
da ce with
t
CIPAA
ADJUDICATORS POWER TO
INVESTIGATE/ DETERMINE
OWN JURISDICTION
PRACTICAL ISSUES
44
Can be given to
adjudicator by :
- agreement of
parties, or
- statutorily
EFFECTS OF BREACH
OF KOMPETENZKOMPETENZ
O
Decision by the
adjudicator would
be challenged. It
will be :(a) non-binding
(b) unenforceable
(c) may set aside
by the Courts
TYPES
Full challenge
Partial challenge
In relation to :
WHEN TO CHALLENGE ?
At the commencement of
the Adjudication
Proceedings
CHALLENGERS OPTIONS
45
OPTION 2
OPTION 1
Challenger can
agree to refer the
challenge to the
same adjudicator
and be bound by
the result
Condition :
Agreement needed
of :
Challenger
can refer to
another
Adjudicator
First
adjudication
does not stop
but continues
- Opposing Party,
and
- Adjudicator
Effects : Challenger
bound by
adjudicators
decision
- cannot challenge
it, or
- resist
enforcement on
grounds of
adjudicators lack
of jurisdiction
Condition :
Agreement
needed of
opposing party
Rarely used/
uncommon in
practice
OPTION 4
OPTION 3
Challenger can
seek declaration
from the High
Court that the
adjudicator lacks
jurisdiction
Challenger reserves
its position :
- by setting out in
clear terms
- the grounds of its
objections
Question of time,
costs and
cooperation
between Parties
involved
Normally :
Adjudicator to
adjourn
proceedings
di
with
ith
agreement of
both parties
pending
resolution of issue
by the court
Having fully
reserved its position
:
- Challenger can
participate in the
proceedings
- if required by the
Adjudicator, make
submissions on its
objections
PROCEDURE IN
INVESTIGATING
JURISDICTIONAL
CHALLENGES
4 step procedure, per
Coulson :
- validity of the
Adjudicators
Adjudicator
s
appointment
- identification of
the Dispute
- relevance of earlier
Adjudication
Decisions
- ousting of
Adjudicators
Jurisdiction in other
ways
Procedure much
depends on :
- matter under
investigation
- body/person
undertaking the
investigation
First step of
procedure :
Consider whether
or not adjudicators
appointment
i t
t is
i valid
lid
under the Act
Factors to be
considered :
- was there a
construction
contract ?
- was the contract
in writing?
- were the parties to
the Adjudication
the correct parties
in the construction
contract ?
- was the
appointment in
accordance with
the Act ?
- were all other
relevant provisions
of the Act vis--vis
the appointment
complied
li d with
ith ?
EARLIER
ADJUDICATION
DECISIONS : THEIR
RELEVANCE
IDENTIFICATION
OF THE DISPUTE
VALIDITY OF
APPOINTMENT
Factors to be considered :
- what was the scope and
extent of the Dispute in the
Written Notice of
Adjudication (i.e. under S5
& 6 of CIPAA) ?
- had the Dispute
crystallised between the
parties prior to the Notice
to Refer ?
- was the Dispute
p
referred to Adjudication, a
Single Dispute ?
- was there sufficient
connection between the
Dispute referred and the
Adjudicators
Adjudicator
s Decision
46
Factors to be considered :
- whether the two disputes
were substantially similar
or not ?
OUSTING
ADJUDICATORS
JURISDICTION
Final step of
procedure :
Determine if
Adjudicators
Jurisdiction had
been ousted in other
ways
Methods of ousting :
- Express
agreement
between the
arties - Implied
agreement
between the
parties
- Settlement of
dispute by a
compromise
agreement
- Compromise by
conduct/waiver
Examples :
Adjudicator has no
right to unilaterally
and without both
parties consent to
limit or oust his
jurisdiction
47
EFFECT OF
ERRORS
AUTHORITY OF
ADJUDICATOR
Errors of :
- procedure
- fact, or
- law
- payment response
under S6
Adjudicator cannot
consider a Respondents
Claim of :
- Set-off
- Abatement,, or
- Defence
REPUDIATION
OF CONTRACT
ADJUDICATORS
DECISION
EFFECT OF ERROR
ON EXTENT OF
AUTHORITY
CONTRACT
INTERPRETATION
Disputes concerning :
- resulting in repudiation
of contract
PRINCIPAL GOVERNING
PROVISIONS
Pi i lP
Principal
Provision
i i
S27 : Jurisdiction of
adjudicator
Others : S8(1),
12(5), 14, 15(d), 16,
17, 18(1), 21-26 &
28
No definition of term
Jurisdiction in
CIPAA
S27(2)
S27(1)
To determine only :
- disputes on matters
- referred to
adjudication by the
parties
- pursuant to S5& 6
To determine :
- any matters other
than those under
S27(1)
- that the parties
agree in writing
NB : Confined to only
Payment disputes
NB : Wider can
extend to even NonPayment disputes
SCOPE
S27(1)
Limited to Payment
dispute on matter
referred to by parties
under :
- payment claim of S5,
and
- payment response of
S6
Exception : if expressly
agreed to by Parties
S27(2)
Strict adherence to
S27(1) : necessary as
will be likely to be
strictly construed
KompetenzKompetenz doctrine
does not apply unless
subject to S27(2)
In interpretation &
application, common
law principles may
apply in the event of a
lacuna
S18
S12
S12(5) : to determine
- the amount payable
- the party to whom
payable
- the time and manner
of payment
S18(1) : to determine
- costs of adjudication
proceedings
- the costs to be paid
by the relevant party
EFFECTS OF
BREACH
EXTENSION OF
JURISDICTION
CHARACTERISTICS
48
Possible S27(2)
If jurisdiction is established to
have been exceeded :
- adjudication
j
decision can
be challenged by loser
- it can be set aside in whole
or in part on grounds
(S15(d))
- the adjudication decision
can be stayed (S16(1) &
((2))
- application for enforcement
can be opposed (S28(1)
Procedure : by
agreement in writing
between the parties
Scope : to disputes on
matters beyond those
referred to in S5 & 6
ADJUDICATORS COURSE
OF ACTION
GENERAL
No express
stipulations in
CIPAA as to the :
- types
- timing
- form
Must refer to
common law
principles.
OPTIONS
EXERCISABLE
Adjudicator may in
his discretion :
either
- decide not to
proceed and
complete the
adjudication or
adjudication,
- decide to
proceed and
complete the
adjudication
OPTION 1
OPTION 2
PROVISIONS
OF S27(3)
Presumably, must
notify the parties
off his
hi d
decision
i i
preferably in
writing
Presumably, must
notify the parties
in writing of the
decision or can
be implied by
allowing
ll i
proceedings to go
on
Governed by
S27(3)
49
GOVERNING
PROVISIONS
CONDUCT OF THE
ADJUDICATION - S12(1)
S12 Adjudication
& decision
S13 Effect of
adjudication
decision
S19 Adjudicators
fees, expenses, etc
WHERE ADJUDICATION
RESPONSE/REPLY SERVED
WHERE ADJUDICATION
RESPONSE IS RECEIVED
WHERE PARTIES
AGREE TO OTHERWISE
S12(2)(a)
S12(2)(b)
S12(2)(c)
Form: Presumably in
in Writing
Writing
Preferably to be sent to
Adjudicator before expiry of 45
working days stated in
S12(2)(a) and (b)
Adjudicator:
- Cannot unilaterally extend
time under S12(2), only
vide S12(2)(c)
- Adjudication Response, or
- Adjudication Reply
whichever is later
EFFECT OF FAILURE TO
COMPLY WITH S12(2)
WHERE S19(5)
COMPLIED WITH
50
EFFECT OF
COMPLIANCE WITH
S12(2)
S13 ; Adjudication
decision is binding
Unless :
- set aside by High Court
S15, or
- matter
tt settled
ttl d by
b
parties or
- dispute finally decided
by arbitration/court
51
BURDEN OF PROOF
terms of contract
GOVERNING PROVISIONS
NATURE
S12 and 13
S18 20
S24 27
ADJUDICATION DECISION
RECEIPIENTS
Similar to an Arbitration
Award but not so
detailed
S12(6)
3 Main Parties:
- Claimant
- Respondent
- KLRCA Director
Send hard copy by
registered post or
recorded delivery,
& soft copy by
email
CONTENTS
Not stipulated /
prescribed
Up to discretion of
adjudicator
S12(4)
To be In Writing
Not defined
MODE OF SERVICE
S38
Prescribed contents:
- Reasons (unless not
required by parties)
- Adjudicated amount
- Time and manner
this is to be paid
- Costs of adjudication
proceedings
(overriding any prior
agreement)
FORM
CORRECTION OF
ERRORS
FORMAT
52
SCOPE
Not addressed in UK
regime but case law
permits : Bloor
Construction (UK) Ltd v
B
Bowner
& Ki
Kirkland
kl d
(London) Ltd (2000)
Method :
- At request of any party
- Adjudicator on his own
volition
No time limit (within a
reasonable time
Adjudicator cannot revisit
substantive findings of law
& fact
EFFECT
S12(8)
Enforcement of
adjudication decision not
affected in any way
POST-PUBLICATION OF DECISION
LOSERS
OPTIONS
PRELIMINARY
MATTERS
Timing : following
collection/ receipt of
Decision
Both parties to
check and verify :
- accuracy//
completeness
- correctness
- compliance with
CIPAA of
Adjudication
Decision
ACCEPT THE
DECISION
Decide on next
course of action to
take
Give effect to
the decision ii.e.
e
pay the winner :
- the
adjudicated
amount
- within the
time, and
- in the
manner
Risk of default
on Loser
Winner may
be able to
enforce
Decision as
provided for
under CIPAA
stated in the
Decision
Alternatively,
- negotiate
i
and
d
- settle with
Winner a
mutually
agreed
amount
WINNERS
OPTIONS
CHALLENGE
THE DECISION
QUIET/ DO
NOTHING
Adjudication decision
may be expected to be
enforced even if it
contains error of
procedure, fact or law.
A
Arcadis
di UK Ltd v May
M
& Baker Ltd (t/a
Sanofi)(2013) :
- adjudicators are not
legally trained
- limited time to
produce decision &
t digest
to
di
t substantial
b t ti l
amount of material
- cannot compare
decision with
detailed court
judgement.
53
WHERE LOSER
DOES NOT COMPLY/
CHALLENGES
WHERE LOSER
COMPLIES WITH THE
DECISION
WHERE LOSER
DOES NOT
COMPLY/KEEPS
QUIET
WHERE LOSER
CHALLENGES IN
HIGH COURT
Resist/Challenge the
application for
- setting aside (see next
slide)
lid )
- stay
Pursue Slowing
Down/Suspension of
Work (S29)
Principle 1 : The precise question giving rise to the dispute that has been referred to the adjudicator must be identified.
Principle 2 : If the adjudicator has answered the referred question, even if erroneously or in the wrong way, the resulting decision is both valid and
enforceable. If, on the other hand, the adjudicator has answered the wrong question, the resulting decision is a nullity.
Principle 3 : In determining whether the error is within jurisdiction or is so great that it led to the wrong question being asked and to the decision being a
nullity,
llit the
th courtt should
h ld give
i a fair,
f i natural
t l and
d sensible
ibl interpretation
i t
t ti to
t the
th decision
d i i and,
d where
h
there
th
are reasons, to
t the
th reasons in
i th
the
light of the disputes that are the subject of the reference.
Principle 4 : A mistake which amounts to a slip in the drafting of the reasons may be corrected by the adjudicator within a reasonable time but this is a
limited power that does not expand to jurisdictional errors or errors of law.
Principle 5 : In deciding whether an error goes to jurisdiction, it is pertinent to ask whether the error was relevant to the decision and whether it caused
any prejudice to either party.
party
Principle 6 : A wrong decision as to whether certain contract clauses applied; or as to whether a particular sum should be evaluated as part of, or should
be included in the arithmetical computation of, the final contract sum in a dispute as to what the final contract sum, does not go to
jurisdiction.
Principle 7 : Where the claim that was considered by the adjudicator is significantly different in its factual detail from the claim previously disputed and
referred, the resulting decision was one made by reference to something not referred, was without jurisdiction and was unenforceable since
the adjudicator had asked and answered the wrong question.
CHALLENGING ADJUDICATION DECISION ON GROUNDS OF NATURAL JUSTICE
Case :
(a)
It must first be established that the Adjudicator failed to apply the rules of natural justice.
(b)
Any breach of the rules must be more than peripheral; they must be material breaches.
(c)
Breaches of the rules will be material in cases where the adjudicator has failed to bring to the attention of the parties a point or issue which they
ought to be given the opportunity to comment upon if it is one which is either decisive or of considerable potential importance to the outcome of
the resolution of the dispute and is not peripheral or irrelevant.
(d)
Whether the issue is decisive or of considerable potential importance or is peripheral or irrelevant obviously involves a question of degree which
must be assessed by any judge in a case such as this.
(e)
It is only if the adjudicator goes off on a frolic of his own, that is wishing to decide a case upon a factual or legal basis which has not been
argued or put forward by either side, without giving the parties an opportunity to comment or, where relevant put in further evidence, that the
type of breach of the rules of natural justice with which the case of Balfour Beatty Construction Company Ltd v The Camden Borough of
Lambeth was concerned comes into play. It follows that, if either party has argued a particular point and the other party does not come back on
the point, there is no breach of the rules of natural justice in relation thereto.
54
12.0 ENFORCEMENT
GOVERNING
PROVISION
Part IV : S28 to 31
PARTIES INVOLVED
ENFORCEMENT
AS HIGH COURTS
JUDGMENT
Procedure :
- Winner may apply to High court
- for an order to enforce adjudication decision
- as if it is an order/ judgment of the court
Note : In UK : Macob Civil Engineering Ltd v Morrison Construction Ltd (1999) :
- commenced proceedings in court & apply for summary judgment
judgment.
Claimant to show :(a) Respondent has no real prospect of successful defending the claim, &
(b) no compelling reason why the case should be disposed at trial.
S28(3) :
- order made under S28(2) may be executed in accordance with the rules of
execution of Orders/Judgment of High Court
Note : In NSW, there is no provision for setting aside of adjudication determination,
only to the judgment which has been entered for the purpose of enforcing an
adjudication determination.
CONCURRENT
EXERCISE OF
REMEDIES
ENFORCEMENT OF
REMEDIES THROUGH
CONSTRUCTION
CONTRACT
55
PRE-CONDITION
Existence of a
valid & subsisting
construction
contract
PRE-CONDITION
Performance of
work either :
- reduce rate of
progress; or
- suspend
completely
Applicable
Provisions : S31
Precondition : No
j
stayy of adjudication
decision has been
granted by High
Court under S16
S31(2) : Remedies
provided under
CIPAA are without
prejudice to other
right/remedies
available :
- in the Construction
Contract, or
- any written law
- including any
penalty provided
under any written
law
Pursuant to S29
Seek Direct
Payment from
Principal under
S30
Remedies can be
exercised
concurrently with :
- any, or
- all other
remedies
under S31
56
RIGHT ACCRUES
To Winner
S29
If adjudicated
amount not paid :
- wholly/partly
- after receipt of
decision under
S12(6)
PRE-CONDITIONS
Receipt of a
Valid Decision
Construction
contract still
subsisting
No stay granted
under S16
Procedure in
S29(2) & (3)
satisfied
NATURE OF RIGHT
Discretionary
See use of word
may
But must be
exercised with
applicable
period of
limitation
OPTIONS EXERCISABLE
57
TYPE
2 steps
p :
- notification of
intention, and
- follow-up action
SECOND STEP
FIRST STEP
Contents of Notice :
- S29(2)
- intention to
exercise either
option
- if loser does not
pay adjudicated
amount within 14
calendar (not
working) days of
receipt of notice
LOSER PAYS
ADJUDICATED AMOUNT
S29(3)(d) :
- winner must resume
1. performance, or
2. rate of progress of
performance
Form of Notice :
Presumablyy In
Writing
Mode of Service :
S38
Recipient : Loser
- time to do so :
1. within 10 working
days of payment by
Winner
2. default to do so :
possible breach of
p
contract
Entitlements to be pursued
contractually :
- presumably contractual
procedures need to be followed
- no sanctions for default in
granting entitlements stated
58
DIRECT PAYMENT
RIGHT ACCRUES
PRE-CONDITIONS
NATURE OF RIGHT
To Winner
Receipt of a
Valid Decision
Discretionary
S30
If adjudicated
amount not paid
by Loser :
- wholly/partly
- after receipt of
decision
Construction
contract still
subsisting
N
No stay
t granted
t d
under S16
Existence of a
Principal as
defined in S4
Money must be
due or payable
by Principal to
Loser S30(4)
Procedures in
S30(1) to (3) are
satisfied
APPLICABLE
Only where there is the
existence of a Principal (S4)
in the construction contract
other than the Winner and
Loser
Should cover :
- domestic sub-contracts
- nominated sub-contracts
- other sub-contracts
- other contractual
arrangements
satisfying
ti f i provision
i i
Who is a Principal :Eg. Main contractor (C) Employer/owner (R)
(The Principal)
Sub-contractor (C)
subcontractor (R)
Principal = main
contractor
59
DIRECT PAYMENT
PROCEDURE
TYPES
3 steps :
- request for
payment
- notification by
Principal
- consequential
action by Principal
Steps are sequential
in nature
FIRST STEP
S30(1)
Party making :
Winner
Winner
Recipient : Principal
Form : In Writing
Mode of service :
S38
Contents S38(1) :
- request for
payment of
adjudicated
amount
- for direct payment
from Principal of
this amount
Recommended
contents :
- details on the
decision
- copy may be
annexed
- preferably, time
within such
payment be made
THIRD STEP
SECOND STEP
Time to act :
- not stipulated
- has to be
reasonable but no
sanction stated
Form of action :
- S29(2)
- service of notice
on loser :
1. to show proof of
payment, or
2 di
2.
directt paymentt
would be made after
expiry of 10 working
days of receipt of
notice
No sanction
stipulated in CIPAA
Winner to pursue
other remedies
LOSER FAILS
TO COMPLY
WITH NOTICE
LOSER
COMPLIES
WITH NOTICE
PRINCIPAL
DOES NOT ACT
PRINCIPAL ACTS
ON REQUEST
Matter considered
settled
S30(3) :
- Principal shall pay
Winner direct
1. use of shall
connotes
mandatory
requirement but no
sanctions stated
2. timing for payment :
not stated but
presumably in next
certificate
3. only if Principal
owes money to
Loser S30(5)
- S30(4) :
Principal may recover
money so paid as a :
1. debt, or
2. set-off
from any money due
or payable to the
Loser
APPLICABLE
PROVISION
Section 31
comprising
- Section 31(1)
- Section 31(2)
Title: Concurrent
exercise of remedies
PRE-CONDITIONS
PRE
CONDITIONS
Receipt of a valid
Adjudication
D i i
Decision
No Stay granted
under S16 by the
High Court, or
Decision not set
aside pursuant to
S15
PARTY
ENTITLED
Party who obtained
Adjudication Decision
i hi
in
his favour
f
i th
i.e.
the
Winner
ENTITLEMENTS
S31(1)
Winner may
exercise:
- Any, or
- All
of the remedies
provided in CIPAA:
- Concurrently,
- To enforce the
Decision
Nature of right:
Discretionary (see
use of word may)
60
ENTITLEMENTS
S ( )
S31(2)
Remedies provided
under CIPAA are
without
ith t prejudice
j di tto
other rights and
remedies available
in:
- The Construction
Contract or
Contract,
- Any written law
including any
penalty
provided under any
written law
Very wide in scope
and ambit
13.0 CONFIDENTIALITY
CONFIDENTIALITY
GENERAL RULE
Adjudication proceedings
are confidential & private
GOVERNING PROVISION
UNDER CIPAA
S20 :
Confidentiality of
adjudication
EXTENT
Prohibition from
f
disclosure off any :
- statement
- admission, or
- document
Whether such is :
- made
d ((submissions
b i i
&
statements), or
- produced (all documents
retrieved or collated including
evidentiary & supporting
documents)) for the purpose
p p
of
adjudication
Also include adjudication claim,
response, reply, decision,
directions, correspondences
between parties
To another person
EXCEPTIONS TO
DUTY UNDER S20
See next slide
EFFECT OF BREACH
61
EXCEPTIONS
NATURE OF DUTY
Presumably :
mandatory
Another
Another person
person
may mean any
person, other than :
- the other party,
- the adjudicator, or
- the appointing
authority
62
CONSENT
IN PUBLIC
DOMAIN
NECESSITY
S20(a)
S20(b)
S20(c)
Where the
information is
already in the
public domain eg.
press report on the
Respondents
insolvency
Where disclosure is
necessary for
purpose :
- of the enforcement
of the Adjudication
Decision, or
- any proceedings in
court or arbitration
Form of consent :
- preferably in
writing
- but may be
implied from
conduct/waiver
Definition of public
public
domain
- none in CIPAA
- to be elicited
from authority
Disclosure to
consultants &
advisors
REQUIREMENT
UNDER
CIPAA/LAW
S20(d)
Where disclosure is
required for any
purpose under :
- CIPAA (for
purpose of
regulating the
quality of
adjudication, also
complaints
against
adjudicators, for
feedback &
subsequent
revision
i i off th
the
Act), or
- any written law
For training
purposes
p
p
&
feedback after
properly sanitised
NATURE OF
EXCEPTIONS
Prima facie :
Extensive
But limited when
p
to :
compared
- S68 CCA 2002
(NZ)
- S33 BCJ SPA
2004 (Singapore)
14.0 IMMUNITY
IMMUNITY
GOVERNING
PROVISION UNDER
CIPAA
C
DEFINITION/
FEATURES
Conferred on a person/
body
Usually
U
ll on grounds
d off
public policy
Extent : can be
- completely/wholly;
- limited/party
S34 comprising :
- S34(1)
- S34(2)
63
PARTIES COVERED
S34(1)
3 main categories :
- the adjudicator
- the appointing
authority (KLRCA)
- officers of KLRCA
SCOPE
S34(1)
EXTENT
SCOPE
S34(1)
S34(1)
For any :
- act , or
- omission
in the performance of :
- KLRCAs functions
- officers functions
under CIPAA
Immunity applies
only if the
act/omissions is
done in good faith
No Statutory
definition of good
f ith : to
faith
t use
common law
principle
ADDITIONAL
IMMUNITY
CONDITION
S34(1)
S34(1)
S34(1)
For any :
- act , or
- omission
in the performance of
his functions under
CIPAA
Protection extends to
action in contract or tort
CONDITION
EXTENT
ADJUDICATOR
S34(2)
15.0 CONSOLIDATION OF
PROCEEDINGS
64
CONSOLIDATION OF PROCEEDINGS
DEFINITION/
FEATURES
PURPOSES/
OBJECTIVES
S14 : consolidation
of adjudication
proceedings
Allows the
consolidation of 2
or more
adjudication
proceedings
To be adjudicated
by the same
adjudicator in the
same proceedings
proceedings
No specific
procedure stated
For reasons of
convenience
To prevent
duplication of
proceedings
PROVISION IN
CIPAA
PRECONDITIONS/
PRE-REQUISITES
To balance the
parties interests
ANTICIPATED
PROCEDURE
EFFECT OF
CONSOLIDATION
SCENERIO 1
SCENERIO 2
Consent of parties
required :
- to extend claim,
response &
adjudication periods
of original
adjudications
- while the
subsequent
adjudications are
being consolidated
If different adjudicators
had already been
appointed to different
adjudications
Subsequent
consolidation can only
occur by the
withdrawal of claim
(S17) from one or
more adjudications
SIMILARITY OF
DISPUTE
EXISTENCE OF ADJUDICATION
PROCEEDINGS
Any determination/
decision by the
adjudicator after
consolidation :
WRITTEN
CONSENT
DIFFICULTIES
(1)
(2)
(3)
Complication with
timelines arising from
availability of witness
& experts
(4)
Cooperation of a
larger number of
parties is difficult
(5)
Differences in
timelines for payment
claim & response.
Therefore,
adjudication decision
is delayed & will
affect others cash
flow
PrinciplesofNaturalJustice
Adjudicatormustanswerthequestion
j
q
Eachpartymustknowtheallegationsmade
E h
Eachpartymusthavetheopportunitytoknow
h
h
i
k
andrespondtoevidence
Adjudication Process
AdjudicationProcess
TypicalSequenceofEvents
Typical
Sequence of Events
ADisputeandNoticeofAdjudication
AdjudicatorSelectionandAppointment
Claim & Response
Claim&Response
ProcedureduringtheAdjudication
TheDecision
RoleoftheParties
JurisdictionalChallenges
g
Extensionstotheadjudicationperiod
S b i i
Submissions
Meetings&OralPresentations
Experts&OtherAssistance
Natural Justice
NaturalJustice
AdjudicatorsDecision
Content
Reasons
PartyCosts&AdjudicatorsFees
Interest
ReachingaDecision&Mistakes
E f
Enforcement
t
O er ie
Overview
Introduction
Purpose of a Decision
Conducting an Adjudication Proceeding
j
Decision
The Adjudication
Structure of the Determination
Correction
Confidentiality
Introd ction
Introduction
Adjudicators
j
written decision is an important
p
document in the adjudication process.
Decision to be made in writing with reasons
unless the parties mutually agree in writing
to dispense with it.
it
2 distinct purposes of a decision:a) For immediate implementation in on-going
on going
project administration; and
b) Longer term use possibly in court action
P rposes of a Decision
Purposes
2 broad applications:pp
a) For immediate implementation
P rpose of a Decision
Purpose
b) For legal reasons:
(i) :
(j) :
Conduct any
y hearing
g and limiting
g the
hearing time;
Inspection
p
of site,, work,, materials or g
goods
relating to dispute including opening up
work for inspection;
Inquisitorially take the initiative to ascertain
the facts and the law required for the
decision;
Issue any direction as may be necessary or
expedient;
Order interrogatories
g
to be answered;
Order that any evidence be given under
oath or affirmation;;
Order the discovery and production of
documents;;
Set deadlines for production of
documents;;
Appoint independent experts;
Call for meeting with parties;
Dealing
g with common incidents in a
proceeding
A
An adjudicator
dj di t mustt b
be able
bl & willing
illi tto h
handle
dl
difficult situations when it arises in a proceeding
Common incidents encountered:o
o
o
Challenges to jurisdiction
Intimidation
U
Unmanageable
bl d
documentation
t ti
Challenge to jurisdiction
j risdiction
Unlike in the Arbitration Act,
Act the principle of KompetenzKompetenz
Kompetenz does not apply. Therefore, an adjudicator is not
able to determine his own jurisdiction
Adjudicators jurisdiction limited to matters referred to in
adjudication
How to handle jurisdiction challenge?
o Meet the parties to understand the rationale of the
challenge;
o Record all things that transpired during the meeting;
o Ask parties to submit;
o Decide whether the challenge has merit
merit. If yes
yes, stay
stay. If
frivolous, continue.
Intimidation
E cessi e documentation
Excessive
doc mentation
This is usually associated with a situation of ambush
by the Claimant.
Ambush is an issue of denial of natural justice to one
party where the swamping of excessive documents by
th Claimant
the
Cl i
t will
ill lead
l d to
t situation
it ti where
h
R
Respondent
d t is
i
denied adequate time to file the adjudication response
within the stipulated time.
time
E cessi e documentation
Excessive
doc mentation (cont)
To counter such unacceptable practice, an adjudicator
could:o
o
o
o
TheRecord
TheReasons
TheDecision
The Record
Recital of the Contract details:
details:
The Reasons
Required to give reasons for his decision unless
dispensed with by the parties
Persuasive reasons help losing party to understand
how it lost the case. Reasons must withstand scrutiny
if the Decision is challenged.
g
It must be clear, cogent and certain.
From p
practical standpoint,
p
, some calculations and
explanations are essential to assist in the
implementation of the decision.
Assessing Evidence
Deal with any claim systematically,
systematically deciding first
whether the Claimant is entitled for the claim.
Unless the Respondent is liable to the Claimant for the
claim, an adjudicator may not proceed to determine
the q
quantum of claim to award.
First to determine liability requires references to the
contractual terms, implied terms by way of the
common law or the statute, and other additional
agreements, whether written or oral.
Assessing Evidence
Once the liability is established,
established proceed to determine
the quantum to award to the parties.
Burden always on the claiming party to prove.
prove Popular
Industries Ltd v Eastern Garment Manufacturing Sdn
Bhd [[1989]] 3MLJ 360.
Standard of proof is on the balance of probability.
The Decision
Operative part of the adjudicators decision.
decision
States the sum of money awarded to the Claimant i.e.
the adjudicated amount.
amount
State the date the losing party is to pay the winning
party i.e.
i e the payment due date.
date
The Decision
For interest on a principal sum awarded - state the
date of commencement, the rate and the rest.
Include the cost of the adjudication.
adjudication Usually costs
costs
follow event means the winning party is entitled to be
paid reasonable cost,, i.e. p
p
partys
y cost,, adjudicators
j
fee
and administrative fee of the appointing body.
Decision must be dated and signed but need not be
witnessed.
Award of Interest
A
An Adjudicator
Adj di t is
i empowered
d to
t award
d interest
i t
t
and financing cost.
Interest refers to the award of post-decision
i t
interest
t similar
i il
t
to
j d
judgment
t debt
d bt interest
i t
t
entitlement under the Court Rules.
Correction
Th
The Adjudicator
Adj di t
may att any time
ti
correctt any
computational or typographical error, either on the
adjudicators
adjudicator
s own initiative or at the request of any
party.
Enforcement of Adjudication Decision shall not be
affected in any way by a request for correction.
correction
C
Correction
i deemed
d
d to have
h
taken
k effect
ff
f
from
d
date
of original adjudication decision.
Confidentiality
Adj
Adjudicator
di t
and
d
th
the
parties
ti
(i l di
(including
representatives)
are
required
to
ensure
confidentiality of entire proceeding.
proceeding
C
Confidentiality
fid ti lit can be
b lifted
lift d under
d the
th following
f ll i
exceptions:o
o
o
o
Ifpaymentisnotmadeafter
AdjudicatorssDecision
Adjudicator
Decision
1) Cansuspendorreduceprogressofwork,provided
noticeisgiventolosingparty
Winnerentitledtofair&reasonableEoT &recover
any loss & expense incurred
anyloss&expenseincurred
2) Winnerhasrighttorequestdirectpaymentfrom
p
principal
p
3) Adjudicatorsdecisionenforceableasifjudgmentor
orderoftheCourt
4) Winnercanexerciseanyoralloftheabove
4)
Wi
i
ll f h b
concurrentlyoroneafteranother
Costs
Costsfollowtheevent loserpayslegaland
otherrelatedcostsofthewinner
1) Parties costs lawyers, advisors,
documentation etc
documentation,
2) Adjudicators fees & costs
3) Nominating body & Administrator eg
KLRCA
ArchitectssroleinCIPAA
Architect
role in CIPAA
1) Be aware of CIPAA
2) Understand the contract CIPAA compliant
3) Ensure all provisions of contract are capable of
i l
implementation
t ti
4) Have clear and workable payment terms in the contract
5) Keep up to date records,
records correspondence,
correspondence contract
documents & drawings
6) Update certificates interim certs, EoT, CPC
7)) Ensure right figures used in interim certs
8) Ensure work valued complies with quality or should be
excluded from payment
9) Have a systematic documentation process
10) Usually Main Con vs Employer or SubCon vs Main Con