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Adjudicator and Adjudication

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Re: Adjudicator and Adjudication

Post  fmwalongo on Tue Oct 12, 2010 3:26 pm

on my part the term adjudication refers to the courts of law. The adjudicatory powers are powers of judges and magistrates. In Our Tanzanian setting adjudicator does not refer to arbitratorlike.

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Re: Adjudicator and Adjudication

Post  RJM on Sat Jul 17, 2010 4:47 pm

Much of what have been posted by GadielCM + RSM, I think the bottom line is that an adjudicator should always be somebody who has relevant educational qualifications and substantial experience in what he/she is going to adjudicate in case of dispute between parties to the contract. That’s why Standard Bidding Documents issued by PPRA requires CV of who would be an adjudicator to be part and parcel bid documents proponent being the PE and bidder is required to accept or reject the proposed name and in case of rejection bidder is obliged to propose the same in the Form of Tender.

My experience is that most of practitioners don’t know that an adjudicator is an individual who presides, judges and arbitrates during a formal dispute. Typical example I have found in one of the bid documents in the Bid Data Sheet;
[1] The Adjudicator: Shall be in accordance with the Tanzania Institute of Arbitrators Arbitration Rules.
[2] Rate of the Adjudicator fees: Shall be determined in accordance with the Tanzania Institute of Arbitrators Arbitration Rules. Types of reimbursable expenses shall be: in accordance with the Tanzania Institute of Arbitrators Arbitration Rules.

In this situation can we say that PE has proposed an adjudicator who should be accepted or rejected by bidders in the Form of Tender?

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Re: Adjudicator and Adjudication

Post  RSM on Tue May 18, 2010 4:05 pm

RJM

I think in the absence a clause specifying the use of an adjudicator - i.e. by saying in the Bid Data sheet that the provision is Not applicable - the parties can not use that method automatically. Since they are given mandate to ammend the contract, BY MUTUAL CONSENT, then they can agree to revive the clause relating to the use of an adjudicator by an addendum to the contract.

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Re: Adjudicator and Adjudication

Post  RJM on Tue May 11, 2010 9:02 pm

GadielCM, I real appreciate your effort. Since most PEs indicate in the Bid Data Sheet that Adjudicator is NA [Not Applicable] and contract signed without knowing who will be the adjudicator, can the parties to the contract use this dispute resolution mechanism in case of any dispute?

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Adjudicator and Adjudication

Post  GadielCM on Tue Dec 22, 2009 5:58 pm

RJM.
I am back again for the issue of Adjudication and Adjudicator. My submission above, based on my general concept and my general understanding on your submission. I have came back with the following phrase puporting the points on the topic you submitted. These points extracted from the www.constructiondisputeservices.co.nz. May be this will help to understand what we suppose and what is when we escape the clause on adjudication, please read this;


Adjudication.



What is Adjudication?

Adjudication is the dispute mechanism within the Construction Contracts Act 2002 (The CCA). The parties in dispute use an independent adjudicator to issue a determination on their dispute, this determination is binding on the parties.

The CCA became law in April 2003, and has three aims:

· To enable regular payments between parties to a construction contract.

· To provide a simple and quick dispute resolution procedure - Adjudication.

· To provide remedies for the recovery of money due under a construction contract.

The CCA applies to all construction work entered into following April 2003. It differentiates between commercial and residential, however both types of construction are subject to the provisions of the CCA.





Who can use adjudication?

It is important to realise that you cannot exclude to provisions of the CCA, therefore anyone who has entered into a construction contract can use adjudication to resolve their dispute.
You may be the home owner, developer, contractor or subcontractor.
If you are involved in the building or construction project then the CCA applies, and if you enter into a dispute you can use adjudication to resolve your dispute.



Adjudication can be used to resolve any dispute under a construction contract, however it is only determinations for disputes involving money that are enforceable by the courts.
To instigate the adjudication process you must issue a notice of adjudication, from which you have 5 working days to select an adjudicator. There are 3 ways to select an adjudicator; either by mutual agreement, by requesting a nominating body to select an adjudicator and then the parties agreeing, or by requesting a nominating authority to select an adjudicator. Statistics have proven that selection by mutual agreement is the prevalent method.






Who or what is an Adjudicator?

An Adjudicator is an independant 3rd party who issues a determination on a construction dispute within 20 - 30 working days of the dispute being presented before them.
Anyone can call themselves an adjudicator, therefore it is wise to select someone who has under gone training, has experience in construction and is a member of a professional institute. This ensures that you have selected someone who is qualified to resolve your dispute and who is bound by a legal and professional set of ethics.





How does adjudication work?


The party instigating the adjudication and bringing a claim is called the claimant and the party defending the claim is the respondent.
The parties agree for me to be the adjudicator. They then contact me and within 2 days I will confirm my availability to act, my appointment is confirmed on agreement of my terms.
From appointment the claimant has 5 working days to make their submission on the dispute. This submission should be include all the relevant documentation required to present their side of the argument. The respondent then has 5 working days to submit there defence, again their submission needs to include all relevant information to defend the dispute. Under adjudication there is no mechanism for counter claims, they must be dealt with under a separate dispute. After the 5 working day period from receipt of the claimant submission I then have 20 working days to issue my determination. If the dispute is financial then my determination is legally binding and enforceable by the courts.
If you require further information then I can issue a copy of the AMINZ Adjudication protocol for your information
.






How long does adjudication take?

Adjudication is a quick process; If you appoint me as your adjudicator, you can have a determination within 30 working days.




How much does adjudication cost?

All dispute processes cost money, adjudication is one of the quickest procedures available and compared to litigation is very cost effective. The cost of resolving your dispute is dependent on how complicated it is, and the amount of time required examining the information prior to issuing my determination.
The parties are responsible for their own costs, and the cost of the adjudicator is either split equally or as determined by the adjudicator between the parties.
You only pay for the time spent dealing with your dispute, for confirmation of my hourly rate and terms of engagement please contact me. I may request a security or deposit as part of my engagement, if at the end of the process there is a surplus from this dispute then this will be refunded.






Arbitration.

What is arbitration?

Arbitration is one of the oldest forms of dispute resolution, and is used throughout the world to settle all types of disputes. The arbitration process is governed by The Arbitration Act 1996.

Arbitration is a resolution process where an independent 3rd party - the Arbitrator - hears from both parties and then issues an award equivalent to that of a court decision.

Arbitration is private, confidential, flexible, consensual and provides a final and binding decision.
All parties will have an equal opportunity to present their case and the respondent can bring counter claims as well as defend the disputes against them.
A hearing can be conducted in private with the process and outcome being confidential. During the hearing the parties can present evidence and call witnesses.


The parties can represent themselves or seek the assistance of someone with experience in arbitration to assist them.



Who can use arbitration?

Anyone can use arbitration to resolve their dispute, provided they have an arbitration agreement. the agreement can be either verbal or written.
For more information on Arbitration and the process involved contact me for more details
.






Who or what is an arbitrator?

An Arbitrator is an independent 3rd party who issues an award which is equivalent to a decision by the courts.
Anyone can call themselves an arbitrator, therefore it is wise to select someone who has under gone training, has experience in the issues involved in the dispute and is a member of a professional institute. This ensures that you have selected someone who is qualified to resolve your dispute and who is bound by a legal and professional set of ethics
.






How does arbitration work?

One the parties have agreed to arbitrate and the claimant has issued an arbitration notice,, the next step is generally to select an arbitrator. This can be done a number of ways however the most common is by mutual agreement.
Following selection and agreement of terms the arbitrator will hold a preliminary meeting to agree a timetable for the proceedings and to agree if a hearing is to be held. if there is not to be a hearing then the parties can submit all the relevant documentation to the arbitrator and await the award.
If there is to be a hearing then the parties need to prepare, witnesses, evidence etc. The hearing is generally held in a neutral place and it is private and confidential. At the hearing the parties will present evidence and can call witnesses. After which based on the evidence presented the arbitrator will issue there award
.






How long does arbitration take?

The duration of the preliminary stages, hearing and the time required to issue an award is entirely dependent on the dispute and the amount of evidence presented, however an arbitrator must ensure that the whole process including the issue of the award is carried out in a reasonable timeframe.




How much does arbitration cost?

All dispute processes cost money, the costs of the arbitrator and your own costs incurred in the arbitration process can either be allocated by the arbitrator in their award or by agreement between the parties. Generally arbitration is a significantly more cost effective procedure than litigation.


You only pay for my time spent dealing with your dispute, for confirmation of my hourly rate and terms of engagement please contact me. I may request a security or deposit as part of my engagement, if at the end of the process there is a surplus from this dispute then this will be refunded.



By these submission, I remain for befit for all readers.

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Adjudicator and Adjudication

Post  GadielCM on Tue Dec 22, 2009 4:09 pm

RJM
In context of Adjudication and Adjudicator in contract procurement is very important, but people they oversight the clause but when it comes on disputes matter, is when we realise the essence of adjudicator.

My understanding, the Adjucator is someone can make the dispute resolutions on behalf of the PE against the customer/supplier,contractor when the contract goes wrong in performance or what ever in terms of payments, work perfomance, delay of completion of work/ delivery, substardard delivery/ performance quality.

Its the responsibility of the PE to Select and appoint/ specify from the beginning of the SCC in the tender document, the Adjudicator so that the other part also can know who will be adjudicator for the buyer and where the Adjudication process to be done and which Adjudication Law will be used.Its the good place and good time to stand in two fits, thats why sometimes we see and here that the dispute resolutions or Arbitration to be done at Paris, Or England. This caused by lack of knowledge to use this clause.

However, the adjudicator is important because he/she is someone can advise the Client before court of law when contract goes wrong, the Arbitration to be done first, thats means the adjudicator for client and the adjudicator for other part they cna agree to make their dispute resolutions to the third part person who believe both that things can be settled. In this process we call it Arbitration. I one part disagree, then the disputes goes to court of law.

In summary, the adjudicator is someone who stands up on behlaf of the client against the legal matters in procurement contract. I submit


Last edited by GadielCM on Fri May 14, 2010 2:43 pm; edited 1 time in total

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Adjudicator and Adjudication

Post  RJM on Mon Dec 21, 2009 3:58 pm

Last week I received a call from one of the practitioners in the procurement field asking about Adjudicator and Adjudication process. Mainly concerning was who is the Adjudicator, what is the Adjudication and why is it important to have Adjudicator in the contract? The first thing I recalled is the numerous bidding and contract documents have seen indicated in the Bid Data Sheet and Special Conditions of Contracts that Adjudicator is NOT APPLICABLE (NA). This sums up that most practitioners they don’t know the meaning of Adjudicator, Adjudication process and important of having Adjudicator in the contract. I found this to be important to share with forum members.

WHAT DO YOU SAY?

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