I wonder what would happen if I used words such as “I declare I have jurisdiction” every time a responding party challenged my jurisdiction and invited me to consider it.
I’m sure everyone is familiar with adjudicators making non-binding decisions on their own jurisdiction, but do parties really analyse the language adjudicators use when they give their answer? I suspect they do, if the matters makes it to court on enforcement, but perhaps not otherwise.
In Aedifice v Shah, Akenhead J did just that. He looked at what the adjudicator wrote in his decision, when discussing whether he had jurisdiction and what conclusions he reached. This included:
“Whilst I do not have the power to determine my own jurisdiction, I am required to consider whether it is more likely than not that I have jurisdiction…
I therefore consider it more likely than not that I do have jurisdiction…”
(The adjudicator thought there was a contract in writing, evidenced by the dealings between the parties.)
Akenhead J said it was noteworthy that the adjudicator did not include a declaration in his decision. He said this strongly supported Mr Shah’s argument that the adjudicator was not deciding the issue, but merely indicating his thought process. Had the adjudicator reached a different conclusion (that he did not have jurisdiction), then he should have resigned.
I also thought it was interesting that Akenhead J held that Mr Shah had not impliedly given the adjudicator jurisdiction to decide his own jurisdiction. On the facts, I think it would have been hard to come to any other conclusion. After all, language such as “I submit that you have no jurisdiction to deal with this matter” and “Ashwin Shah invites the adjudicator to decline jurisdiction” is pretty clear.
In my experience, adjudicators do not make declarations when their jurisdiction is challenged unless they are expressly invited to do so. It would be odd to do otherwise, not least because we don’t have jurisdiction to make decisions about our jurisdiction (unless the adjudication rules permit (like the TeCSA rules)), let alone give something stronger, like a declaration.
On the other hand, I do wonder what Akenhead J would have done if the adjudicator had “declared” he had jurisdiction in his decision. Would that have been binding on the parties (albeit temporarily), or would unravelling Mr Shah’s language then have been too much of a factual enquiry for a summary judgment application (just like working out whether there was a contract in writing and, if so, what its terms were, was)?
That, I think, is one for another day.
I would like to have Mr. Molloy’s views on the extension of statutory adjudication to oral contracts. Jurisdictional challenge will then be limited to contesting that there was not a concluded contract. There are bound to be arguments about the exact terms of the relevant provisions. Is the adjudication procedure, and adjudicators, up to determining these issues? At least in Australia statutory adjudication is limited to determining matters of payment.
In response to Michael’s comment, I will be considering “in writing” next week. This week’s piece is all about ad-hoc adjudication.