REUTERS | Paulo Whitaker

No rules of evidence in adjudication

I was recently asked about the admissibility of a previous adjudicator’s decision in a later adjudication, where the parties were the same, the facts were similar but the project was entirely different. This was a new one for me. Often I see previous decisions from the same contract being used – not only because a party wants to rely on their binding nature – but also because of their persuasiveness (i.e. to show on the previous 8 occasions that that party won).

In my view, as there are no rules of evidence in adjudication, either party can refer to whatever documents it chooses. Therefore, there is no reason why this should not include submissions made or decisions reached by previous adjudicators, even on unrelated projects.

And what would I do, if this happened in practice?

As I have no power to exclude the previous decision, I would take it into account if (and only if) it was relevant, accepting that it could be persuasive but not binding. I wouldn’t be surprised if the other party tried to object and, possibly, raised a jurisdictional challenge (regardless of whether such a challenge had any merit).

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