Operational problems and solutions of statutory complex adjudication: stakeholders’ perspectives

• Author: Samer Skaik
• Position: School of Architecture and Built Environment, Deakin University, Geelong, Australia
• Pages: 162-175

Operational problems and solutions

of statutory complex adjudication:

stakeholders’perspectives

Samer Skaik

School of Architecture and Built Environment, Deakin University, Geelong, Australia

Abstract

Purpose –Statutory adjudication was introduced into the security of payment (SOP) legislation as a

fast-track payment dispute resolution process with an express object to facilitate cash flow within the

construction contractual chain. After more than a decade of the operation of the regime in Australia and

Singapore, it becomes apparent that there are many operational problems that jeopardise the intended

object of the legislation, particularly in adjudicating complex payment disputes. The aim of this paper is

to explore views of the industry stakeholders regarding some operational problems of statutory

adjudication of as well as possible solutions.

Design/methodology/approach –“Expert interviews”methodis adopted to collect the empirical data,

involvinginterviews with 23 practitioners from Australiaand Singapore.

Findings –The study identifiedmany operational problems jeopardising the attainment of the object of the

SOP legislation suchas bias of authorised nominating authorities, short adjudicationtimeframes, inadequate

regulations of adjudicators, jurisdictional challenges, involvement of courts and lawyers and complex

drafting of the legislation. The study also analysed the views of industry experts with regard to the

opportunitiesfor improvement in the operation of the SOP legislationsuch as following the Queensland model

as amended, and introducing a legislative reviewmechanism and establishing a peer review process. It also

suggestedspecific amendments to make the legislation a more user-friendly.

Practical implications –The implication of this study is a better understanding of the most critical

problems inherent in statutory adjudication that need serious consideration by the legislatures and policymakers.

In addition, the study also provides some practical measures as suggested by the industry practitioners for each

identified problem which may stand as areliable reference for potential reform in the SOP laws.

Originality/value –There is inadequate empirical research conducted to investigate problems in the

operation of statutory adjudication. The study provides original empirical findings which become much

necessarynowadays in light of the dynamic moves towards law reformin SOP laws, particularly in Australia.

The study provides some practical measuresas suggested by the industry practitioners for each identified

problem whichmay stand as a reliable reference for potential reform in the SOP laws.

Keywords ADR, Adjudicators, Judicial review, Law reform, Security of payment,

Statutory adjudication

Paper type Research paper

1. Introduction

Statutory adjudication was introduced into the security of payment (SOP) legislation as a

fast-track payment dispute resolutionprocess with an express object to facilitate cash flow

within the construction contractual chain. After more than a decade of the operation of the

regime, it becomes apparent that there are many operational problems that jeopardise the

intended object of the legislation, particularly in adjudicating complex payment disputes.

The “one-size-fits-all”adjudication scheme has resulted in a mounting swell of complaints

and dissatisfaction with the adjudication outcome of larger and/or more complex cases,

particularly in Australia (Australian Legislative Reform Subcommittee, 2014;Moss, 2015;

IJLBE

9,2

162

Received 4 March 2017

Accepted 12 May 2017

InternationalJournal of Law in the

BuiltEnvironment

Vol.9 No. 2, 2017

pp. 162-175

© Emerald Publishing Limited

1756-1450

DOI 10.1108/IJLBE-03-2017-0009

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