SAICE

Adjudication and Arbitration How to deal with Challenges to Jurisdiction

R480,00 Incl. VAT

Product Code: TD/SAI/AACJ
This book, which follows on the companion book (The Legal Process dealing with Construction Disputes) by the same author, aims to equip the reader with knowledge and techniques to deal with challenges to the jurisdiction of a presiding officer within the construction dispute resolution process, usually encountered during adjudications and arbitrations. This book explains the difference between the two main kinds of jurisdictional challenges – threshold challenges (which challenge the presiding officer’s right to preside over a matter) and internal challenges (which assert that some aspects of the referring party’s case fall outside the presiding officer’s jurisdiction) – and how these should be dealt with.

Additional information

Weight 500 g
Author

Hubert Thompson
Publisher

SAICE Academy Publication
ISBN Number

978-0-6397-1115-7
Year

2022

Contents
Executive summary iv
1 Challenges within the dispute resolution process 1
2 The structure of the dispute resolution process 3
2.1 The dispute resolution process for the various standard form
construction contracts 3
2.2 The difference between adjudication and arbitration 5
2.2.1 Adjudication 5
2.2.2 Arbitration 8
3 Interpreting or construing legal documents 10
3.1 The rules of interpretation 10
3.2 Implication if there is non-compliance with the provisions of the law 11
3.2.1 A sanction (consequence) is prescribed for non-compliance 12
3.2.2 No sanction (consequence) is prescribed for non-compliance 17
4 The audi alteram partem principle of the rules of natural justice 30
4.1 Principles 30
4.2 Provisions of the standard form construction contracts 34
4.2.1 The Joint Building Contracts Committee –
Principal Building Agreement 34
4.2.2 The Engineering and Construction Contract 34
4.2.3 The General Conditions of Contract for Construction Works 35
4.2.4 The Fédération Internationale des Ingénieurs-Conseils Conditions
of Contracts 36
5 Procedural law 37
5.1 Principles 37
5.2 Default proceedings 39
5.2.1 Principles 39
5.2.2 Provisions of the standard form construction contracts 39
5.3 Putting a person on terms 42
6 Determine the extent of a dispute 45
6.1 Not a new case but new facts and arguments 45
6.1.1 Principles 45
6.1.2 Provisions of the standard form construction contracts 46
6.2 Defining the dispute 47
7 Determinations 48
7.1 Principles 48
7.2 Provisions of the standard form construction contracts 49
7.2.1 The General Conditions of Contract for Construction Works 49
8 How to deal with a challenge to jurisdiction 51
8.1 Classifying challenges 51
8.2 Disclosing challenges 54
8.3 How to deal with challenges 56
8.3.1 Introduction 56
8.3.2 Does the presiding officer have the power to determine his
own jurisdiction or not? 58
8.3.3 How to deal with a (threshold) challenge 63
9 Case studies 70
9.1 Objection against the appointment of an arbitrator 71
9.2 Contractor claims for encountering adverse physical conditions 83
9.2.1 Premature notice of disagreement and not following the
correct procedure 95
9.2.2 Submitted information does not comply with the provisions of
the contract 104
9.2.3 Validity of claims due to non-continuity in submitting
monthly updates 108
9.3 Records not kept and submitted as required in terms of
the contract 115