Aedifice Partnership Ltd V Shah
Technology and Construction Court
10 August 2010
An express agreement to give an adjudicator jurisdiction to decide on a binding way whether he had jurisdiction fell into the normal category of any agreement so that it simply had to be shown that there was an express agreement. For there to be an implied agreement giving the adjudicator such jurisdiction (i) It was necessary to look at everything material that was done and said to determine whether it was possible to say with conviction that the parties must be taken to have agreed that the adjudicator had such jurisdiction and (ii) It would have to be clear that some objection was being taken in relation to the adjudicator's jurisdiction because otherwise it would not be possible to imply that the adjudicator was being asked to decide a non-existent jurisdictional issue which neither party had mentioned. One principal way of determining that there was no such implied agreement was if at any material stage shortly before or mainly during the adjudication a clear reservation was made by the party objecting to the jurisdiction of the adjudicator.
The following considerations were relevant in determining whether a clear reservation had been made by the party objecting to the adjudicator’s jurisdiction (i) Such a reservation could and usually would be made by words expressed by or on behalf of the objecting party (ii) Whilst words such as "I fully reserve my position about your jurisdiction" or "I am only participating in the adjudication under protest" would usually suffice to make an effective reservation and were desirable, they were not absolutely essential (iii) It was possible to look at every relevant thing said and done during the course of the adjudication to see whether by words and conduct what was clearly intended was a reservation as to the jurisdiction of the adjudicator (iv) It would be a matter of interpretation of what was said and done to determine whether an effective reservation was made and (v) A legitimate question to ask was whether it was or should have been clear to all concerned that a reservation on jurisdiction was being made.