GPS Marine Contractors Ltd V Ringway Infrastructure Services Ltd

Comments as to the circumstances in which a responding partys general reservation as to an adjudicators jurisdiction will be effective


Technology and Construction Court
Ramsey J
17 February 2010

One of the issues which Ramsey J had to deal with was when the circumstances in which a responding party’s general reservation as to an adjudicator’s jurisdiction will be effective.
Waller LJ stated in Bothma v Mayhaven Healthcare (2007) that the employer made it clear that he reserved his position in relation to jurisdiction in very wide terms and those terms were so wide that the contractor properly did not pursue an argument that the employer in some way had consented to more than one point being argued or consented or waived any question of jurisdiction on that basis. These statements provided strong support for the effectiveness of a general reservation. In addition in the context of arbitration prior to the provisions of section 73 of the Arbitration Act 1996, a general reservation was held to the sufficient to preserve objection to jurisdiction by a party who participated in an arbitration. For example in The Marques de Bolarque (1984) the respondent to an arbitration had written at the time of the nomination of an arbitrator by the claimant to say that it was nominating an arbitrator without prejudice to such rights as it might have. Hobhouse J held that those general words were a sufficient reservation of the right to object to the jurisdiction of the arbitrator and did not confer a jurisdiction on the arbitrators which they did not otherwise have. Potter J in Allied Vision v VPS Film Entertainment (1991) in applying that decision of Hobhouse J stated that he had made clear that what mattered was a clear qualification at the time of the appointment of the arbitrator and that if that was done, subsequent participation in the arbitration under the umbrella of the original reservation would not without more amount to a waiver or ad hoc submission. The approach taken by Hobhouse J and applied by Potter J should be adopted and was equally applicable in the case of adjudication.
If a party raised a general reservation to the jurisdiction of an adjudicator but did not specify any particular ground for such an objection, this raised potential difficulties for both the adjudicator and the other party. However, whilst those practical difficulties suggested that the use of general reservations was undesirable, that did not answer the question of whether a general jurisdictional reservation permitted a party to participate in an adjudication without thereby waiving its right to objection on jurisdictional grounds.