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ARTICLE · 31 MARCH 2021

Legal Developments In Construction Law: March 2021

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A party to a construction contract subject to the Housing Grants Act can go to adjudication at any time. But is a clause that says a dispute cannot be referred to court or arbitration until an adjudicator...

United KingdomReal Estate and Construction
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1. Can a contract bar litigation or arbitration of a dispute until adjudication is over?

A party to a construction contract subject to the Housing Grants Act can go to adjudication at any time. But is a clause that says a dispute cannot be referred to court or arbitration until an adjudicator has made their decision, effective as a contractual bar? Or can it be sidestepped because the clause ousts the jurisdiction of the courts?

Clause W2.4(1) of NEC3 is such a clause and, in deciding that it is an effective contractual bar, making adjudication a mandatory step prior to referring any dispute to a tribunal (whether court or arbitration), a Scottish court said it was clear from the language of the clause, and its relationship with other clauses, that these provisions were intended to be definitive as to the means, and the sequence, for determining disputes. The claimant's approach, that these provisions could be ignored in favour of an unqualified right of direct

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This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.

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