Arbitration

It was settled law that the courts had sought to discourage losing parties in adjudications from “scrabbling around to find some argument, however tenuous”. However, the courts had to objectively consider and analyse all arguments about jurisdiction to see if they fell into the “tenuous” category; if they did, the court’s sanction would then be invariably by way of costs order, possibly by way of indemnity costs the more tenuous the argument had been. When the jurisdiction of a person appointed to make a decision under a contract, such as an adjudicator, was called into question, it was always necessary to ascertain with precision what the decision-maker was authorised to do. A vital and necessary question, when a jurisdictional challenge was mounted, was to ask what had actually been referred. That required a careful characterisation of the dispute. To determine the scope and ambit of any given dispute, the court needed to analyse the relevant exchanges between the