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Time after time there is a 鈥渏urisdiction challenge鈥� immediately an adjudication gets under way. As the adjudicator I don鈥檛 mind one bit. As I see it, the jurisdiction challenge is just another part of the dispute but with a difference. Some challenges are silly, a try on; some challenge the adjudicator鈥檚 adjudicating skill.

Great stuff. The difference is that some jurisdiction challenges have been regarded from the outset as outside the ordinary scope of adjudication in line with the wording of the Construction Act. To wit, the Construction Act says that 鈥渁 party to a construction contract has the right to refer a dispute arising under the contract for adjudication鈥�.

Notice the words 鈥渁rising under鈥�. So if the challenger cleverly says go away, Mr Bingham, you can鈥檛 adjudicate because there is no dispute, we have taken it that deciding that jurisdiction is not a matter 鈥渁rising under鈥� the contract, it is merely 鈥渋n connection鈥� with the contract. Do you see the difference? The adjudicator still makes a decision whether to continue but it is taken to be a non-binding decision. All that may not now be the right approach.

The words 鈥渁rising under鈥� are, according to the Court of Appeal, not to be read so narrowly. The case is called Fiona Trust vs Privalov (24.01.07) and is an arbitration case, not adjudication. The courts in adjudication matters look very hard at arbitration cases for guidance and the Court of Appeal says that the debate about the width of the phrase 鈥渁rising under鈥� and 鈥渁rising in connection鈥� is both technical and sterile. Hurrah.

Go back to basics. To decide the right to arbitrate or adjudicate you must first decide what matters are governed by the arbitration clause. The same goes for adjudication, save that what governs that game is cast in stone in the act of parliament we call the Construction Act. The heart of the dilemma in Fiona v Privalov was that previous high-level cases had taken different views about the meaning of phrases in arbitration clauses. Some clauses said disputes 鈥渁rising out of鈥� or arising 鈥渋n connection with鈥� had a wider meaning than 鈥渁rising under鈥�. Others said these expressions should be treated as the equivalent of each other.

Credit: Simone Lia

The sun arises in glittering glory and as the jury furrow our brows in fury to decipher of it is: 鈥榓rising under the contract鈥� or arising in connection with the contract鈥�

For nine years we have lived cheek by jowl with examples of jurisdiction challenges. We know the arguments but it is up to you to run them

The Court of Appeal said: 鈥淔or our part we consider that the time has now come for a line of some sort to be drawn and a fresh start made at any rate for cases arising in an international commercial context鈥�, observing that commerce would be surprised by all these nice distinctions drawn in the cases. And it added: 鈥淚f businessmen did want to exclude (for example) disputes about the validity of a contract, it would be comparatively simple to say so.

鈥淎s it seems to us, any jurisdiction or arbitration clause in an international commercial contract should be liberally construed.鈥�

It鈥檚 now up to the courts to figure out what the Fiona arbitration case does for adjudication. It may well be that inviting the adjudicator to go away invites him to make a binding decision since the challenge may easily be a dispute 鈥渋n connection鈥� but is indistinguishable in law from 鈥渁rising under鈥�.

If your opponent complains that no adjudicator can act because this is not a construction operation, or not a contract in writing, or not a dispute, or out of time, the adjudicator鈥檚 decision may now be a binding decision, not a 鈥渕ere observation鈥�.

And can adjudicators cope with such technical issues? Oh dear me, yes. For nine years we have lived cheek by jowl with umpteen examples of jurisdiction challenges. We know them inside and out. We probably know the arguments already but it is up to you to run them. Adjudicator competence in this territory is very high. Now it is up to the courts to examine Fiona in the context of adjudication.

One other thing: I wrote to parliament when the Construction Act bill was going through its stages for adjudication, explaining that it would be useful to make clear what was meant by disputes 鈥渁rising under the contract鈥�. They said thank you 鈥� so did I.