Quite often parties want to argue that an adjudicator does not have jurisdiction to decide their dispute. Sometimes this is because they simply want to disrupt the process. On other occasions there is a genuine belief that adjudication is not the proper way to resolve their dispute.

Very often one of the bases of challenge of the Adjudicator's jurisdiction will be that there is no contract between the parties in question. This may be because they say that another party was the contracting party or because the contract does not comply with the terms of the Construction Act for example. How do you go about protecting yourself in the adjudication whilst making sure that you can effectively challenge the adjudicator's jurisdiction? What should an adjudicator do if he is faced with one party saying that he shouldn't be dealing with the dispute at all?

What is the right way to deal with this conundrum?  Mr Justice Akenhead recently looked at this whole issue (in Aedifice Partnership Limited v Ashwin Shah [2010] EWHC 2106(TCC).).He came up with a series of principles that parties need to apply to succeed in an argument on jurisdiction .This therefore should  guide adjudicators in how to deal with parties on these issues too.

Express agreement The simplest position is where the parties expressly  agree to give an adjudicator jurisdiction.  All you need to do then is to prove that there was such an express agreement, the adjudicator has the power to decide jurisdictional issues and all is straightforward.

Implied agreement Alternatively there may be an implied agreement giving the adjudicator this power.  To decide if there is implied agreement you need to look at all of the evidence on the issue and then decide whether one can say "with conviction "  that the parties must have agreed that the adjudicator had such jurisdiction.  This will include checking if at any material stage shortly before or during the adjudication a clear reservation was made by the party objecting to the adjudicator's jurisdiction.

Reservation of position If you want to make a clear reservation words such as "I fully reserve my position about your jurisdiction" or "I am only participating in the adjudication under protest" will normally work but on other similar phrases would do. Even if those words are used you still need to look at all the conduct during the adjudication and ask:  "Was it or should it have been clear to all concerned that a reservation on jurisdiction was being made?"

Waiver A party will however waive any objection it has made to jurisdiction if it participates in the adjudication without any reservation of any sort and its conduct and participation was intended to be and it was relied upon by the other party .You need to make sure that you avoid this trap.

Basically is all comes down to evidence of what has actually happened during the adjudication on the issue of jurisdiction.  We know that you need to make it clear that you are reserving your position on the adjudicator's jurisdiction.  What you also need to make sure is that you do not move away from that position inadvertently during the course of the adjudication.

For the adjudicator it is key that he looks at whether the parties have granted him the power to decide his jurisdiction. In this case the adjudicator chose not to include his views on this issue in his "decision" but merely pointed out that on balance he thought it likely that he did have jurisdiction. 

The judge approved this approach. The case shows that it is possible to raise an argument in the adjudication to support allegations of lack of jurisdiction without those arguments torpedoing the jurisdictional challenge. 

Any party doing it does however needs to be aware of the need to maintain that position and not inadvertently losing that right. Simply pleading that the adjudicator has no jurisdiction is not enough if the party's behaviour in the adjudication itself does not reflect that position.