Arbitration vs. Adjudication: UK - 5

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Obsah článku
Arbitration vs. Adjudication: UK
Final decision ?
Cost of adjudication
Cost comparison
Timetable compared
Celý článok
Timetable to the decision compared 
According comprehensive sources, most adjudications are decided in compliance with Construction Act time limits or in the other words (numbers for 2012) 44 % within the 28 days 37 % in 42 days since referral, but this may be also evidence as to “consistent trend towards longer adjudications” (conclusion of  ARC Report No 12).
In arbitration time periods binding for arbitrators or arbitration centre are not very typical, but for arbitration facilitated before JSM PCA there is provision in its Rules ( Section 11b Time limits for decision) which reads as follows:
(1) JSM PCA, arbitrator and secretary are bound by time limits for decisions, as follows:
a) on the procedural motions, taking the evidence, place of arbitration and rules of proceeding  – within ten days from the day of  delivery of the motion,
b) on the objections and challenges, excepting the objection on lack of jurisdiction, on which the Tribunal shall decide in the decision on the merit within thirty days from the day of  delivery of the motion,
c) on the merit, within sixty days from the day of delivery of the Request for arbitration,
d) on the merit, within fifteen days from the day of delivery of the due Request for  Arbitration concerning the Bill of exchange.
(2) Time limit set up in the subsection 1), point c) shall be prolonged in the case of lack of cooperation of third persons, no more than up to thirty days. Other time limits should not been prolonged.
Prima facie one this limits are long, but quite short limits set up in Construction Act has been concepted for purpose (which clearly failed) to uphold adjudication in course of works ( that means before completion of the construction).
Moreover, in fact most of arbitration before PCA JSM are completed in 45 days, and most of  delays are delays with delivery of the award, which is ex lege finally binding.   In situation, when most of adjudications are to be enforced,  which can take time counted in months not days, (and such enforcement could be stayed by court on the basis of next-step arbitration or court proceeding) it is not so clear if time limits differing between 28-42 days for non final resolution and 60-90 days for final resolution could be reasonable dettering from “arbitration first” proceeding.  
Arbitration first
Arbitration first is such management of arbitration clause, which open space to the parties to referral to arbitration in construction cases without precondition of adjudication. While adjudication is mandatory proceeding, if arbitration clause does not word by word states precondition of adjudication, any party have right to start arbitration.  While opposing party will try for adjudication, there is good reasons to consider, that arbitration with empowered enforcement and possibility of counter-claim shall prevail. In other modelled situation, concurrently pending arbitration and adjudication shall cumulate in the arbitration if adjudicator issues decision against party who referred case to the arbitration. In case of construction contract  based only on default mandatory rules on adjudication (whithout agreement on finality of the adjudicator decision) one hard can see practical reasons for opposing party to rely on nonbinding adjudication in situation when arbitration has been started in such cost effective and spead manner as JSM PCA rules offers to the parties.