Under section 25 of the Act, any party to a construction contract is entitled to refer a dispute arising under that construction contract to adjudication except where the parties have agreed to refer disputes between them to arbitration and the arbitration is an international arbitration. A ‘dispute’ is defined in section 5 of the Act as: a dispute or difference that arises under a construction contract. An example of a dispute is a disagreement between the parties to a construction contract about whether an amount is payable under the contract, or whether there has been a breach of the contract, including a breach of any term/warranty implied into every construction contract by the Building Act 2004, or any other enactment.
A party to a construction contract has the right to refer a dispute to adjudication whether or not that dispute is the subject of another dispute resolution procedure, for example, court, tribunal or arbitral proceedings, or mediation. Section 26 of the Act provides that nothing in the Act prevents the parties from submitting a dispute to another dispute resolution procedure whether or not the proceedings for the other dispute resolution procedure take place concurrently with an adjudication. In essence, this is just another way of saying that the decision of the adjudicator is provisional and will be binding on the parties until the dispute is finally determined by arbitration or by court proceedings, or resolved by agreement or mediation after the dispute is determined by the adjudicator.
