The Discretion of the Certifier: A drafting tool best left in the toolshed?

Anders Axelson

July 2007

A paper based on the commended entry in the SCL Hudson Prize essay competition 2006

When we talk of a certifier in construction having a discretion, what different meanings might this have, in fact and in law? Anders Axelson applies to common areas of dispute in construction aspects of legal theory about judicial discretion, considering both the freedom a contract might give a certifier and the reviewability of the decision the certifier then reaches, with examples from Australian and English caselaw.

The concept of discretion - The 'open-textured' or 'positivist' appraoch to hard cases - The 'closed-textured' or 'neo-formalist' approach to hard cases - Categorising decision-making by certifiers - Examples from standard forms - Different interpretations of discretion and reviewability - Discretion as a drafting tool to mitigate 'hard cases' - Conclusions.

The author: Anders Axelson BE(Civil) LLB(Hons) MCIArb MIEAust is a senior consultant with Nielsen-Wurster Asia-Pacific, a subsidiary of the international management consulting group Nielsen-Wurster, based in Melbourne, Australia.

Text 16 pages.

PDF file size: 183k