Open Season for Ambush? How 'Disputes' Have Changed

Rachel Gwilliam

June 2010

A paper based on the commended entry in the Hudson Prize essay competition 2009

What is meant by a 'dispute' has great practical importance for both arbitration, where the parties' own dispute resolution clause may use the term, and for the operation of statutory adjudication, where Part II of the Housing Grants, Construction and Regeneration Act 1996 also does. A narrow interpretation may protect the parties from ambush, but also give rise to greater possibilities for challenging an adjudicator's decision; a wider interpretation protects the integrity of the adjudication process, but requires other methods to deal with the risk of ambush. Rachel Gwilliam's paper traces the recent evolution of the meaning of 'dispute' in case law, about both arbitration and adjudication; and suggests ways in which the risk of ambush in adjudication can be minimised.

Introduction - 'Dispute' and adjudication - Negative features of the 'black bag' theory - Moving beyond the limitations of Nuttall - Was Nuttall correct? - Reducing the risk of ambush - Conclusions.

The author: Rachel Gwilliam is an Associate with Morgan Cole LLP and specialises in the resolution of construction and engineering disputes.

Text 12 pages