Protection of Adjudicators under Security of Payment Legislations

This study aims to contribute to the development of adjudication as an effective alternative dispute resolution mechanism under the Hong Kong proposed security of payment legislation (HKSOPL) by analyzing protection of adjudicators in terms of two aspects: (1) payment of adjudicators’ fees (including right to payment and amount of payment), and (2) immunity from litigation. For each aspect, protections rendered in four dimensions have been addressed: (1) under the legislation, (2) under the contract, (3) under the agreement, and (4) under common law. Due to extensive similarities, the security of payment legislation (SOPL) in the United Kingdom is the main comparison to study the HKSOPL. Relevant cases are discussed as illustrations. It is found that the HKSOPL provides little protection to adjudicators in both aspects. Adjudicators in Hong Kong are far more exposed than arbitrators. Construction professionals interested in acting as adjudicators are advised to prepare comprehensive adjudication service agreements to ensure their rights to payment and to protect themselves against litigation. Where necessary, standard agreements should be promoted by the respective learned societies of construction professionals. These service agreements should be signed by all parties involved in the adjudication before commencement of adjudication proceedings.