Feargal Quinn (Independent)

I move amendment No. 6:

In page 6, before section 8, to insert the following new section:

8.—(1) A party to a construction contract has the right to refer for adjudication in accordance with this section any dispute relating to payment arising under the construction contract (in this Act referred to as a "payment dispute").

(2) The right under subsection (1) applies in spite of any term of the construction contract which purports to exclude or limit its application or is otherwise inconsistent with it.

(3) The party may exercise the right by serving on the other person who is party to the construction contract at any time notice of intention to refer the payment dispute for adjudication.

(4) The parties may, within 5 days beginning with the day on which notice under subsection (3) is served, agree to appoint an adjudicator of their own choice or from the panel appointed by the Minister under section 9.

(5) Failing agreement between the parties under subsection (4), the adjudicator shall be appointed by the chair of the panel selected by the Minister under section 9.

(6) The party by whom the notice under subsection (3) was served—

(a) shall refer the payment dispute to the adjudicator within 7 days beginning with the day on which the appointment is made, and

(b) shall at the same time provide a copy of the referral and all accompanying documents to the person who is party to the construction contract.

(7) The adjudicator shall reach a decision within 28 days beginning with the day on which the referral is made or such longer period as is agreed by the parties after the payment dispute has been referred.

(8) The adjudicator may extend the period of 28 days by up to 14 days, with the consent of the party by whom the payment dispute was referred.

(9) The adjudicator shall act impartially in the conduct of the adjudication and shall comply with the code of practice published by the Minister under section 10, whether or not the adjudicator is a person who is a member of the panel selected by the Minister under section 9.

(10) The adjudicator may take the initiative in ascertaining the facts and the law in relation to the payment dispute and may deal at the same time with several payment disputes arising under the same construction contract or related construction contracts.

(11) Subject to subsection (12), the decision of the adjudicator shall be binding until the payment dispute is finally settled by the parties.

(12) The decision of the adjudicator shall not be binding if the payment dispute is referred to arbitration or proceedings are otherwise initiated in relation to the decision unless the parties agree to accept the decision as finally determining the payment dispute.

(13) The adjudicator may correct his or her decision so as to remove a clerical or typographical error arising by accident or omission but may not reconsider or reopen any aspect of the decision.

(14) The adjudicator is not liable for anything done or omitted in the discharge or purported discharge of his or her functions as adjudicator unless the act or omission is in bad faith, and any employee or agent of the adjudicator is similarly protected from liability.

(15) Each party shall bear his or her own legal and other costs incurred in connection with the adjudication.

(16) The parties shall pay the amount of the fees, costs and expenses of the adjudicator in accordance with the decision of the adjudicator.

(17) An adjudicator may resign at any time on giving notice in writing to the parties to the dispute and the parties shall be jointly and severally liable for the payment of the reasonable fees, costs and expenses incurred by the adjudicator up to the date of resignation.

(18) The parties to a dispute may at any time agree to revoke the appointment of the adjudicator and the parties shall be jointly and severally liable for the payment of the reasonable fees, costs and expenses incurred by the adjudicator up to the date of the revocation.".

These related amendments create a new process which is quite an important part of the Bill.

As I mentioned earlier, of the four certainties which I hope to achieve, three would be achieved by this amendment, the certainty of timing, the certainty of the amount and the certainty of being able to stop work if not paid suspension. We are also looking for a solution to apply to disputes when they occur. These amendments would create a new process for the adjudication - note the word "adjudication" - of payment disputes and they set out arrangements for this new process. This is quite a critical aspect of the Bill. It creates an important mechanism by which unpaid parties to construction contracts can get a relatively quick and cost-effective resolution of their payment disputes. The amendments deal with the right to refer payment disputes to adjudication, the right to suspend work for failure to comply with the adjudicator's decision, the selection of a panel of adjudicators and the code of practice for adjudication.

Amendment No. 6 makes provision for a new system of adjudication and gives contracting parties the right to refer payment disputes to adjudication and it sets out the arrangements to be followed. It ensures that a construction contract cannot be drafted to try to negate or to reduce this right to adjudication.

Amendment No. 7 provides that if an adjudicator's award is not paid in full within seven days of the adjudication decision, the unpaid party has a right to suspend work under the construction contract. The amendment sets out the rules governing this arrangement.

Amendment No. 8 sets up arrangements for the creation of a panel from which an adjudicator can be appointed to deal with a payment dispute. Amendment No. 9 gives the Minister for Finance the power to prepare and publish a code of practice to govern the conduct of adjudicators. This is a crucial part of this legislation as it installs something which it is hoped will reduce considerably the number of disputes which are not settled quickly. It is a way of settling such disputes quickly and fairly.