Adjudication
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Adjudication is the legal process by which an arbiter or
judge A judge is a person who wiktionary:preside, presides over court proceedings, either alone or as a part of a Judicial panel, panel of judges. A judge hears all the witnesses and any other Evidence (law), evidence presented by the barristers or s ...

judge
reviews
evidence Evidence for a proposition is what supports this proposition. It is usually understood as an indication that the supported proposition is true. What role evidence plays and how it is conceived varies from field to field. In epistemology, evid ...
and
argumentation Argumentation theory, or argumentation, is the interdisciplinary study of how conclusions can be supported or undermined by premises through logical reasoning. With historical origins in logic, dialectic, and rhetoric, argumentation theory, includ ...
, including legal reasoning set forth by opposing parties or
litigant - A lawsuit is a proceeding by a party or parties against another in the Civil law (common law), civil court of law. The archaic term "suit in law" is found in only a small number of laws still in effect today. The term "lawsuit" is used in re ...
s, to come to a decision which determines rights and obligations between the parties involved. Adjudication can also refer to the processes at dance competitions, in television
game show A game show is a genre of broadcast viewing entertainment (radio, television, internet, stage or other) where contestants compete for a reward. These programs can either be participatory or demonstrative and are typically directed by a host, ...

game show
s and at other competitive forums, by which competitors are evaluated and ranked and a winner is found.


Legal processes

Adjudication may be defined as "the
legal process Legal process (sometimes simply process) is any formal notice or writ by a court obtaining jurisdiction over a person or property. Common forms of process include a summons, subpoena, Mandate (criminal law), mandate, and warrant (law), warrant. ...
of resolving a dispute. The formal giving or pronouncing of a judgment or
decree A decree is a law, legal proclamation, usually issued by a head of state (such as the President (government title), president of a republic or a monarch), according to certain procedures (usually established in a constitution). It has the force of ...

decree
in a
court A court is any person or institution, often as a government institution, with the authority to Adjudication, adjudicate legal disputes between Party (law), parties and carry out the administration of justice in Civil law (common law), civil, C ...

court
proceeding; also the judgment or decision given. The entry of a decree by a court in respect to the parties in a case. It implies a
hearing Hearing, or auditory perception, is the ability to perceive Sound, sounds through an organ, such as an ear, by detecting Vibration, vibrations as periodic changes in the pressure of a surrounding medium. The academic field concerned with he ...
by a court, after
notice Notice is the legal concept describing a requirement that a party (law), party be aware of legal process affecting their rights, obligations or duties. There are several types of notice: public notice (or legal notice), actual notice, constructi ...
, of legal evidence on the factual issue(s) involved. The equivalent of a determination. It indicates that the claims of all the parties thereto have been considered and set at rest." In some cases, an application for adjudication is an alternative legal process instead of applying for a court hearing. Supreme Court of England and Wales (2015)
Aspect Contracts (Asbestos) Limited (Respondent) v Higgins Construction Plc (Appellant)
Trinity Term 015UKSC 38, paragraph 15, accessed 5 April 2021


Construction law


Australia

Each state and territory has enacted security of payment legislation which provide for adjudication of progress construction claims, starting with
New South Wales ) , nickname = , image_map = New South Wales in Australia.svg , map_caption = Location of New South Wales in AustraliaCoordinates: , subdivision_type = Country , subdivision_name = Australia , established_title = Before federation , es ...

New South Wales
in 1999. There is very little harmony between the legislation in each jurisdiction regarding the scope of contract covered and the adjudication procedure. However, in all jurisdictions, adjudications are interim pending final resolution of the dispute under the relevant terms of the contract.


New South Wales

The ''Building and Construction Industry Security of Payment Act 1999'' came into effect in
New South Wales ) , nickname = , image_map = New South Wales in Australia.svg , map_caption = Location of New South Wales in AustraliaCoordinates: , subdivision_type = Country , subdivision_name = Australia , established_title = Before federation , es ...

New South Wales
on 26 March 2000 and applies to all construction contracts commenced on or after that date. It is not possible to contract out of the legislation. Amendments to the Act made in 2013 are not retrospective, however, earlier amendments are. The Act does not apply to
mining Mining is the Extractivism, extraction of valuable minerals or other geological materials from the Earth, usually from an ore body, lode, vein (geology), vein, coal mining, seam, quartz reef mining, reef, or placer deposit. The exploitation of ...

mining
work, however, construction work ancillary to the operation of a mine is covered. The Act also does not apply to work undertaken for a resident owner within the meaning of the ''Home Building Act 1989''. In NSW, the 2016 case of '' Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd'' has allowed an adjudicator's determination for a non-jurisdictional error to be overturned through judicial review. The case went against ''Brodyn Pty Ltd v Davenport'' (2004), which had held that judicial intervention was limited to cases of a breach of essential and basic requirements.


Queensland

The Building and Construction Industry Payments Act 2004 (BCIPA) came into effect in
Queensland ) , nickname = Sunshine State , image_map = Queensland in Australia.svg , map_caption = Location of Queensland in Australia , subdivision_type = Country , subdivision_name = Australia , established_title = Before federation , established_ ...

Queensland
in October, 2004. Through a statutory-based adjudication process a claimant can seek to resolve payment on account disputes. The act covers construction, and related supply of goods and services, contracts, whether written or verbal. BCIPA is regulated by the Building and Construction Industry Payments Agency, a branch of the Queensland Building Services.


Victoria

Adjudication is a relatively new process introduced by the government of Victoria, Australia, to allow for the rapid determination of progress claims under building contracts or sub-contracts and contracts for the supply of goods or services in the building industry. This process was designed to ensure cash flow to businesses in the building industry, without parties getting tied up in lengthy and expensive litigation or arbitration. It is regulated by the Building and Construction Industry Security of Payment Act 2002. Builders, sub-contractors and suppliers need to carefully choose a nominating authority to which they make an adjudication application.


United Kingdom

The relevant
legislation Legislation is the process or result of enrolling, enacting, or promulgating laws by a legislature A legislature is an deliberative assembly, assembly with the authority to make laws for a Polity, political entity such as a Sovereign st ...
in regard to construction in the United Kingdom is the Housing Grants, Construction and Regeneration Act 1996 (1996 Chapter 53), later amended by Part 8 of the
Local Democracy, Economic Development and Construction Act 2009 The Local Democracy, Economic Development and Construction Act 2009 is an Act of Parliament, Act of the Parliament of the United Kingdom. The legislation places a duty on local authorities to promote understanding of the functions and democratic ...
. Any party to a construction contract has the right to refer a dispute arising under the contract to a third party for adjudication, whose decision shall be binding unless the courts or an arbitrator have already made a determination on the referred issue. The Act does not define "adjudication" or an "adjudicator", but an adjudicator's obligation is to act " impartially" (section 108(2)(e)). The "Scheme for Construction Contracts" set up under the Scheme for Construction Contracts (England and Wales) Regulations 1998 contains a set of adjudication provisions which are to apply to a construction contract unless the contract itself includes arrangements for adjudication which comply with statutory requirements.UK Legislation
The Scheme for Construction Contracts (England and Wales) Regulations 1998
SI 649/1998, made 6 March 1998, accessed 5 April 2021
In
Scotland Scotland (, ) is a Countries of the United Kingdom, country that is part of the United Kingdom. Covering the northern third of the island of Great Britain, mainland Scotland has a Anglo-Scottish border, border with England to the southeast ...

Scotland
, the Scheme for Construction Contracts (Scotland) Regulations 1998 apply. Section 108(3) of the 1996 Act and paragraph 23(2) of the Scheme for Construction Contracts state that "the decision of the adjudicator shall be binding on the parties, and they shall comply with it until the dispute is finally determined by legal proceedings, by arbitration ... or by agreement between the parties". In the case of ''Aspect Contracts (Asbestos) Limited (Respondent) v Higgins Construction Plc (Appellant)'', heard in 2015, the Supreme Court of England and Wales argued that the wording would have been clearer if had said "unless and until" instead of merely "until". The phrase "true value adjudication" is sometimes used in relation to the role of an adjudicator, meaning that the adjudicator is asked to determine the true value of a completed construction where this may be different from the value claimed by the contractor and/or paid by the client. The term "smash and grab" claim refers to the practice of submitting a large interim payment application at the end of the construction phase of a project, but before completion of the final account, and the term "'smash and grab' adjudication" has been used in relation to several adjudication decisions regarding liability for interim payment of such claims. In relation to a 2012 case, ''Herbosh-Kiere Marine Contractors Ltd v Dover Harbour Board'',England and Wales High Court (Technology and Construction Court)
Herbosh-Kiere Marine Contractors Ltd v Dover Harbour Board
(2012) EWHC 84 (TCC), published 26 January 2012, accessed 16 November 2022
Matt Molloy notes that there can be a distinction between "statutory adjudication", applying the processes set out in legislation, and "contractual adjudication", where a complainant exercises a right provided for in their contract. In this case, which related to a wreck-removal agreement requiring the contractor to remove the remains of a boat sunk to stop torpedoes being fired into
Dover Harbour The Port of Dover is a cross-channel ferry, cruise terminal, maritime cargo and marina facility situated in Dover, Kent, south-east England. It is the nearest English port to France, at just away, and is one of the List of busiest cruise ports ...
during , the court determined that the adjudicator had exceeded his jurisdiction and the adjudicator's ruling was therefore not upheld.


Healthcare

"Claims adjudication" is a phrase used in the
insurance Insurance is a means of protection from financial loss in which, in exchange for a fee, a party agrees to compensate another party in the event of a certain loss, damage, or injury. It is a form of risk management, primarily used to Hedge ( ...

insurance
industry to refer to the process of paying claims submitted or denying them after comparing claims to the benefit or coverage requirements. The adjudication process consists of receiving a claim from an insured person and then utilizing
software Software is a set of computer programs and associated software documentation, documentation and data (computing), data. This is in contrast to Computer hardware, hardware, from which the system is built and which actually performs the work. ...

software
to process claims and make a decision or doing so manually. If it is done automatically using software or a web-based subscription, the claim process is called auto-adjudication. Automating claims often improve efficiency and reduce expenses required for manual claims adjudication. Many claims are submitted on paper and are processed manually by insurance workers. After the claims adjudication process is complete, the insurance company often sends a letter to the person filing the claim describing the outcome. The letter, which is sometimes referred to as remittance advice, includes a statement as to whether the claim was denied or approved. If the company denied the claim, it has to provide an explanation for the reason why under regional laws. The company also often sends an explanation of benefits that includes detailed information about how each service included in the claim was settled. Insurance companies will then send out payments to the providers if the claims are approved or to the provider's billing service. The process of claims adjudication, in this context, is also called "medical billing advocacy".


Background investigations (Employment)

Adjudication is the process directly following a background investigation where the investigation results are reviewed to determine if a candidate should be awarded a
security clearance A security clearance is a status granted to individuals allowing them access to classified information Classified information is material that a government body deems to be sensitive information that must be protected. Access is restricted ...
, or be suitable for a
public trust The concept of public trust relates back to the origins of democratic government and its seminal idea that within the public lies the true power and future of a society; therefore, whatever ''trust'' citizens place in its officials must be respec ...
position, which is a job that requires a very knowledgeable and responsible person, often related to
national security National security, or national defence, is the security and Defence (military), defence of a sovereign state, including its Citizenship, citizens, economy, and institutions, which is regarded as a duty of government. Originally conceived as p ...
. It may be determined that the person is not suitable for a public trust position, but is suitable for a non-sensitive position. However, a person may be deemed unsuitable for any position. From the United States Department of the Navy Central Adjudication Facility: "Adjudication is the review and consideration of all available information to ensure an individual's loyalty, reliability, and trustworthiness are such that entrusting an individual with national security information or assigning an individual to sensitive duties is clearly in the best interest of national security."


Emergency response

Adjudication is the "process of identifying, with reasonable certainty, the type or nature of
material Material is a matter, substance or mixture of substances that constitutes an Physical object, object. Materials can be pure or impure, living or non-living matter. Materials can be classified on the basis of their physical property, physical an ...
or device that set off an alarm and assessing the potential threat that the material or device might pose with corresponding implications for the need to take further action."


Referring to a minor

Referring to a minor, the term adjudicated can refer to children that are under a court's jurisdiction, usually as a result of having engaged in delinquent behavior and not having a
legal guardian A legal guardian is a person who has been appointed by a court or otherwise has the legal authority (and the corresponding duty) to make decisions relevant to the personal and property interests of another person who is deemed incompetent, calle ...
that could be entrusted with being responsible for him or her. A child dependency or neglect adjudication can also result in a determination that a child is in need of services. Different
US states In the United States The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country Continental United States, primarily located in North America. It consists of 50 U.S. state, ...
have different processes for declaring a child as adjudicated. Arizona state law defines a dually adjudicated child as "a child who is found to be dependent or temporarily subject to court jurisdiction pending an adjudication of a dependency petition and who is alleged or found to have committed a delinquent or incorrigible act". According to Illinois state law, "adjudicated" means that the Juvenile Court has entered an order declaring that a child "is neglected, abused, dependent, a minor requiring authoritative intervention, a delinquent minor or an minor".''Illinois Administrative Code''
Section 304.2 Definitions
. Illinois General Assembly. Retrieved June 9, 2017.


See also

*
Administrative law Administrative law is the division of law that governs the activities of government agency, executive branch agencies of Forms of government, government. Administrative law concerns executive branch rule making (executive branch rules are gener ...
*
Alternative dispute resolution Alternative dispute resolution (ADR), or external dispute resolution (EDR), typically denotes a wide range of dispute resolution processes and techniques that parties can use to settle disputes with the help of a third party. They are used for ...
(e.g.
Arbitration Arbitration is a form of alternative dispute resolution (ADR) that resolves disputes outside the judiciary courts. The dispute will be decided by one or more persons (the 'arbitrators', 'arbiters' or 'arbitral tribunal'), which renders the ' ...
,
Mediation Mediation is a structured, interactive process where an impartial third party neutral assists disputing parties in resolving conflict through the use of specialized communication and negotiation techniques. All participants in mediation are ...

Mediation
) *
Collateral estoppel Collateral estoppel (CE), known in modern terminology as issue preclusion, is a common law estoppel doctrine that prevents a person from relitigating an issue. One summary is that, "once a court has decided an issue of fact or law necessary to its ...
* Dispute resolution (e.g.
Lawsuit - A lawsuit is a proceeding by a party or parties against another in the civil court of law. The archaic term "suit in law" is found in only a small number of laws still in effect today. The term "lawsuit" is used in reference to a civil act ...

Lawsuit
) *
Jurisprudence Jurisprudence, or legal theory, is the theoretical study of the propriety of law. Scholars of jurisprudence seek to explain the nature of law in its most general form and they also seek to achieve a deeper understanding of legal reasoning ...
*
Res judicata ''Res judicata'' (RJ) or ''res iudicata'', also known as claim preclusion, is the Latin Latin (, or , ) is a classical language belonging to the Italic languages, Italic branch of the Indo-European languages. Latin was originally a dialect ...


References


Further reading

*Darren Noble, Users' Guide to Adjudication in Victoria (Anstat 200

* Alexander Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics, 2nd ed. (
Yale University Press Yale University Press is the university press of Yale University. It was founded in 1908 by George Parmly Day, and became an official Academic department, department of Yale University in 1961, but it remains financially and operationally autonomo ...
, 1986). * Gad Barzilai, Communities and Law: Politics and Cultures of Legal Identities (Ann Arbor:
University of Michigan Press The University of Michigan Press is part of Michigan Publishing at the University of Michigan Library. It publishes 170 new titles each year in the humanities and social sciences. Titles from the press have earned numerous awards, including ...
, 2003). * Erwin Chemerinsky, Constitutional Law: Principles and Policies ( Aspen Publishers, 2006). * Ronald Dworkin, Taking Rights Seriously (
Harvard University Press Harvard University Press (HUP) is a publishing house established on January 13, 1913, as a division of Harvard University, and focused on academic publishing. It is a member of the Association of American University Presses. After the retirem ...
, 2005, originally 1977). * Conor Gearty, Principles of Human Rights Adjudication (
Oxford University Press Oxford University Press (OUP) is the university press of the University of Oxford. It is the largest university press in the world, and its printing history dates back to the 1480s. Having been officially granted the legal right to print books ...

Oxford University Press
, 2005). *Michael J. Gorr and Sterling Harwood, eds., Controversies in Criminal Law: Philosophical Essays on Responsibility and Procedure (Westview Press, 1992). *Michael J. Gorr and Sterling Harwood, eds., Crime and Punishment: Philosophic Explorations (Wadsworth Publishing Co., 2000; originally Jones and Bartlett Publishers, 1996). *H.L.A. Hart, The Concept of Law (Oxford University Press, 1961). *Sterling Harwood, Judicial Activism: A Restrained Defense (Austin & Winfield Publishers, 1993). *Allan C. Hutchinson, It's All in the Game: A Nonfoundationalist Account of Law and Adjudication (
Duke University Press Duke University Press is an academic publishing, academic publisher and university press affiliated with Duke University. It was founded in 1921 by William T. Laprade as The Trinity College Press. (Duke University was initially called Trinity ...
, 2000). *David Lyons, Ethics and the Rule of Law (
Cambridge University Press Cambridge University Press is the university press of the University of Cambridge. Granted letters patent by Henry VIII of England, King Henry VIII in 1534, it is the oldest university press in the world. It is also the King's Printer. Cambr ...
, 1984). *David Lyons, Moral Aspects of Legal Theory (Cambridge University Press, 1993). *John T. Noonan and Kenneth I. Winston, eds., The Responsible Judge: Readings in Judicial Ethics (Praeger Publishers, 1993). *Kathleen M. Sullivan and Gerald Gunther, Constitutional Law, 15th ed. ( Foundation Press, 2004). *Harry H. Wellington, Interpreting the Constitution: The Supreme Court and the Process of Adjudication (
Yale University Press Yale University Press is the university press of Yale University. It was founded in 1908 by George Parmly Day, and became an official Academic department, department of Yale University in 1961, but it remains financially and operationally autonomo ...
, 1992).


Lectures


Lecture
by Sir Christopher Greenwood entitled ''International Law in the Age of Adjudication'' in th
Lecture Series of the United Nations Audiovisual Library of International Law


by Stephen M. Schwebel entitled ''The Merits (and Demerits) of International Adjudication and Arbitration'' in th
Lecture Series of the United Nations Audiovisual Library of International Law
{{Authority control Judgment (law) Administrative law Civil procedure