Scheme for Construction Contracts (Scotland) Regulations 1998

JurisdictionUK Non-devolved
CitationSI 1998/687

1998 No. 687 (S.34)

CONSTRUCTION CONTRACTS

The Scheme for Construction Contracts (Scotland) Regulations 1998

Made 6th March 1998

Coming into force 1st May 1998

The Lord Advocate, in exercise of the powers conferred on him by sections 108(6), 114 and 146 of the Housing Grants, Construction and Regeneration Act 19961and of all other powers enabling him in that behalf, having consulted such persons as he thinks fit, hereby makes the following Regulations, a draft of which has been laid before and has been approved by resolution of each House of Parliament:

Citation, commencement and extent
S-1 Citation, commencement and extent

Citation, commencement and extent

1.—(1) These Regulations may be cited as the Scheme for Construction Contracts (Scotland) Regulations 1998 and shall come into force at the end of the period of 8 weeks beginning with the day on which they are made.

(2) These Regulations extend to Scotland only.

Interpretation
S-2 Interpretation

Interpretation

2. In these Regulations, “the Act” means the Housing Grants, Construction and Regeneration Act 1996.

The Scheme for Construction Contracts (Scotland)

The Scheme for Construction Contracts (Scotland)

S-3 Where a construction contract does not comply with the...

3. Where a construction contract does not comply with the requirements of subsections (1) to (4) of section 108 of the Act, the adjudication provisions in Part I of the Schedule to these Regulations shall apply.

S-4 Where– the parties to a construction contract are unable to...

4. Where–

(a) the parties to a construction contract are unable to reach agreement for the purposes mentioned respectively in sections 109, 111 and 113 of the Act; or

(b) a construction contract does not make provision as required by section 110 of the Act,

the relevant provisions in Part II of the Schedule to these Regulations shall apply.

S-5 The provisions in the Schedule to these Regulations shall be...

5. The provisions in the Schedule to these Regulations shall be the Scheme for Construction Contracts (Scotland) for the purposes of section 114 of the Act.

Hardie

Lord Advocate

Edinburgh

6th March 1998

SCHEDULE

Regulations 3 to 5

THE SCHEME FOR CONSTRUCTION CONTRACTS (SCOTLAND)

1 ADJUDICATION

PART I

ADJUDICATION

Notice of intention to seek adjudication

Notice of intention to seek adjudication

SCH-1.1

1.—(1) Any party to a construction contract (“the referring party”) may give written notice (“the notice of adjudication”) of his intention to refer any dispute arising under the contract to adjudication.

(2) The notice of adjudication shall be given to every other party to the contract.

(3) The notice of adjudication shall set out briefly–

(a)

(a) the nature and a brief description of the dispute and of the parties involved;

(b)

(b) details of where and when the dispute has arisen;

(c)

(c) the nature of the redress which is sought; and

(d)

(d) the names and addresses of the parties to the contract (including, where appropriate, the addresses which the parties have specified for the giving of notices).

SCH-1.2

2.—(1) Following the giving of a notice of adjudication and subject to any agreement between the parties to the dispute as to who shall act as adjudicator–

(a)

(a) the referring party shall request the person (if any) specified in the contract to act as adjudicator;

(b)

(b) if no person is named in the contract or the person named has already indicated that he is unwilling or unable to act, and the contract provides for a specified nominating body to select a person, the referring party shall request the nominating body named in the contract to select a person to act as adjudicator; or

(c)

(c) where neither head (a) nor (b) above applies, or where the person referred to in (a) has already indicated that he is unwilling or unable to act and (b) does not apply, the referring party shall request an adjudicator nominating body to select a person to act as adjudicator.

(2) A person requested to act as adjudicator in accordance with the provisions of sub-paragraph (1) shall indicate whether or not he is willing to act within two days of receiving the request.

(3) In this paragraph, and in paragraphs 5 and 6 below, “an adjudicator nominating body” shall mean a body (not being a natural person and not being a party to the dispute) which holds itself out publicly as a body which will select an adjudicator when requested to do so by a referring party.

SCH-1.3

3. The request referred to in paragraphs 2, 5 and 6 shall be accompanied by a copy of the notice of adjudication.

SCH-1.4

4. Any person requested or selected to act as adjudicator in accordance with paragraphs 2, 5 or 6 shall be a natural person acting in his personal capacity. A person requested or selected to act as an adjudicator shall not be an employee of any of the parties to the dispute and shall declare any interest, financial or otherwise, in any matter relating to the dispute.

SCH-1.5

5.—(1) The nominating body referred to in paragraphs 2(1)(b) and 6(1)(b) or the adjudicator nominating body referred to in paragraphs 2(1)(c), 5(2)(b) and 6(1)(c) must communicate the selection of an adjudicator to the referring party within five days of receiving a request to do so.

(2) Where the nominating body or the adjudicator nominating body fails to comply with sub-paragraph (1), the referring party may–

(a)

(a) agree with the other party to the dispute to request a specified person to act as adjudicator; or

(b)

(b) request any other adjudicator nominating body to select a person to act as adjudicator.

(3) The person requested to act as adjudicator in accordance with the provisions of sub-paragraph (1) or (2) shall indicate whether or not he is willing to act within two days of receiving the request.

SCH-1.6

6.—(1) Where an adjudicator who is named in the contract indicates to the parties that he is unable or unwilling to act, or where he fails to respond in accordance with paragraph 2(2), the referring party may–

(a)

(a) request another person (if any) specified in the contract to act as adjudicator;

(b)

(b) request the nominating body (if any) referred to in the contract to select a person to act as adjudicator; or

(c)

(c) request any other adjudicator nominating body to select a person to act as adjudicator.

(2) The person requested to act in accordance with the provisions of sub-paragraph (1) shall indicate whether or not he is willing to act within two days of receiving the request.

SCH-1.7

7.—(1) Where an adjudicator has been selected in accordance with paragraphs 2, 5 or 6, the referring party shall, not later than seven days from the date of the notice of adjudication, refer the dispute in writing (“the referral notice”) to the adjudicator.

(2) A referral notice shall be accompanied by copies of, or relevant extracts from, the construction contract and such other documents as the referring party intends to rely upon.

(3) The referring party shall, at the same time as he sends to the adjudicator the documents referred to in sub-paragraphs (1) and (2), send copies of those documents to every other party to the dispute.

SCH-1.8

8.—(1) The adjudicator may, with the consent of all the parties to those disputes, adjudicate at the same time on more than one dispute under the same contract.

(2) The adjudicator may, with the consent of all the parties to those disputes, adjudicate at the same time on related disputes under different contracts, whether or not one or more of those parties is a party to those disputes.

(3) All the parties in sub-paragraphs (1) and (2) respectively may agree to extend the period within which the adjudicator may reach a decision in relation to all or any of these disputes.

(4) Where an adjudicator ceases to act because a dispute is to be adjudicated on by another person in terms of this paragraph, that adjudicator’s fees and expenses shall be determined and payable in accordance with paragraph 25.

SCH-1.9

9.—(1) An adjudicator may resign at any time on giving notice in writing to the parties to the dispute.

(2) An adjudicator must resign where the dispute is the same or substantially the same as one which has previously been referred to adjudication, and a decision has been taken in that adjudication.

(3) Where an adjudicator ceases to act under sub-paragraph (1)–

(a)

(a) the referring party may serve a fresh notice under paragraph 1 and shall request an adjudicator to act in accordance with paragraphs 2 to 7; and

(b)

(b) if requested by the new adjudicator and insofar as it is reasonably practicable, the parties shall supply him with copies of all documents which they had made available to the previous adjudicator.

(4) Where an adjudicator resigns in the circumstances mentioned in sub-paragraph (2), or where a dispute varies significantly from the dispute referred to him and for that reason he is not competent to decide it, that adjudicator’s fees and expenses shall be determined and payable in accordance with paragraph 25.

SCH-1.10

10. Where any party to the dispute objects to the appointment of a particular person as adjudicator, that objection shall not invalidate the adjudicator’s appointment nor any decision he may reach in accordance with paragraph 20.

SCH-1.11

11.—(1) The parties to a dispute may at any time agree to revoke the appointment of the adjudicator and in such circumstances the fees and expenses of that adjudicator shall, subject to sub-paragraph (2), be determined and payable in accordance with paragraph 25.

(2) Where the revocation of the appointment of the adjudicator is due to the default or misconduct of the adjudicator, the parties shall not be liable to pay the adjudicator’s fees and expenses.

Powers of the adjudicator

Powers of the adjudicator

SCH-1.12

12. The adjudicator shall–

(a) act impartially in carrying out his duties and shall do so in accordance with any relevant terms of the contract and shall reach his decision in accordance with the applicable law in...

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