This month there has come into force an epoch-making statutory framework which is likely to be providing a new source of activity for construction experts with a legal leaning.

It is contained in Part II of the Housing Grants, Construction and Regeneration Act 1996.

In future almost all construction contracts will have to contain a provision conferring the right on both parties to refer any dispute to "adjudication".

The only significant exceptions are construction contracts with residential occupiers, and oral contracts."Adjudication" here involves the appointment of an "adjudicator" within seven days, and the making of a decision by the adjudicator within 28 days.

No matter how complex the dispute, the requirement is for a decision within 35 days of a party triggering the process.

There can be an extension of up to 14 days if the referring party agrees; but there can be no further extension unless both parties agree.

When one recollects that construction disputes are amongst the most complex with which the courts have to deal, the speed with which the decisions of adjudicators will have to be made is breathtaking.Once issued, the adjudicator's decision is binding unless and until the dispute is finally determined by litigation or arbitration.

In practice, that means that the decisions of adjudicators will be effective for a good many years.

Arbitration in construction cases generally takes as long as litigation; and the fact that the parties will already have an impartial adjudicator's decision may act as a subtle disincentive to speedy arbitrations.

Moreover, some standard form construction contracts prohibit the opening of an arbitration until after the practical completion of the works.

And many people in the construction industry are forecasting that in nine cases out of 10 there will be no litigation or arbitration following an adjudicator's decision: the costs of full-scale contests in such complex cases are such that, unless a dissatisfied party feels he has compelling material to show that the adjudicator made the wrong decision, there will be a reluctance to mount a challenge.The adjudicator must act impartially; but there similarity with traditional dispute-resolution mechanisms probably ends.

The adjudicator can -- and in practice may have to -- take the initiative in ascertaining facts and the law.

Does this mean he can telephone around people who may know something? Can he then base his decision on what he has been told in the absence of one or even both parties? We wait to discover what the Courts will say on such matters.

One line of argument which may be presented is that adjudication is a form of arbitration within the Arbitration Act 1996.

If that argument is sound, it could justify the conclusion that an adjudicator must allow a party a fair opportunity to present his case.There is authority that the label used to describe a mechanism for dispute resolution is not decisive.

In Cape Durasteel v Rosser & Russell (1995) 46 Con L R 75, HH Judge Humphrey Lloyd, Official Referee, held that a procedure stipulated in a contract which was called "adjudication" was, in fact, arbitration.

On the other hand, i n Cameron Ltd v John Mowlem & Co plc (1990) 52 BLR 24, the Court of Appeal held that the procedure called "adjudication" in the standard form of building subcontract DOM/1 was not arbitration within the Arbitration Act 1950.

Amongst the reasons was that DOM/1 provided that the adjudicator's decision should be binding (just like adjudication under the Housing Grants Act scheme) until determination by an arbitrator.

Therefore, said the Court of Appeal, it had "an ephemeral and subordinate character".

I firmly expect that the courts will similarly hold that statutory adjudication is not arbitration.

That could lead to the result, which will horrify traditionalists, that there is no obligation on an adjudicator to observe the rules of natural justice.Adjudication will be a form of expert determination -- analogous to a provision in a contract that a share price shall be taken to be the sum fixed by a named accountant, or to a rent review clause whereby the new rent is to be fixed by a surveyor "acting as an expert and not an arbitrator".

Courts have shown themselves reluctant to intervene in such situations.

In the leading case Jones v Sherwood Computer Services plc [1982] 1 WLR 277, the Court of Appeal held that where parties agreed to be bound by an expert's report, the report could not be challenged on the ground that mistakes had been made in its preparation unless it could be shown that the expert departed from his instructions in a material respect.

A share sale agreement provided that the price should be calculated by reference to the amount of sales, as determined by an independent accountant.

Dillon LJ set out the approach of the courts:"On principle, the first step must be to see what the parties have agreed to remit to the expert, this being, as Lord Denning MR said in Campbell v Edwards [1976] 1 WLR 403, 407G, a matter of contract.

The next step must be to see what the nature of the mistake was.

If the mistake was that the expert departed from his instructions in a material respect -- eg he valued the wrong number of shares, or valued shares in the wrong company, or if, as in Jones (M) v Jones (RR) [1971] 1 WLR 840, the expert had valued machinery himself whereas his instructions were to employ an expert valuer of his choice to do that -- either party would be able to say that the certificate was not binding because the expert had not done what he was appointed to do." (at p 287)But in the Sherwood case no such fundamental mistake could be asserted, and so the statement of claim was struck out.In Nikto Hotels (UK) Ltd v MEPC plc [1991] 2 EGLR 103 Knox J pithily summarised what this approach meant:"If [the expert] has answered the right question in the wrong way, his decision will nevertheless be binding.

If he has answered the wrong question, his decision will be a nullity." (at p 108)The non-intervention policy of the courts goes so far that even an error of law by an expert decision-maker will be allowed to stand uncorrected.

In Conoco UK Ltd v Phillips Petroleum Co (UK) Ltd [1996] CILL 1204, Morison J discussed the situation of parties agreeing that a decision on the construction of a contract -- which is a question of law -- be made by an "expert".

He said that the court would not intervene, unless it could be shown that the expert had not performed the task assigned to him.

The limit of that line of thinking was shown by the House of Lords decision in Mercury Communications Ltd v Director General of Telecommunications [1996] 1 WLR 48.

There the Director was alleged to have misinterpreted the mean ing of "fully allocated costs" in a telecommunications licence agreement, when making a determination on telephone charges.

Lord Steyn said that if he misconstrued the agreement he asked himself the wrong question, and so the court could intervene.A recent decision of HH Judge Bowsher, Official Referee, has again emphasised the reluctance of the courts to intervene.

In Dixons Group plc v Jan Andrew Murray-Ohoynski (1997) 86 BLR 16, the defendant sold to the plaintiff a computer company.

Part of the consideration was an amount equivalent to the value of the net assets, which were defined as the assets shown in "Completion Accounts", which were drawn up some time after completion of the sale.

The sale agreement provided that disputed items be referred to the decision of an accountant appointed by the President of the Institute of Chartered Accountants.

The expert so appointed decided that at the completion date there were no net assets, but, on the contrary, net liabilities.

The defendant contended that there would have been net assets if the plaintiff had used best or reasonable endeavours to realise debts or stock, and that the expert should have had regard to what such endeavours would have realised; instead, they said, the expert had considered only the actual performance of the plaintiff in getting in debts and stock.

The judge held that the fatal difficulty in that submission was that the defendant could not identify the instruction alleged to have been breached, nor demonstrate its breach.

He held, in effect, that if there were two ways in which an accountant could undertake a task, it was left to him to choose which way he performed it.

The judge also said that it would not be permissible to join the expert in order to get discovery or interrogatories against him.The compulsory character of this procedure created by the Housing Grants, Construction and Regeneration Act 1996 is unprecedented in English law.

Neither side is obliged to take a dispute to adjudication, but both sides must throughout the project retain the right to do so at any time.

Parties cannot enter into a contract without an adjudication scheme, even if both of them want to do so.

Contracting out is impossible.

If parties purport to enter into a construction contract which does not include adjudication, then a default scheme drafted by the Government, "The Scheme for Construction Contracts", will automatically be deemed to be part of the contract.I suspect that most lawyers outside the construction world will be amazed to discover that the Government has interfered with freedom of contract to such an extent that a party to a construction contract is now obliged to accept a dispute resolution procedure under which the decision-maker may not even have to abide by the rules of natural justice, and under which a court may be powerless to correct a manifest error of law.Parties are free to choose whomsoever they like as adjudicator.

They can agree the name of the adjudicator at the time of entering into the contract, and make the appointment a contractual term.

Or they can simply agree who is to appoint the adjudicator, if and when there is a dispute.

A number of well-known bodies such as the Institution of Civil Engineers and the Royal Institute of British Architects are preparing lists of persons they believe to be suitable to appoint.

The advantage of naming the adjudicator in the contract is that the parties can avoid the unhappy eventuality of an adjudicator being appointed in whom they have no confidence; the disadvantage is that the agreed adjudicator may not be available at the moment when a dispute is referred.There is no requirement for any formal qualifications in an adjudicator.

But the necessity for the adjudicator to produce a decision with such speed is leading most people within the construction world to believe that a technical background will normally be desirable.

Typical disputes are likely to be whether an architect in a building contract certified sufficient money on an interim payment to a contractor, or whether the engineer in a motorway repair contract has been fair in refusing an extension of time upon the discovery of a subsoil condition which the contractor did not expect.

Whilst in theory it will be possible for an adjudicator to invite the parties to submit expert evidence in the same way as a judge, the sheer pressures of time may precipitate the adjudicator to make up his own mind unaided by expert evidence.

Therefore, most adjudicators will probably prove to be architects, engineers and building and quantity surveyors.On the other hand, the apparent absence of judicial control will lead many contracting parties to have a strong preference for an adjudicator who has some experience of fair procedures as operated by the courts.

Therefore, I expect that experienced construction expert witnesses are exactly the people who will be in most demand as adjudicators.

The construction professionals within the membership of the British Academy of Experts could find that they have a busy new line of work.

So, too, the construction professionals who are Fellows of the Chartered Institute of Arbitrators.