The risks of going it alone

Darchem Engineering Ltd v Bouygues Travaux Publics and another [2026] EWHC 220 (TCC) is a (relatively) rare example of the Court refusing to enforce an adjudication decision. In this case, the TCC decided that a party to an unincorporated joint venture did not have a right to adjudicate on its own, without its JV partner’s involvement.

The facts

Darchem set up a joint venture with Framatome to contract for a work package for the Hinkley Point C project. The JV was not incorporated.

The main contractor was also an unincorporated JV – between Bouygues and Laing O’Rourke.

Following a dispute with the main contractor, Darchem started a series of adjudications against the main contractor. In the third of these, Darchem was awarded £23.9 million. Darchem sought enforcement of that Decision.

The main contractor resisted enforcement of the adjudicator’s Decision. It argued that Darchem was not entitled to bring adjudication proceedings on its own (i.e. without its JV partner).

The subcontract granted the right to adjudicate to “either Party”. As such, the key point in dispute was whether Darchem was a “Party” to the subcontract.

The Court decided that Darchem was not, by itself, a “Party” to the subcontract.

The Court dismissed Darchem’s arguments that (i) the members of the subcontractor joint venture were listed separately in the list of parties (and each signed the subcontract), and so were individually a “Party”, and (ii) the joint venture partners were said to be “acting jointly and severally” (and took on joint and several liability), and so should have the right to act unilaterally.

Instead, the Court decided that there were just two “Parties” to the subcontract – the joint venture subcontractor, and the main contractor.

As a result, Darchem could not commence adjudication proceedings unilaterally, without Framatome’s involvement. Therefore, the adjudicator had no jurisdiction, and the decision was not enforceable.

Discussion

The Court’s reasoning was dependent on an analysis of the precise terms of the subcontract. However, the conclusions on interpretation of the relevant terms are likely to be applicable to many contracts, and to any form of dispute resolution proceedings (not just adjudication). This is supported by a wider ‘policy’ reason for the decision, noted in the judgment – that allowing each JV member to adjudicate separately could create “chaos”, with multiple concurrent adjudications about the same issues.

So this case highlights a key risk to contracting as part of an unincorporated joint venture – that a party’s access to the dispute resolution procedures may require the cooperation of the JV partner(s).

This is a crucial right, if something goes wrong during the project. Therefore, it is risky if the right is dependent on the JV partner(s) being willing to cooperate.

A robust joint venture agreement is likely to be an important tool for minimising this risk.
This agreement should provide a mechanism for deciding whether or not the JV will commence dispute resolution proceedings, and how such proceedings will be managed.

It could also provide a mechanism for one (or more) partners to be allowed to pursue dispute resolution proceedings, even if the other partner(s) are unwilling or unable – including arrangements governing liability and the allocation of any resulting benefits and liabilities.