The “Code Adjudicator” Model: The Pubs Code, Statutory Arbitration and the Tied Lease

Abstract

The “code adjudicator” is a new statutory intervention in business-to-business disputes. They are Janus-faced, combining a statutory arbitration function with a regulatory remit. This paper is a detailed critique of the “Pubs Code Adjudicator”, which presides over the Pubs Code Regulations 2016 and intervenes in the contractual relationships between the largest pub-owning companies and their tied-tenants. Drawing on a sample of interviews with affected tenants, arbitration data, and legal appeals under the Arbitration Act 1996, we argue that – although these “new intermediaries” show promise – there are a series of limitations with both the function of the Pubs Code Regulations and the “code adjudicator” model itself. In particular, our findings demonstrate the use of delaying tactics, the interaction of code adjudication with the parties’ existing contractual relationships, and issues with the application of arbitration “burden of proof” standards to the exercise of duties under the statutory code.

Keywords: Statutory arbitration, code adjudicator, tied leases, small businesses, landlord and tenant, dispute resolution.