Selecting Arbitrators in Construction Arbitration

Selecting the right arbitrators in construction arbitration is a pivotal decision that profoundly influences the efficiency and fairness of the arbitration process. Arbitrators are entrusted with the responsibility to adjudicate the merits of the case and to shape the procedural framework of the arbitration, including the presentation and treatment of evidence. Given the weight of these responsibilities, it is essential to choose arbitrators with the requisite skills, experience, and qualities. Below are expanded considerations for selecting arbitrators in construction arbitration:

Industry and Cultural Familiarity

Arbitrators should possess an in-depth understanding of construction contracts and the specific dynamics of the construction industry. This includes being conversant with regional and national cultural nuances that can affect the interpretation of contracts and the evolution of disputes. In construction arbitration, having arbitrators who are intimately familiar with the industry ensures that technical issues are properly comprehended and addressed. While general knowledge of international commercial arbitration is beneficial, specific expertise in construction is increasingly seen as indispensable. Arbitrators do not need to be technical experts, but they must demonstrate the ability to grasp and engage with complex technical matters, which are common in construction disputes. This intellectual curiosity and cross-functional competence are crucial for arbitrators to effectively adjudicate construction-related issues.

Legal Expertise

A sound understanding of the relevant legal principles and frameworks is critical in construction arbitration. Arbitrators should ideally be well-versed in both civil and common law systems, given that construction disputes often encompass a wide range of legal issues. This dual familiarity allows arbitrators to navigate the legal intricacies that may arise during the arbitration. However, it is not strictly necessary for every arbitrator to have extensive legal training, especially if they bring other valuable expertise to the tribunal. For instance, having an engineer or architect as an arbitrator can provide essential technical insights, even if they are not as knowledgeable about the law as a lawyer. The key is to ensure a balanced tribunal where the combined legal and technical knowledge of the members meets the demands of the case.

Case Management Skills

Effective case management is particularly crucial in construction arbitrations due to the complexity and volume of evidence typically involved. Arbitrators must be proactive and capable of establishing a robust management framework to guide the arbitration. This includes scheduling, document management, and ensuring procedural efficiency. Familiarity with electronic document management systems is essential, as modern arbitrations often involve extensive digital submissions, including witness statements, expert reports, and trial bundles. The ability to manage and access these documents efficiently can significantly impact the smooth progression of the arbitration. Therefore, it is recommended that at least two members of the tribunal have demonstrated experience in managing international arbitration cases from inception to conclusion. This experience helps ensure that the arbitration proceeds in an orderly and timely manner.

Balanced Tribunal

In cases where the tribunal comprises multiple arbitrators, it is important to achieve a balance of skills and expertise among the members. The president of the tribunal should possess any attributes or expertise that the co-arbitrators may lack. This ensures that the tribunal, as a whole, is well-equipped to handle all aspects of the dispute. For instance, in a three-member tribunal, including an engineer, architect, or another construction professional alongside legal experts can provide a well-rounded perspective on both technical and legal issues. The goal is to create a tribunal that collectively meets all the demands of the case, ensuring comprehensive and informed decision-making.

Availability

The availability of arbitrators is a critical factor in construction arbitration, where cases can be particularly demanding in terms of time and resources. Prospective arbitrators should confirm their availability before appointment to ensure they can dedicate sufficient time to the case. Despite procedural requirements for availability confirmation, it is advisable to conduct thorough enquiries to verify the arbitrators' commitments. Ensuring that selected arbitrators have the necessary time to devote to the arbitration helps avoid delays and contributes to a more efficient resolution process.

Diversity

The emphasis on diversity in arbitrator selection is growing, reflecting broader societal and institutional commitments to inclusivity. When selecting arbitrators, it is important to consider diversity in terms of gender, race, ethnicity, and other relevant factors. A diverse tribunal can bring varied perspectives and experiences to the arbitration, enriching the decision-making process. There are various platforms and resources available to assist in identifying diverse arbitrator profiles. For example, initiatives like the Equal Representation in Arbitration (ERA) Pledge aim to improve the representation of women in arbitration. Leveraging such resources can help parties and counsel to identify and appoint arbitrators from a wide range of backgrounds, ensuring a more inclusive and representative arbitration process.

Additional Considerations

Beyond the primary qualities discussed, there are several other factors that can influence the selection of arbitrators in construction arbitration. For instance, the arbitrator's reputation for impartiality and fairness is paramount. Parties should seek arbitrators who are known for their integrity and ability to remain unbiased throughout the arbitration process. Furthermore, arbitrators with strong communication skills are essential, as they must effectively manage hearings, facilitate discussions, and articulate their decisions clearly. The ability to foster a cooperative atmosphere and maintain a constructive dialogue with the parties is also crucial, particularly in complex and contentious construction disputes.