Key messages from the 2019 London Adjudication & Arbitration Conference

Authors: James Doe, Noe Minamikata and Karan Talwar

The 2019 London Adjudication & Arbitration Conference was held at the Chartered Institute of Arbitrators' offices on 23 August 2019. This post discusses some of the interesting topics that were explored including changes in the new (2017) FIDIC contracts, disputes processes in the Belts and Road Initiative (BRI) and the continuing debate of the advantages of arbitration over litigation for construction disputes, and vice-versa.

The conference was split into two "tracks": arbitration and adjudication.

The arbitration track

In his session on the new FIDIC contracts, Abdul Jinadu (Keating Chambers) described how the new contracts were more detailed and required a more 'managerial' approach and active resourcing by the parties. One of the issues that attracted interest was in relation to the role of the Dispute Avoidance and Adjudication Board (DAAB): would the DAAB be able to discharge its role as an adjudication board effectively after first wearing an "avoidance" hat, i.e. after having discussions with the parties aimed at avoidance? It was suggested that there was a potential for conflict in two roles being performed by the same body, and that FIDIC could have been more prescriptive about the DAAB's duties in this regard.

The session on the BRI discussed how there was not a great deal of clarity about the provisions that would govern disputes in BRI projects, but noted the preference towards hybrid processes like med-arb. It was suggested that the stakeholders were keen on resolving disputes as expeditiously as possible.

The panel discussion on "Is international arbitration fit for purpose in the 21st century?" was chaired by Marcus Taverner QC (Keating Chambers). The panel members were James Doe (HSF), Tracey Stretton and Matthew Finn (Ankura) and Sophie Nappert (3VB). The panel concluded that the TCC remained a high-quality mode of resolving construction disputes given the expertise of the bench but that international arbitration continued to have an important role to play for cross-border disputes given the relative ease of enforcement of arbitration awards. Both arbitration and litigation are now cross-pollinating ideas from each other and seeking to evolve: for instance, the Disclosure Pilot Scheme in the TCC is aimed at making the disclosure process more flexible, and institutions like the ICC are addressing delays in arbitrations by trying to cut down on the time taken to issue awards with financial disincentives for the Tribunal.

The adjudication track

The adjudication track also featured a number of topical issues, including the application and use of metadata and big data in adjudications. One of the sessions that drew a great deal of interest from the delegates was on dispute funding for adjudication. This session covered the practical and commercial considerations where adjudications are funded by third party institutions, and explained how third party funding, which is usually associated with high value disputes, can also work in the context of adjudications.

For further information, please contact James Doe, Noe Minamikata or Karan Talwar.