Construction Dispute Resolution by Arbitration


Origins of Arbitration

Arbitration antedates legal systems and courts. We learn from Cicero that litigation in ancient Rome was a form of arbitration facilitated by the state; "Nore would our ancestors permit to be a Judex even in the most trifling money matters, not to speak of offers concerning the dignity of a man, unless the offering parties were agreed upon him."

The role of arbitration in international disputes grew towards the end of the 20th century, but has diminished in UK building disputes since the imposition of adjudication.

This is binding, formal and closer to a quasi-judicial procedure than to alternative dispute resolution, as arbitrators’ awards replace judicial decisions.

Arbitral Procedures

Arbitration can be entered into by agreement, is decided by an independent tribunal and has the force of law. Many standard forms of building contract and forms of appointment for building professionals contain arbitration clauses, i.e. agreements to refer disputes to arbitration.

Persons commencing arbitrations are called ‘claimants’. Those against whom the actions are brought are called ‘respondents’. Those who sit in judgement may be referred to as the ‘arbitral tribunal’. In England the members of the tribunal are called ‘arbitrators’, and in Scotland ‘arbiters’. A decision issued by the arbitral tribunal is called an ‘award’.

If arbitrators lack either legal or technical knowledge they may appoint legal and/or technical assessors to assist them. This may vary from arbitration to arbitration and be facilitated or constrained by each arbitration agreement.

The arbitrating parties may be represented or may represent themselves. What usually happens is if one side appoints a barrister the other side does likewise, and matters can escalate into something akin to a full-blown court hearing with witnesses being examined under oath.