ConstructionPro Week, Volume: 2 - Issue: 48 - 11/29/2013

Do Arbitration Panels Just Tend to ‘Split the Baby?'

By Steve Rizer

“I’ve always heard that arbitration panels just tend to ‘split the baby.’ Is that your experience?” This is one of the questions that Navigant Construction Forum Executive Director James Zack fielded during the “Q&A” segment of “Trends in International Construction Arbitration,” a 90-minute webinar for which a recording recently was added to the ConstructionPro Network (ConstructionProNet.com) Download Library -- free of charge for members.

In answering this question, Zack told the webinar audience that in 42 years as a claims consultant, he only has been involved in “maybe one or two cases” in which he saw a 50-50 split. And in one such case, “I did not end up believing they just split the money. I think the issues that were found for and against my client happened to be priced out in such a way that they came out 50-50.”

Zack said that “people who have well-documented claims," -- and they can prove the entitlement, causation, and rational approach to damages -- are more likely to prevail, and so I have not seen a whole lot of split decisions coming down out of arbitration cases.”

About a year ago, Navigant Construction Forum released a 32-page research perspective, entitled “Trends in International Construction Arbitration,” which Zack authored. Here are a few of the report’s major conclusions:

A majority of international corporations have formalized internal policies on dispute resolution in order to minimize dispute escalation, control costs, and promote consistent internal policies. Most corporate dispute-resolution policies favor arbitration, have a strong preference concerning the choice of governing law, prefer specific arbitral institution rules (versus ad hoc arbitration rules), prefer a specific seat of arbitration, and mandate confidentiality of issues in arbitration.
International arbitration is growing, with virtually all arbitral institutions reporting a growth in cases filed year after year.
Well over half of in-house legal counsel do not use existing retained legal counsel for international arbitration but seek out specialists in this field. In-house legal counsel generally agree on the attributes they are looking for in legal counsel for international arbitrations and their selection criteria.
In-house legal counsel are also remarkably consistent when asked what the top influences are when it comes to selecting arbitrators.
Likewise, in-house counsel are very consistent in their choice of governing law for international arbitration and consider this decision paramount when considering law, institution, and seat.

To inquire about obtaining a copy of the report, call Navigant Consulting Inc. at (800) 621-8390.

For immediate access to the complete webinar (full audio and visual) -- as well as nearly three dozen other construction-related webinars that are available for download -- sign up to become a member of WPL Publishing’s ConstructionPro Network, a complete training, education, and development resource for the construction industry, at http://constructionpronet.com/info/Charter2012.aspx.

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