Pendulum Arbitration: What? Why? How?

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I delivered a paper last week for the South Australian Bar Association on pendulum arbitration. It met with a positive reaction, and I share it below.

The general drift – unsurprisingly enough, is that I believe pendulum arbitration to be underused in the commercial context. The principal reason for this is that most practitioners are unaware of it, and thus have no experience or knowledge about when and how it should be used. Hopefully, this paper will be a small step in rectifying this lacuna.

 

Pendulum Arbitration: What? Why? How?

 

Robert Fenwick Elliott[1]

 

Abstract

  1. Pendulum arbitration is a form of arbitration in which the arbitrator must adopt, as the award, one or other of the draft awards put forward by the parties themselves. It is widely and successfully used in other jurisdictions around the world and particularly in some types of dispute, but has been only rarely used in Australia as a means of resolving commercial disputes. Its advantage over conventional arbitration is that it is significantly faster and significantly cheaper. It may be implemented by entering into a suitable pendulum arbitration agreement, either ab initio in a contract or ad hoc, whether at the outset of the dispute or after a mediation has failed, or after litigation has become bogged down.
  2. There are good reasons why pendulum arbitrations could and should be more widely used.

 

What Is Pendulum Arbitration?

  1. Pendulum arbitration (also known as baseball arbitration, or last best offer arbitration, or final offer arbitration (FOA)[2], or straight choice arbitration) is a subset of arbitration whereby at the conclusion of the process, the parties each provide the arbitrator with a draft award, and the arbitrator adopts as the final award the draft which most closely accords with the arbitrator’s opinion.[3] There is no scope for the arbitrator to substitute his or her own judgement, and so there is a powerful incentive on the parties to pitch their draft awards at a moderate and reasonable level, so as to improve the prospect that their draft will be adopted.
  2. For practical reasons, discussed below, pendulum arbitrations are conducted much more rapidly, and less expensively, than conventional arbitrations. Usually, but not always, the arbitrator does not give reasons.[4]

Is A Pendulum Arbitration Award Enforceable?

  1. A pendulum arbitration agreement was challenged in NSW Racing v Tab[5]. The Supreme Court of New South Wales found that there was no reason why the parties should not be held to the pendulum arbitration agreement (the judge referred to it as “last best offer” or “baseball”) that they had agreed.[6]
  2. The position is the same in England & Wales. In HM Prison Service v. Bewley[7] the question was whether a pendulum arbitration award was a collective agreement within the meaning of Section 178 of the Trade Union and Labour Relations (Consolidation) Act 1992 (a question of no relevance in Australia). In answering that question in the affirmative, the United Kingdom Employment Appeal Tribunal found[8] that the agreed pendulum arbitration procedure was indeed a binding “mechanism for the final resolution of disputes between the parties”. Pendulum arbitrations are similarly recognised as binding in the US.[9]

 

The Use of Pendulum Arbitrations

  1. Much (not all) of the use of pendulum arbitrations has been in the United States. In particular, they are used in the resolution of the following types of dispute:
  • From the 1970s, pendulum arbitration has been used to resolve disputes as to the salaries of baseball players;[10]
  • More generally, it has been used in other industrial relations disputes, only in the USA but elsewhere[11];
  • Healthcare billing disputes;
  • Taxation disputes;
  • more recently, pendulum arbitration has increasingly been used in the redetermination of tract participation (equity) for unitized oil and gas fields that straddle domestic license boundaries or international borders;[12]
  • A broad list of other areas was identified in Gleason and Sussman #1[13]
  • There is some experience of pendulum arbitrations successfully being used to resolve construction disputes, both in the US[14] and in Australia[15].

The History of Pendulum Arbitrations

  1. The author first became aware of pendulum arbitration many years ago, coming upon this precedent in the 16th edition of Kelly’s Draughtsman[16]:

Each of the parties shall include in its submissions to the Arbitrator its proposals for an award to be made by him and the Arbitrator shall in his award adopt without modification the whole of the proposals made by one of the parties.

  1. The author of that work, Roderick Ramage, noted that this form of dispute resolution has been around for a very long time, and according to the 14th century travel book of Sir John Mandeville was then in use in Assyria. In that case, the somewhat passive approach demanded of the arbitrator was especially appropriate, because the chosen arbitrator, St Thomas, had already been dead for well over a millennium.[17]

 

Pendulum Arbitrations as an Antidote to Excessive Time and Cost

  1. It is trite to remark that both litigation and conventional arbitration are unacceptably slow and disproportionately expensive, and that repeated attempts to reform such systems have met with little success. Illustrating the point, the Woolf Report which preceded the last major overhaul of civil procedure rules in the UK, included statistics gathered by Professor Hazel Genn which analysed legal costs as taxed in cases where a payment into court had been accepted. In construction cases, for example, it could be seen that legal costs usually exceeded the sum in dispute in all but the largest category of cases. Usually. Not merely sometimes. Other categories of case were not much better. Such statistics are rarely available, but anecdotal evidence suggests that the position is no better in Australia, and that it has not improved, and that conventional arbitration is probably even more expensive, and even slower, than litigation. In the court system, specialised courts, such as the Technology and Construction Courts in various jurisdictions, have somewhat improved matters, but not by much. Likewise, expedited arbitration procedures promulgated by dispute resolution organisations have had relatively modest impact.
  2. Mediation often provides a solution. But not always. Sometimes, the parties are unwilling to mediate, or a mediation has failed.
  3. Adjudication can sometimes, but by no means always, provide a means of resolving construction disputes relatively promptly and cheaply. But as noted below, the scope of statutory adjudication in Australia is limited, and following adjudication the parties sometimes exercise their right to litigate or arbitrate afresh.
  4. Pendulum arbitration is far quicker and far cheaper than conventional arbitration or litigation, and as such can represent an attractive alternative. Some may see it as somewhat rough justice. But it is worth bearing a couple of points in mind:
  • Procedures in which the legal costs exceed the sum meaningfully in dispute never provide justice to both parties, and rarely provide justice even to the winning party (if there is one); the more usual result is that both parties end up as net losers when legal costs and disruption to their business are taken into account;
  • Anecdotal experience suggests that (surprisingly to some) relatively short and affordable procedures produce less anomalous results than lengthy and absurdly expensive procedures, at any rate in the eyes of the parties themselves. This is not only because, in slow and expensive procedures, the wealthy can often outpocket the less wealthy, but also because the longer and more complex the procedure, the more likely it is that the outcome will be determined by something other than the true merits of the case. This may seem counterintuitive to lawyers who assume that piling on more and more legal procedure leads to better justice. But it is all too evident to lay clients.

 

Other Antidotes

  1. Pendulum arbitration is not, of course, the only alternative to full-scale litigation or arbitration. Other options include:
  • trial by combat
  • trial by sample
  • mediation
  • minitrial
  • adjudication
  • expert determination
  • dispute boards
  1. Each of these has its advantages and disadvantages. But none of them have been entirely successful in providing a certain method of resolving disputes without excessive cost or delay.

 

Pendulum Arbitrations in Practice

  1. The key feature of pendulum arbitrations is that they encourage the parties to adopt a more reasonable position than would otherwise be the case:

Because of the risk that the arbitrator will choose one’s opponent’s reasonable

offer instead of one’s extreme offer, pendulum arbitration is thought to force both parties to make reasonable offers.[18]

 

  1. More particularly, the practical impact of the pendulum arbitration system appears in practice to work backwards, as follows:
  • there is a powerful incentive for each party, when it puts in its draft award at the end of the hearing, to pitch that award at a moderate and reasonable level, thereby increasing the prospect that that draft award will be the one chosen by the arbitrator;
  • knowing that they are going to put in a relatively reasonable draft, the parties are encouraged to pitch their advocacy at the hearing at a moderate level. To advocate for a very ambitious result, and then to abandon such advocacy in the draft award, may well make a party look foolish;
  • similarly, a party may well look foolish if it pleads for an ambitious result, and then abandons such pleading in the advocacy. Parties are thus incentivised to take relatively reasonable positions early in the process.
  1. Further, if as part of a binding ADR provision in a contract (including a provision of a mediation process), pendulum arbitration was the prescribed arbitration route following a failed mediation, the parties might be induced to make more reasonable offers at the mediation itself.
  2. The procedure in pendulum arbitration (at any rate, as set out in the author’s model form) is much simpler than in conventional arbitration:
    1. the parties exchange pleadings, typically in electronic format, including the documents and any expert reports upon which they rely. The arbitrator is at liberty to seek clarification of any matter, but otherwise there is no scope for subsequent amendment;
    2. there is no discovery of documents, nor scope for any further expert reports;
    3. the arbitrator, as soon as reasonably practicable and convenient to the parties, fixes a hearing date, the hearing ordinarily taking place on a single day;
    4. the hearing takes place on a chess clock basis, and the parties are at liberty to use their time as they choose, including adducing viva voce evidence from witnesses and/or making submissions as to the law and/or the facts. There is no cross-examination unless requested by both parties;
    5. the rules of evidence do not apply, and all opportunities for court involvement in the process provided for by the Commercial Arbitration Act 2011 (SA) are excluded;
    6. at the conclusion of the parties’ cases on the day of the hearing, each party has a short period (half an hour or so) to reflect on what has been said during the day, and must then hand in a draft award in a sealed envelope. The amount in such draft award includes any entitlement in respect of interest and/or costs;
    7. the arbitrator delivers his award on the next day following the hearing, in the unamended form of one of the drafts.
  3. Pendulum arbitrations are generally thought to be less confrontational, and less damaging to future relationships, than litigation or conventional arbitration.

The adversarial nature of litigation and conventional arbitration makes these forms of resolution stressful and often leaves both parties embittered.[19] Pendulum arbitration, on the other hand, helps to preserve the long-term relationship between the parties because the process is simpler and because the choice of reasonable offers lowers the sense of antagonism between the parties.[20]

  1. In the context of disputes as to the salaries of baseball players, the procedure typically involves the process whereby the parties are required to negotiate, and exchange offers. There is evidence that, in that context, the exchange of such offers often leads to settlement. In Final Offer Arbitration: A Model for Dispute Resolution in Domestic and International Disputes[21] Meth notes:
  2. High Percentages of Parties Using FOA Settle

In practice, participants to FOA avoid arbitration hearings in great numbers. Ninety per-cent of disputes that enter the Baseball salary arbitration process settle before the hearing.

The Form and Content of Pendulum Arbitration Agreements

  1. Like any other arbitration agreement, a pendulum arbitration agreement must be in writing.[22]
  2. There is no publicly available standard form in Australia.[23]
  3. Typically, a pendulum arbitration is conducted before a single arbitrator, but sometimes, a panel of 3 is appointed in very high value disputes, as was the case in the tax dispute between the IRS and Apple computers. Whilst perhaps a counsel of perfection, it is clearly desirable to appoint as the arbitrator someone with knowledge and understanding of the technique, or at least experience of other intermediate dispute resolution systems such as minitrial, dispute review board hearings, or adjudications determined following a hearing. And it is clearly desirable to appoint as the arbitrator someone with a high level of legal expertise in the relevant area of law, so that the parties may have confidence that the draft award chosen is indeed the one closest to the result that would have been obtained by full-scale litigation or arbitration.
  4. In the context of construction disputes, it is neither usual[24] nor sensible to provide for the arbitrator to give reasons. There are a number of factors at play here:
  • by their nature, arbitral reasons are essentially “bottom-up”; that is to say the arbitrator must set out the evidential basis for the award. Conversely, a pendulum arbitration award is “top-down” in the sense that all the arbitrator has to do is to evaluate which of the draft awards is closer to his or her opinion at the end of the process. Accordingly, to require reasons would slow the process down, and massively increase cost, by requiring each party to lead evidence as to everything necessary to prove its case;
  • typically, reasoned arbitral awards are delayed, often by a long time, after the conclusion of a hearing. Conversely, a pendulum arbitration award without reasons can be given more or less immediately after the completion of the hearing, thus saving considerable time and cost;
  • one of the advantages of pendulum arbitration, as noted above, is that it causes less ill-feeling between the parties than conventional litigation or arbitration. Such ill-feeling can often be exacerbated by the content of the reasoned award, particularly if such a reasoned award includes criticism of a party or its witnesses. Conversely, the party in a pendulum arbitration whose draft is not adopted is more likely to focus on whether it pitched its draft at the right level;
  • The judiciary of South Australia does not have a good reputation in terms of respecting party autonomy in dispute resolution. Dispensing with reasons significantly reduces any risk of the courts seeking to interfere with the arbitral outcome. As noted in Russell on Arbitration:

reasons are effectively a pre-requisite for any appeal against the tribunal’s decision, because in practice it will only be possible to argue that there has been an error of law if the tribunal has explained the basis of its findings by giving reasons.[25]

  1. It is legitimate to ask, why would the parties themselves want reasons? More usually, the parties themselves – both winners and losers – want to move on; it is more likely to be the lawyers who are keen to dissect the legal sausage. The exception, of course, is an arbitration loser who wants to appeal, or to allege some sort of miscarriage of the arbitral process. But the whole point of pendulum arbitration is to curtail the opportunity for such escalation of proceedings.
  2. In South Australia, it would not be prudent to adopt an American precedent, or the simple precedent from Kelly’s Draughtsman noted at paragraph 8[26] The author’s own model form of pendulum arbitration agreement includes the following express agreements pursuant to the Commercial Arbitration Act 2011 (SA):

 

  1. The parties hereby make the following agreements pursuant to the Act[27]:

 

  1. pursuant to section 3(1) that written communications shall be taken to have been received if emailed from the solicitors of either party to the solicitors of the other.
  2. pursuant to section 17(1) the Arbitrator shall have no power to grant interim measures.
  3. pursuant to section 19(1) and (3), the rules of evidence shall not apply so as to preclude the admissibility of any evidence, but the parties shall be at liberty to make submissions as to the relevance of, materiality of and weight to be given to any evidence, and the Arbitrator may take such matters into account.
  4. pursuant to section 20(1), the place of the arbitration shall be Adelaide.
  5. pursuant to section 21, these arbitral proceedings commence on the date of this agreement.
  6. pursuant to section 22(1) the language to be used in the arbitral proceedings shall be English.
  7. pursuant to section 23(1), the procedure agreed hereby takes the place of the statements of claim and defence referred to in that subsection.
  8. pursuant to section 23(3) that no further amendments of either party’s claim or defence, save as provided for in this agreement.
  9. pursuant to section 24(1), that the procedure agreed hereby takes the place of the Arbitrator’s usual discretion to decide whether to hold oral hearings or the other matters referred to in that subsection.
  10. pursuant to section 25(1) (a) and (b), that those subsections shall have no application to this arbitration.
  11. pursuant to section 26, the Arbitrator shall have no power to appoint any expert to report to him.
  12. pursuant to section 27B(2), the court shall have no power to order the attendance of any person to be examined as a witness, or to produce any relevant document, or to do any relevant thing.
  13. pursuant to section 27C, no application may be made for any order for consolidation of this arbitration with any other proceedings.
  14. pursuant to section 27D(1) the Arbitrator may act as mediator, whether or not continuing with this arbitration.
  15. pursuant to section 27J, the court shall have no jurisdiction to determine any question of law arising in the course of the arbitration.
  16. pursuant to section 28(4), that the Arbitrator must decide the dispute according to the reasonableness of the draft awards proposed by each party, and the likely outcome that proceedings in court would have had, but for this agreement, and taking into account that the figure to be payable pursuant to such draft award is inclusive of entitlements to interest and costs, and otherwise in accordance with the procedures contained in this agreement.
  17. pursuant to section 31(3), that no reasons are to be given for the award.
  18. pursuant to section 33(1) the period of time for a request for correction of computational errors shall be 2 hours.
  19. pursuant to section 33A, the Arbitrator shall have no power to make any award for specific performance.
  20. pursuant to section 33B, the costs of the arbitration (including the fees and expenses of the Arbitrator) are not to be in the discretion of the Arbitrator, but are to be determined by reference to the form of the award mandated by the attachment hereto.
  21. pursuant to section 33F, the parties agree that the amount of the award shall include all entitlement to interest and/or costs, and accordingly that the Arbitrator shall have no further power to make any direction for the payment of interest or as to the costs of the parties.
  22. pursuant to section 34A(3)(d), the parties hereby agree that it would not be just and proper for the court to determine any question of law arising out of an award in this arbitration.

 

Pendulum Arbitration Following Failed Mediation

  1. Mediation does not always succeed in resolving a dispute. But quite often, in failed mediations, the “gap” between the parties’ positions can be narrowed, such that it is possible to identify parameters within which the parties agree that the final solution should lie. In those circumstances, it may be possible to agree a pendulum arbitration on the basis that the pendulum arbitration award will be within those parameters. There are a few reasons why pendulum arbitration may be particularly suitable in these circumstances:
    • that gap is almost invariably smaller, and is often very much smaller, than the stakes in litigation. Future legal costs which might be regarded as proportionate in relation to the stakes in litigation may well be regarded as absurdly disproportionate in relation to the much smaller commercial gap;
    • the parties are likely already to have prepared position papers, which with little or no adaption may serve the purpose of pleadings in a pendulum arbitration;
    • by agreeing that the pendulum arbitration award must lie within the agreed parameters, the parties can be assured that there is no risk of a result outside those parameters.

Pendulum Arbitration Where Litigation Has Become Bogged Down

  1. Litigation is typically back-end loaded. The early stages of pre-action protocols and pleadings are relatively inexpensive. The subsequent stages of interlocutory battles, disclosure of documents, the preparation of experts’ reports and witness statements and the like pile on significant further cost. And then the trial is much more expensive than that.
  2. Almost invariably, the parties’ initial expectations and the lawyers’ prelitigation estimates of the cost of litigation are underestimates. Time after time, the parties get part way through the process of litigation before adequately appreciating the financial cost of litigating through to the end of the trial. Further, their initial enthusiasm to let slip the dogs of war tends to be replaced by a weariness of the process. This is especially so when the pace of the process appears to slow down and, from the perspective of the parties themselves, get bogged down in procedural issues that have little if anything to do with what they perceive as the real dispute.
  3. Again, there are reasons it may make sense for parties part way through the litigation process to change course, and have the dispute resolved by pendulum arbitration:
    • the pleadings and other material in which the parties have invested will not be wasted but may be deployed in the pendulum arbitration process;
    • part way through the litigation process, the parties are likely to have come to a more realistic view as to the likely outcome of the litigation process, if it were to run its full course;
    • parties often commence litigation in the hope of an early victory by settlement, or perhaps by some early victory by way of summary judgment. If those hopes are not fulfilled, then the risk/reward equation dramatically changes for the worse;
    • quite simply, the parties may have become sick of the time and cost of litigation, and want their dispute quickly and inexpensively brought to a conclusion.
  4. It may not be entirely obvious how the usual provision for a stay of court proceedings in favour of arbitration – section 8 of the Commercial Arbitration Act 2011 – operates in the circumstances,[28] but in practice, there appears to be no impediment to the parties choosing to change course in this way.
  5. Similar considerations might arise in the context of a conventional arbitration, but the author is aware of no examples of the parties choosing to switch to pendulum arbitration in the midst of a conventional arbitration. In principle, there appears to be no reason why the parties might not so agree, either by agreeing to terminate the original arbitration agreement and instead agreeing a pendulum arbitration agreement, or by agreeing to transform their existing arbitration agreement into a pendulum arbitration agreement.
  6. Disputes which have become bogged down in traditional litigation, and then the subject of a failed mediation, might be especially suitable for pendulum arbitration, particularly if the parties can agree parameters for the pendulum arbitration award.

 

The Future

  1. Might pendulum arbitration take over from conventional arbitration as the dominant form of arbitration of commercial disputes in Australia? That is not such an unlikely prospect as it might appear.
  2. Until the 1990s, extra-judicial adjudication of disputes[29] was a relatively rare beast, restricted to the “Green Form” of construction subcontract in the UK and limited in its application of the availability of set-off to main contractors against subcontractors in the construction industry. It became more widely available in the UK for all construction disputes in 1996[30], and an Australian version – more limited in application – arrived in Australia in 1999 in the form of the “security of payment” legislation.[31] Since then, it has seen prolific growth, not only in other Australian States and Territories and in other common law jurisdictions but also internationally, by its adoption in the FIDIC suite of contracts.
  3. Within a relatively short space of time, adjudication has in many jurisdictions now overtaken litigation and arbitration as the principal means by which construction disputes are resolved.[32] Whilst the availability of adjudication is to some degree mandated by statute, its use is not. The widespread adoption of adjudication shows that the availability of faster and cheaper methods of dispute resolution, although initially novel, can take hold in a transformative way.
  4. Adjudication is of course a “pay now, argue later”[33] system, and furthermore in Australia is restricted in scope, such that it is only available in construction disputes and even in that context is only available for certain payment claims, and as such is unavailable for damages claims, and also unavailable for extra-contractual claims such as quantum meruit claims or claims under the Australian Consumer Law.
  5. Just as adjudication achieved its considerable impact today from small seeds, so perhaps with pendulum arbitration? At the junior end of the bar, those attending SABAR Bar Readers’ Course are now taught something about pendulum arbitration.[34] It might be wise for more senior members of the bar not to be left behind.
  6. It is difficult to see any other method of final and certain dispute resolution that can compete with pendulum arbitration in terms of speed and cost efficiency, and so it is perfectly possible that it will establish itself as a mainstream form of dispute resolution.

Robert Fenwick Elliott

The Phenelry

Myponga Beach

29 June 2023

 

Appendix – Comments from Lawyers with Experience of Pendulum Arbitration in South Australia

 

Philip McNamara KC, Murray Chambers:

“Pendulum arbitration deserves to be deployed more frequently in South Australia and in other jurisdictions within the Commonwealth. If the contractual arrangements in which it is to occur are appropriately formulated and documented, it can provide an inexpensive and expeditious form of adjudication: summary judgment at its best. Practitioners should always address it as a possible form of dispute resolution after a failed mediation if, at the mediation, the parties have made some progress towards a resolution and particularly if, as a result of the mediation, the gap between the parties is less than the likely aggregate costs which the parties will incur prior to exhaustion of final rights of appeal.”

 

Barry Jenner, Barrister, Black-Letter Chambers:

“I was involved in one of the first pendulum arbitrations in SA.  It is an  interesting and effective alternative to traditional arbitrations.”

 

Michael Battye, formerly partner at Pinsent Masons:

“My experience of a pendulum arbitration was very positive. It was clear that the process did indeed encourage the parties to avoid imperilling their prospects by advancing unreasonable propositions and an unreasonable draft award. This ensured that the relatively short time set aside for the hearing was sufficient for each party to fairly present its case and the arbitrator was not distracted by the type of peripheral and spurious issues that typically infect most disputes. The result was a hearing that focussed on the issues of fact and law that actually mattered and about which there was genuine dispute.”

 

 

 

 

 

 

 

 

 

 

 

[1] Pendulum arbitrator and mediator; member of South Australian Bar Association. Founding partner of Fenwick Elliott LLP (London), and formerly partner of Fenwick Elliott Grace (Adelaide) and later International Member of Keating Chambers.  Publications include Building Contract Litigation (1st to 4th Edition, Longman 1993), The architect as arbitrator (1987 revision, RIBA Publications), Building Contract Disputes: Practice and Precedents (Sweet & Maxwell, looseleaf), Construction Industry Law Letter (Informa, Editor 1994 – 1999),  The Worker’s Liens Casebook (FEG Services, 2010), Building and Construction Industry Security of Payment Act 2009 (SA) Annotated Edition (1st and 2nd Editions, Master Builders South Australia 2012,  Extra-Contractual Recoveries for Construction & Engineering Work (London Publishing Partnership, 2022).

Website: Feconslaw.com.

[2] The expression “final offer arbitration” is used particularly where the dispute resolution procerdure includes a negotiation phase, in which the parties are required to exchange a series of offers of settlement.

[3] In an alternative, known as “night-time baseball arbitration”, the arbitrator prepares his own draft award before seeing the drafts of the parties, and then adopts the party draft which is closer to his own draft.

[4] In particular, reasons are sometimes required in the United States, because in some jurisdictions a bare award is not enforceable; Putting Final Offer/Baseball Arbitration to Use, Gleason and Sussman, Alternatives to the High Cost of Litigation Volume 37 No 2 February 2019. There is no such consideration here; Section 31(3) of the Commercial Arbitration Act 2011 expressly envisages that the parties may agree that no reasons are to be given.

[5] [2002] NSWSC 742.

[6] The relevant passage is as follows:

33           The plaintiff advanced a number of reasons why it ought to be permitted to abandon the arbitration procedure in this case in favour of the courts. The plaintiff submitted that the nature of the dispute resolution procedure set out in the agreement was unsatisfactory. Clause 24.3(f) provides that each of the parties to the dispute must “make a written submission as to how the dispute should be resolved” to the arbitrator.  Clause 24.3 (h) and (i) state that the arbitrator must “make a determination in relation to the dispute and in doing so, must adopt the submission made by the party (to the dispute) that most closely accords with the arbitrator’s opinion in the matter.” The submission that is adopted by the arbitrator is deemed to be the decision of the arbitrator: clause 24.3(i).

34           This kind of clause is sometimes referred to as a “last best offer” or “baseball” clause, so-named because of its use in the United States of America in resolving professional baseball players’ salary disputes.  In that context, each party submits a proposed monetary amount to the arbitrator. At the conclusion of the hearing, the arbitrator chooses one award without modification. A variation, referred to as “night baseball” arbitration, requires the arbitrator to make a decision without the benefit of the parties’ proposals and then to make the award to the party whose proposal is closest to that of the arbitrator.  In either form, the arbitrator does not have the authority to compromise between the parties’ positions, which provides an incentive to each party to make its final offer more reasonable than the other’s. The object is to move the parties towards the position of the other, to the extent where it may be possible to bridge the remaining gap by negotiation.

35           The plaintiff now seeks to bypass the baseball arbitration in favour of declaratory relief by a court, in an effort to avoid what it suggests may be an arbitrary result.  The plaintiff submitted that the agreement has a long way to run, and that the continued use of arbitration as a means of dispute resolution is unsatisfactory in the long term. The agreement is dated 11 December 1997 and governs the relationship for 99 years.

36           Both the parties are commercially experienced and were capable of protecting their own interests in the negotiation of the agreement. I see no reason why the plaintiff should not be held to the form of dispute resolution which it agreed to when negotiating a long term agreement only a few years ago.

…

40           In my view there is no sufficient reason why the matter should not be referred to arbitration.

 

[7] [2004] UKEAT 0455_03_2001 (20 January 2004). Reported at http://www.bailii.org/cgi-bin/format.cgi?doc=/uk/cases/UKEAT/2004/0455_03_2001.html

[8] At [30].

[9] In Construction Disputes and ‘Baseball’ Arbitration (2002) Charles T. Jeremiah notes:

While arbitration awards rarely are subject to court review (absent limited circumstances of impropriety), baseball arbitration provisions have been acknowledged and enforced by various courts over the years. See, e.g., Martin Marietta Materials, Inc. v. Bank of Okla., 2007 WL 3171533 (W.D. Ky. Oct. 25, 2007).

 

[10] For a history of such use, see eg A Game Theoretic Model for Determining When Baseball Arbitration Creates the Proper Incentives for Litigants (2011) Habbu and Buonaguro, both of Fordham University School of Law.

[11] For example, a major use of pendulum arbitration began in 1979 in Chile with the

promulgation of D.L. 2.758, which was enacted to establish uniform procedures for

collective negotiating; ibid.

[12] Use and Misuse of Pendulum Arbitration in Expert Redetermination of Tract Participation Paul F. Worthington https://doi.org/10.2118/172502-PA

[13] Final Offer/Baseball Arbitration: The History, The Practice, and Future Design Erin Gleason And Edna Sussman Alternatives to the High Cost of Litigation Vol 37 No 1 January 2019:

Colloquially, we know well of FOA’s prominence in collective bargaining disputes. But the application of this process is much more farreaching. International negotiations over trade and political issues, mergers and acquisitions disputes, real estate, tax, insurance, and other commercial matters are routinely submitted

for FOA.

A substantially similar article appears as Everyone Can Be A Winner In Baseball Arbitration: History And Practical Guidance NYSBA New York Dispute Resolution Lawyer Spring 2019 Volume 12 Number 1.

[14] See Resolving Construction Disputes through Baseball Arbitration Lochlin B. Samples American Bar Association paper at https://www.americanbar.org/groups/construction_industry/publications/under_construction/2019/spring/resolving-dispute-baseball/.

[15] The author has experience of one case.

[16] R. W. Ramage Now known as Kelly’s Legal Precedents. The 20th edition with its Supplements is published by LexisNexis.

[17] Chapter XIX of The Travels of Sir John Mandeville (https://www.gutenberg.org/files/782/782-h/782-h.htm) includes this:

In [Marabon] lieth the body of Saint Thomas the apostle in flesh and bone, in a fair tomb in the city of Calamye; for there he was martyred and buried.  And men of Assyria bare his body into Mesopotamia into the city of Edessa, and after, he was brought thither again.  And the arm and the hand that he put in our Lord’s side, when he appeared to him after his resurrection and said to him, Noli esse incredulus, sed fidelis, is yet lying in a vessel without the tomb.  And by that hand they make all their judgments in the country, whoso hath right or wrong.  For when there is any dissension between two parties, and every of them maintaineth his cause, and saith that his cause is rightful, and that other saith the contrary, then both parties write their causes in two bills and put them in the hand of Saint Thomas.  And anon he casteth away the bill of the wrong cause and holdeth still the bill with the right cause.  And therefore men come from far countries to have judgment of doubtable causes.  And other judgment use they none there.

[18] A Game Theoretic Model for Determining When Baseball Arbitration Creates the Proper Incentives for Litigants, which references Meth, supra note 17, at 387-89; Jason B. Shorter, Final-Offer Arbitration for Health Care Billing Disputes: Analyzing One State’s Proposed Dispute Resolution Process, 9 Appalachian J. L. 191, 201.

[19] Meth, supra note 17, at 414.

[20] Ibid.

[21] (1999) 10 Am. Rev. Int’l Arb. 383, Elissa M Meth.

[22] Commercial Arbitration Act 2011 Section 7(3).

[23] For the purposes of the United States, the International Centre for Dispute Resolution has published its Final Offer Supplementary Arbitration Procedures at https://www.icdr.org. Those rules contain provision for the exchange of serial offers between the parties and, somewhat anomalously, require the arbitrator give reasons. Those rules are not well adapted to the Australian legal context, and in particular the Commercial Arbitration Acts.

[24] See Samples supra.

[25] 22nd Edition, paragraph 6-028 on page 239.

[26] In any event, the draft is anomalous in requiring draft awards at the submission stage. It is far better for the draft award to come at the end of the process, after all submissions, so that the parties may reflect on all that they have heard, and hopefully have a better feel for how the wind is blowing.

[27] The Act is defined as the SA Act. Clearly, in other States care should be taken of the slight variations in their largely similar Acts.

[28] Section 8(1) requires an application for a stay to be made before the applicant’s first statement on the substance of the dispute, and section 8(2) is concerned with legal proceedings brought in matters which are (already?) the subject of an arbitration agreement.

[29] These days, “adjudication” is usually understood in its modern sense, i.e. determination of claims outside the judicial system on a “pay now, argue later” basis pursuant to a contractual agreement or statutory right.

[30] By the Housing Grants Construction and Regeneration Act 1995 (E&W).

[31] First in New South Wales, by the Building and Construction Industry Security of Payment Act 1999 (NSW)

[32] Within just a couple of decades there were in the UK about three adjudications for every piece of litigation in the construction industry. The Adjudication Reporting Centre’s Report No.12 of October 2012 (http://www.gcu.ac.uk/ebe/ businessservices/adjudicationreports/ [Accessed September 2017]) suggests that there were then about 1,200 adjudications a year in the UK, which compares with a TCC total of about 457 cases a year, including non-construction business and actions for the enforcement of adjudicator’s decisions. See also the paper entitled The Adjudication Reporting Centre—Twelve years in Retrospect prepared by Dr J.M. Trushall and published in June 2017. The paper collates the data gathered over the full twelve year life of the ARC to date and can be found at http://www.gcu.ac.uk/ebe/media/gcalwebv2/ebe/Twelve%20Years%20in%20Retrospect.pdf [Accessed 4 October 2017].

[33] That description was coined by the author in discussion with Lord Howie in the House of Lords Tea Room in 1995.  It means that, whilst an adjudication determination requiring the payment of money may be enforced, it remains open to the parties if they wish to litigate or arbitrate the dispute afresh, in which case any payment made pursuant to an adjudication determination is treated merely as a payment on account.  In practice, it is relatively rare, but by no means unheard-of, for the parties to litigate or arbitrate following an adjudication determination.

[34] Barry Jenner, who teaches that module, deals with both “night baseball arbitration” and a “day baseball arbitration”.

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