I recorded a TV programme for BenchTV on pendulum arbitration the other day, being interviewed by Christopher Chin. BenchTV have not yet put it out, but I think that will not be too far in the future. My paper for the South Australian Bar Association is here, but this interview should provide a helpful and readily digestible first look into the topic for a wider audience.
These black backgrounds make one look a bit scary, but hopefully that will not detract too much from what is, I think, a significant weapon in the arsenal of dispute resolution.
What about the lecture I am doing for the Society of Construction Law in London in December on ‘Claims Outside the Contract’ alongside Christopher Seppälä from White & Case’s Paris office? In short, I will be talking about extra-contractual recoveries in common law (the topic of my most recent book), and Christopher will look at them from a civil law perspective. Should I turn up in person (it is a long flight for just one event)? Or do it by video from Myponga Beach? If I do it in person, my background will not be black. Or even blurred. But the National Liberal Club. Which has majestically hosted the lectures to the Society of Construction Law for decades. And anyway, whilst I have no present plans for a second edition, I would welcome the opportunity to talk to Christopher about this stuff.
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
- 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.
- There are good reasons why pendulum arbitrations could and should be more widely used.
What Is Pendulum Arbitration?
- Pendulum arbitration (also known as baseball arbitration, or last best offer arbitration, or final offer arbitration (FOA), 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. 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.
- 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.
I will be contributing to the DRBF Connections Conference 2020 this week, speaking with John Papworth on the topic of Dispute Avoidance: Leading the horse to water when you don’t have the reins.
This is a virtual event. The DBRF says:
DRBF Connections Conference 2020 is the only conference dedicated entirely to the Dispute Board process. The event is an online gathering place for DB users, practitioners, and enthusiasts to share best practices, learn from industry leaders, sharpen their skills, and connect with colleagues around the world. Resolve to make a difference in effective dispute avoidance and resolution on projects.
The event website provides the details, including the star-studded list of presenters. It starts at 1400 UTC (Greenwich Mean Time in the old money) on 28th October; my session is at 14:15 UTC on 29th October. The price depends on who you are.
Which is the very small hours of Friday morning for me at Myponga Beach! Happily, whilst the sessions are presented in real time, they have all been pre-recorded. So I think what I have to do is to Continue reading
By far the majority of my work, these days, is either interstate or international. In even a dispute arising under the biggest South Australian project with which I am currently dealing (no names, no pack drill, but it is a very large project) is being dealt with in New South Wales (I am pretty much the only lawyer based in South Australia involved in the dispute).
Also, the majority of my work (not all of it, of course) deals with the adjudication of disputes under what is known, in Australia, as the security of payment legislation. I do not think I have dealt with any security of payment issues in the ACT. But I have been instructed, and have acted, in security of payment disputes in every other state and territory. And of course New Zealand.
It is utterly bizarre that there is a different statutory regime in every State and Territory. I have particular sympathy for the specialist Continue reading
Professor Philip E Tetlock
As lawyers, a lot of what we do is make predictions. At its most basic level, every bit of legal advice as to what the legal position is in any case is essentially a prediction: what would the courts make of it? In practice, the prediction is more subtle. What is the likely outcome of a legal engagement, bearing in mind that the vast majority of cases settle?
A good question is “How do we make these predictions?” And more importantly, “What can we do to make such predictions more accurate?”
These questions have hit a bit of additional topicality following the recent row in the UK about Andrew Sabisky. He is a special adviser, only recently appointed by Downing Street, who is what is known as a “superforecaster”. There is more science to this expression that you might think, not least because of the work of Philip Tetlock, who is a professor at the University of Pennsylvania, in the USA. He has done a good deal of work over the years on the subject of forecasting, or predictions, and has organised, through the Good Judgment Project, a series of forecasting tournaments over the last three decades. It turns out that the majority of people, including people ordinarily regarded as experts, are pretty rubbish at forecasts, barely better than random. In the longer the range of forecasts, the poorer their accuracy. But there are a few people – the so-called superforecasters – who are really rather good at it. It is not just luck. Time and again, these superforecasters (typically the best 2% of forecasters) prove themselves to be much better than run-of-the-mill experts are predicting what is going to happen. And Professor Tetlock and his team have done a good deal of work in identifying what makes these superforecasters better than others.
The answer turns out to be quite complicated; the superforecasters have a range of talents and techniques. One is the use of Continue reading
Keating Chambers has again won the Legal 500 Construction and Energy Set of the Year Award. My colleagues in Chambers do indeed represent a formidable cadre of construction law expertise.
That is good news, of course. Also good news is that I have been obtaining some good results for clients here in Australia, including a couple this week. But neither in litigation. One was a result obtained by adjudication, and another by means of mediation. It has been remarked many times that litigation is an extraordinarily Continue reading
I am delighted to be able to say that I was not, this year, interrupted over the Christmas holiday by a security of payment claim served on Christmas eve. And so, happily, I was able to enjoy a couple of weeks off.
But before and since then I have been “heads down” on a number of fronts, which means that I have not reported as fully as I might have done on some recent developments.
One of them was the issue of the report late last year in Western Australia of John Fiocco Security of Payment Reform in the WA Building and Construction Industry. This made a number of detailed recommendations about the way that the security of payment issue should be dealt with in Western Australia. Such State-By-State consideration may well turn out to be pretty much irrelevant in the event that the Federal Government enacts some legislation which applies throughout the country, and pretty much everyone agrees that that would be sensible. The Federal Government is still considering the Murray Report as to such federal legislation.
Diligent readers of these pages might recall that the Murray report includes a suggested treatment of Queen of Hearts clauses, and in particular adopts a suggestion of mine as to how such clauses might be prohibited. The Fiocco Report takes the same line, albeit with a small suggested tweak as to how the prohibition should be worded.
The relevant section Continue reading
On 31st July, I will be speaking at a seminar in Johannesburg for AFSA Construction and Society of Construction Law Africa.
The title is “International developments and thoughts on the future for South Africa”. My contribution will be to run through what I have seen as the main features of all available methods for the resolution of construction disputes – all the way from the “gin and tonic” approach whereby disputes are resolved by senior executives over drinks in a hotel bar right through to the “full English breakfast” whereby there is a trial with unlimited time for the parties to prove every one of their contentions in accordance with the rules of evidence.
It will a pleasure to be joined by my Keating Chambers colleague Johan Beyers, who is based in South Africa, who will then relate that international experience to African Continue reading
I have now had the opportunity of a further look at the recently released Murray Review, which I briefly mentioned the other day in my post Queen of Hearts – A Good Idea Endorsed.
The Review is a lengthy document, and overall it is a substantial and admirable piece of work. Some of it reaches conclusions that I would not have reached, but I need to be careful here, since it includes quite a bit that I wrote, or which has been redrafted from suggestions that I have made, in particular:
- The phrase “Pay now, argue later”, now widely used around the world to describe the fundamental nature of an excessive adjudication determination (page 82);
- The Queen of Hearts clause, quoted at page 289 and recommended at Recommendation 84;
- Several of the extracts from the 2014 SoCLA Report;
- The “Red card, yellow card” formula to be found in the South Australian Code of Conduct at pages 244 and 245 (Recommendations 67 and 68), which I had originally suggested to Alan Moss for the purpose of the Moss Review;
- Several of the extracts from SoCLA’s submission to the Murray review, including the recommendation of that system (page 63) and the summation of the June 2017 SocLA event (page 287).
John Murray is an accredited adjudicator in several East Coast jurisdictions, and no doubt one of the very best of them (he is clever, fair and diligent, as well as being good company). People tend to do what they have done in the past, and to recommend what they know; perhaps it is no surprise that the East Coast model is his preferred starting point for a national system. An unintended irony lies therein. John Murray includes a revealing graphic about international payment practices on page 14, as follows:
Australia ranks very porly here. The East Coast model has held most of the field in Australia since its introduction in 1999. It plainly has not worked. And yet John Murray recommends its endorsement, albeit with some useful improvements. Why persist with something which does not work, especially where there are alternatives which do work? I tried to persuade him to look more closely, not just at security of payment in the region (Australasia and South-East Asia) but the worldwide and particularly UK experiences, but without success – the Review barely mentions the UK or Irish legislative scheme.
Personally, I believe the art of government is best practised with a light hand. The reason I am sceptical of totalitarian solutions – where government imposes rigid Continue reading
The Australian Government has at last released the Report of John Murray Review of Security of Payment Laws – Building Trust and Confidence.
It will take a while to digest this Report – at 407 pages there are inevitably recommendations which are welcome and others which will be less welcome.
An aspect of the Report that might come as a surprise to some is its treatment of Queen of Hearts clauses. I posted about this issue last year in a post called Queen of Hearts in the Dock, and discussed it with John Murray. In short, I suggested that it would be a good idea to introduce a statutory benchmark, to more reliably separate reasonable time-barring notice clauses which should be allowed from unreasonable clauses which should not.
John Murray has agreed with me. His commentary in the Report is thus:
Unreasonably onerous time-barring provisions
When conducting a detailed interview with one of the leading lawyers specialising in this field, Mr Fenwick-Elliott, the issue of unreasonably onerous time-barring provision was discussed. Mr Fenwick-Elliott referred me to his website where, under the article Queen of Hearts in the Dock, he sets out the following synopsis of the range of ‘arsenals’ or principles that the courts have developed to relieve a contractor from the harsh consequences of failing to give a required notice: Continue reading