Pendulum Arbitration on TV

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.

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Pendulum Arbitration: What? Why? How?

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]



  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]

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The Dispute Review Board Foundation has sent me a certificate of appreciation, for being a member of the DRBF for more than 10 years, which is thoughtful of them. Actually, I think it is quite a bit more than 10 years!

And I see, with great pleasure, that my old friend, co-author and partner in the London firm that I founded (Fenwick Elliott LLP), Jeremy Glover, is on course to become the new President-elect of the DRBF. An excellent Continue reading

Beware the Bot in The Law

A friend of mine, who now lives in Spain and who has a wicked sense of humour, tells me that he asked Chat GPT this question:

“Has Robert Fenwick Elliott written any good books? “

The answer that he got is that I am a well known author and expert in construction law and that I am highly regarded in this field, and that my books are widely used and respected.

Well, nothing controversial there, you might think. But the wind rather goes out of these sails when one looks at the detail. What Chat GPT actually said is Continue reading

Tribal Warfare in Litigation and Arbitration

There was an interesting and useful breakfast meeting of the DRBF this morning chaired by the indefatigable Ron Finlay in Sydney.  It was mostly about dispute avoidance techniques in DABs, but at the end we had a brief discussion about tribalism: the process in which litigation teams in major litigation or arbitration tend to form societal units, with their own loyalties, methods and objectives.

I have long thought that tribalism in major litigation or arbitration is a hugely powerful effect, and encouraged by Kiri Parr from Brisbane, am here offering some observations about it.

One impact is that it renders the “independent” concept of expert witnesses almost entirely meaningless. This is partly because he who pays the piper calls the tune, but also because expert witnesses who get heavily involved in a major piece of litigation or arbitration typically become part of the tribe, consisting of counsel, solicitors, in-house legal and commercial people on any one side. This tribalism is not dissimilar, it seems to me, from what happens in traditional warfare, and which is maximised by organising infantry into groups (companies) of about 20 soldiers. It is in groups of that size that tribal loyalty seems to be that its strongest. And that size is, roughly, the size of a litigation team in a major dispute (including counsel, solicitors, experts, in-house legal and the commercial people). When an expert witness becomes sufficiently embedded into litigation team, the opinions of that witness typically become a secondary tier of advocacy.  The expert might not, like a soldier, be prepared to risk his life for other members of his company, but the psychological pressure to support the team as best as possible is huge.

Another less widely recognised impact is that the tribe often becomes resistant to settlement of the dispute, because that settlement means the dissolution of the tribe. For sure, “best for tribe” usually outweighs “best for project”, and often outweighs “best for own party”. In part, of course, this is because Continue reading

Myponga Beach on the Map

It is good to see Myponga Beach (where I am based) feature in the latest issue of Australian Construction Law Newsletter, in a piece on pendulum arbitration.

Myponga Beach has punched above its weight in the construction law world for a while. A week or so ago, I welcomed Julian Bailey (now based in London again, but an Adelaidean by birth) and have chewed the cud with a number of other construction lawyers here over the years. Continue reading

A Farewell to Arms

I am pleased to be able to report that, after umpteen tests, my health scare is now over. I am told that I have just one more exploratory medical procedure to go, but believe that the recommendation for that is merely precautionary. Meanwhile, during the three months that I have been recuperating, I have recovered much of my previous rude health.

During this period of recuperation, I have handed over the whole of my caseload to other counsel, and have now decided that, rather than resume my practice as a barrister, and after some 44 years since I first started practising as a specialist construction lawyer, this is the appropriate time for a change.

Henceforth, I will practice as a pendulum arbitrator and mediator.

Pendulum Arbitration

I am one of the few construction lawyers in Australia with experience of pendulum arbitration, and am, I believe, the only arbitrator specialising in this form of dispute resolution. It is a form of dispute resolution which I have long regarded as much underused in the construction sphere offering, as it does, massive advantages in terms of reduced cost, increased speed and the opportunity for disputants to get on with their business without distraction. A fuller explanation of how pendulum arbitration works is here. And some Q&A.

A feature of pendulum arbitration is that it works best if the disputants have a high level of confidence that the pendulum arbitrator has the necessary experience and expertise in construction law to be able quickly and reliably to make an assessment of the strengths of their cases. I believe that I have that necessary experience and expertise.


Mediation is, of course much better known. I have been occasionally mediating construction disputes since the 1990s although not, hitherto, as a mainstay of my professional work[1]. So far, I have never failed to resolve a dispute in which I have been appointed as mediator. I do not expect this track record to survive indefinitely, but I hope it will give confidence that I am a safe pair of hands in this capacity.

It will not be necessary for me to maintain my practising certificate in these new roles, and I do not propose to do so once my current certification runs its course.  This means that I part company with Keating Chambers, of whom it has been my great pleasure to be an International Member for some years, not only because of my friends there, who I have known since my days as a young lawyer in London, but also because of its ever increasing status as the leading set of construction law chambers in the common law world.

Other methods of dispute resolution

I remain a registered adjudicator in the Northern Territory, and a member of the Dispute Review Board  Foundation, and am available for appointments in those Continue reading

An Influential Text

I am gratified to see that Construction Law Journal has published a review of my book by Dr Hamish Lal, Adjunct Professor of Law at Sutherland School of Law. There are several words and phrases which would warm the cockles of any author’s heart:

  • eminent in the field of construction law
  • the full spectrum of potential arguments
  • well researched
  • powerful
  • There is no obvious gap or need for improvement in this book
  • comprehensive
  • excellent point of reference to counsel, arbitrators, judges and construction industry professionals
  • forces readers to think creatively
  • an important compelling authority
  • an influential text

The review in full is on my reviews page.

I hope it is not unduly selfish of me to Continue reading