"Arbitration Procedures: Achieving Efficiency Without Sacrificing Due Process"
Among the procedures available to a tribunal having the appropriate expertise are two developed by the
Institution cf Civil Engineers, in London. The first is known as the Short Procedure and comprises an
exchange of dossiers followed by a brief informal hearing at the arbitrator's discretion. It is suitable for small
sums, but then disputes as to small sums are extremely important in the scheme of things for most
commercial concerns, because of the costs of litigation and even some arbitration. The second is the Special
Procedure for Experts, in which an exchange of reports by experts is followed by a meeting between the
tribunal and experts appointed by the parties (they may be "independent" experts or the parties' own
personnel) at which the issues are discussed, in a round table forum chaired by the a sole arbitrator or, if
appropriate, by the Chairman of the tribunal. It is not a negotiation, it is a fact-finding session, without the
procedural complications of the trial process. In the strict form of the procedure, as recommended by the
ICE, lawyers are excluded, but the technique may well be used for fact finding in a more complex reference.
In such a case, the lawyers would be present and might take part, the important relevance of their
involvement being their understanding of what was done, so as to take it into account in later argument.
To take the use of the technically aware tribunal to the extreme, it is perfectly possible for the tribunal itself
to be present at a test, or at the dissection and examination of a piece of faulty plant, perhaps with technical
and legal representatives of the parties and even to observe directly measurements taken and results obtained.
If a picture is worth a thousand words, the value of such a process is almost beyond estimation.
I can recall a reference some years ago, where the performance of a power station was in issue. There were
disputes about many issues, not least the effects of weather, humidity, temperature and barometric pressure.
Proposals were made by both parties for tests on the power station. The sole arbitrator took the requests of
both parties and embodied them in an Order in the reference, setting out the test requirements in detail. The
arbitrator attended the tests and every measurement was agreed between the experts for the two parties in the
presence of the arbitrator and noted as evidence in the record. A week of evidence from witnesses was
crystallised into a day -- a long day but a day. That was a multi-million dollar dispute which settled on the
finding of facts, although the initial statements of the parties raised many points of law.
Another reference, a smaller matter of some thousands of pounds only, concerned the rebuilding of a large
electrical machine driving plant in a paper mill. When the rebuilt machine was re-installed, it burned out,
causing extensive damage. The re-builder and the owner could not agree as to the cause or the liability. They
did, however, agree to appoint an arbitrator, who was contacted by telephone and advised a formal written
submission to arbitration which was faxed that same day. He saw the machine the following forenoon, heard
representatives of both parties in the afternoon, gave an oral award as to liability before leaving, enabling the
machine to be taken away for repair, and prepared and published the written award, including quantum, on
the following day, a weekend day, without deviating from the mandatory rules of the jurisdiction.
Those examples are of matters where the technology dominated the reference. Of course they are
exceptional, but they do indicate ways in which technical knowledge may turn out to be useful. There are
many such cases in, for example, the maritime field or in major technology transfer contracts.
In addition to the self-evident benefits of having technical knowledge in the tribunal itself, there is a second
factor, a cultural factor, which may play a part in creating fairness, substantive natural justice, in the
reference. For an arbitral tribunal to work well, the arbitrators should develop a close personal relationship. It
is an important task of the Chairman of a tribunal to encourage the integration of the arbitrators into a team.
Not only necessary for efficient working but also, if one or other party appointed arbitrator is not to feel
isolated, a circumstance which might militate against the fully independent role required in modern
international arbitration. It is at least arguable that, when a good working relationship exists, between
arbitrators whose history and formation are as different, culturally, as are those of the scientist and lawyer,
the result is a rounded tribunal which is able to look at each aspect of the reference from different, but
relevant, points of view. A rounded and complete discussion and a rounded and fair result.
At a recent luncheon of the International Arbitration Club24 in London, Sir Michael Kerr observed that there
were times when arbitrators, and particularly international arbitrators, were able to do justice between the
parties in circumstances where a Court, applying the law strictly and having regard to the influence one case
may have on others, might be more constrained. It is at least arguable that the influence of one or more
An informal luncheon club of lawyers and others engaged in international arbitration.